COVID-19: Keeping the planning system moving
The events of this week have already had a dramatic effect on daily life and working practices. Local and national governments are quite properly focusing on the most pressing health and welfare issues. The Chief Planner has already responded by putting in place certain measures to allow retailers to keep their shelves stocked with essential supplies, and to help pubs and restaurants respond to the immediate downturn in trade. However, with everyone now being encouraged to work from home and avoid public gatherings, attention must quickly turn to making sure the economy can continue to perform. This includes ensuring the planning system continues to function properly and effectively.
There will be no single solution to this, and everyone will need to work collaboratively and creatively to keep things moving. However, there may need to be specific legislative intervention to overcome certain sticking points. The following is an initial look at some of the obvious sticking points, and what the solutions could be.
Applicants for planning permission for national and major developments carry out a pre-application consultation. As a bare minimum, the applicant must consult relevant community councils and hold a “public event”. The particular sticky point here is that in terms of the relevant legislation planning authorities must refuse to determine such an application if the applicant has not fulfilled the pre-application requirements.
There should not be any difficulty consulting with community councils – this could be done electronically. However, there is a question mark over whether it is possible to hold a “virtual” public event online, for example, through Facebook, Instagram, Zoom, or the like. In reality, this is likely to be a very effective means of consulting the public. However, there needs to be an early discussion amongst relevant stakeholders, including local authorities and the Chief Planner, to consider if this would work, and to issue the necessary guidance. If there is any doubt about this, the government could legislate to relax the pre-application requirements, or confirm that a public event can take place online.
Making an application
Planning authorities have started publishing information online explaining how the planning service will continue to function. For example, the City of Edinburgh Council has announced that its public counter will close and that they will not be accepting any paper submissions or cash payments. This position is likely to be replicated across all planning authorities. However, submissions can still be made through the eDevelopment site, and it appears that most planning authorities are taking steps to ensure that applications can still be processed by staff working remotely.
Determining planning applications
It is likely there will be a slow down in the processing of applications. However, the real sticking point concerns the determination of national and major applications, which require pre-determination hearings and decision by committee. Local government legislation requires Council meetings, including meetings of planning sub-committees, to take place in public, and for members to meet in person. This is likely to very challenging, if not impossible, over the coming weeks and months. It is in everyone’s interest that committees can continue to meet and make decisions – not just in relation to planning.
The solution to this problem could include Council’s granting further delegated authority to Heads of Planning and other senior planning officers to decide all planning applications (i.e. including national an major applications), or government legislation to allow all Council meetings to be held remotely for a temporary period. Webcasting could overcome the requirement for Council meetings to be held in public. However, it may be that the government should also temporarily suspend this requirement if the technology to support this is not available across the board.
In England, the Local Government Secretary announced that the Westminster government is considering bringing forward legislation to allow Council committee meetings to be held virtually for a temporary period. The Scottish Government should be encouraged to follow suit.
Appeals, statutory appeals and judicial review
The DPEA has issued guidance to say that it is effectively continuing to function as normal, and has not, as yet, announced any plans to cancel hearings or inquiries. However, that guidance was issued earlier in the week, and may need to be revisited.
Similarly, the Lord President and the Lord Advocate have issued guidance for the handling of Court of Session civil business, which includes planning appeals and judicial reviews. The measures include dealing with cases mostly by written submission, and restricting court time to an absolute minimum. It could even include conducting hearings by telephone conferencing. This will be new for some, but many courts in Scotland already conduct hearings by telephone conferencing, and some by video conferencing.
Duration of planning permission
The current situation could mean that developers find themselves in a situation where planned commencement dates are not achievable, and they face losing their permission. By default, planning permission expires after three years from the date on which it is granted unless development has commenced. Faced with this situation, a developer could apply to renew the consent before expiry, but that would come at a cost, and is not guaranteed, or they could make an application to vary or discharge a condition to achieve the same end, but again, that might not be possible and is not guaranteed.
The government should consider legislating to waive planning fees for renewal applications and possibly even to extend the default expiry period for all live and unimplemented consents.
Collaboration and creativity
No one person will have all of the answers to the challenges that lie ahead, which will change and evolve as the full extent of the Coronavirus crisis takes hold. It is essential that there is an open discussion about how everyone can pull together to overcome these challenges, which will require creative thinking and collaboration across the board. Let’s have the discussion, and let’s make sure we take all the action we can to keep the system moving.
4th August 2020
Theresa Hunt, a leading member of our specialist planning law team, passed away on Friday July 24.
23rd June 2020
We look at how resilience and collaboration will help the housebuilding market exit lockdown.
19th June 2020
How has COVID-19 impacted Scotland's 'right to roam'?