The implications of new rules on virtual committees: the Planning Briefing

How new rules allowing councils to conduct planning committee meetings remotely using digital technology change the system and their implications. By Adam Branson.

Committees: recent legislative tweak allowed remote sessions (pic: John Hickey)
Committees: recent legislative tweak allowed remote sessions (pic: John Hickey)

The government's response to the Covid-19 pandemic, including new restrictions around social distancing and travel, has meant councils have struggled to hold traditional planning committee meetings. The Local Government Act 1972 required a minimum number of councillors to be physically present in order to decide planning applications, with no provision for remote participation or voting.

How We Did It: Holding our first virtual planning committee

To allow planning committees to continue and to prevent a hold-up in local authority decision-making, the government introduced emergency legislation allowing such meetings to be held remotely. On 25 March, the Coronavirus Act received royal assent after being fast-tracked through parliament. Section 78 of the act includes provision for "persons to attend, speak at, vote in, or otherwise participate in, local authority meetings without all of the persons, or without any of the persons, being together in the same place". Section 78 also allows the secretary of state to introduce new rules in relation to the frequency and location of council meetings, as well as "public admission and access". The new measures apply to all kinds of local authorities in England, including the Greater London Authority and combined authorities. The same powers to introduce such rules are also granted to the relevant ministers or departments in Scotland, Wales and Northern Ireland.

Regulations enabling the new way of working

What is new?

Before section 78 of the act could come into force, the government needed to draw up the necessary regulations. The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 were duly published on 2 April and came into force two days later. Section 5 of the regulations states that meetings can now take place without councillors being physically present, provided that several conditions are met in relation to members and members of the public being able to see and hear proceedings (see the next section). The time-limited regulations only apply to council meetings to be held before 7 May 2021.

Practical implications

Since the regulations came into force, commentators say many authorities have started to embrace virtual planning committee meetings. The Local Government Association's Planning Advisory Service (PAS) and consultancy Lichfields are working together to track councils' use of virtual planning committees. According to Alison Bembenek, associate director at Lichfields, about a quarter of authorities are already using online platforms to undertake committee meetings remotely, while just over a third are working on alternative arrangements with "many anticipating they would also go down the digital route".

Michelle Simpson-Gallego, an associate at consultancy Pegasus Group, has also been monitoring the take-up of virtual committee meetings and says momentum is building now that some councils have held successful meetings. "I think many councils wanted to pause and see how others were operating them," she says. "In the last two weeks, there has been a big increase in virtual committees across the UK."

Some observers believe that some councils are using the Covid-19 crisis as an excuse for not determining potentially controversial applications. Christopher Young QC of No 5 Barristers' Chambers suspects that authorities not even looking into conducting virtual meetings are deliberately dragging their feet. "Some LPAs are suggesting it is because they have a lot of councillors who live in remote rural locations, but that has not stopped many rural authorities from progressing matters. Apathy or political manoeuvring are much more likely explanations."

Bembenek isn't convinced, however. In her experience, any delays in implementing virtual committee meetings are more likely to be down to councils wanting to ensure that any system they put in place is sufficiently robust and legally sound. "Some postponement during these extraordinary times is preferable than a decision which is open to challenge," she says.

The minimum parameters a virtual meeting must meet

What is new?

Paragraph 3, section 5 of the regulations outlines three conditions that local authority meetings must meet. This states that, first, members in remote attendance must be able at all times to hear and "where practicable see" other attending members, as well as to be heard and where possible be seen by these other members. Secondly, members must be able to hear and see, and be heard and seen by, any members of the public entitled to speak at the meeting. Finally, they must be able to be heard and where possible seen by other members of the public "attending the meeting" by remote access. "The regulations do not provide much detail as to how meetings should be conducted," according to Emma Williamson, assistant director for planning, building standards and sustainability at the London Borough of Haringey.

Practical implications

Commentators have highlighted teething problems around the use of new technology as a key challenge. Most authorities implementing the new rules have adopted some form of video conferencing, be it Zoom, Microsoft Teams or another product. "You have to have some sort of video-conferencing facility that all members can access and that works and is stable," says planning solicitor Will Thomas, a senior associate at Shoosmiths. "You also need to ensure members are trained on it and are familiar with the systems."

Choosing the right technology or combination of technologies is also essential. Nicky Parsons, executive director at Pegasus Group, says the best example she has come across was initiated by East Cambridgeshire District Council. The council uses Zoom to ensure that both committee members and interested parties who have a right to speak can hear and see one another, but also broadcasts meetings on YouTube so the general public can view it.

