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Articles Planning 1st Jul 2020

Coronavirus planning update: Other significant issues

What started as an epidemic limited to China has now become a truly global pandemic. Its effects have been felt throughout many sectors including those impacted by planning law, and below we set out the main changes and issues relating to other significant planning-related issues that you should be aware of as of 10 July 2020. The situation is constantly changing, and we will aim to provide the most up-to-date information where possible.

Further advice regarding the impact of the Coronavirus outbreak on planning law, and how to prepare for any impact on your business, is offered by the Freeths Planning team. Please contact us should you wish to know more.

A relaxation of Sunday trading rules?

Readers may have heard musings of potential changes to the Sunday trading rules as a way to boost the economy. However, given that the Government could be in line for a significant revolt from its own MPs this issue is not currently on the agenda for the new Business and Planning Bill announced on 22 June 2020.

However, the Prime Minister’s spokesperson said: “We have said we will keep measures such as extending Sunday trading hours under review as they can support shops with social distancing and allow shoppers to buy food and other items more conveniently”. We will see what the Government does on this issue; however, as with the change of use to permit takeaways before taking advantage of this right you would still need to ensure that this is permitted by your existing planning permission and your property arrangements.

Suspension of the Environment Bill 2019-2021

As with other legislation the passage of the new Environment Bill has been suspended until further notice, and is unlikely to return before September 2020. Refer to our previous updates here for further detail, as based on its current form the Bill will have a significant impact on the planning system in the future.

The suspension of the Bill may also lead to a re-think of the 2 January 2021 proposed operational date for the new Office for Environmental Protection.

A longer judicial review period for planning decisions?

Planning decisions are currently subject to a limited six week judicial review/statutory challenge period (depending on who made the decision) in contrast with the challenge time limits in other sectors. The original three month judicial review period, was removed in July 2013 following the financial crisis to reduce the number of frivolous planning claims and reduce uncertainty for development projects whilst still maintaining access to justice for planning claims with merit. The statutory challenge period was also changed to six weeks in October 2015.

Temporarily we could see the challenge periods revert back, or more likely be slightly extended, as the Coronavirus outbreak may impact the ability of claimants to compile and lodge their claim, and the Government should be alive to the increased risk the new ‘virtual’ decision making process may hold. However, given the reasons behind the Government’s reduction to six weeks and the key role of the planning system in re-awakening the economy we consider it is more likely that if any changes are made that these will be relatively minor.

The Administration Court Office is no longer accepting service of judicial review and statutory challenge applications for immediate consideration by post or DX, so a dedicated email has been set up to accept these applications.

Extra protection for theatres, concert halls and live music performance venues

A Written Ministerial Statement is due to be made this week which until 31 December 2022 will require local planning authorities “to take the temporary impact of Coronavirus into account when considering permission for change of use, redevelopment or demolition of a theatre, concert hall or live music performance venue”.

We await full details.

Construction sites can remain open so long as it is done safely

From advising clients in the industry we are acutely aware that significant numbers of construction sites have closed across the country, workers put on furlough and that there issues in the supply chain. Construction is a key driver for the economy, which is why we consider an effective planning process is essential to economic recovery.

The Construction Leadership Council has provided further guidance on site operating procedures and how construction sites should operate safely during the Coronavirus pandemic.

On 10 May, the Government announced its plans to actively encourage those in the Construction industry in England to return to work so long as social distancing can be adhered to, public transport is avoided and it is safe to do so. On 11 May the Government issued its “Working safely during Coronavirus (COVID-19) guidance” including a section on Construction and other outdoor work.

Modification of conditions relating to construction working hours

On planning permissions, you will regularly find planning conditions that themselves, or via the documents approved via discharge of an applicable condition, restrict construction working hours/days to tackle potential nuisance concerns.

As a way to kick-start the economy, the Government are introducing a new, fast track application process for the temporary variation of these planning conditions, and documents approved via discharge of condition, to “enable the facilitation of safe construction working practices in line with social distancing guidance”. Applications can be made on the vast majority of permissions, to extend the construction hours on a particular day and/or for the whole or part of a day on which they were previously not allowed from 14 days after the application was made out until 1 April 2021. There will be no application fee and applications will only be able to be made online.

