The new challenges that virtual committees raise for decision-makers

Government regulations setting out how planning authorities can use ‘virtual’ committees to allow decision-making during the coronavirus outbreak have come into force. But practitioners warn that such processes face technical and legal obstacles and could limit public participation.

Virtual meetings: planning system adjusting to pandemic restrictions (pic: Getty)
Virtual meetings: planning system adjusting to pandemic restrictions (pic: Getty)

Earlier this month, regulations came into effect enabling provisions in the emergency Coronavirus Act that allow councils to take planning decisions using  “virtual” committees convened using video- conferencing software. Authorities including  Kensington and Chelsea, Westminster, Waltham Forest, and Reigate and Banstead have already utilised these new measures.

The regulations state that councils can convene meetings in which the minimum number of members needed to attend to make it legally ‘quorate’ can connect remotely. Previously, under the 1972 Local Government Act, they had to be physically present. They also allow councils to make necessary changes to their standing orders required to facilitate that.

The only real stipulation is that members must be able to hear the meeting and be heard by others, and “where possible” see and be seen by others, including members of the public. How councils do this is left for them to figure out, the government has said. “The regulations themselves don’t provide a huge amount of detail on how these committees should function,” said Will Thomas, an associate at law firm Shoosmiths. “As we speak, councils are working through the knots and wrinkles.”

Probably the biggest challenges are practical and technological, despite the widespread availability of video-conferencing software such as Zoom and Microsoft Teams. New guidance from local authority body the Planning Officers Society warns that managing the large number of people involved in a planning committee could be a challenge for the chair. It suggests reducing the number of members to the minimum necessary to maintain political balance. “The chair needs to be really on his or her game, introducing things more than ever, and leading audiences through,” suggested Martin Hutchings, improvement manager at the Local Government Association’s Planning Advisory Service.

Sara Whelan, group manager for development management and planning at Dacorum Borough Council in Hertfordshire, and POS policy manager, said the authority is considering holding its planning committee using Microsoft Teams, which would be linked to Facebook Live so the public can observe it.

But technical problems are likely, warned Nigel Hewitson, a consultant at law firm Gowling. “Every member will not necessarily have the technical kit to do virtual video conferencing,” he said. To help safeguard against glitches, councils such as Westminster have been holding dry runs, said Mike Derbyshire, head of planning at consultants Bidwells.

There are legal risks, according to Shoosmiths’ Thomas and Nicola Gooch, planning partner at law firm Irwin Mitchell. “Anytime anything novel is done, there is a legal risk,” said Gooch. “There’s a real risk of judicial reviews of decisions if things aren’t done properly.” Thomas said councils will need to carefully review and where necessary update their standing orders to ensure these are compatible with the new process, or risk facing a challenge.

In addition, a failure in technology at a crucial moment could jeopardise a decision. For example, if a councillor voted on an application after having lost connection for a portion of the presentation. Thomas said this would mean “they can’t be said to be taking into account all the relevant information”. However, Gooch said: “As long as a councillor recused themselves from a particular decision it should be fine, but if connection is lost with a significant proportion of members, then there’s a problem.”

Public participation is likely to be the biggest practical headache. Some early meetings that have allowed people to speak have run into difficulty, such as one held by South Somerset Council that was the victim of online trolls. Others, such as Westminster, have offered no public participation at all.

Lawyers said this is a problem of perception for authorities rather than a legal hurdle, as there is no legal “right” for the public to speak at a committee meeting, as long as they can respond in other ways. One solution being mulled over by Dacorum is to let key speakers submit a short video. Richard Patient, managing director of public affairs consultants Thorncliffe, said some councils have asked external speakers to submit written remarks to be read out by a council officer.

Many authorities appear to be still cancelling meetings while they figure out a way forward. Neil Bromwich, a partner at law firm Osborne Clarke, said: “Those virtual planning meetings being conducted are likely for urgent or time-sensitive decisions and those that are non-controversial.”

Cambridge and Kensington and Chelsea councils are among those understood to have convened virtual meetings at which only schemes without objections were featured. Gooch said: “For the first few meetings, it’s a good idea to only have small and uncontroversial schemes, but we can’t leave bigger applications undecided forever.”

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