Pandemics and planning law: Five areas to watch

The impacts of coronavirus (COVID-19) continue to blast through the regulatory landscape, and the planning system is certainly not immune to the rapid pace of change. Our planning experts have selected five of the top issues for those involved in the planning sector to watch as the coronavirus crisis unfolds.

 

1. Decision-making

In his final update letter as Chief Planner, Steve Quartermain encouraged local planning authorities to prioritise decision-making, and take an "innovative approach, using all options available" to ensure statutory timescales are still met. 
 
Examples include using technology for meetings and consultations, delegating committee decisions where appropriate, extending decision-making periods by agreement with applicants and prioritising prior-approvals for permitted development, so that economic activity can continue. 
 
The government's emergency legislation also looks likely to enable planning committees to be conducted by video only; however, (as at 26 March 2020) secondary legislation will still be required to give effect to this. 
 
If you are currently awaiting a decision, we advise being proactive and considering whether you can offer an extension to the local authority – they will be grateful for the help, and likely be very amenable to reasonable suggestions.
 
 

2. Enforcement & Expiry

The Chief Planner's letter reiterates ministerial advice of 13 March 2020 to local planning authorities to:

• Exercise discretion regarding enforcement of restrictions on deliveries of food and essential items; and
• To act "proportionately in responding to suspected breaches of planning control".  

The Chief Planner's letter goes further and widens this beyond delivery conditions to "other planning conditions which hinder the effective response to COVID-19'". 
 
Clearly, what "other conditions" are relevant will need to be considered on a case-by-case basis. 
 
Conditions requiring development to commence within a stipulated time cannot, however, be varied by agreement or by application, although local authorities have discretion whether to take enforcement action against out-of-time development. 
 
Temporary powers to extend the life of planning permission were introduced in the wake of the 2008 financial crash.
 
We expect to see calls for similar powers before too long, given the double-whammy for developers of being unable to expeditiously carry out works on site, or have applications for discharge of pre-commencement conditions processed by the local authority within ordinary timescales.      
 
Rapid intervention can often avert action being taken – contact one of our experts if you have an enforcement or expiration issue.
 
 

3. Financial difficulty meeting CIL & S106 contribution payments

If COVID-19 is hitting your cashflow and you have CIL or s106 obligations to meet, we advise immediately reviewing your situation. 
 
CIL
 
Once development has commenced and a CIL liability notice has been issued, there is very little scope to appeal to the local authority to suspend payment. 
 
The authority has a range of enforcement powers at its disposal, including the imposition of a surcharge and interest and serving a stop notice on the development. 
 
It may be possible to challenge any enforcement action on the basis of COVID-19 circumstances, but we advise against letting matters get to that stage, not least because timescales for hearing any challenges are highly uncertain.  
 
Contact one of our experts if you are considering suspending a CIL payment or instalment plan. 
 
Section 106 agreements
 
We expect the Chief Planner's advice about discretion with regard to enforcement will be applied. 
 
There is no statutory regime for recovery and enforcement, so it should be easier to reach an agreement with the local planning authority to relax or defer performance obligations that might fall due during this time. 
 
We may also see temporary provisions introduced to enable developers to submit viability assessments to support the case to revisit previously agreed financial contributions. 
 
Pending the introduction of temporary legislation, we recommend promptly approaching the local planning authority to agree a variation or removal of any onerous obligations that might fall due during this time, or that are no longer going to be viable. 
 
Fieldfisher's planning team has extensive experience in drafting s106 viability reassessment provisions and advising on strategic planning sites.
 
 

4. Inquiries, hearings and examinations

PINS Guidance (updated 25 March 2020) suspended all site visits, hearings (including local plan hearings) and inquiries, although consideration is being given to whether any site visits can proceed unaccompanied and inquiries heard remotely, or on the basis of written submissions only. 
 
All DCO hearings have been postponed (although this should be less of a concern to applicants, as the national infrastructure planning application process is a predominantly written one in any event). 
 
The Planning Court has however already heard its first substantive hearing remotely (via Skype for Business) and the Supreme Court is dealing with petitions in the same way – the Judiciary's guidance on conducting remote hearings in civil Court proceedings can be found here. 
 
We expect to see similar arrangements carried across to planning inquiries before too long. 
 
While this bodes well for the future modernisation of the justice system, the majority of live matters and hearings will experience delays.
 
We are already seeing postponements of two months or longer for active cases.
 
 

5. Temporary permitted development rights

A permitted development right took effect on 24 March for 12 months, which allows pubs, restaurants and cafes to provide hot food takeaway service. 
 
Businesses must inform the local planning authority when the temporary use begins and ends. 
 
For more information about implications of this move for your lease, we recommend consulting one of our real estate experts, as contractual restrictions and user clauses will still apply.
 
This note was current at the time of publication (26 March 2020) but may be overtaken by events.
 
 
For the latest information, please contact a member of the Fieldfisher Planning & Infrastructure Team.