The planning and environmental law committees at the Law Society and the City of London Law Society have backed the view – as expressed by various barristers – that public inquiries could continue to proceed by using video and telephone conferencing technology, whilst still complying with the legal principles of fairness and public participation.
In a letter to the Secretary of State for Housing, Communities and Local Government, Robert Jenrick, that suggests a range of planning measures to assist in managing the impact of COVID-19, the two committees said they also supported greater use of key issues being determined by an inspector’s review of written representations, with the parties’ agreement, with these topics then subjected to remote hearings if the inspector decides one is required.
The letter, sent on Wednesday (15 April) and which can be read in full here, accepted that the Planning Inspectorate faced a difficult task in having to balance processing casework whilst still ensuring the safety and well-being of staff.
The Inspectorate took the decision to temporarily postpone hearings, inquiries and site visits until the end of April.
The two committees noted in the letter that The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 came into force on 4 April and this allowed council meetings to be held and accessed remotely.
The letter said: “Whilst we should all support virtual appeals where the parties consent, where one party fears substantial prejudice from not being able to cross examine face to face, they should have the option in extremis to delay. It is likely that a case by case discussion will be needed with all the parties to ensure a solution can be found that works for all involved.
“That said it is also important to recognise that personal circumstances will vary between parties, advisors and witnesses and in the current exceptional circumstances these need to be taken into account and may mean a remote inquiry is not always feasible.”
Another suggestion in the letter was that where proceedings were conducted this way, they should be recorded so that if after the event there was an allegation of procedural defect or unfairness there was a proper record of what went on.
“It is important to recognise that personal circumstances will vary between parties, advisors and witnesses and in the current exceptional circumstances these need to be taken into account and may mean a remote inquiry is not feasible,” it noted.
“Furthermore, we would urge a flexible approach for any medium or long-term change as not everyone will have access to remote conferencing facilities.”
The letter meanwhile said it was inevitable that planning applications currently in the system or submitted in the next few months would be delayed. "Such is the scale of the current crisis that for practical reasons, it should not be left to applicants and local authorities to agree extensions of time to allow for this delay on a case by case basis.”
The committees suggested that in their view there were “sound reasons for the Government to extend (via amendments to the Development Management Procedure Order) both the statutory determination periods for planning applications and the time limit for appealing refusals or deemed refusals of planning permission even if by just a few weeks: to reduce the burden on local authority resources, to allow time for internal reorganisation of decision-making structures within local authorities and to allow for prudent consultation by way of online methods”.
The committees said consideration ought also to be given to the determination periods for prior approval applications (particularly where a nil response becomes approval), deadlines for judicial review and s288 challenges, deadlines for CIL appeals, responding to enforcement notices, plus other sorts of appeal/challenge deadlines across environmental legislation as well as planning – although they accepted that the Government does not bear responsibility for all of these.
Having said this, the committees cautioned against an excessive relaxation. “Notwithstanding the present difficulties it ought to remain possible for planning applications to be validated and determined in much the same way as before and we would not want there to be any suggestion that the process should slow down significantly.”
The two committees also called for an “urgent fix” in relation to the expiry of planning permissions, which they argued was an issue of real concern for developers.
The letter said that given the widely acknowledged need for new homes across England, “we cannot afford to see planning permissions lapse and consented homes lost”. It added that the committees had numerous examples within its membership of permissions where works were now not able to proceed on site.
The letter suggested that what the industry needed was a blanket extension such that all permissions expiring in the next few months are automatically deemed to have their limits extended by a period of time.
Short of this, they considered that the government should at least facilitate the extension of time limits on planning permissions on a case by case basis. The letter set out a number of options for the government to consider in this regard.
The committees also said they would welcome guidance to assist local authorities in how best to implement The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020. “Much will depend on how local authorities want to operate and the extent to which their own delegated authority is sufficient to determine planning applications, thereby avoiding the need to hold remote planning committee meetings.”
The effectiveness of these Regulations needed to be kept under review, they added.
The letter also discussed:
- Hot food takeaway permitted development rights.
- Emergency development: including extension of permitted development rights to private providers assisting the NHS directly or indirectly.
- Consultation and deposit of documents.
- s.106 obligations: including a call for MHCLG to issue guidance requiring local authorities to be flexible in considering applications to vary s.106 obligations to defer current and future liabilities and to extend periods for viability review, so as to take into account of the COVID-19 period.
- The Community Infrastructure Levy: including amendment of the CIL Regulations to allow automatic deferral of unpaid payments falling due in the COVID-19 period.
The committees said they had been closely monitoring the recent changes in planning legislation and guidance, adding that they “applaud the speed with which the Government has responded to the current unprecedented situation”.
They accepted that, with Parliament in recess, and the prospects of reduced or remote sittings on its return, amendments to primary legislation could suffer from more restrictive parliamentary time. “As such, we have looked at the appropriateness of temporary development changes and where these can be made using secondary legislation or non-legislative guidance.”
The letter concluded: “There is no doubt that just as we have all had to adapt how we work, so too must the planning system evolve. Technology allows for a fast response but it is important to find sustainable legal solutions that work not just for the ‘here and now’ but also for the future. As such, we believe that it is particularly important to build greater flexibility into planning legislation.”