It is with great sadness that Members of Chambers learned of the passing of Sir John Laws, a former Court of Appeal judge and titan of public law. He died after contracting Covid-19.
Courts and Inquiries
- HMCTS continues to list its daily operational summary.
Legislation on virtual committee meetings
- As reported in the last Update (3rd April),the Local Authorities and Police and Crime panels (Coronavirus)(Flexibility of Local Authority and Police and Crime Panel Meetings)(England and Wales) Regulations 2020 (SI No. 2020/392) came into force on Saturday 4th April). These allow for virtual committee meetings to get around the practical problems resulting from the current restrictions on public gatherings (see by the Health Protection (Coronavirus Restrictions)(England)Regulations 2020 (SI No. 2020/350) which came into force on Thursday the 26th March 2020.
- One of the key “enabling” provisions of the Flexibility of Local Authority and Police and Crime Panel Meetings Regulations to be noted is regulation 4(5) which means that virtual meetings are enabled notwithstanding any prohibition or other restriction contained in the standing orders or any other rules of the authority governing the meeting and any such prohibition or restriction has no effect.
- One of the concerns about decision making through virtual committee is the ability of the public to observe and, where appropriate, to be involved. Key to the Regulations is the provision that a meeting being “open to the public” includes access to the meeting through remote means including (but not limited to) video conferencing, live webcast, and live interactive streaming ad where a meeting is accessible to the public through such remote means he meeting is open to the public whether or not members of the public are able to attend the meeting in person (regulation 13(b)). Being “present” at a meeting includes access through such remote means.
- Further, regulation 5(6) provides that a local authority may make other standing order and any other rule of the authority governing the meeting about remote attendance at meeting of the authority, which may include provision for-
b) member and public access to documents; and
c) remote access of public and press to a local authority meeting to enable them to attend or participate in that meeting by electronic means, including by telephone conference, video conference, live webcasts, and liver interactive streaming.
Local Plan Preparation
- The recent Newsletter from the Government’s Chief Planner sated “We encourage all local planning authorities to continue, as much as possible, to work proactively with their community and other stakeholders to progress plans, even if some adjustments to timetables are necessary.”
- In terms of carrying out consultation as part of local plan preparation, section 19(3) of the Planning and Compulsory Purchase Act 2004 requires that the authority complies with its Statement of Community Involvement (SCI). Many (and probably most) such statements include a requirement that the consultation documents will be made available at Council offices and local libraries or similar facilities. That is not possible under current social distancing requirements.
- The PAS has therefore advised authorities to check their SCIs and see whether they can update them to reflect how they now intend to undertake the consultation and to use online and virtual tools. However, regulation 35 of The Town and Country Planning (Local Planning) (England) Regulations 2012 would appear to preclude such a change. That is because that provision requires the new Statement of Community Involvement to be made available for inspection at an authority’s principal office and at such other places within their area as the local planning authority consider appropriate for a period of three months after the date the Statement is adopted by the Council.
- The Local Authorities and Police and Crime Panels (Coronavirus)(Flexibility of Local Authority and Policy and Crime Panel Meetings)(England and Wales) Regulations 2020 (see item above) do not appear to assist on this. Regulation 15 of those Regulations amends the LGA 1972 to insert s110L (Supplemental provision on public access to meetings and documents) so that:
“A document being open to inspection” includes being published on the website of the council.
- However there appears to be no legislation so far to override the requirement under regulation 35.
- Under changes, agreed at a full council meeting, Manchester City Council chief executive will make decisions on major planning applications in consultation with the authority’s head of planning, licensing and building control, and the chair and deputy chair of the council’s planning committee. Planning Resource reports (https://www.planningresource.co.uk/) that the arrangement is part of a series of changes to the council’s governance intended to “ensure continuity of the council’s decision-making functions during the COVID-19 outbreak”, according to a council document. Councillors agreed to grant officers delegated authority to make decisions across a wide range of council business until 26 November, although this authority can be suspended, rescinded or extended before that date.
Obtaining information to support planning applications
- At present it is of course difficult to obtain data on for example traffic, noise and air quality that is representative. It has been reported that the latest advice for ecologists from their professional body, CIEEM, confirms that ecological survey should only be done where necessary and where social distancing can be observed. The possibility of surveys being undertaken in line with Government guidance is being considered on a case-by-case basis. Many such ecological surveys are often usually carried out at this time of the year.
- Site visits mostly been cancelled. However, some are seeing opportunities for creativity, with one consultant hosting its first real time video site visit by Drone, and trialling this technology further with its clients. They suggest this could be an important tool in not only maintaining pre-application and post-application meetings but, crucially, public and stakeholder consultation: see ICENI briefing for Weds 1 April 202: http://iceniprojects-
Public Law, Health & Social Care Update
- Stephen Knafler QC has posted a useful analysis of the changes to Adult Social Care law brought about by the Coronavirus Act 2020.
- The Howard League have called on the government to take further action to reduce the prison population in order to protect prisoners, staff and the wider public from coronavirus.
- MHCLG has provided guidance on requirements for EPCs when selling or letting a property during the Covid-19 outbreak: https://www.gov.uk/guidance/coronavirus-covid-19-energy-performance-certificates.
- The Pubs Code Adjudicator has published a declaration which stops the clock from 16 March 2020 until 30 June 2020 on many Pubs Code deadlines which apply to tenants and states that the default position in ongoing arbitrations will be a stay until 30 September 2020 subject to either party asking for the case to proceed: https://www.gov.uk/government/news/covid-19-a-message-from-the-pca-and-dpca.
- A working group consisting of Stephen Robins and William Wilson of South Square Chambers, the Insolvency Lawyers Association, the City of London Law Society and R3 has drafted the “Consent Protocol”, a pro-forma for administrators to use pursuant to paragraph 64 of Schedule B1 for the Insolvency Act 1986 in a rescue case to consent to directors continuing to exercise day to day powers while a company in administration trades through the lockdown. A specific carve out is that the directors shall not without consultation of the administrators “negotiate or otherwise vary the terms of any business lease with the company’s landlord(s)”. This among news that Debenhams and Cath Kidston are two high street retailers that look set to appoint administrators.
- Miriam Seitler debates the adequacy of the protections for tenants in the Coronavirus Act 2020: https://www.egi.co.uk/legal/moot-point-contending-with-covid-19/