COVID-19 and the UK planning system

Can planning applications that need to be determined by committee still be determined without the committee physically meeting?

Not at the moment. Primary legislation will be required to enable committee meetings to be held remotely. Local Authorities will also need to amend their constitutions in most cases to allow such meetings to take place. Whether they also have the technology to allow such meetings to happen, and ensure that the usual opportunities for oral representation and participation are available, is a separate question.

Section 78 of the Coronavirus Bill provides the ability for the Secretary of State/Welsh Ministers/Department for Communities in Northern Ireland to make regulations relating to “local authority meetings” being held “without any of the persons, being together in the same place”. “Committee” and “sub-committee” meetings are specifically referenced.

We can expect the Bill to be enacted by the end of this week, although it is not yet known when the Regulations under the Bill will be available.

Determination of other planning applications

Applications that would normally be determined under delegated authority can continue to be determined in the usual way provided that there is sufficient remote contact and sign off between the relevant officers in accordance with a Council’s scheme of delegation.

Is it possible to conduct planning inquiries, hearings and examinations in public remotely?

The Planning Inspectorate has suspended all local plan examinations, hearings and inquiries. The Inspectorate is considering whether there are any technological solutions that might allow for some hearings to go ahead as a video conference, but given the legal right to appear in relation to some hearings, and ensuring fairness especially for third parties, it is unlikely that many will be able to proceed. Parties are being asked to consider if any appeals can be converted into written representation appeals. It seems unlikely, however, that site visits can now go ahead despite the most recent Inspectorate advice indicating that unaccompanied site visits would still proceed. Written representations without a site visit may be possible if all parties agree that it would be appropriate. No doubt increased use of Google Earth, Streetview and perhaps video feeds might be appropriate to ensure that an Inspector has a sufficient site overview and understands its physical features and surrounds.

All Nationally Significant Infrastructure Project (NSIP) preliminary meetings and hearings are postponed, although the consideration of written information will continue and the Inspectorate expects to make “good progress” on these. Where submissions in writing are “difficult,” it is likely that timetables will be extended. The Inspectorate is “always mindful of the need to ensure fairness and open access to all parties”. This is likely to be the key consideration for every aspect of the planning process.

How can adequate public consultation be ensured within the planning system?

This will be the biggest challenge over the coming weeks. Where local planning authorities are still validating and processing applications (some are not), public participation will need to continue to ensure that applications are validly determined. If there is any doubt, then there will be a risk of judicial review, albeit whether it will be easy to issue a judicial review challenge remains to be seen. It is likely that many determination periods will be extended to ensure adequate public participation, stakeholder and community engagement.