In response to that blog post, Hugh Richards (No 5 Chambers) rightly, and probably rhetorically, asked whether local authorities need statutory authority to hold virtual meetings in any event. Well, I took it as a rhetorical question and didn’t reply at the time after I disappeared down a legal rabbit hole trying to arrive at an answer.
I’m pleased to see that the Lawyers in Local Government and Association of Democratic Services Officers are taking urgent steps to try to avoid what would be an unfortunate hiatus – they have obtained an opinion from James Strachan QC, a summary of which is reported as follows:
“(1) There are forceful arguments that can be made that the pre-existing legislation governing local authority meetings under Schedule 12 of the Local Government 1972 Act, and meetings of an executive or a committee of an executive under the Local Authorities (Executive Arrangements (Meetings and Access to Information) (England) Regulations 2012, enable local authorities to hold meetings remotely.
(2) For the present situation to continue after 7 May 2021 with the use of remote meetings, the optimum position would be for further legislation to be passed to make the position clear.
(3) In the absence of such legislation, one resolution would be to obtain a declaration from the courts to obtain clarity as to the legal position under the pre-existing legislation.
(4) The Secretary of State does have (a) power under section 16 of the 1999 Act to make an Order to modify or disapply those restrictions for best value authorities and (b) power under the 2000 Act to make regulations governing executive decision-making bodies to hold remote meetings.”
The LLG and ADSO intend to seek a declaration from the High Court. Without such a declaration (or legislation) there is inevitably going to be a question-mark over the lawfulness of any local authority resolution passed on or after 7 May by way of a virtual meeting. This is a risk that most applicants would wish to avoid in relation to any contentious planning application.
6 May is of course an important date because local government elections will definitely be proceeding (as far as “definitely” is a word that any of us can still use). The Local Government Association has published much information and guidance relating to the May 2021 local government elections.
Ahead of those elections will be the usual period (previously known as the “purdah period”, now simply and dully, “pre-election period”) when there is heightened sensitivity over decision making. The period will start at the latest on 27 March (22 March for the London elections). Again, the Local Government Association has published detailed guidance.
The period is shorter when it comes to actions and decisions taken being by central Government. As set out in the Commons Library research briefing Pre-election period of sensitivity (23 November 2020), the relevant civil service guidance is as follows:
“The period of sensitivity for UK Government civil servants preceding scheduled local and mayoral elections each May is not fixed to any particular date, but the general convention is that particular care should be taken in the three weeks preceding the elections.”
Applying that ESPN Premier League analysis, it will be fascinating to see the influence of the current restrictions upon election outcomes. Fortunately I don’t have a team. Simon’s iPad will not be making its first appearance at my local parish council meeting this Spring.
So friends, here we are, still in the most tedious sequel in the whole franchise: Lockdown 3. Of course, the vaccines will be the eventual way out 💪 this year but can anyone predict how many more months will go by before, in England, we are free from some level of restrictions on our ability to go about our lives?
The planning system has kept going through all of the restrictions of the last ten months, thanks to the determination of local authority staff and councillors, thanks to technology and thanks to the Government in providing for a number of temporary procedural relaxations last Spring. The relaxations were summarised in my 16 May 2020 blog post Stay Alert! A Quick Guide To All Those MHCLG Announcements.
However, there is no reason to be complacent:
⁃ Some temporary measures are due to expire and there is no certainty that they will be extended.
⁃ Covid does not give carte blanche to local authorities to cut corners in their approach to decision making – I deal below with last week’s High Court ruling in relation to Transport for London’s Streetspace plan.
⁃ If initially temporary measures are to be made permanent (rather than just extended to see us through this current saga), that should surely be after careful review and reflection.
“In addition to publishing documents on a public website, responsible authorities (or the Secretary of State, as the case may be) will now be required to: make available a telephone number for the public to raise enquiries in relation to any documentation published; provide by mail hard copies of any documentation upon request, subject to a reasonable charge and provided it is reasonably practicable to do so given precautions and other measures relating to coronavirus; and provide copies of any documentation by email upon request. Guidance will set out that authorities may also offer electronic copies of documents available on USB flash drive to those with access to a computer but without access to the internet, and that they may wish to consider waiving any charge for hard copies of documents to members of the public who are unable to access the documentation electronically or find it difficult to do so.”
Making these changes permanent without consultation was strongly criticised by the House of Lords Secondary Legislation Scrutiny Committee in its 21 January 2021 report. This is the summary at the beginning of the report:
“These two instruments remove permanently publication and publicity requirements for certain planning matters that were suspended temporarily last year to assist authorities in taking forward relevant plans, programmes and projects during the pandemic. The Ministry of Housing, Communities and Local Government (MHCLG) says that it is not aware of any concerns about the changes and that the move to more digital processes has been broadly welcomed, though support for the changes seems to have come largely from those involved professionally in the planning process.
We regret that there was no formal public consultation, as the changes have the potential to reduce physical access to information and the ability to make representations for the general public and in particular for vulnerable or disadvantaged groups or those with poor or no internet connection, in relation to important infrastructure, housing or other projects that may impact on them. The House may wish to ask the Government to update Parliament on the impact of the changes. The possibility that requesting hard copies of potentially complex planning documents may incur an undefined ‘reasonable charge’ also gives cause for concern. Taken as a whole, these proposals seem likely to increase rather than narrow any gap between the planners and the people whose lives may be affected. We also regret that MHCLG has again used secondary legislation to make significant, permanent changes to planning legislation during the pandemic.”
In the body of the report:
“Asked why the instruments had not been extended, as other measures dealing with the impacts of the pandemic, MHCLG told us that, in addition to moving towards a digital planning system, making the changes permanent:
“avoided some uncertainty about whether it would be possible to make Regulations providing for a further extension of all of these measures in a timely way in due course. This is because the measures are made in part under the powers set out in section 2(2) of the European Communities Act 1972 and these powers were only available until the end of the EU Exit Implementation Period (11pm on 31 December 2020)”.
We are not convinced by MHCLG’s explanation. The instruments were laid and came into force before the expiry of relevant powers at the end of the Transition Period, suggesting that MHCLG could have chosen to legislate for a further extension, rather than making the changes permanent. The House may wish to press the Minister for further explanation of the Government’s approach.”
This could be a real problem and needs to be grappled with now. I would be very pleasantly surprised if normal life has resumed by 6 May to such an extent that everyone is available to attend planning committee and other meetings in the same way as before the pandemic. Let’s be clear, without virtual planning committee meetings, the planning system (at least on any democratic basis, as opposed to wholesale reliance on officers’ delegated powers) would have shut down for the last ten months.
Finally, on the subject of temporary powers and measures:
⁃ I am not aware of any proposal for any extension of the duration of certain planning permissions and consents beyond that provided for in the Business and Planning Act 2020.
Surely it’s going to take some time and evidence-gathering to work out what the benefits of each of these measures have been, what problems may have arisen and which processes and rights (if any) should now be permanently adopted. For instance, for my part, I see great advantages to the inclusivity that has come with virtual planning committee meetings and indeed appeal inquiries and hearings and I hope that we do not return entirely to old ways. However, we should not be bumped into permanent change without that process of reflection.
The judgment deserves a blog post of its own, but the dangers that arise where decisions are made under the justification of Covid but which have more widespread effects which may not have been properly considered are illustrated starkly by the Streetspace case, R (United Trade Action Group & others) v Transport for London (Lang J, 20 January 2021)
This was a challenge by London taxi drivers to the London Streetspace Plan, the related Interim Guidance to Boroughs and the A10 GLA Roads (Norton Folgate, Bishopsgate and Gracechurch Street, City of London (Temporary Banned Turns and Prohibition of Traffic and Stopping) Order 2020.
As summarised by Lang J:
“The Mayor issued the Plan on 6 May 2020, in response to the COVID 19 pandemic. The Guidance was published by TfL on 15 May 2020. Broadly, the aim of the Plan and the Guidance is to facilitate walking and cycling by providing more dedicated road space for pedestrians and cyclists, and “suppressing” motor vehicle traffic, other than buses.”
“The A10 Order is a traffic management order (“TMO”) made by TfL on 16 July 2020, under section 14(1) of the Road Traffic Regulation Act 1984 (the “RTRA 1984”). It is a temporary measure, due to expire by 15 January 2022 at the latest. It imposes extensive restrictions on motor vehicles, other than buses, along the A10 at Bishopsgate and Gracechurch Street in the City of London, from 7 am to 7 pm on weekdays. There are limited exemptions, but not for taxis.”
