COVID-19: Keeping the planning system moving (Part 2)
Two weeks ago – an eternity in the current climate – we considered what the planning system needed to do to respond to the challenge of the public being encouraged to work from home and avoid public gatherings. See that earlier blog here.
By the end of the following week, the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 made it a criminal offence to leave your home other than for a permitted purpose – a necessary, yet quite astonishing step.
Last week, the Scottish Parliament passed its own emergency legislation – the Coronavirus (Scotland) Act – which comes into force tomorrow, 7 April. It includes specific provisions for planning and local authorities.
Last, but not least, the Chief Planner issued a further letter on Friday setting out the steps that have been and will be taken to ensure we maintain a functioning planning system. He also explained the impact the current situation will have on the work the Planning and Architecture Division had planned for 2020.
So, where are we now, and what still needs to be done?
COVID-19: maintaining a functioning planning system
The Chief Planner recognises that a high performing planning system will have a critical role in supporting our future economic and societal recovery, and our future health and wellbeing. He emphasises that we must all be prepared to adopt some new approaches; measuring risk and taking a pragmatic view of how we can best continue to plan and make the decisions vital to the recovery of our communities and businesses. Responding to this challenge will require an “innovative, pragmatic, practical and flexible approach”.
The Chief Planner has confirmed that regulations will be brought forward as soon as possible to suspend the pre-application consultation requirement for an emergency period. Prospective applicants will be expected to replace the current requirement for a physical, face-to-face public event with an alternative, online version so that local people can still be engaged and have an opportunity to influence proposals that affect them. Guidance (yet to come) will set out the expectations and good practice for online engagement.
Developers and consultants have already started to respond to this challenge – for example, Orbit delivered a digital planning consultation for the proposed redevelopment of Finance House in Edinburgh.
Note: In terms of the current regulations, a planning authority must refuse to determine an application if the pre-application consultation requirement has not been fulfilled. Until those regulations are suspended, the decision of a planning authority to accept and determine an application where a face-to-face pre-app consultation has not been carried out would be susceptible to legal challenge. However, the ground of challenge would arise on validation of the application and the legal challenge would need to be raised within three months of that date. In other words, long before determination of the application. This helps de-risk major applications being brought forward now, and before the regulations change, where face-to-face public consultation has not been carried out.
Making and determining applications
Local authorities are working hard to respond to the challenge posed by the Coronavirus crisis. Some authorities have identified planning as a priority service, whereas others have candidly admitted that they simply do not have the resource to include planning amongst key services that must continue to function. There are a few common trends:
- There has been widespread cancellation of committee meetings. However, the majority of planning teams are continuing to work and process applications remotely. The Coronavirus (Scotland) Act did not make any specific provision in relation to Councils conducting committee meetings virtually or remotely. However, that power already exists under the Local Government in Scotland Act (2003). Separately, the Coronavirus (Scotland) Act provides that for the duration of the coronavirus crisis, local authorities have the power to exclude the public from their meetings on health grounds.
- Most Councils have taken steps to increase the delegated powers of their senior executives to allow emergency decisions to be taken without a Council or committee meeting. In theory, this could include planning decisions, but that is perhaps unlikely.
- Planning desks have closed and face-to-face planning services have been suspended. Applications posted in hard copy will almost certainly not be validated and progressed until offices reopen. The vast majority of applications (well over 90%) and supporting information are already lodged through the eDevelopment.scot service. However, applicants may in some cases struggle to produce the information they need to support their application. Particularly if it requires surveys to be carried out.
Savills have produced a helpful summary of the procedures the Councils covering Scotland’s main cities are currently following – see here. The RTPI is also tracking what Councils are doing throughout the UK – see here.
Duration of planning permission
The key planning provision in the Coronavirus (Scotland) Act is the extension to the duration of planning permission. The Act extends the duration of (i) all planning permissions (detailed and outline) and (ii) the deadline for the submission of applications for approval of matters specified in conditions, which are due to expire during an ‘emergency period’ of 6 months. Instead, those permissions or time limits shall not lapse until April 2021 (i.e. the end of the 12 month ‘extended period’).
The Scottish Ministers have the power to vary the ‘emergency period’ and ‘extended period’, so both could be extended if that was considered necessary. For example, some consents might contain a pre-commencement condition that requires an ecological survey, which cannot be carried out now and cannot be carried out again until after April 2021. The ‘emergency period’ and/or ‘extended period’ may need to be extended if this kind of issue is widespread.
Appeals, statutory appeals and judicial review
The DPEA has updated its guidance confirming that until further notice all face-to-face oral procedure is suspended. However, Reporters and DPEA staff continue to work, and parties and the public are being urged to consider if oral procedure is necessary, or if their case could be dealt with by written submission instead. Reporters will consider alternative arrangements on a case-by-case basis. However, if Reporters cannot facilitate alternative arrangements, they have the discretion to ‘sist’ cases.
The Court of Session has also updated its guidance and confirmed that until 20 April (unless extended) only essential Court of Session business will be dealt with. This is restricted to child abduction petitions, interim interdict and other urgent matters on ‘cause shown’.
The Chief Planner’s letter also sets out measures that have been and are being taken in relation to some other matters. These include: requirements for neighbour notification, public and site notices (discussions ongoing with Heads of Planning); documents for public inspection (the Act removes the requirement for public bodies, including planning authorities, to publish certain documents); and hazardous substances (responding to the increase in demand for hazardous substances such as medical oxygen, and ethanol).
Wider Planning and Architecture Division work programme
Earlier in the year, we trailed what planning had in store for 2020 – see here. NPF4 was the main feature, working towards a draft for consultation in September. The Chief Planner has understandably announced that “slippage in the programme is now inevitable”. He has promised a revised timetable, but for now announced that it looks likely that the draft NPF4 will be put before the Scottish Parliament and out for consultation during 2021.
The work programme for implementation of the Planning (Scotland) Act 2019 and wider planning reforms will also be affected. Again, the Chief Planner has promised to provide an updated schedule for this work programme. Keep an eye on www.transformingplanning.scot for further updates in this regard.
7th September 2020
We examine the Scottish Government's consultation on housing and Scottish Planning Policy.
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.