The draft guidance suggests that local planning authorities “should not refuse applications to extend working hours, until 9pm, Monday to Saturday without very compelling reasons. In some cases, such as in areas without residential properties, extending working hours beyond this, including allowing 24-hour working where appropriate, may be justified”.

Notably, these applications will be deemed approved if the relevant local planning authority does not make a decision in writing within 14 days beginning with the day after the application was sent to the local planning authority. Undoubtedly, this is going to add to the sizeable in-trays of planning officers and potentially divert them from considering “new” consents.

Developers should bear in mind that potential nuisance concerns will remain, and potentially increase from displeased neighbours. We note that the draft guidance suggests that: “applicants are encouraged to provide details of mitigation plans setting out how they propose to liaise with neighbours and manage and mitigate any effects to local residents or businesses from working additional hours. This may include planning to limit noisy works to within usual working hours and agreeing to undertake quieter activities in the morning and evening or agreeing alternative parking provisions”.

Developers should be aware that planning enforcement is not the only means to control nuisance. We would refer you to the approved version of the guidance before submitting any application.

The Republic of Ireland has “stopped the clock” on their planning system

In Ireland legislation has been introduced which effectively suspends all time limits within their planning system, originally until 20 April (but already extended) subject to a longstop of 9 November 2020.

Where the public consultation period did not end before 27 March 2020 a decision can no longer be issued – the system has been essentially frozen.

Letter from the Welsh Government to all Chief Planning Officers in Wales

The Welsh Government’s Chief Planner wrote to all Chief Planning Officers in Wales on 27 March 2020 setting out planning challenges and future changes in Wales in response to the Coronavirus outbreak including:

Temporary removal of requirements for site notices and making information available for inspection at a location in the vicinity of the proposed development –  Legislation is yet to come forward. The Letter states that “all pre-application publicity and consultation should be undertaken online where the option of delaying until after the current emergency is not available…developers are encouraged to reach out to local communities using online services”;

Remote site visits – In Wales unless the application specifically relates to the response to the Coronavirus outbreak officers are not expected to make site visits. The Welsh Chief Planner indicates “it may be possible to undertake remote site visits using satellite imagery and Google Street View etc, but this will very much depend on whether the case officer has pre-existing knowledge of the site and surroundings”; and

Prioritising of certain applications over others – applications relating to responding to the Coronavirus outbreak should be processed as “a matter of urgency” whilst “some applications to maintain food supplies, telecommunications and energy networks are also important to the Covid-19 response and should be similarly prioritised”.

A copy of the letter can be found here. We consider it covers a number of topics which will be of interest to those also operating within the English system.

S38 and S278 highway agreements – progress via contract rather than by deed?

 

Whilst there is no strict requirement for these agreements to be entered into as a deed, the standard practice is that they are.  We understand that several local highway authorities (including Nottinghamshire County Council) are now using digital signing platforms for non-deeds and they are encouraging documents to be drafted as contracts rather than as deeds (where possible) so as to allow electronic signatures to be used for execution, and the Council then signs according to its scheme of delegated powers.

Whether an individual local highway authority will agree to such an approach remains to be seen, and some local authorities do not have the necessary powers in their standing orders to enable execution other than by a seal and by a restricted number of authorised personnel (mayor, monitoring officer, chief executive).


Our Planning team can help you navigate the impact of Coronavirus on planning law and your business. Contact Robert Bruce and Stephanie Gozney for planning-related legal enquiries and Paul Brailsford and Mark Harris for planning consultancy enquiries.

This update was originally published on 8 April 2020 and was last updated on 14 July 2020.

Whilst you are here we would also recommend our additional Coronavirus planning updates:


If you would like to talk through the consequences for your business, please email us and one of our team will get in touch.


The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

Author: Robert Bruce

Partner

Author: Paul Brailsford

Partner, National Head of Planning & Environment

Mark Harris

Author: Mark Harris

Partner

Author: Stephanie Gozney

Senior Associate

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