The judgment contains a detailed account of the effects of Covid lockdown measures on traffic in the City of London and the traffic measures introduced by the Mayor during the period. The contentious nature of decisions which balance priorities as between the use of streets by through traffic and by communities has been one of the political themes of the pandemic, particularly in London. This judgment is going to be carefully scrutinised by all sides in that particular debate. This is an interesting OnLondon piece about the ruling and its implications, High Court ruling means major rethink for Mayor’s ‘seriously flawed’ Streetspace scheme (OnLondon, 21 January 2021) but here are Lang J’s conclusions:
“278. Ground 1: in making and promulgating the Plan and Guidance, the Mayor and TfL failed to distinguish taxis from “general traffic”. In doing so, they failed to have regard to relevant considerations, namely:
a) the distinct status of taxis as a form of public transport, reflected both in law and policy;
b) the role played by taxis in facilitating accessible public transport for those with mobility impairments.
However, Ground 1 did not succeed in respect of the A10 Order.
279. Ground 2: In making the Plan and Guidance and the A10 Order, TfL and the Mayor failed to have proper regard to the public sector equality duty, pursuant to section 149 of the Equalities Act 2010.
280. Ground 3: The economic benefits which taxi drivers derive from their statutory licences, which entitle them to ply for hire throughout London, are a “possession” within the meaning of A1P1 ECHR [article 1 protocol 1 of the European Convention on Human Rights], and so A1P1 is engaged. However, because of the way in which this challenge was formulated, and insufficient evidence, the Claimants failed to establish an interference with their possessions by control of use.
281. Ground 4: The Plan and Guidance and the A10 Order breached the Claimants’ legitimate expectation to pass and repass on London’s roads, and to use lanes reserved for buses.
282. Ground 5: The treatment of taxis in the Plan and Guidance and the A10 Order was irrational.
283. In my judgment, quashing orders rather than declarations are appropriate because of the nature and extent of the unlawfulness which I have identified, which affects not only taxi drivers, but also their passengers. The Plan, the Guidance and the A10 Order all need to be re-considered by the Defendants and substantially amended in the light of my judgment. To reduce disruption, the Defendants can turn their minds to this task now, on a provisional basis, as there will be a stay and a delay whilst they pursue their appeal. If the appeal is unsuccessful, they can apply for further time (if required) to finalise the proposed revised Plan, Guidance and Order before the quashing orders take effect.”
So, watch this (street)space.
In the meantime, another date that is of course looming is 6 May 2021, local government elections. The Government is not presently intending to delay them again. That was particularly clear from MHCLG minister Luke Hall’s 19 January 2021 letter to Croydon Council (again for an explainer about this – campaigners had been pushing the council for a referendum into whether there should be a directly-elected Mayor for Croydon, which the council had been seeking to delay on Covid grounds – see the OnLondon 19 January 2021 piece Croydon: Government tells council it should hold governance referendum on 6 May (OnLondon, 19 January 2021).
Wouldn’t it be fantastic if things were indeed sufficiently normalised by 6 May 2021?! (But, in small font, what if they are not?).
The idea for this blog post started by way of a search we did this week for inspectors’ appeal decision letters that take into account the economic and other effects arising from the current pandemic.
There does not seem to have been any proper analysis on that at present (and this post doesn’t fill the gap!). Instead most people’s focus has been on the specific legislative measures that have been introduced by the Government and its narrow policy exhortations (for instance in relation to limited aspects of the CIL regime).
Before I turn to that appeals search, can I say two more things on the legislative changes.
⁃ introduction from 6 April 2021 of a requirement that dwellings created by way of the operation of permitted development rights must meet the nationally described space standard
⁃ Prohibition on the demolition of any building is used, or was last used, for the purpose of a concert hall, venue for live music performance or theatre. (“This permanent change is to protect these venues, preventing their unnecessary loss as a result of having to close due to the coronavirus pandemic.” As a trustee of the Theatres Trust I am particularly pleased to see this now in legislation, following the initial ministerial statement on 14 July 2020).
Secondly, I covered the Rights: Community: Action judicial review of the previous recent GPDO and Use Classes Order changes in my 5 September 2020 blog post Lights Camera Action: The Planning Changes – Parliamentary Scrutiny, That JR. That claim was rejected by Lewis LJ and Holgate J last week in R (Rights: Community: Action) v Secretary of State (Divisional Court, 17 November 2020). There are plenty of other summaries of that judgment and there is nothing particularly novel about it but I was interested in the references to the evidence submitted by MHCLG as to the Covid-19 factors that led to the legislation being introduced in the form and way that it was, and the weight that was given to these matters in the judgment:
“Mr Simon Gallagher is the Director of Planning for MHCLG. In paragraph 10 of his witness statement he states that during the period January to March 2020 the first patients in the UK tested positive for Covid-19 and the first transmissions in the UK were confirmed. He says that the pandemic “has generated an economic emergency and upheaval of a scale and intensity not previously known in peacetime.” He continues by stating that, as a consequence, the Government has had to intervene urgently in the economy as a whole in unprecedented ways in order to avert or minimise potentially very severe and long term impacts on the lives of citizens and the prospects for future economic growth. Forecasts for economic growth were reduced substantially. Indeed, one key forecast made in summer 2020 predicted a reduction in the economy for 2020 of 9.9% (paragraph 13). Through regular discussion with representatives of the housing and construction sectors, the MHCLG became aware of particular difficulties faced by the construction sector as a result of the pandemic. There was a record monthly decline of 40.2% of construction output in April 2020. Whilst the output of that sector had increased in May, June and July, it was still 11.6% lower in July 2020 compared with February 2020 (paragraph 14).
On 20 July 2020 a submission was put to the Minister for Housing asking him to approve the three statutory instruments. The submission records that it had been decided that in order to support economic renewal and regeneration and to respond to the economic crisis caused by the pandemic, additional PD rights for the redevelopment of vacant buildings for residential purposes and a broad Use Class of business, commercial and service uses would be introduced without consultation (paragraphs 2 to 3). The Minister’s attention was drawn to criticisms that the recently enacted PD right for allowing the addition of 2 storeys to blocks of flats lacked any requirement for the provision of affordable housing (paragraph 7). The submission referred to the same point when discussing the application of the PSED to the proposed statutory instruments (paragraph 10). The PSED assessments and impact assessments for each statutory instrument were provided to the Minister.
The Explanatory Memoranda for SI 2020 No. 755 and SI 2020 No. 756 stated that the new PD rights were being introduced to speed up the delivery of housing, reduce the need to develop on greenfield land and to support economic recovery from the pandemic by encouraging development. The Explanatory Memorandum for SI 2020 No. 757 stated that the UCO 1987 was being amended to better reflect the diversity of uses found on high streets and in town centres, to provide flexibility for businesses to adapt and diversify to meet changing demands and to help town centres recover from the economic impact of the pandemic.”
The judges had in part to consider whether the lack of a further consultation stage, which had been previously intended in relation to some of the measures, was justified:
“The explanatory memorandum for the draft SI 2020 No 755 and SI 2020 No. 757 again summarised briefly the degree of support for, and opposition to, the proposal, and the concerns that had been raised. The explanatory memorandum for the draft SI 2020 No 756 referred to the consultation responses and noted that there was to have been a further consultation but it had been decided to introduce the PD right without further consultation in order to support economic regeneration. It noted that the Government had considered the range of matters to be left to planning authorities for prior approval while maintaining a simplified planning system. In those circumstances it is not arguable that the defendant failed conscientiously to consider the consultation responses. The decision on whether to proceed, and if so what provisions to include in the SIs, in the light of the consultation responses and other relevant matters were questions for the defendant to determine.”
The judges, did not consider that the Government had acted unlawfully in not carrying out further consultation:
“First, the defendant has established that there were good reasons for departing from the promise in the present case and not having a second consultation on the proposals for PD rights for demolition of commercial or residential buildings and rebuilding for residential use. The coronavirus pandemic had led to severe economic difficulties including a reduction in the rate of construction and planning applications. The government decided to grant the PD rights in order to stimulate regeneration at a time of great economic difficulty arising out of the pandemic. That appears from the terms of the explanatory memorandum to SI 2020 No. 576.The matter is fully explained in the witness statement of Mr Gallagher who refers to the large-scale public health emergency created by the coronavirus pandemic which in turn generated an economic emergency and upheaval on a scale not previously known in peacetime. The Government had sought to intervene in the economy in unprecedented ways to minimise the very severe effects of the pandemic. In the light of that, the decision was taken in favour of urgent action rather than further consultation.
