COVID-19 has prompted some swift action on the part of MHCLG, with relaxations in delivery times and temporary rights to changes of use for pubs and restaurants. There are also changes to the Planning Inspectorate's approach to appeals to be aware of.
Relaxation of delivery times to retailers and distribution warehouses
Local authorities have been advised by Central Government to resist enforcing planning restrictions on deliveries to retailers and distribution centres in a written ministerial statement given on 17 March. Such restrictions are generally conditions to planning consents for retail parks, supermarkets and other retail outlets. These conditions may restrict the number, frequency and timing of deliveries by lorry in the interests of residential amenity. However, at this time, delivery patterns will not always be able to keep to accustomed schedules in order to ensure that foodstuffs, sanitary and other essential items continue to be available to communities who depend upon them. Retailers should have regard to potential disturbance to residential neighbours when dealing with out-of-ours deliveries, and residents should be aware that this is a temporary relaxation to such restrictions, in the public interest.
Temporary rights for hot food takeaways
In a further statement issued by MHCLG on 17 March, it was announced that planning rules are to be relaxed for pubs and restaurants to operate as hot food takeaways. Pubs are classified as Class A4 drinking establishments and restaurants as Class A3 under the Use Classes Order. They will be allowed to operate additionally as Class A5 to enable them to supply hot food for consumption off the premises. This change currently requires planning permission. The relaxation will be for a period of 12 months only, and seeks to enable such places to continue to operate despite respecting the need to minimise social contact at this time. Pubs and restaurants taking advantage of this temporary permitted development right, which will be enacted as soon as possible, will be required to inform the local planning authority of the start date of such new activity. Serving alcoholic beverages will still be subject to existing laws.
New guidance from the Planning Inspectorate in relation to appeals
The Planning Inspectorate has issued guidance in relation to site visits, hearings, inquiries and other events, which is updated on a daily basis. As staff are now encouraged to avoid non-essential travel, this will inevitably result in postponement of many of the activities of PINS in relation to planning appeals, local plan examinations, rights of way, Commons Act and similar matters, particularly where a public inquiry or other gathering of the public is involved. Where a case can be decided purely on written representations and submissions and this will not result in unfairness (e.g. by some parties being able to make such representations), then these may be decided as scheduled. Site visits may go ahead where the Inspector is not obliged to use public transport, and where visits can proceed unaccompanied. Those with appeals and other PINS matters schedules are encouraged to email the case officer concerned, but to be aware that they are dealing with a large number of such requests, and advice and protocols are being constantly updated. Be aware that many planning committees have been cancelled for similar reasons, as these are public meetings and not appropriate in the current climate.
Planning authorities overhaul decision-making
On 24 March, local planning authorities approved the extended use of delegated powers by granting planning officers "emergency decision-making powers" in order to determine certain planning and licencing matters. Delegated powers are usually reserved for routine or minor decisions that do not require a committee hearing – for example, non-material amendments to planning decisions under s.96A TCPA, and prior approvals and notifications in respect of permitted development.
This is a result of the need to cancel committee meetings, which are public, and would conflict with the current social distancing measures put in place by the Government. Many decisions are not affected, as they would have been decided 'on paper' in any event, including prior-notification, consultations and submissions of representations in respect of existing applications, or the submission of planning applications and negotiation of planning and highways agreements.
It is anticipated that officers will have discretion as to whether to exercise their powers or not, and are likely not to do so for major or large developments, in the interests of fairness and proper public consultation. Jenrick, the Minister for DHCLG, is being urged to relax local government committee rules to enable planning committees to be held virtually. As the High Court is already using such technology, there seems little excuse for local government not to do so.
Landowners and developers should be particularly vigilant at this time:
- if they are seeking to oppose an application or are keeping a "watching brief" over developments that may affect them, for example on adjacent land, they should keep a close eye on what is happening at the relevant council, to ensure that they are still able to make representations, and ensure that these are properly taken into consideration;
- developers who have their applications decided under the new powers would be wise to ensure that no works start until the expiry of the 6 week period during which a third party can bring a challenge by way of judicial review, in case consideration was not given to matters that are fundamental to the application, which may include objections from third parties; and
- the changes to procedure will mean that, despite the powers being "emergency measures", some decisions may be more vulnerable to challenge, and if this is not evident within the 6 week period for bringing a judicial review challenge, there may be a case for making such an application out of time.
It will be interesting to see whether this has a lasting impact on the methods for and efficiency of deciding planning matters at local government level.