The Future of Planning

Never has it been more apparent that the planning industry lags behind other sectors in its use of technology than with the global outbreak of COVID-19. While its catastrophic effects on every day life could not have been predicted, it does highlight that the planning industry needs to work hand in hand with technology to deliver timely planning decisions and resolve planning disputes.

The lockdown announced by the Government is already heavily impacting planning submissions and decisions as well as contractual obligations.  With the latest announcement that gatherings should consist of no more than two people, planning committee meetings, inquiries and hearings will now also be postponed. Applicants and their appointed consultants will similarly be unable to meet with Council officers and local communities during the processing of planning applications which requires various levels of public engagement.

This is in addition to the well documented challenges that the planning system already faces regarding the system's ability to deliver upon strategic government plans for housing and infrastructural priorities.

Current Impact of COVID-19

The majority of the world is now on lockdown, with businesses closing every day. As workers are forced to self-isolate and stay home, the planning process is likely to be even further impacted as the industry is already under-resourced.  The very public and consultative nature of the planning system relies heavily on people coming together to discuss plans and other details of specific planning applications.

Developers should prepare for increased delays in local authorities deciding planning applications as well as delays in planning appeals and judicial review cases in the High Court. It remains to be seen whether the usual timeframes for the determination of planning applications will be extended to allow local authorities more time to process such applications which usually require site visits and statutory consultation with various bodies and the public. In the meantime, the usual timeframes continue to apply. These processing timeframes will, in many cases, almost certainly not be achieved in the current circumstances.

Where there are agreements for sale or leases that are conditional on planning, the parties may need to consider agreeing variations to allow for any extensions in any relevant planning dates (for example submission, timeframes in between milestones, longstop dates and the number of days following the usual Judicial Review period) in the event there are delays at the local authority to issue planning decisions or for challenges made during the Judicial Review period to be considered. It is not yet certain whether the Government and the Planning Court will allow longer periods of time for the submission of challenges in response to decisions taken (or not taken) by local authorities and the Secretary of State.

Developers may find themselves in a position where extant planning permissions can no longer be implemented within the three year time frame. In these uncertain times, developers may also rush to use the "deemed consent" provisions to discharge conditions when we have no planning officers able to work. To further amplify barriers to development, construction work faces a steep decline. Even though the Government has confirmed construction work is permitted to continue amidst the pandemic, many have ceased work as social distancing cannot be safely enforced. Taylor Wimpey and Barratt homes have shut down the majority of their sites, to put workers' health first. While some construction companies, such as Cairn Construction, have continued to work – it appears likely that as cases of infection rise, the number of available workers will fall. This pause on development throughout the country will have direct knock-on effects on the planning industry and bringing development forward.

Site property visits are also unlikely to now go ahead. Westminster City Council has mentioned that photographs may be acceptable but that each situation is case dependent and we will have to wait to see if other local authorities follow this approach.

What is being done? Not all hope is lost…

The Coronavirus Act 2020 has now received Royal Assent on 25 March 2020. It recognises that Councils are unable to hold planning committee meetings, requiring an amendment to the Local Government Act 1972, which requires councillors to be physically present to decide all applications. The "Local Authority Meetings" amendment in the Coronavirus Act removes the necessity for all persons to be in the same place to 'attend', speak, vote or participate in local authority meetings up to 7 May 2021; with details being contained in Regulations.

Although the proposed legislation will now enable planning committees to continue virtually, it is also necessary to tackle the need for flexible statutory timescales, such as the suspension of default permissions on prior approvals. The Local Government Association has confirmed these discussions are taking place with Government.  In addition, the Government may again introduce provisions allowing for planning permissions to be renewed where they are due to expire and unlikely to be implemented in the current climate. 

Conclusion

The long term effects of COVID-19 will depend on how long this delay will continue. The Government once projected the UK can reduce the spread enough to resume some sort of normality in 12 weeks' time which sounds ambitious.

The key is to fully understand your legal rights and obligations (whether you are an investor purchaser/vendor, landlord, tenant or developer) to determine whether or not you will be fully exonerated from your liabilities given the crisis and if not, how you can mitigate the ramifications by coming to a commercial arrangement with the other parties to the agreements.  Collaboration between parties will be needed.

It will also be crucial for the planning industry to use technology to navigate these uncertain times to enable development to come forward. At a minimum, we should now start to see planning committees taking place virtually. The Government needs to now consider the same approach to appeals and consideration must be given to time extensions for stalled construction and development sites. We must keep the planning industry moving forward in this challenging environment.  We will keep you updated as the situation continues to evolve.