Council governance rules may also need to be tightened up to ensure that meetings are orderly, Thomas adds, perhaps by amending the authority's standing orders. "Most councils have standing orders and protocols in place for their committees and often they don't easily translate across to a virtual committee. I think the risk is without the physical cues that people pick up from each other naturally in a room, people will talk over each other and it will descend into a mess," says Thomas. "Some councils have introduced protocols that give the chair a bit more of a controlling hand in when and how people speak."

Public participation in committee meetings

What is new?

Section 5 of the regulations states that committee members must be able to hear and be heard (and where possible see and be seen) by any member of the public entitled to speak at the meeting, as well as to be heard by other members of the public "attending by remote access". Observers point out that this is an important distinction – only those interested parties that have been given the right to speak at a meeting have to be heard, rather than just anyone watching it. This mirrors the process for traditional committee meetings, they add. "It's important to remember that the public is only there to look and listen," says Mike Kiely, chair of the Planning Officers Society. "It's a meeting in public, not a public meeting."

Sections 13, 14, 15 and 16 of the regulations revise previous laws, including the 1972 act, to define a meeting as being "open to the public" if it includes "access through remote means", such as video-conferencing, live webcasts, and "live interactive streaming", and "whether or not members of the public are able to attend the meeting in person".

Practical implications

Some groups have raised concerns that the rollout of virtual planning committees has resulted in local authorities limiting public participation. Last month, a coalition of organisations, including the London branch of countryside charity the Campaign to Protect Rural England (CPRE) and Friends of the Earth, highlighted several alleged cases where decisions made by virtual committees were taken with restricted public involvement, including meetings "closed to the public" and a lack of speaking rights.

"A lot of campaigning organisations have raised concerns that not everyone has the same access to technology so they can't be properly represented," says Nicola Gooch, a partner at law firm Irwin Mitchell. But from a legal perspective, members of the public have exactly the same rights as they did before, she says. "There is no legal right for objectors and third parties to speak."

Accommodating those interested parties, including applicants, that do have the right to be heard can be done in different ways. Kiely says many councils are opting to ask for written submissions that are then read out by the committee clerk in an attempt to keep things simple. "If you don't have the more sophisticated software, the ability to control people joining and leaving a virtual committee meeting can be limited," he adds.

Williamson says: "The challenge will be ensuring members of the public can speak at the meetings." She says Haringey Council has been observing other local authorities' meetings "to help gauge how best to do this", while it can also allow those without access to a computer to participate by telephone. In addition, Haringey is "mindful" of the issues raised by CPRE and the other bodies on public involvement in virtual committees and how these concerns should be addressed, Willamson adds.

Nicola Sworowski, principal consultant at PAS, says councils have taken a "mix in approaches" in terms of accommodating members of the public speaking at meetings. Authorities need to address the issue "in the most appropriate way" so they can involve the public as they would normally, she suggests.

Managing voting by committee members

What is new?

Paragraph 6, section 5 of the regulations allows councils to amend standing orders to ensure committees can vote in a consistent and transparent manner when meeting virtually. "The regulations didn't go into much detail," says Kiely. "This is just about councils thinking about how procedures and outcomes can be achieved through virtual means."

Practical implications

Experts have highlighted a potential legal risk in voting arrangements if technology fails at key moments during the meeting. "One issue that we picked up is the legal issue of ensuring that a member has been able to hear – and probably see – all of the debate on an application in order to allow them to vote on that application," says Sworowski. "The chair should really check with all members that they didn't drop out in a virtual sense at any point and are able to take part in the vote."

"As a general rule, if you miss more than around 30 seconds of a presentation, you should recuse yourself from the vote," Gooch adds. "But if connection is lost for a significant proportion of members, then there's a problem." According to Thomas, 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 legal challenge.

Public access to documents

What is new?

The regulations state that authorities do not need to make physical copies of committee papers available to the public. Rather, they say that publishing materials online is sufficient for authorities to have fulfilled their duties. Section 15 amends the 1972 act to add that a document being "open to inspection" includes publication on the council's website, while the "publication, posting or making available of a document at offices of the council" includes its publication on the council's website.
Practical implications

In practice, commentators say many local authorities are now already publishing planning committee documents online-only anyway. "Documents have been online for a long time, so really there is no change," says Gooch. "Committee reports are published about a week in advance on a council's website. It's a lot less common now for there to be hard copies, mostly because of the cost, but there is no legal requirement for them. They need to be available, but that can be electronically."

Williamson says all of Haringey's planning documents and committee papers are published online, adding: "The plans and information that would normally be presented in the chamber can be presented on Microsoft Teams. A key issue for us is ensuring those who may not have access to the internet, or a poor connection, are not disadvantaged and we are looking into this now."

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