Secondly, the reasons are proportionate in the circumstances. On the one hand, the decision to depart from the promise deprived the public of the opportunity of making further representations on the proposed PD rights and deprived the Government of further, potentially helpful, input into the policy decision. On the other hand, the economic situation was grave. The grant of PD rights was intended to encourage developers to start the process of taking steps to carry out developments. That in turn would contribute to addressing the economic effects arising out of the pandemic. That was a proportionate course of action in the circumstances. It is correct that developments could not be begun until prior approval of certain matters had been obtained. But the aim was to stimulate the process of development in circumstances of economic urgency. It is correct that the PD rights would continue after the end of the current pandemic (unless amending legislation is enacted) but that does not render departure from the promise of further consultation disproportionate. It is correct that there was a proposal to create PD rights which involved further consultation. But circumstances had changed because of the pandemic. The reasons given for departing from the promise of further consultation were good and were proportionate.”
The economic situation is indeed “grave”!
So how are inspectors responding to it in their appeal decisions, and in the absence of any general guidance from Government which might for instance have advised decision makers to give additional weight to the interests of economic development and the provision of housing? JLL’s Asher Ross drew attention on LinkedIn last week to the Government’s publication on 18 November 2018 of the latest Planning Inspectorate Statistics. I haven’t delved into them yet but reproduce below a table that Asher posted, showing the reduced percentage of appeals that have been allowed over a period when I would have hoped to see exactly the opposite.
One trend that is apparent from the appeal decisions is in the context of enforcement appeals, where a longer period is frequently being given for compliance because of difficulties residents may have finding alternative accommodation due to the pandemic, although not always – in a recent decision in Ealing the inspector held that the nature of the “cramped and sub-standard living conditions“ was such as to outweigh that consideration (10 Torrington Gardens, 17 November 2020).
An appeal in relation to a proposed single dwelling in the countryside in Horsham District was dismissed in part because the inspector accepted the concerns of a nearby dog kennel business that the construction noise could affect the health of their dogs and indirectly affect the business economically if it had to close during this period, especially when considered in conjunction with the downturn in business they had generally suffered due to the coronavirus pandemic (The Mount, Ifield, Crawley, 27 July 2020).
An appeal in relation to five proposed flats in Cambridge was dismissed with the inspector noting that, although the appellant claimed that there was a need to promote economic growth as a result of the Covid -19 pandemic, this did not justify allowing harmful development (Mere Way, Cambridge, 1 October 2020).
An appeal to allow changes to proposed dwelling layouts in Eastbourne was allowed. Whilst the nationally described space standard was breached for a three bedroom home, the inspector placed weight on the need for a ”home office”, noting Covid-19 – a separate room was recognised as useful also for homework and hobbies, noting the “open plan” living room layout at present (land south of Langney shopping centre, 10 September 2020).
An appeal in relation to three proposed self build dwellings in Breckland was dismissed, with the inspector noting that there was little substantive evidence to demonstrate the longer term effects of Covid 19 on housing delivery rates or that that these developments would not be deliverable over the five year period , rather than just delayed (land to the north east of Fakenham Road, Beetley, 9 September 2020).
An appeal in relation to the proposed redevelopment as 27 residential apartments of the Flapper and Firkin music venue in Birmingham was dismissed. Whilst the venue had closed in January 2020 and therefore the minister’s July 2020 statement on preventing the loss of such venues was not directly relevant, the inspector concluded that the community harm arising from the loss of the venue outweighed the social and economic effects of the new homes (Flapper and Firkin, Kingston Row, Birmingham, 2 September 2020).
An appeal in relation to 216 proposed new homes in Wokingham district was rejected, with the inspector not accepting the appellant’s case that the assumed housing supply should be reduced by almost 500 dwellings due to the effects of the pandemic. He considered that the pandemic’s impact would be short-term and that five-year supply would recover (land east of Finchampstead Road, Wokingham, 25 August 2020).
An appeal in relation to a proposed staff car park in connection with a hotel in North Somerset was dismissed, the inspector considering that approval would not significantly contribute towards the economic recovery of the hotel business (Doubletree by Hilton Bristol South Cadbury House, 17 August 2020).
There are earlier appeal examples as well, but with equivalent themes and none that I could see were allowed with any weight given to Covid-19 considerations.
A proper analysis of the patterns emerging would be useful. For instance, how should the effects of the pandemic be taken into account in assessing whether there is five years’ supply of housing land? Is any Government advice required as to particular issues, such as live-work accommodation? Is any temporary advice required on enforcement issues, and on deadlines for compliance? Should Government for instance encourage a liberalised approach in relation to particular types of proposals, with shorter implementation deadlines for permissions approved in that way?
Simon Ricketts, 21 November 2020
Personal views, et cetera
Thank you to my Town colleague Lida Nguyen for the appeal searches, carried out via Compass Online.
Validation and determination of applications for planning permission
No changes have been made to the timescales for determining planning applications. Developers are however encouraged to agree extensions of the period for determination. Local authorities have been urged to give priority to validating urgent COVID-19 related applications for planning permission and associated consents.
Publicising applications for planning permission
Temporary regulations (expiring on 31 December 2020) were made and came into force on 14 May to supplement existing publicity arrangements for planning applications, listed building consent applications and environmental statements for EIA development. There is now flexibility to take other reasonable steps to publicise applications and environmental statements if the usual specific requirements cannot be discharged relating to site notices, neighbour notifications, newspaper publicity or availability of hard copy documents. Steps can include the use of social media and electronic communications and they must be “proportionate to the scale and nature of the development”. Guidance has also been issued on this topic.
MHCLG has made it clear that planning conditions should not be a barrier to allowing developers and site operators flexibility around construction site working hours to facilitate safe working. Where only short term or modest increases in working hours are required, LPAs are encouraged to use their discretion to not enforce against a breach of working hours conditions. Where longer term measures or other significant changes are required, applications to amend conditions should be made, which LPAs should prioritise and turn around in 10 days. Requests to work up to 9 pm Monday to Saturday should not be refused without very compelling reasons.
Community infrastructure levy
The existing CIL regulations of course allow charging authorities limited flexibility to defer CIL liability. Amendments will be made to the regulations “in due course” to increase flexibility, but that will still depend upon charging authorities deciding to exercise the new discretion available to them. Authorities will be able to defer payments, temporarily disapply late payment interest and provide a discretion to return interest already charged. However, these changes will only apply to small and medium-sized developers with an annual turnover of less than £45 million. It remains to be seen how this limitation will be addressed in the regulations, for example where a special purpose vehicle, potentially offshore, has assumed liability. The new instalment policies for deferred payments will only apply to chargeable development starting after the changes come into effect, but they are anticipated to apply to “phases“ of the development starting after that date. The announcement on 13 May added that “existing flexibilities and the government’s clear intention to legislate should give authorities confidence to use their enforcement powers with discretion and provide some comfort to developers that, where appropriate, they will not be charged extra for matters that were outside of their control.”
Section 106 planning obligations
Local planning authorities are encouraged to consider the deferral of section 106 obligations, e.g. financial payments. This will require variations to existing section agreements and undertakings. Local planning authorities are encouraged generally to take a “pragmatic and proportionate” approach to the enforcement of section 106 planning obligations
PINS issued a further update on 13 May. Site visits are being commenced and PINS is considering whether there are types of cases that can proceed without a site visit. The first digital appeal hearing took place on 11 May as a pilot and PINS is aiming for 20 further examinations, hearings and inquiries in May and June. It is also exploring hybrid options – a mix of in person and by video public/telephone hearings and is considering “social distance” events.
MHCLG is working on ways to address the local plans process in order to meet aspirations to have all local plans in place by 2023. In particular, the use of virtual hearings and written submissions is being considered.
Regulation 12 of the Local Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020 prevents any neighbourhood planning referendum from taking place until 6 May 2021. Updated guidance was issued in April allowing neighbourhood plans awaiting referendums to be given significant weight in decision making.
Nationally Significant Infrastructure Projects
The government is working with consenting departments to support the continuation of decision-making to minimise the impact of current restrictions on the consideration of DCO applications and the Planning Inspectorate has updated its guidance.
Compulsory purchase orders
There is now pragmatic advice as to the service of documents. Acquiring authorities are encouraged to allow more time for responses to requests for information about interests in land or submitting objections to CPO. There is also encouragement to authorities to act responsibly regarding business and residential claimants, particularly regarding the timing of vesting orders and payment of compensation, which is particularly relevant when considering evictions. Authorities are reminded of their obligation to make advance payments of compensation in accordance with statutory time limits given cash flow difficulties which claimants may currently face.
To my mind, this is all welcome and congratulations are due in particular to the relevant civil servants. Of course, there is more to be resolved, for instance the vexed question of extending time limited planning permissions (see my 4 April 2020 blog post Pause Not Delete: Extending Planning Permissions) as well as the Regulations in relation to CIL, but it is good to see this progress. No wonder MHCLG’s Simon Gallagher was prepared to come on this week’s Have We Got Planning News For You!
