A lot of our clients will currently be experiencing delays and uncertainty due to the ongoing global COVID-19 crisis. The planning system has already begun to respond and it is clear the general picture is that the planning officers and planning authorities are continuing with their work, presumably with many officers working from home and in isolation, or at least employing social distancing protocols to any tasks they need to undertake.
One of the earlier examples of the impact of the crisis was the relaxation of the planning rules to allow pubs and restaurants to operate as hot food takeaways. This happened as long ago as the 17 March (which seems like a lifetime ago!), and the government’s statement stated that they would ‘as soon as possible’ introduce a time limit permitted development right, via secondary legislation, to allow the temporary change of use from a pub as a class A4 use (drinking establishment) and a restaurant, which is a class A3 use (restaurants and cafes), to a hot food takeaway for a period of 12 months only, although alcohol sales would still be subject to existing licencing laws. At the time of writing this article we are all in lockdown and the author is sat in his kitchen at home. Secondary legislation was made on 24 March 2020 to allow this temporary change of use.
Some of the emerging and developing issues that we are seeing are as follows:
The Scottish government has already introduced emergency legislation to allow planning permissions to be extended by a year if they would, under normal rules, otherwise lapse during a specified period – known as ‘the emergency period’ – which is defined as six months after the Coronavirus (Scotland) Bill comes into force. This may be the precursor of similar legislation in England and Wales.
Some local authorities have already asked the government to lift the requirements for local plans to be reviewed every five years whilst they face the significant challenges of the coronavirus outbreak.
Many Councils have passed resolutions which will allow more planning decisions to be taken by officers under so called ‘delegated powers’. Some clients may have concerns about this because it is often seen to be a way of securing more scrutiny on applications if they are considered by elected members, rather than being dealt with by and reliant on that officer’s planning judgement.
Where decisions are still being made by committee, many Councils will move to ‘virtual committee arrangements’ and may prioritise the applications which can be dealt with under these circumstances. This again may cause some clients concerns that they will not be afforded the opportunities they would have had under normal circumstances, to attend and address the planning committee to make their points in person or via an agent.
The Coronavirus Act was fast tracked through parliament and became law on Wednesday 25 March and now secondary legislation has been made emergency laws which will allow Councils to hold virtual planning committee meetings. There will also be a lot of work to be done in the background by Council lawyers to amend schemes of delegations and constitutional documents if this is going to become reality although some of the new regulations override inconsistent parts of the Council’s constitution. There is an ancillary risk that in the current rush to move to new ways of working, if Councils get it wrong there maybe potential for decisions to be challenged as unlawful if they not followed correct procedures.
Another issue for planning lawyers across the country will be whether Councils are consistent in their approach to this new whole order. Some may be less inclined than others or less able to make changes where IT infrastructure is not up to the job.
One fairly fundamental issue whilst this debate is ongoing is that it also seems uncertain whether planning officers will be classed as ‘key workers’ and whether planning officers may be redeployed by Councils to support other frontline efforts in the war against COVID-19.
Planning barristers, solicitors and other professionals have already come forward with numerous ideas to utilise technology, both to enable enquiries and hearings to take place, but more generally to generate debate on social media and in the form of online seminars to disseminate information and to encourage engagement.
These are exceptional and challenging times but our offices remain open with a valiant core group of support workers assisting our lawyers, who are mainly now working from home, to ensure that we continue to advise you as the situation unfolds, and the implications become clearer for our clients.