The planning system is feverishly trying to keep up with the rapid pace of legislative developments following the introduction of the 2020 Act. Yohanna Weber of Fieldfisher looks at what has already changed and what is on the horizon
The evolution of a hybrid use class could be a significant opportunity to revise and relax use class restrictions for the high streets.
““The speed of decision-making is going to be affected for some time to come and it would be advisable to take a pro-active approach and seek to agree to flexibility wherever possible””
Decision-making
In his final update letter in March 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.
Regulations under the Coronavirus Act 2020 came into force on 4 April 2020 allowing Council meetings to be held and accessed remotely, and several planning authorities have already taken advantage of this power.
Even if further guidance relaxes decision-making periods, the speed of decision-making is going to be affected for some time to come and it would be advisable to take a pro-active approach and seek to agree to flexibility wherever possible.
Expiry of planning permissions
Temporary powers to extend the life of unimplemented planning permissions were introduced in the wake of the 2008 financial crash, and industry groups such as the London Property Alliance and the City of London Law Society are actively lobbying the Secretary of State to re-introduce similar measures.
It seems highly unlikely however that there will be any opportunity to address this by primary legislation any time soon, so makeshift measures such as the use of section 96A non-material amendments may have to be tolerated in the interim.
Needless to say, any applicants negotiating permissions that are approved during this time should consider seeking at least a 5 year commencement condition, rather than the usual 3 years.
Enforcement
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 however 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, and, as we transition back to a post-Coronavirus world, there will need to be a tapering of that flexibility, rather than a hard stop, while the economy recovers. Further government guidance will be required on this issue.
Section 106 agreements and 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. Amendments to the CIL Regulations will be required to relax the grounds upon which CIL can be re-assessed and liability notices re-issued.
In the meantime, local authorities have a range of enforcement powers at their disposal. It may be possible to challenge any enforcement action on the basis of COVID-19 as 'exceptional circumstances' but government intervention is urgently required to address the inflexibility of the CIL Regulations at this time.
As with the 2008 crash, many developments are likely to become unviable in the wake of Covid-19. We may see the re-introduction of the temporary provisions in section 106B of the TCPA from the 2008 crash to enable developers to submit viability assessments to support the case to revisit previously agreed financial contributions and affordable housing obligations.
In the meantime, we would hope that the chief planner's advice about discretion with regard to enforcement would be applied, and as there is no automatic statutory regime for recovery and enforcement, it should be easier to reach an agreement with the local planning authority to relax or defer performance obligations on a case-by-case basis.
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 development consent order (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 is hearing substantive matters remotely (via Skype for Business) and the Supreme Court is dealing with petitions in the same way. We therefore hope to see similar arrangements carried across to planning inquiries and hearings before too long as the prolonged delays to these matters will hinder the recovery process after Covid-19 restrictions are lifted.
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. As the 'Coronacoma' drags on the recovery period for these businesses will inevitably stretch out – the extension of these rights, or morphing them into a hybrid use class, could be a significant opportunity to revise and relax use class restrictions for the high streets and hospitality businesses which will have borne the brunt of this crisis.
With all crises comes opportunity. This situation is a perfect proving ground for long-overdue modernisation and innovation in the planning world. Let's hope it is not wasted and we see the benefits of Covid-19 restrictions long after they are lifted.