“We are continuing to issue decisions where we can and 1,625 have been issued across all case types since lockdown restrictions started. Not being able to visit sites and hold public events has, however, clearly had an impact on our ability to process cases and the time it is taking to reach a decision.
As explained in our guidance, to limit the spread of the Coronavirus we have postponed site visits up to the middle of May, as well as most hearing and inquiry physical events where these would otherwise have taken place in May. Our case officers have notified parties of event postponement until further notice. We will be issuing updated information on arrangements for postponed events as soon as practicable in line with latest government advice.
We have been able to progress cases where:
• the physical event was concluded prior to lockdown restrictions;
• no physical event is required to make a decision; or
• a physical event is still further in the future and preparatory activity can continue (e.g. via telephone case conferences).
New cases continue to arrive at normal levels and are being registered and processed as far as possible. As at 23 April, there were 9,591 open cases. In the last three weeks we have seen the number of open cases rise by 337.”
(It is encouraging, in passing, to note that appeals are still being made at normal levels – that is our experience too).
The Planning Inspectorate is anxious to reassure that it is moving quickly to catch up:
• “The first fully ‘digital’ hearing is due to take place on 11 May.
• We are preparing for additional cases to be heard by digital hearings/inquiries in May/early June with a view to scaling up digital events further over June/July.
• We are assessing postponed cases to establish whether they can proceed by digital, traditional or a ‘hybrid’ approach, in order to re-arrange these in due course accordingly.
• A trial of ‘virtual site visits’ is underway involving thirteen Inspectors.
• Five local advisory visits have taken place remotely (critical for helping Local Planning Authorities to progress local plans and reduce the length of examinations).”
But is this fast enough? Can more be done? Could we see a leap forward in the way that planning hearings and inquiries are conducted?
After all, the planning inquiry process has been constantly adapting. Planning inquiries were first introduced in the Housing, Town Planning etc Act 1909 to consider objections to town planning schemes. The right to appeal against a planning decision was introduced in the 1932 Act, and the 1947 Act provided that all appeals were to be determined by public inquiry. Weirdly to us now, the procedures followed and the reasoning for decisions was kept secret until changes were made to implement some of the recommendations of the 1957 Franks Committee on Administrative Justice. We still refer to the three Franks Principles, of openness, fairness and impartiality.
This is what was said by the minister of the time in a 1957 Commons debate on the report:
“I must, however, return to a point I made in the opening of my remarks, that we must not complicate the procedures more than we can help. The great majority of objectors and appellants are small people. Quite a few present their own cases without professional assistance and for most people it is essential that the procedure should be simple, intelligible, quick, and cheap, as well as fair.”
Dear reader, of course we did then complicate those procedures, often through changes made with the best of intentions. When I started practice, there was no advance exchange of proofs of evidence. We all read the documents for the first time as they were being read out by the witness. No rebuttal proofs, no laboriously prepared cross-examinations or written closing submissions. Every procedural step that has been introduced, introducing frontloading of appeal preparation and evidence (good), minimising surprises (good), has by a sidewind elongated and complicated the processes (bad). There may now be a much more forensic and detailed examination of the issues, but where have we left those “small people”?
The Planning Bar is obviously at the sharp end of the current slowdown and has been trying to move things along.
It is of course hugely frustrating that the massive improvements to the inquiry appeals system brought about by the Rosewell review (see eg my 25 May 2019 blog post Pace Making: Progress At PINS) have been undone by this pandemic. The Rosewell changes, unlike possibly every previous reform of any aspect of the planning system, did not add complications, but modernised and streamlined it in many ways, with telephone case management conferences and the like now the norm. I assume that everyone saw the interview with Bridget Rosewell on last week’s second episode of Have We Got Planning News For You? Her frustration with the Inspectorate’s present apparent slowness to get virtual hearings and inquiries underway was apparent, talking about the need to “move forward as soon as possible” and extolling the “fairer access” that can be achieved in a “virtual environment”.
We should listen to Bridget.
(Indeed, to go off on a tangent, if I were Secretary of State for the day, I would presently quietly shelve “Planning For The Future” and instead ask Bridget, very nicely, to carry out “Rosewell 2”, this time a review, with similar practical focus, in relation to the planning application process, so as to identify opportunities for simplification and reduction of unnecessary paperwork. Step by step there are surely simple opportunities for improvement. Off the top of my head:
– Recommended word limits for supporting documents such as Planning Statements, Design and Access Statements and Environmental Statements (or application fee linked to size of the documentation)
– Removal of need for multiple hard copies of documents
– Modernisation of publicity requirements
– Recommended word limits for officers’ reports to committee
– Standardisation of wording of planning conditions
– Updated model section 106 agreement template (the Law Society’s current so-called template draft agreement dates from 2010!)
– Updated advice as to the types of application which properly should be dealt with by way of officers’ delegated powers
But of course, moving to virtual appeals, even on a temporary basis, is not easy. The interests of all participants, and potential participants, in the appeals process need to be taken into account. Whilst justice delayed is justice denied, justice has to be both done and be seen to be done.
I was struck by an assertion in the Landmark Chambers paper:
“ It is safe to proceed on the basis of a presumption that every participant in a planning appeal will have reasonable access to a means of participating in a remote hearing session unless they provide evidence to the contrary. Virtually every household has a telephone, and the vast majority of people have access to a computer or mobile device on which video conferencing is possible.”
This isn’t still true for a few members of my own family (well they all have a land line – but certainly couldn’t be expected to follow proceedings on a telephone). And indeed whilst the chattering classes are currently going on about Zoom and the rest of it, I know that many are finding it very difficult to access or be at ease on these platforms, surrounded by us lawyers and others who inevitably spend much of every day now speaking with a variety of people on screen and unwittingly developing new social norms and cues.
Any procedural solution does needs to meet the three principles set out in the paper:
– The common law requirements of fairness;
⁃ Article 6(1) ECHR – the right to a fair trial in civil cases;
⁃ Article 6 of the Aarhus Convention (“public participation in decisions on specific activities”).
But decisions as to procedure also need to have regard to “protected characteristics” under the Equality Act 2010, which of course include age and disability. Bridget is right that virtual hearings and inquiries would allow many to engage with the process who currently cannot, which is great as long as there are protections to make sure that some are not excluded.
In my view this is perfectly achievable for the majority of hearings and inquiries. I accept that (1) the inquiry process is very different from the court process and we cannot simply “read across” and (2) even in relation to the court process, there were some words of warning this week from the Court of Appeal in a family law case, Re A (Children) (Court of Appeal, 30 April 2020) – see paragraphs 49 to 56. However, let’s analyse the real position:
The only parties entitled to appear at a hearing are the appellant, the local planning authority and defined statutory parties. Everyone else is at the discretion of the inspector. As long as the inspector is confident that there is no third party, from whom the inspector feels he or she should hear, and who cannot participate adequately by some remote means, why should not virtual hearings proceed, as long as the proceedings are able to be viewed remotely (perhaps also with a transcript of what is said – not difficult at all – where there is any doubt as to whether there may be interested parties without adequate screen access)?
At inquiries, the parties only entitled to appear are the appellant, local planning authority, defined statutory parties and those who have (at their own request) become rule 6 parties. Again, if all of those parties are in agreement (with possible adverse costs award consequences for those who unreasonably refuse) and as long as the same approach can be taken in relation to other parties, why cannot inquiries proceed?
Site visits are less of a problem, whether accompanied or unaccompanied, and whether in fact still always needed, in the light of visual material now available.
Furthermore, as long as there are indeed adequate protections for those who should be heard at the hearing and genuinely cannot reasonably be expected to participate remotely, the change to a virtual process has the benefit of opening up access to so many other people. And imagine the benefits in future of being able to offer a “virtual” evening session at the next inquiry at your local town hall? That surely would be participative democracy.
Which is a long way of saying: I agree with Bridget.
The Clap for Our Carers phenomenon reflects heartfelt gratitude for what is currently being done, for all of us, by NHS staff, carers and others carrying out essential services. But clapping is glib. Many of us no doubt feel uneasy. After all many or most of those to whom we owe so much:
⁃ are in jobs in the public sector, or are employed by companies contracted to the public sector, and have seen particular and significant pressure on their incomes for many years;
⁃ are doing those jobs in the absence of adequate facilities and equipment, due to longstanding restrictions on public spending, lack of investment at necessary levels and/or a lack of organisational foresight;
⁃ are not UK nationals and have had to suffer an increasingly hostile environment, catalysed by Brexit;
⁃ due to the loss over time of traditional indentured accommodation and massive house price inflation, particularly in London, have found themselves unable to live in decent accommodation convenient to their work, despite often needing to work at unsocial times or being “on call”.
Plainly there will be a reckoning on many fronts when this immediate crisis is over but will one consequence be a fresh focus on the role of key worker affordable housing?
