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Oliver Bussell

Partner - Sevenoaks and Ashford

Covid-19 and planning law: present and future

Planning is an area of law which is constantly changing – every new Government and most new Secretaries of State come in with bright ideas (and occasionally good ones) aimed at reform.

But the challenges posed by Covid-19 have forced huge practical changes to the system which I suspect will be similar in scale to what is needed “later” once the economy and not human life becomes the focus of Government’s energies.

So away from the extraordinary measures brought into effect by the Treasury and the ongoing needs of the NHS, what has happened to planning law in the last couple of weeks?  And what is, or should be, on the horizon?  I set some of this out below…

Present

Attendees of Local Planning Authority (LPA) meetings no-longer required to meet in the same place

Section 78 of the Coronavirus Act 2020 enables regulations to be made recognising the impossibility of committee meetings being held safely in a single location.  These will allow attendance at and voting in local planning authority (“LPA”) meetings without all of the attendees being together in the same place.  Voting on applications by councillors (many of whom of course are over 70) will be enabled once more, allowing permissions to be granted.  This is critical to determination of existing planning applications.

Each LPA will need to ensure that its own constitutional arrangements do not contradict or make impractical the intention of the regulations.  We can assist applicants to ensure that decisions are reached with proper reference to the LPA’s constitution – to avoid questions arising over lawfulness.

Temporary use class implemented to allow food and drink outlets to operate as takeaways

A wide range of premises were forcibly shut down by Government was effected in the second set of Health Protection Regulations, on 26 March.  This includes premises where food or drink are sold for consumption on those premises and extends to a wide range of uses where social contact would be likely – cinemas, theatres, nail bars, fitness studios and so on.

Reflecting the very big hit to the hospitality industry a temporary use class has been created for any premises used for the sale of food.  This allows them to operate a takeaway for a period of one year subject only to notification of the LPA.  This even applies to outlets subject to “Article 4” directions which disapply permitted development (“PD”) rights.

Other premises still permitted to open under Covid-19

The current regulations do not by law close as wide a range of premises as might have been thought.  Premises which may remain open to the public include building supplies and hardware stores, dental services, opticians, osteopaths, taxis and hirers of commercial vehicles – among others.  Whether the providers of these services feel able to provide them of course is a different matter.

Future

As we are all learning at the moment, the future is uncertain.  But whenever the economy does start to resemble normality, the strong impetus from Government and many LPAs will be to stimulate development.  There are many ways they could do this, to give a few examples:

  • LPAs should be more willing to reassess their s106 requirements pre-grant, giving some recognition to the cataclysm that has hit. The range of amendments that it might be helpful to countenance is limitless, but for example trigger points which are not linked to stages of development should be reviewed.  The entire topic of viability is also likely to come under renewed scrutiny.  Government could be mandating this approach in its published advice.
  • In many already-consented schemes the 106 component may now place a more obviously excessive burden on deliverability than previously. There is a five year block on appealing the terms of a s106 agreement following the date of the agreement – but naturally an LPA may vary the 106 by agreement at any time.  In the interests of delivering development this will surely become a priority.
  • As with the temporary PD rights for pubs, bars and restaurants referred to above, further temporary or permanent extensions of PD rights may be helpful for a wide range of other businesses.
  • Measures disapplying CIL entirely or else deferring its due date for payment.
  • Measures either pressing “pause” on statutory deadlines for determination of planning applications/appeal rights would be sensible. Pretty obviously, a repeat of the measures enacted following the financial crisis which allowed landowners to keep permissions alive for longer would be a good idea.

Understandably, Government has other fish to fry at the moment.  The urgency of measures like these will not be apparent until daily life comes back to resembling something normal.  But we hope that they are thinking about these issues and making preparations.

For more information regarding planning law and planning regulation under Covid-19 contact Oliver Bussell, Partner in Rix & Kay’s Commercial Property Team

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