How is Covid-19 affecting the Planning System and what is the risk for developers?

Developers may be concerned that whilst the lock down period continues, deadlines for securing, approving and commencing planning permissions may be missed, consents may expire and deadlines for appeals or challenges may pass.

While Local Planning Authorities have been asked to be flexible in light of the current crisis, many issues that affect the determination of planning applications and the ability to start on site are outside of their control. Developers need to be mindful of the risks posed to their projects.

Jennifer Smith, Managing Partner at Smith Jenkins Town Planning, looks at those risks and what developers can do to mitigate them.

All types of applications can be made in the normal way (normally electronically through the Planning Portal). There may be a delay in registering applications given Local Planning Authority (LPA) resourcing and working from home arrangements.

Consulting on planning applications is currently challenging. At pre-application stage, good practice is to engage with the local community, often through a drop in session at a local venue.

The only choice currently is to engage remotely with people through web-based consultations. Smith Jenkins are currently hosting a number of these to engage with local people1.

At planning application stage, LPAs are still required to publicise some applications in a local, printed newspaper. Many newspapers are currently not in printed circulation.

Consultations are likely to take longer than the statutory 3 weeks as a precaution to ensure that everyone has the opportunity to comment on an application.

All site notices should still be displayed, although many LPAs are asking applicants to do this themselves.

Many LPAs have extensive delegated powers to make decisions at planning officer level and are increasing using this route, however there are still planning applications that will need to be determined at planning committee.

Government has now passed legislation that enables virtual planning committees to take place on- line. Some authorities are holding committees remotely, while others are still holding traditional committee meetings but enforcing strict social distancing measures.

There may be delays in the issue of planning permissions. This is likely to cause issues to developers where there are contractual arrangements in place for receipt of a permission, or where conditions on a permission need to be discharged before expiry of the permission.

Current legislation does not allow for the extension of the “life” of a planning permission, which generally last for three years. If permission is going to expire imminently, two courses of remedy are: 1) to make a material start on site; or 2) re-apply for permission.

The industry, led by the Royal Town Planning Institute (RTPI), is lobbying Government to address this issue: either to allow for an application for the extension of time or through an automatic extension (given the current difficulties with starting construction works on site).

Generally, planning permissions last for 3 years. For the lawful implementation of a planning permission, all pre-commencement conditions listed on the planning permission must be discharged before a start on site is made. A start on site means the physical commencement of work, not just site set-up works.

Developers would be wise to check their permissions to ensure that they can deal with pre-commencement conditions before the expiry of the permission. Discharge of condition applications normally take 8 weeks to determine, although this often takes longer. The deemed discharge of a condition (automatic discharge of condition) is available in certain cases, which may assist in speeding up the process. There may also be an option to apply to vary a condition to remove the pre-commencement requirement. However, this still requires an application to be made to the LPA and for them to agree to amend the timescale.

A start on site does not compel a developer to finish a development but will secure the lawful implementation of a permission (keeping it “alive”) until such time that it can be completed. This is a useful option for a development that might be controversial; was expensive to secure; or might not be granted permission again.

Developers should also be mindful that S106 planning obligation or Community Infrastructure Levy (CIL) payments may be due on commencement of development. There may now be viability issues with schemes, and developers may need to go back to LPAs to negotiate any financial contributions due.

A number of temporary permitted development rights have come into affect quickly following the announcement to close all pubs, restaurants and cafes.

These rights allow restaurants and cafes (A3 Use) and pubs (A4 Use) to temporarily operate as hot food takeaways in certain circumstances, until March 2021.

Certain health service bodies and local authorities can now carry out certain temporary permitted development for dealing with emergencies without the need to apply for planning permission.

The Planning Inspectorate (PINS) has now cancelled all previously arranged site visits, suspended all Hearings and Public Inquiries, and closed its offices. It has also suspended all Local Plan Examinations.

Written Representation appeals continue in the normal way, and PINs are issuing decisions on appeals where site visits have already taken place.

There have been a number of trials of appeals using video conferencing technology but there is no conclusion on if these will be used in practice. The main concerns relate to access to the process, fairness, concerns around third party rights to participate and the reliability of the technology.

When the current movement restrictions end, and appeals can resume in the normal way, there is likely to be a significant backlog in the system.

The affect of Covid-19 on the normal function of the planning system is to put further pressure on an already strained system, which will lead to a delay in decision making for all types of application. Developers need to be mindful to the additional time it will take to determine planning applications and also to discharge planning conditions to enable a timely start on site.

Smith Jenkins Town Planning are well placed to advise and assist with all types of developments at any stage of the development process.

Jennifer Smith is Managing Partner at Smith Jenkins Town Planning. The company was founded in Milton Keynes in 2012, and provides advice across a range of construction sectors across Milton Keynes and Northamptonshire.

Jennifer was recognised by the RTPI in 2020 as one of the ‘Women of Influence’ within the profession.

Smith Jenkins were finalists in 2020 at both the Milton Keynes Business Achievement Awards and Royal Town Planning Institute Awards.

For more information visit www.smithjenkins.co.uk.

All information in this article is correct at the time of writing.

Always consult a planning consultant or your LPA for up-to-date or site specific advice.