The NPPF affordable housing definition includes housing for “essential local workers” but, whilst many individual local authorities and registered providers may still prioritise some applications from local key workers, variously defined, there has been no central Government encouragement, let alone funding, for key worker accommodation for many years.
In fact the background to the demise of any focus on accommodation for key workers is well described in a November 2019 presciently topical Policy Exchange paper, Revitalising Key Worker Housing by Jack Airey (now of course a No 10 policy advisor) and Sir Robin Wales (previously leader, and then mayor, of Newham Council).
Back in 2000, the Blair Government launched the Starter Home Initiative, which aimed to provide low cost home ownership for key workers, primarily nurses, teachers and police officers.
The then housing minister Tony McNulty, responded to a question in the Commons as to what progress had been made on providing key workers with affordable housing in central London:
“The Government recognise the importance of affordable housing for key workers in London in maintaining balanced and successful communities.
£146 million of the £250 million Starter Homes Initiative has been allocated to London schemes and will help around 4,600 key workers to realise their aspirations of home ownership. We hope that the initiative will act as a catalyst, and encourage other innovative approaches to housing key workers.
The NHS in London is providing 2,000 units of affordable rental accommodation for health staff in the three years up to June 2003.”
However, as summarised in this 2004 Guardian article:
“Uptake was slow and the help available often failed to keep pace with rapidly rising property prices. As it was confined to just nurses, teachers and police officers, it was also criticised as too narrowly focused.
In March 2004, the government devoted more resources to the problem and replaced the SHI with a £690m programme called Key Worker Living (KWL). Under the new scheme, eligibility for assistance was broadened to include social workers, fire-fighters, and prison and probation service staff.
The type of housing assistance offered under KWL was also expanded to include ‘intermediate’ rented housing – priced at levels above those of traditional social housing, but still below market rates.”
As described by Shelter, four products were available to key workers under KWL
⁃ equity (“Homebuy”) loans of up to £50,000 to buy a home;
⁃ higher-value equity loans up to £100,000 for a small group of London school teachers with the potential to become leaders in their field;
⁃ shared-ownership of newly built properties; and
⁃ intermediate renting at subsidised levels
Until April 2008, KWL leases contained a clawback provision where the beneficiary ceased to be a key worker.
In the affordable housing reforms, and grant cut backs, following the global financial crisis and the 2010 general election, there was no longer any specific key worker housing “pathway” promoted or funded by Government. The focus has instead been on “affordability” judged by reference to rental/income levels and without reference to the applicant’s occupation. Responsibility for affordable housing in London transferred to the Mayor in April 2012 and since his election in 2016 Sadiq Khan has pursued a specific approach, driven by the obvious concern that the Government’s definition of “affordable rent”, based on discount to market value, does not necessarily enable local housing needs in London properly to be met. On London’s Dave Hill has written a good explainer, What are London ‘affordable’ homes and who can afford them? (17th December 2018), subtitled “An attempt to explain the almost unexplainable”.
The specific challenges faced in London have been covered well in papers such as these:
Back in December 2019 the Mayor promised a consultation in intermediate housing during the course of 2020 “which will seek views on a range of issues, including how we can ensure that key workers benefit from intermediate housing in the capital”.
From a national perspective, we did see reference to key workers in the Government’s February 2020 consultation document on its proposed First Homes programme, “prioritised for first-time buyers, serving members and veterans of the Armed Forces, and key workers, such as nurses, police and teachers” (see my 29 February 2019) blog post (perhaps the Policy Exchange influence there, in the light of its December 2019 report?), but what is the Government’s stance more generally as to whether key workers should be given priority in relation to particular forms of affordable housing?
And indeed (the point at which the nice ideas start to stall), how do you even define “key workers”? The “essential workers” definition may be appropriate for the purposes of the current Covid-19 crisis but would not necessarily be appropriate in the longer term – it is in some instances potentially too narrow and in other respects too wide.
The difficulty is possibly rooted in an uncomfortable fundamental truth. In a functioning market-based economy, who isn’t a key worker? The problem is rather that there are many people, some skilled some unskilled, carrying out relatively poorly paid roles, without which society certainly couldn’t function, and who cannot secure adequate, suitable and convenient accommodation due to the disparity between what they earn and the cost of renting or owning property.
The “correct” longer term solution is plainly a twofold one of significantly raising those earning levels (which is not going to be easy as presumably we enter another economically challenging period) and of reducing, or at least stabilising, property costs (also not easy, given lack of supply). We will only ever paper over part of the problem of inadequate salary levels by requiring developers to subsidise the affordability gap.
But in an imperfect world of course we do need an “incorrect” shorter term solution, which surely must be to ensure that those in defined categories of occupation are now given proper priority when it comes to affordable housing tenures of all kinds, and that developers who are prepared to make a meaningful commitment in that respect (particularly if supported by employers of key workers) are not faced with an overly restrictive application of local affordable housing policies until such time as those policies catch up.
Our carers (widely defined) certainly deserve a lot more than a badge at the end of this.
Simon Ricketts, 18 April 2020
Personal views, et cetera
NB Thank you to my Town colleague Lida Nguyen for some background research.
Of course, after the regulations were brought into force, there was then a pause caused by the 6 May 2010 general election. Would the incoming coalition government scrap, or at least amend and rebadge, the system? In the end the system survived and, according to wikipedia at least, the London Borough of Redbridge was the first to adopt a CIL charging schedule, on 1 January 2012.
So CIL didn’t live through the global financial crisis, or previous recessions, as we have done. I have written before about the inherent inflexibility of the mechanism but, as Miles acknowledges in his piece, the current economic conditions are going to prove the big test for the levy.
He says “CIL’s inflexibility could prove its downfall if the forthcoming downturn is anything other than a short sharp shock. COVID-19 has created the biggest test which CIL has yet faced. If the downturn is lengthy, local authorities may need to hurriedly cut CIL rates to help return development to viability. Or, press the pause button on introducing CIL altogether.”
This may all be so, but there are also other, more nuanced steps which charging authorities could also be taking, with the encouragement of MHCLG, one would hope. For instance:
⁃ The switching on, within charging authorities, of the ability to apply for exceptional circumstances relief – and if there isn’t sufficient movement on this I would argue for its automatic national application by way of a change to the regulations. Whilst ECR is a cumbersome process, and there are state aid considerations to be borne in mind, if these aren’t “exceptional circumstances” what are? And I suspect that the application of ECR will be more palatable than the reintroduction of section 106BA, which enabled developers to reduce or remove section 106 affordable housing obligations on the grounds of viability.
⁃ The introduction of instalment schemes for payment (currently discretionary) and the review of existing instalment schemes to push back timescales.
“Where development has already commenced, CIL demand notices will shortly be re-issued to allow for a 3 month extension to the next instalment due date and to subsequent outstanding instalments. This position will be reviewed towards the end of June and any further extension to instalment payment periods will be communicated. It will take time for notices to be prepared and issued, but this work will be prioritised.
An individual, case by case review of late payment interest and surcharges will be made and a pragmatic approach adopted to support customers in these circumstances.
CIL debt recovery will largely be paused for 3 months and will be reviewed towards the end of June 2020 with a view to extending this position if required.”
Are there any examples of other charging authorities taking an equivalent stance? Clearly there are risks in such an approach and I would be cautious as to the extent that, for example, a funder with millions of pounds at stake, could rely on such a commitment. It is unfortunate that the Regulations are so inflexible as to lead to such sticking-plaster solutions.
Stepping back, unless authorities are now going to move very quickly to propose reduced charging rates and take positive steps in relation to instalment policies and ECR, wouldn’t a solution in current circumstances be for the Government to legislate so as to allow authorities, both in relation to existing permissions and permissions which have not yet been issued, either to (1) defer payment of CIL for a defined period or (2) allow an emergency discount of say 50% to be applied, conditional upon development being commenced within a defined period of time and then completed within a defined period (the period to be agreed with the authority having regard to its projected build programme and if the deadline is missed there would be clawback)? To reduce the extent that the authority is as a consequence unable to deliver essential infrastructure, the Government would need to make additional funding available, because after all the economic and social benefits of ensuring that development gets started again will be immense.
I don’t have the answers – I would welcome your much better ones (except “abolish CIL” – let’s be practical). However, I do know that (1) CIL is a massive, inflexible, cash drain for any development early in its implementation and (2) some additional flexibility would surely reduce the risk that many development projects will remain on hold even once normal life starts to return around us all.
This post focuses on another specific, urgent, issue. I assume that there is a large measure of consensus that deadlines for commencement of development under planning permissions (and equivalent deadlines other related consents) should be “on pause” for at least the duration of this present lockdown and its eventual gradual unwinding. Otherwise either applicants are going to need to embark on expensive lengthy and time-consuming (for everyone) applications for a fresh planning permission in due course (with a further hiatus on any construction in the meantime) or contractors are going to be out there doing unnecessary implementation works just to keep the existing planning permission alive.
