Planning Law in the Covid-19 Crisis
The planning system has already seen shortfalls in housing development and extended application determination deadlines, but what will the effect of Covid-19 have on planning law moving forward?
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the Coronavirus Regulations 2020”) were introduced by the Government in light of Covid-19, and although these regulations have been relaxed since originally enacted, the regulations can create difficulties for Applicants and Local Authorities. For example, when to have site visits and pre-application meetings.
There has been no amendment to the statutory framework, the National Planning Policy Framework or accompanying guidance or the Local Enforcement Plan. This means that enforcement powers remain as they were and Local Authorities can take enforcement action against a breach of planning control.
That said, the decision to enforce against a breach of planning control should depend upon the expediency of enforcement action; environmental harm is always relevant.
It is important to deal with any Enforcement Notice as soon as it is received as breach of an Enforcement Notice can lead to criminal prosecution. An Enforcement Notice may be appealable and this turns on the merits of each individual case.
Community Infrastructure Levy (CIL)
It is intended that temporary amendments are introduced to the Community Infrastructure Levy Regulations 2010 to assist with small to medium sized developers. Local Authorities will be able to defer payments, temporarily dis-apply late payment interest and use their discretion to return interest already charged. This will apply to developers with an annual turnover of less than £45 million.
Determination deadlines for planning applications will not be changed. However, there are likely to be some unavoidable delays. If delays are to arise, then the Local Authority should request an extension of time. Exceeding the timescale for determination without requesting an extension of time does still mean that an appeal can be made to the Secretary of State on the grounds on non-determination.
Publicity and Consultation for Planning Applications
The Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 came into force on 14 May 2020 (“TCPA 2020”). Local Authorities are usually required to give notice of a planning application by site display, serving notice on adjoining owners or occupiers and publication in a newspaper. Due to the restrictions of Covid-19, this has not always been possible and the TCPA 2020 enables Local Authorities flexibility to take other “reasonable” steps to publicise applications. This includes by social media and electronic communication. These steps have to be proportionate to the scale and impact of the application.
Planning Committee Meetings
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 2 April 2020. These regulations allow Local Authorities to hold public meetings virtually; so by phone or video link.
There has been no change to the deadline for Local Authorities to produce up to date Local Plans by 2023.
The Coronavirus Regulations 2020 means that elections and referendums cannot take place until 6 May 2021. This is being kept under review as guidance on Covid-19 continues to ease. If a Neighbourhood Plan is awaiting referendum, then effectively this will have to be put on hold until a date after 6 May 2021. However, guidance suggests that Neighbourhood Plans awaiting referendums will be given “significant weight” in decision-making.
Time-Limited Permitted Development Rights
The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2020 came into effect on 9 April 2020 and will end on 31 December 2020. This Order enables Local Authorities to carry out development, including works and change of use, of facilities required to respond to the spread of coronavirus. An application is not necessary for these works and changes of use. It introduced a new permitted development right to allow restaurants and cafes, and drinking establishments such as pubs, to additionally provide a takeaway or delivery service for hot or cold food.
A Move to Zonal Planning
Last weekend saw a strong hint in the Sunday papers that the Government was gearing-up for the largest change to the planning system since 1947. A panel of experts has been convened with a view to implementing the recommendations of a controversial Policy Exchange paper published in January, by way of new primary legislation in a ‘Great Recovery Bill’ to be introduced in July. The Policy Exchange paper recommended removing elected councillors from the planning process and ‘zoning’ land as simply appropriate for development or not appropriate. The quotes attributed to the Government in the press appeared to suggest that there would still be some controls (e.g. not permitting development of the Green Belt) and so whilst there may well be substantial new opportunities for developers in the near future, there may also be a raft of new disputes whereby opponents of new development use the remaining levers of discretion to prevent unpopular schemes.
If you are unsure about how any of these temporary regulations or restrictions could affect you and a planning application or planning issue, then please do not hesitate to contact a member of the Planning Team. We are happy to offer advice in respect of the impact of Covid-19 on the planning system or any planning issues you may have. We are able to offer telephone and videoconference meetings to take instructions regarding any legal matter.