The key planning changes made this week in response to Covid-19

We examine measures announced by the government this week to help keep the planning system moving during the coronavirus pandemic.

Coronavirus: impact being felt across planning system (pic: Getty)
Coronavirus: impact being felt across planning system (pic: Getty)

Earlier this week, the government made a series of announcements and planning guidance updates on how the planning system can continue to operate during the pandemic. These included measures to: allow councils in England to publicise planning applications through social media, consult on local plan matters, and allow more flexibility to let developers defer payments towards local infrastructure.

Below we explain them, and their potential implications.

Publicising planning applications during the pandemic

What is new?

The Ministry of Housing, Communities and Local Government (MHCLG) has introduced temporary regulations to supplement existing statutory publicity arrangements, such as site notices and newspaper advertisements, for planning applications.

Under the regulations, authorities now have flexibility to take "other reasonable steps" to publicise applications if they cannot be discharged through the existing specific requirements for site notices, neighbour notifications or newspaper publicity. These steps can include the use of social media and other electronic communications and must, the government said, be "proportionate to the scale and nature of the proposed development". It added that if local newspapers are not circulating in their area, authorities should seek to use local online news portals in the first instance.

A planning practice guidance update issued in the wake of the announcement fleshed out how councils can determine what is 'proportionate' under such a situation. It said that "greater and more frequent publicity would be appropriate where the potential impact of the planning application is expected to generate a large volume of representations. This may be the case, for example, for large scale applications and those applications related to listed buildings, or departures from the local plan, or where there has been a previous application which has attracted interest." It added that publicity for applications for householder and minor development "should be focused on the immediate locality".

The PPG update also revealed that, under temporary planning application publicity requirements brought in during the coronavirus pandemic, the minimum period local planning authorities must give in a newspaper notice and on their website for representations, "has been increased from 14 to 21 days (or longer where the period includes public or bank holidays)". It added that the period of 30 days for environment impact assessment (EIA) applications remains unchanged, while the 21 days (or longer where the period includes public or bank holidays) for listed building consents also remains unchanged.

The guidance also advised that councils who exercise the temporary publicity flexibilities "are encouraged to keep a record of how they notify the public about planning applications as evidence they took reasonable steps to engage people who live, work or carry on business in the area in the decision-making process".

It added that it "may be appropriate to include information on the publicity undertaken in the planning officer's report about the application".

Practical implications

Ian Fletcher, director of real estate policy at property lobby body the British Property Federation, said: "This helps to provide clarity on one of the issues that helps oil the wheels of the planning system – giving notice to the local community that applications have been made.

"Over the past few weeks, applicants and local councils have improvised, but that is not ideal and allowing the use of social media will give comfort to applicants and council staff that the right thing is being done."

Richard Crawley, programme manager at the Local Government Association's Planning Advisory Service (PAS), said the proposed regulations would provide reassurance for officers who have been concerned due to their inability to use traditional avenues to publicise applications during the pandemic.

Reviewing statements of community involvement (SCIs) in relation to local plan-making in light of the pandemic

What is new?

SCIs are drawn up by local authorities as part of their local plan preparation and set out how they intend to effectively engage with communities on planning matters. They are a statutory obligation established by the Planning and Compulsory Purchase Act 2004.

Updates to Planning Practice Guidance (PPG) on plan-making, published this week, said that "where any of the policies in the Statement of Community Involvement cannot be complied with due to current guidance to help combat the spread of coronavirus (COVID-19), the local planning authority is encouraged to undertake an immediate review and update the policies where necessary so that plan-making can continue".

It said that councils "will need to assess their Statements of Community Involvement to identify which policies are inconsistent with current guidance on staying at home and away from others or any superseding guidance".

It added: "This could include, for example, holding face-to-face community consultation events or providing physical documents for inspection."

The guidance said the local planning authority should then "make any temporary amendments that are necessary to allow plan-making to progress, and that continue to promote effective community engagement by means which are reasonably practicable".

It went on to say that councils are "strongly encouraged to use online engagement methods to their full potential".

Appropriate methods include "virtual exhibitions, digital consultations, video conferencing, social media and providing documents for inspection on a public website", the guidance said.

It added that local authorities "will also need to take reasonable steps to ensure sections of the community that don't have internet access are involved and consider alternative and creative ways to achieve this".

Postponing neighbourhood plan referendums until May 2021

What is new?

The MHCLG update also includes a summary of changes made to the neighbourhood planning process and says the government "will continue to explore whether further changes are needed".

Revisions relating to neighbourhood planning include regulations linked to the Coronavirus Act 2020 which mean that no plan referendums can take place until 6 May 2021.

"These provisions will be kept under review and may be amended or revoked in response to changing circumstances," the update states.

In April, the government updated current planning guidance "to set out that neighbourhood plans awaiting referendums can be given significant weight in decision-making".

Allowing extended construction site working hours during the pandemic

What is new?

