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Courts and Inquiries

  1. The Lord Chief Justice has made clear that the courts system will never again operate as it did before the coronavirus pandemic struck.

Planning & CPO Updates

  1. This week has been an important and probably key one in terms of moving the planning process forward in response to the pandemic. There has been a flurry of activity with new legislation, updated PPG, a Written Statement from the Secretary of State and Updated Guidance from both MHCLG and PINS, as summarised below. This follows on from the PM’s broadcast on Sunday evening (10 May) heralding the commencement of the loosening, albeit to a modest degree, of the previous restrictions on movements and activities.

Legislation

  1. The Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 (S.I. 2020 No. 505) came into force on 14th These deal on a temporary basis with some of the current practical difficulties relating to publicising various applications arising from the restrictions on social contact. These changers seek to ensure that the process of validation and consideration of applications is not held up.
  2. They do so by amending the Town and Country Planning (Development Management Procedure)(England) Order 2015, the Planning (Listed Building and Conservation Areas) Regulations 1990 and the Town and Country Planning (Environmental Impact Assessment) Regulations 2017. This is to enable:
    1. Applications for planning permission;
    2. Applications for listed building consent;
    3. Applications for variation or discharge of conditions attached to listed building consent;
    4. Applications for planning permission affecting the setting of listed buildings or affecting the character and appearance of a conservation area; and
    5. Applications by local planning authorities for listed building consent for the demolition, alteration or extension of a listed building in their area,

to be publicised by electronic means during the period when it may be difficult to provide such publication by site display, by service of notice on an adjoining owner or occupier and in newspapers, due to the effect of coronavirus, including restrictions on movement. Guidance on the application of these provisions is provided in the PPG (paras. 035-052).

Planning applications

  1. Updated planning guidance on consultation and pre-decision matters says that, under temporary planning application publicity requirements brought in during the coronavirus pandemic, the minimum period that local planning authorities must state for representations in a newspaper notice and on their website “has been increased from 14 to 21 days (or longer where the period includes public or bank holidays)”.
  2. The following are unchanged:
    1. The  period of 21 days (or longer where the period includes public or bank holidays) given for applications under the Planning (Listed Buildings and Conservation Areas) Regulations 1990.
    2. The period of 30 days for environment impact assessment (EIA) applications.”
  3. There is also:
    1. Confirmation that there will be no changes to the determination timescales for planning applications
    2. Encouragement of local planning authorities to hold virtual planning meetings.

Planning Appeals

  1. The Secretary of State provided a Written Statement (HCWS235) on Wednesday 13 May on Virtual Working and Planning:
    1. Emphasising the importance of virtual working, stating that this presents opportunities to increase participation in planning processes which are important for local communities and will minimise the impacts of delays to planning decisions which might otherwise occur due to the requirements for social distancing.
    2. Recognising that it was a matter for PINS but that the move to digital events and processes will be critical to ensure that the planning system continues to operate effectively to support economic recovery.
    3. The Government expects events to be taking place virtually by mid-June, other than in exceptional circumstances; and it expects the Inspectorate to identify those more exceptional circumstances where a virtual event may not be appropriate, making decisions about how to proceed based on the facts of each particular case.
    4. Where exceptionally it may not be fair to proceed virtually, alternative arrangements should be taken forward speedily, where possible, taking into account the Government’s Guidance on social distancing.
    5. Where necessary, site visits that will be re-starting from the middle of May should be undertaken in line with the Government’s Guidance on social distancing and safety requirements.
  2. Some have commented that PINS approach is more tentative than that of the Government as set out in Mr Jenrick’s Written Statement. Nonetheless, the PINS Guidance notes the first fully digital hearing took place on Monday 11 May as a pilot and they hope that at least a further 20 examinations, hearings and inquiries will follow during May and June. PINS then aim to scale up digital events to include high profile and contentious cases in the following months. The detailed guidance from PINS covers planning appeals, rights of way and Commons Act 2006; NSIP events; and Local Plan Examinations.