(Some of you at this point will take the opportunity to have a swipe at applicants who have left it until near the deadline before implementing a permission or before submitting applications reserved matters approval, but these are old arguments which I have addressed before).
The current law
My 16 July blog post Unpacking UseItOrLoseIt considered the law on time limited planning permissions and the amendment that was made to section 73 by way of the Planning and Compulsory Purchase Act 2004 so as to prevent section 73 being used to extend the life of planning permissions.
In the wake of the 2008 global financial crisis, a procedure was allowed for, by way of the Town and Country Planning (General Development Procedure) (Amendment No. 3) (England) Order 2009, which sidestepped section 73 and provided for a simplified procedure for grant of a “replacement planning permission” for planning applications made for a planning permission to replace an extant permission, granted on or before 1st October 2009, for development which has not yet begun, with a new planning permission subject to a new time limit. For such applications, the requirement to provide a design and access statement was disapplied, consultation requirements were modified and plans and drawings did not have to be provided. Guidance was provided in the Government’s Greater Flexibility for Planning Permissions document.
“7.6 In 2009, the Department became aware of a reduction in the implementation rate of major schemes that already have planning permission. If large numbers of permissions are not implemented and subsequently lapse, this could delay economic recovery. Developers would have to make new planning applications for those schemes, which could lead to delay and additional costs. Furthermore, local planning authorities could find themselves dealing with a sudden upsurge in applications as the economy moves out of recession.
7.7 Following calls from the Local Government Association, the Confederation of British Industry and the British Property Federation, SI 2009/2261 amended the GDPO to introduce a new power to allow the time limits for implementation of existing planning permissions to be extended. The amendment enabled existing planning permissions to be replaced before expiring, in order to allow a longer period for implementation (although the previous planning permission is not revoked, rather a new permission granted subject to a new time limit). For this new kind of application, the requirement for design and access statements was removed, and the requirements for consultation were modified. SI 2009/2262 made associated amendments to the Listed Buildings Regulations to allow the provisions to apply to linked applications for listed building and conservation area consents.”
The procedure was extended for a final year in 2012 (the impact assessment is interesting to look back to and compare with current circumstances).
The legislative options
It seems to me that there are two basic approaches which might be taken:
The “automatic” extension option
The Government could look to achieve an automatic extension, for a defined period in relation to all planning permissions – in relation to the deadline for implementation and possibly also any deadline for submission of reserved matters applications in relation to outline planning permissions – with the extension potentially only available where the deadline is going to expire within a defined period of time.
Surely, such a change would require primary legislation, to amend the operation of sections 91 and 92 of the Town and Country Planning Act 1990. The Coronavirus Act would have been a useful vehicle but possibly moved too quickly through its legislative changes for this potential measure to jump aboard in the way that was achieved with the provisions enabling local authorities to hold meetings remotely.
Such an approach has in fact been taken in Scotland, as explained in the Scottish Government’s Chief Planner letter dated 3 April 2020:
“Some planning permissions will be due to expire over the coming weeks and months and, for various reasons caused by current restrictions, there will be difficulties in commencing development or carrying out necessary processes, such as the submission of applications for approval of matters specified in conditions, before deadlines pass.
The duration of planning permission is set out in primary legislation. Recognising that activity is likely to slow considerably over coming months, we included provisions in the Coronavirus (Scotland) Bill which will extend the duration of all planning permissions which are due to expire during an ‘emergency period’ of 6 months, so that the relevant permission or time limit shall not lapse for a period of 12 months from the date those provisions come into force.”
“The coronavirus outbreak will affect the ability of both planning authorities and applicants to deal with planning permissions which are due to expire. Planning permissions can broadly be separated into two categories: full planning permission and planning permission in principle.
When planning permission is granted applicants have a period of 3 years to commence development (authorities can provide for a longer period). If development is not commenced then that permission lapses and a new planning application is required. Planning permission in principle also requires the approval of conditions before development can proceed.
It is expected that the current restrictions on movement and potential continuation of social distancing and self-isolation will mean that applicants may be unable to satisfy the conditions attached to their planning permission or to commence development due to the shutdown of non- essential construction.
The aim is to ensure that where a full planning permission or planning permission in principle would expire then that permission should not lapse for a period of 12 months from the date on which the provisions come into force, irrespective of that development having not been commenced. The permission would only lapse if development has not commenced before the end of the 12-month period.
In relation to applications for approval of conditions, if the last date for making an application for an approval is within the emergency period then the time limit for making such an application is to the end of the 12-month period.
Necessity and urgency
It is important that when the current restrictions on movement are relaxed, developers are able to pick up where they left off, continuing with construction and having a pipeline of sites ready to move onto once current sites are completed. It is also important to reduce the burden on planning authorities who may otherwise be inundated with new applications to obtain a new permission.
The expiry of planning permission is an issue which has been raised by industry representatives who had expressed concerns about the ability of applicants to submit required information, apply to amend a condition to in effect get a new permission or commence development. Engagement at official level has also been undertaken with Heads of Planning, Scotland, Society of Local Authority Chief Executives, Society of Local Authority Lawyers and Administrators and the Convention of Scottish Local Authorities. Those consulted understood and appreciated the reasons for taking this action and were supportive of this intervention being time restricted.
No alternative to primary legislation is possible, and no powers exist which would allow these changes to be made in this way.”
I can only think of one way of achieving an automatic extension without primary legislation. What about creating a new permitted development right to carry out development within x months of the expiry of planning permission for development, subject to the expiry being before a specified date? There may be issues in relation to EIA development but is this a runner? Standard conditions applicable to any such PD right would need to secure the continued effect of any conditions attached to the original planning permission and somehow ensure that any existing section 106 planning obligations continue to apply.
The “enabling individual extensions” option
The alternative approach that the Government could take would be to find a way of enabling individual applications to be made that can be dealt with by authorities more simply than a fresh application for planning permission (which for a major application is a six or even seven figure sum investment, appalling as that figure is). In my view that would be less helpful than the Scotland-style automatic extension – this is not like the 2008 global economic crisis – all development is currently affected. A “pause” on time limits across the board is surely cleaner and would avoid a mass of individual applications. However, the “enabling individual extensions” option may be a quicker fix.
The “enabling individual extensions” options might include:
⁃ reintroducing the “replacement planning permissions” route exactly as per the 2009 statutory instrument, backed by appropriate guidance
⁃ (I appreciate this may jar but bear with me, we need to be creative) use of section 96A, given that there is no express prohibition (as there is with section 73) on the use of the non-material amendments procedure to vary time limits on planning permissions. Plainly, in normal circumstances, the extension of a time limit on a planning permission would be material, but could the Government, with proper justification, issue guidance that in the current exceptional circumstances, subject to consideration by the relevant local planning authority of individual circumstances when an application is made, it considers that in principle an extension of time for a period not exceeding, say, the current lockdown period, could be regarded as “non material”? I have re-read R (Fulford Parish Council) v City of York Council (Court of Appeal, 30 July 2019) and don’t immediately see that such an approach would be inconsistent with the approach that the Court of Appeal took to section 96A in that case.
⁃ (More cumbersome but surely legally achievable) the use of local planning authorities’ powers in section 97 of the Town and Country Planning Act 1990 to modify planning permissions where they consider it expedient.
What have I missed? I’m hoping that, like its predecessor, this blog post will very soon be past its sell by date.
Things are moving fast. My blog post last week was titled What To Do? This week focuses on the solutions that we are seeing already coming forward in the face of local planning authorities’ practical inability at present to hold “normal” planning committee meetings.
It’s not straightforward because obviously any solution isn’t just about the law at all, but about the individual authority’s organisational priorities, operational resilience and access to technology.
I referred in last week’s blog post to the letter dated 17 March 2020 to MHCLG from ADSO (Association of Democratic Services Officers) & LLG (Lawyers in Local Government):
“We have advised local authorities to hold only essential meetings and with the minimum number of people attending to satisfy a quorum. Where possible, Councils should be using urgency powers within their Constitutions to take decisions outside of public meetings. This will be possible in most instances but not in others. For example, Schedule 12 of the Local Government Act 1972 requires Councils to hold an Annual meeting during March, April or May depending on whether it is an election year or not. As you will be aware, important business is conducted at these meetings including the election of Mayor/Chairman of the Council and appointments to Committees etc to enable decision-making processes to function effectively.