A written ministerial statement, published this week, instructs local planning authorities to, “take a swift and positive approach to requests from developers and site operators for greater flexibility around construction site working hours”, for instance by not enforcing, or amending, planning conditions that restrict them.

Where only a short term or modest increase to working hours is required, the statement says, local planning authorities should not seek to undertake enforcement action.

Where developers require longer term or more significant changes to working hours, the statement says, they should apply to the LPA to temporarily amend a condition or a construction management plan in the usual way.

In doing so, the statement says, it will be important for applicants to consider potential impacts and, where necessary, to put forward brief plans to manage concerns. In return, it continues, LPAs should respond speedily and sympathetically and engage positively with applicants to find solutions.

Local authorities should prioritise these types of applications and give early clarity on the acceptability of extended hours to developers, the statement continues. They should aim to issue decisions within ten working days, it says.

According to the statement, requests to extend working hours should be proportionate and should not involve working on Sundays or bank holidays. But it says LPAs should not refuse requests to extend working hours until 9pm, Monday to Saturday without very compelling reasons. In some cases, it continues, such as in areas without residential properties, extending working hours beyond this, including allowing 24 hour working where appropriate, may be justified.

The statement says “compelling” reasons for refusal might include significant impact on neighbouring businesses, or on uses which are particularly sensitive to noise, dust or vibration, which cannot be overcome through other mitigation, or where impacts on densely populated areas would be unreasonable.

It adds that any temporary changes to construction working hours conditions granted by LPAs should not extend beyond 13 May 2021, and that the need for the Statement will be reviewed when the requirement for social distancing on construction sites diminishes.

Dealing with Community Infrastructure Levy (CIL) payments during the pandemic

What is new?

The government said that it is to legislate to enable councils to temporarily relax some CIL rules for developers with an annual turnover of less than £45 million, including allowing authorities to defer payments, to disapply interest on late payments and to return interest already charged. The changes follow concerns that existing CIL regulations were not flexible enough to deal with the impacts of the pandemic on developers' cashflow.

This week's update stressed the use by councils of existing powers to allow developers to pay CIL in instalments. It said that the government will introduce amendments to the Community Infrastructure Levy Regulations 2010 "to enable charging authorities to defer payments, to temporarily disapply late payment interest and to provide a discretion to return interest already charged where they consider it appropriate to do so for developers that have an annual turnover of less than £45 million".

The update made clear that, although the implementation of the changes will not be immediate - due to legislative requirements - the "government's clear intention to legislate should give authorities confidence to use their [CIL] enforcement powers with discretion".

The update said that the "easements will not be open-ended and will be removed when the economic situation has recovered".

Practical implications

Peter Home, an associate director at consultancy Turley, said they were "helpful but late to the table".

"Given that the majority of the guidance is simply reminding local planning authorities (LPAs) and developers of the existing flexibilities that have long existed in CIL, this could have been released some weeks ago", he said.

He added: "With respect to the guidance on enforcing the late payment of CIL, there is clearly a new emphasis on asking LPAs to consider whether it is in the public interest for late payments to be enforced as quickly and robustly as the legislation allows for. This change in emphasis will be extremely helpful for developers with large CIL liabilities that they are struggling to pay."

But Claire Dutch, partner and co-head of planning and environment at law firm Ashurst, said: "Many of the larger developers are facing CIL bills that run into tens of millions and will be disappointed that the relief will not apply to them."

Nicola Gooch, a planning partner at law firm Irwin Mitchell, said: "It will be interesting whether the decision to limit the relief to developers with an annual turnover of less than £45 million will survive parliamentary debate - and how this turnover figure is to be calculated. At the moment, the difference between being over or under the threshold could be one good year, so it is likely than an average figure taken over a specified period of time will be adopted.

"In any event, turnover is not a particularly good measure of size or success: there is a stark difference between revenue and profit. It is perfectly possible to have a very healthy turnover and still run into cash flow issues."

Dealing with section 106 payments during the pandemic

What is new?

The government said that there are already "flexibilities" in the section 106 regime to help it adapt to the impacts of the pandemic. But it advised that councils should take a "pragmatic and proportionate" approach to the enforcement of section 106 planning obligations during the coronavirus pandemic, and should consider allowing developers to defer agreed payments.

Handling compulsory purchase order (CPO) proceedings during the pandemic

What is new?

The government's guidance advised that councils currently involved in CPO proceedings should consider extending deadlines for responses on land interest details and submitting objections during the pandemic.

It said that the government would "encourage [such] authorities to consider whether it would be appropriate to increase time periods for people to respond when requesting information about interests in land to be acquired or submitting objections to CPOs, given that due to COVID-19, and the possibility of self-isolation, some people may not be able to reach a postbox, or responses may be otherwise delayed (e.g. due to illness or delays in the postal system)". The guidance also advised that "residents should not be unduly evicted during this period in line with the government's wider guidance on evictions".

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