Development Plans

  1. With regard to ongoing examinations, PINS is exploring the use of virtual methods to deal with Examinations. They are currently working with two local authorities to trial holding the local plan hearing sessions as digital events (by video/telephone conference) and, if the pilot is successful, the aim is to be able to offer this, where possible, for all current examinations.
  2. With regard to consultation on emerging development plans, very important new guidance was issued on 13th May introducing new paragraphs 76-78 of the PPG. The social distancing rules have caused difficulties for authorities wishing to consult on emerging plan proposals, particularly in respect of the requirements set out in Statements of Community Involvement (SCI) which have to be complied with in accordance with section 19(3) of the Planning and Compulsory Purchase Act 2004. The Guidance points out that temporary amendments could be made to an SCI, where  that is necessary to enable local planning authorities to use online engagement methods to their full potential and local planning authorities are strongly encouraged to do so. Appropriate methods include virtual exhibitions, digital consultations, video conferencing, social media and providing documents for inspection on a public website. The Guidance points out that there is no statutory requirement for consultation when reviewing and updating the SCI, although fairness might in some circumstances require it.
  3. There is also new guidance on neighbourhood planning (para. 107 of the PPG) including in relation to the referendum process; decision-making; oral representations for examinations; and public consultation. These again encourage the use of virtual methods where necessary. It also points out that all neighbourhood planning referendums that have been recently cancelled, or are scheduled to take place, between 16 March 2020 and 5 May 2021 are postponed until 6 May 2021. The guidance also points out that more targeted methods of engagement with the community may be needed.

CIL & S. 106 obligations

  1. In response to concerns raised by the development industry, the MHCLG Update of 13th May  says the Government will amend 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. The update says that the easements can be applied to developers with an annual turnover of less than £45 million. It is intended that these easements will not be open-ended and will be removed when the economic situation has recovered, the update says. The amending legislation is awaited.
  2. The Guidance is also:
    1. Asking charging authorities to introduce a CIL instalment policy (or amend an existing instalment policy) to ease financial pressures on developers.
    2. Asking collecting authorities to use their discretion when dealing with the late payment of CIL, for example, by choosing not to impose a surcharge

CPO Guidance

  1. Furthermore, MHCLG has provided guidance for acquiring authorities on CPO matters in light of COVID-19. This covers, among other things, service of documents, time periods for responses, methods for returning CPO documents, timing of vesting orders and compensation, and dealing with claimants. In particular, it notes that residents should not be unduly evicted, and the importance of making timely advance payments to claimants given the importance of cashflow for many people. This appears in line with the government’s overarching strategy of trying to keep cash flowing throughout the system (see, for a similar example in a different context, their guidance in procurement matters, here).

Other Planning News

  1. PlanningResource refers to Transforming the digital architecture of planning, by Connected Places Catapult (CPC) which identifies key failings they say in how the sector’s software systems currently operate, which it says pose “major barriers” to the harnessing of new technologies for planning practice. The first problem, it says, is that the Planning Portal allows applicants to submit a planning application as a series of PDF documents, while supplementary application is submitted via a web-based form.

Public Law, Health & Social Care Update

  1. The Department for Business, Energy and Industrial Strategy (BEIS) is to lead a new ministerial-led taskforce for pubs and restaurants that will develop plans on how and when the sector can reopen safely.
  2. ALBA has published helpful guidance on conducting remote hearings.

Property Update

  1. On 12 May 2020, the Housing Secretary set out the plan to restart the housing market. Buyers can now complete purchases and viewings can take place in person, while estate agents, conveyancers and removals firms can return to work: see here.
  2. Advice on moving home has now been published by the MHCLG on moving home during the pandemic while minimising the risk of spreading the virus, as well as for estate agents and developers conducting viewings. On 14 May 2020, an industry guide was produced by the Council for Licensed Conveyancers on how those home moves can take place.
  3. HMLR has published guidance on how Coronavirus is affecting its services.
  4. On 13 May 2020, it was reported by the Financial Times that Travelodge is set to propose a CVA unless its landlords waive up to £146m in rent. The article suggests a group of landlords will challenge any CVA proposed. It also suggests that Travelodge has managed to obtain an injunction to restrain the presentation of the petition of a winding up by a landlord.
  5. The court gave guidance on e-bundles for short applications in Re TPS Investments (UK) Ltd (In Administration) [2020] EWHC 1135 (Ch). It expects the parties to engage counsel who will be conducting the hearing at an early stage to advise what documents are essential so they can be included in the bundle and all other documents excluded and that the bundle should have a searchable index, although if this is not possible each page must be paginated individually and sequentially so they are readily searchable.

Events

18-May 11:00    Current Issues in Environmental Law Part 3

19-May 16:00     Property in Quarantine – Liquidation Foundation: The Basics of Property Insolvency – Part 1

20-May 11:00    Viability in Planning: Coping with COVID-19

20-May 16:00     Property in Quarantine – Liquidation Foundation: The Basics of Property Insolvency – Part 2

21-May 11:00     Injunctions etc against protesters and travellers

21-May 16:00     How and why the No Recourse to Public Funds policy has been held to be unlawful (R (W) v SSHD)

26-May 16:00     Property in Quarantine – Liquidation Foundation: The Basics of Property Insolvency – Part 3​

27-May 16:00     Property in Quarantine – Liquidation Foundation: The Basics of Property Insolvency – Part 4

Issue Authors: Stephen Morgan, Evie Barden, Nick Grant, Alex Shattock.

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