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.
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.
- Enforcement & Expiry
- 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".
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.
- Financial difficulty meeting CIL & S106 contribution payments
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.
- Inquiries, hearings and examinations
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.
- Temporary permitted development rights
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.
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