Paragraph 39 of Schedule 12 to the Local Government Act 1972 states that any decision taken at a local authority meeting (including committees and sub committees) shall be decided by a majority of those present and voting. This means that it is impossible to have a meeting unless a quorum is present in the room. Whilst the law permits other members to join the meeting virtually, they cannot vote. This will become increasingly more difficult as further restrictions on peoples’ movements are imposed. For example, a high proportion of councillors are over 70 years of age and could be prevented from attending even essential meetings if currently publicised Government measures are imposed for that age group. We appreciate that this will require an amendment to the Local Government Act 1972, but we feel it essential to ensure continuity in local authority decision making and the provision of essential services. An alternative could be that local authority members could be counted as being present in a meeting if they are in a location where they can hear the conversation in the meeting room and persons present in the room can hear what they are saying.”
In order to enable “virtual” council meetings, an amendment was introduced to the Coronavirus Bill on 23 March 2020 before it was enacted as the Coronavirus Act 2020 on 25 March 2020. In consequence, section 78 of the Act includes a delegated power enabling the Secretary of State to make regulations relating to:
(a) requirements to hold local authority meetings;
(b) the times at or by which, periods within which, or frequency with which, local authority meetings are to be held;
(c) the places at which local authority meetings are to be held;
(d) the manner in which persons may attend, speak at, vote in, or otherwise participate in, local authority meetings;
(e) public admission and access to local authority meetings;
(f) the places at which, and manner in which, documents relating to local authority meetings are to be open to inspection by, or otherwise available to, members of the public.
In relation to (d) above, Section 78(2) of the Act enables provision to be made in the regulations for persons to attend, speak at, vote in, or otherwise participate in, local authority meetings without all of the persons, or without any of the persons, being together in the same place (i.e. remotely).
Section 78(3) of the Act provides that the special arrangements for Local Authority Meetings to be enacted in the regulations will only apply to meetings to be held before 7 May 2021.
Section 78(13) provides that the regulations to be made under this delegated power are to be subject to the ‘negative resolution procedure’. Under the negative procedure, the regulations become law on the day that the Secretary of State signs them and remain law unless a motion to reject it is agreed by either House of Parliament within 40 sitting days (highly unlikely in practice). Such regulations can also be laid when Parliament is not sitting (handy given that Parliament is currently prorogued until 21 April 2020).
So far so good but obviously (1) regulations are needed and (2) unless the regulations specifically provide (which I would not anticipate) they will not override each authority’s individual constitution which sets out the necessary procedures within that authority as to for instance the holding of meetings and the extent of officers’ delegated powers. Each constitution sets out the procedure to be followed for its amendment.
There are legal risks in any “short cuts” in decision making, where the procedure followed does not comply with legislative requirements, the authority’s own required processes as set out in its constitution or is in breach of wider administrative law requirements. There was an interesting discussion on this tension during today’s 50 Shades of Planning podcast episode Planning and Coronavirus (28 March 2020) featuring Anna Rose (Planning Advisory Service), Jonathan Easton (Kings Chambers) and Stefan Webb (FutureGov) – participants in the process may presently be “nice” in the face of the present Covid-19 crisis but what about in several months’ time when decisions are being crawled over, for instance by objectors?
Ahead of the implementation of the legislation, and after an initial wave of cancelled committee meetings, we are seeing authorities arrive at practical solutions. For instance:
“The power to decide on major Manchester planning applications has now been delegated to council chief executive Joanne Roney, alongside chair of the planning committee Cllr Basil Curley and deputy chair Cllr Nasrin Ali.
The trio will decide whether to consent or refuse proposals for schemes based on recommendations from the director of planning, Julie Roscoe.
The delegation of power was confirmed at the council’s full meeting on Wednesday.
A report to the meeting called for authority to be given to the chief executive to enable her to determine any planning application, listed building consent or tree preservation order which would otherwise have been decided by a planning committee.”
“Brighton and Hove City Council’s three party leaders agreed one councillor from each of the Labour, Green and Conservative groups will make urgent decisions rather than leave them to officers.
Three councillors sitting as the Planning Committee on Monday, 23 March, agreed to create the urgency sub-committee to decide on any major developments that need a decision during the Coronavirus (Covid19) pandemic emergency.”
For those concerned as to the implications of decisions being left within a small caucus of members, Luton Borough Council has an approach (recounted by David Gurtler on twitter) whereby four members are physically present, with officers presenting virtually and with other members able to log in and participate in the debate (although not vote).
These options seem pretty practical to me. Concerns have been expressed as to whether options such as these constrain the ability for the public to participate. In my view, this concern is overdone. Participation amounts to (1) having the papers in advance (2) being present in order to hear what is said and (3) (subject to what is provided for in the individual authority’s constitution) being allowed to speak. The papers will still be available in advance. If meetings are available on webcast, as many have been for some time, the second concern is addressed. The right to speak is already tightly constrained, invariably with requirements as to advance notification and strict time limits for a presentation and the relevant individual (whether applicant, supporter or objector) could easily join remotely by telephone or web link to say his or her piece in exactly the same way as if present. As for the presentation of schemes to committee and the ability for members to understand the implications of a proposal without the need for a site visit, the possibilities of technological solutions such as Vucity are almost boundless.
Various authorities are looking to focus on the use of delegated powers, with additional oversight/ sign-off at chief executive and/or committee chair level. See this statement by Wychavon District Council, for instance:
“Planning Committee meetings have been cancelled for the foreseeable future. To make sure planning decisions can continue to be made at the current time, we will be using emergency decision making powers, as delegated within our constitution to the Managing Director, Deputy Managing Director, Planning Committee Chair or Vice-Chair.
These individuals will work with planning officers to make what would have been Planning Committee decisions. We are working to minimise the overall level of applications that are required to be considered by the Planning Committee in accordance with the Council’s constitution regarding delegated powers.
Officers will not be carrying out site visits at this time. Instead we will be requesting applicants provide photographic and/or video evidence as may be necessary. If insufficient evidence is made available to allow officers to adequately assess the applications, we will seek to agree extensions of time with applicants, to deal with their planning applications. Officers will not themselves be placing site notices at this time, but will ask applicants to display these and provide evidence to confirm this.”
“It is important that authorities continue to provide the best service possible in these stretching times and prioritise decision-making to ensure the planning system continues to function, especially where this will support the local economy.
We ask you to take an innovative approach, using all options available to you to continue your service. We recognise that face-to-face events and meetings may have to be cancelled but we encourage you to explore every opportunity to use technology to ensure that discussions and consultations can go ahead. We also encourage you to consider delegating committee decisions where appropriate. The Government has confirmed that it will introduce legislation to allow council committee meetings to be held virtually for a temporary period, which we expect will allow planning committees to continue.
We encourage you to be pragmatic and continue, as much as possible, to work proactively with applicants and others, where necessary agreeing extended periods for making decisions.”
One side effect of this period has been to jolt many of us finally into more modern and efficient ways of working and communicating. As a result of new processes having to be used, it could well be that the planning committee process, and indeed local democratic process more generally, will also operate rather differently in the longer term and for the better – perhaps a wider cross-section of the community might even be prepared to play a role as elected councillors if fewer hours needed to be spent physically in the council chamber and committee rooms?
Simon Ricketts, 28 March 2020
Personal views, et cetera
With thanks to Michael Gallimore (who will spot that I cut and pasted passages from a client note that he prepared earlier in the week), Rebecca Craig and Safiyah Islam.
When, as it will, this current terrible phase of the Covid-19 pandemic passes, what needs to be done to ensure that we catch up on efforts to provide housing and resume economic activity?
The main purpose of this blog post, into which a number of my partners at Town have contributed their thoughts (although all errors and omissions are mine), is to try to answer that question.
But first, what is presently being done to make sure that our system continues to operate, efficiently but fairly?
It is encouraging to see the great efforts being made by many local planning authorities to keep going with decision making, by way of innovative approaches to decision making and greater use of officers’ delegated powers, and the commitment of so many officers and members, continuing to work from home against a background of other domestic pressures and technological constraints. It will be excellent to see proactive moves by authorities to amend their constitutions, with necessary safeguards such as chief executive oversight, where there are specific rules against certain categories of application being dealt with other than by committee. Some of the options are set out in a piece by barrister Jonathan Easton, Local authority decision making in a time of crises, 19 March 2020. The Government has also confirmed that it “will consider bringing forward legislation to allow council committee meetings to be held virtually for a temporary period” (Robert Jenrick reaffirms support for councils in their coronavirus response, MHCLG press release, 16 March 2020); the Association of Democratic Services Officers and Lawyers in Local Government wrote jointly to the Secretary of State on 17 March 2020 setting out the full extent of changes that would be needed for local government decision making to function properly during this period of social distancing. The quicker the better please!
It is frustrating after the resounding success of the Rosewell reforms to see planning appeal inquiries, as well as informal hearings and local plan examinations, postponed as a result of the virus (see Coronavirus (COVID-19) – Planning Inspectorate guidance – updated 18 March 2020) – but of course the reason is plain. So far the postponements only relate to those scheduled up to 23 April but surely this will roll forward in due course. The Bar has made much of discussions with the Planning Inspectorate for greater use of video conferencing – which is the stock in trade for all of us at the moment – microsoft teams, zoom, you name it, we’re all on it! But keeping the professionals communicating with the inspector in a structured way is one thing – what about the “public” element of a public inquiry? [subsequent addition to blog post: see this subsequent excellent Landmark Chambers paper Fairness and public participation in video or telephone hearings for planning appeals during the COVID-19 crisis]. For all but the most controversial or complex appeals (so perhaps not those which have been recovered by the Secretary of State), should appellants be given the option of having their appeals determined by written representations, even if until now the appeal has been identified as appropriate for a hearing or inquiry?
The courts have also been quick to consider how to respond. An update from the Lord Chief Justice on 17 March 2020 spoke of the “urgent need to increase the use of telephone and video technology immediately to hold remote hearings where possible”, the “considerable flexibility” provided for in the Civil Procedure Rules and the courts’ “immediate aim is to maintain a service to the public, ensure as many hearings in all jurisdictions can proceed and continue to deal with all urgent matters”. Indeed, colleagues had an early taste of this on 19 March, with Deputy High Court Judge Alice Robinson handing down judgment from open court in a section 288 challenge (following a hearing earlier in the week), with the advocates and parties at the other end of the telephone. Clause 53 and Schedule 24 of the Coronavirus Bill (introduced into the House of Commons on 19 March 2020) proposes greater flexibility in relation to the use of live video and audio links, with appropriate protections, for a temporary period of two years (whoch period may be shortened or extended). I also recommend this excellent piece, Tim Buley QC shares his thoughts on the Public law courts during the coronavirus crisis, which pulls together much of what is currently being done, or contemplated.
Some ideas, looking ahead
Just a week or so ago seems like an age away. The Secretary of State set out a range of proposals for further reform of the planning system in his Planning for the future document (12 March 2020). He announced:
“In the Spring, we will publish a bold and ambitious Planning White Paper. It will propose measures to accelerate planning. It will maximise the potential of new technologies to modernise the system. It will make it easier for communities to understand the planning system and play a role in decisions that affect them. Together, the measures it puts forward will set out a pathway to a new English planning system which is fit for the future”.
That talk of a “new English planning system” seemed to herald some of the thinking from the Policy Exchange’s paper Rethinking the Planning System for the 21st Century (27 January 2020) and, after all, its co-author Jack Airey is now a 10 Downing Street advisor. I wrote a critique of the paper in the Estates Gazette (Let’s rethink the rethink, 5 March 2020) but perhaps I was being a little premature. Because maybe, once all this subsides, it is time to look at for instance:
⁃ the potential for more of a zoning-style approach, which could begin to be introduced fairly simply by placing a proper duty on authorities to prepare brownfield land registers (as well as making it mandatory for local authorities to import into their registers all sites identified by the Government in its promised national brownfield sites map) and then increasing the scope for use of the ‘permission in principle’ procedure e.g. by allowing it to be used for more than just housing-led development and allowing permission in principle to be established through site allocations in a local plan.
⁃ greater use, this time with better safeguards against abuse, of permitted development rights. After all, setting aside the problems caused by that lack of appropriate safeguards, since the permitted development right to convert offices to residential was initially introduced for a temporary three year period from May 2013 (following an initial announcement in the March 2011 budget), many thousands of new homes have been created at much greater speed than traditional planning application routes would have achieved. Desperate times call for desperate measures. Planning For The Future announces that the Government will introduce “new permitted development rights for building upwards on existing buildings by summer 2020, including to extend residential blocks by up to two storeys and to deliver new and bigger homes. We will also consult on the detail of a new permitted development right to allow vacant commercial buildings, industrial buildings and residential blocks to be demolished and replaced with well-designed new residential units which meet natural light standards.” Devil’s question: if we are to have permitted development rights to demolish and rebuild, why not go further and have permitted rights, with equivalent safeguards, to carry out residential development on already cleared brownfield land (as an alternative to the enhanced brownfield land register/permission in principle proposal above)?
Surely, all these ideas will need to be considered, against the backdrop of months of lost housing delivery and a severe knock to economic confidence.
But I would suggest that, ahead of that promised White Paper, which will surely now slip considerably, there are a number of shorter-term measures to make adjustments in order to make up for the time that has been lost as a result of this crisis. In considering these, I recognise the inevitable tension between on the one hand measures that seek to “put on hold” aspects of our system, particularly time limits, and on the other hand measures to keep the system moving.
We need to learn from recent history. In the wake of the global financial crisis, on 1 October 2009 the Government introduced a temporary measure “to make it easier for developers and local planning authorities to keep planning permissions alive for longer during the economic downturn so that they can more quickly be implemented when economic conditions improve.” Guidance as to the operation of the provisions was set out in Greater flexibility for planning permissions (23 November 2009, amended 1 October 2010 and eventually withdrawn 7 March 2014). (The same document gave guidance as to the operation of the helpful section 96A non-material amendments procedure, introduced at the same time.)
We urgently need an equivalent measure reintroduced or, perhaps more simply, an automatic six months’ extension to all planning permission time limit conditions. After all there is already a year’s automatic extension under section 91 (3A) of the Town and Country Planning Act 1990 where a planning permission is subject to judicial review proceedings. The thinking should extend to other fixed deadlines, for instance in relation to the implementation of compulsory purchase orders and NSIPs.
There are various section 106 obligations which provide for ongoing financial contributions or measures with significant ongoing costs, not linked to progress with stages of development. The Government should surely provide firm guidance to authorities that they must readily agree to the renegotiation of such provisions to take into account the current standstill period if the evidence is, for any specific development, that this is necessary and justified.
In London, there is a particular issue with the early stage viability review mechanism required by the Mayor. The review is triggered if “substantial implementation” (usually development above ground floor level) has not happened within two years of planning permission being issued. Surely we should be avoiding the unnecessary bureaucracy inherent in that process where we can and for most major schemes the 24 months’ deadline is challenging even with a fully deployed design and construction team. Again, boroughs and the Mayor should surely be urged to agree to vary such arrangements so as to allow for an appropriate extension, whether it turns out to be three months, six months, or longer. Flexibility is also urgently needed with agreements that are currently being negotiated and we have been considering various potential drafting options so as to secure that outcome.
Publicity and consultation arrangements for planning applications need to be adapted to fit this world of social distancing and self-isolation: much of this can occur anyway through innovative use social media and other online consultation tools but there should be a temporary lifting of legislative requirements which will currently serve little purpose and may prove difficult to fulfil, such as the deposit of physical copies of Environmental Statements in the community (under Regulation 23 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017) and the erection of site notices under Article 15 of the Development Management Procedure Order.
Any such proposal would need underwriting from the Government but, as part of any planned economic bounce-back, should there be a year’s window within which schemes can commence free from CIL or with a significant deferment of payments (subject to clawback unless the chargeable development is completed within a specified number of years)? Should the three years period for the “in use” exemption be extended (surely the answer is yes)?
Given the disruption and in some cases the reduction in the capability of local authorities to determine planning applications and in light of the current postponement of hearings and inquiries by PINS there must also be a case for easing the burden on the current system and deferring costs for applicants and would-be appellants by introducing a temporary extension of the statutory period for determination of planning applications and the time limit for appealing against refusal or deemed refusal of planning permission under Articles 34 and 37 of the Development Management Procedure Order.
There will surely need to be adjustments to the operation of the housing delivery test so as not to unfairly penalise authorities facing, for no fault of their own, a slow down in housing starts.
Some have called for the Government to suspend litigation deadlines and limitation periods for the duration of the crisis. It is difficult to see how an across the board standstill would not cause substantial injustices, but should the usual judicial review and statutory challenge periods be extended in relation to decisions taken after a specified date, or perhaps for a temporary period to extend the deadline to three months?
Finally, taking into account the consequences of its social distancing measures, the Government has already announced on 17 March 2020 that permitted development rights will be extended for a period of 12 months to allow the temporary change of use of pubs, bars and restaurants to hot-food take aways; one can readily see that further temporary extensions of permitted development rights might be necessary – e.g. change of use of offices, industrial buildings or warehouses to use for the sale of food and other convenience goods and change of use of hotels and hostels to hospitals or healthcare centres. Planning law will need to be nimble.
It’s times like these we learn to live again.
Simon Ricketts, 21 March 2020
Personal views, et cetera
With thanks to my partners and colleagues at Town. If any of these ideas chime with other organisations’ thoughts, please speak to any of us.