(Archived Decemnber 2021) These are extraordinary times, and we have adapted our work programme to help you respond to them. Our FAQ page brings together our thoughts and advice on the most immediate and important challenges.
These FAQs bring together our thoughts and advice on the most immediate challenges facing planning authorities.
Latest update: 26/11/2020
We have given our FAQs a light dust down - removing some of the very early advice that is now no longer relevant, making sure the most up to date versions of legislation are referenced, and reflecting the learning of councils over the last few months.
- 1A) FAQ: Planners and Planning Departments
Q 1.1 - How should we keep everyone up to date with our planning service during COVID?
A - It is only natural that your stakeholders will want to understand how you are responding, and how they should interact with you. You can remove the need for round-robin emails by making your own FAQ and keeping it up to date. A good example is the page Cornwall have put together. Stakeholders will be wondering about what changes to expect to the service e.g. your preparations for planning committee (see separate FAQ) and a clear up to date set of FAQs can be an effective part of your communications.
Q 1.2 - Could planners be redeployed on to more urgent services?
A - Councils are large responsible organisations and will have corporate business continuity plans and emergency responses. It is for them to decide how to flexibly deploy their employees and other resources to meet the greatest need.
Q 1.3 - Is there any advice about prioritising or triaging planning applications?
A - In the event that less council resources are available to determined planning applications, it might be appropriate to think about which applications are most important. Depending on your local area, you might decide to prioritise those that deliver the most benefit or are central to the delivery of your local plan.
- 1B) FAQ: Site visits
Q1B.1 - What is the general approach to site visits by officers?
A - Site visits have always involved risk management, and these local procedures need to be updated with the support of your corporate team. We suggest a four step approach:
1) Use an updated risk assessment to spell out the new risks posed by coronavirus in the workplace and how they might be controlled (or avoided):
- Types of site (indoors, outdoors, open access, HMO)
- Types of situation (shielding, symptomatic, self-isolation)
- Urgency and importance of a visit (demolition, asset value, timeliness)
2) Invite a personalised approach to risk assessment to understand whether individuals might need different support
3) Reduce the number of site visits to a minimum by using alternative ways of getting information
4) Ensure everyone understands the new approach and knows how to ask for help and advice
Q1B.2 - How might we reduce the number of site visits?
A - Consider everything on a case-by-case basis. In some instances a physical site visit will be helpful and necessary to fully understand the proposed development and its impacts. However, they are not always essential or necessary, and are often ‘routine’ (it’s ‘what we always do’). It’s worth considering:
• Could a robust decision be made based solely on the information submitted with the application (e.g. well drawn plans, accurate and properly scaled and where there are no significant site-specific constraints)?.
• Alternative sources e.g. photos, videos, other footage, GoogleEarth?
• Previous sources e.g. pre-app site visit?
• Whether the applicant could live stream via a video app
Q1B.3 - We’ve weighed things up and feel we need to visit the site before making a recommendation or to investigate a potential breach– what should we do?
A - Your first consideration is whether this can be carried out safely and in accordance with guidance set by the current Government and Public Health England (PHE) on social distancing measures. Additionally, a specific risk assessment should be made by contacting the applicant/site owner in advance to find out:
• Any details about the site or nature of the breach that might indicate it was high risk and required a specific approach
• If anyone at the site is symptomatic, shielding or self-isolating
• Whether the inspection could be carried out in the absence of the applicant / site owner if necessary.
• How easy it would be to visit while observing social distancing measures
For these reasons some category of enforcement investigation may not be possible at present, or may require alternative approaches in place of site visits.
Q1B.4 - What about councillors?
A - We have had several inquiries about whether councillors can gather together to hold committee meetings (or do site visits) following the relaxation of restrictions from 1 June. We thought it would be helpful to set out the legal position under current legislation although councils will want to consult their own monitoring officers.
From 1 June while the emergency period continues, no-one is allowed to take part in a gathering in a public or private space if it is:
• outdoors and consists of more than six people
• indoors and consists of two or more people.
An indoor gathering would include all meetings for any purpose.
The lawfulness of ‘gatherings’ is regulated by The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020
The regulations set out a series of exemptions. ‘The person concerned is fulfilling a legal obligation or participating in legal proceedings’, is not relevant to local authority meetings because these meetings are not legal proceedings. Further, the gathering cannot be said to be ‘reasonably necessary for work purposes…’ because unlike council staff, councillors are not workers. In addition, the Flexibility Regulations 2020 allows members to attend meetings virtually, ie by phone or video link.
Q1B.5 - What about Planning Committee site visits?
A - Site visits by a planning committee allow them to see the scheme “on the ground” and to have their questions answered by case officers. Unfortunately this cannot lawfully happen at present. Alternative approaches include:
- Individual members seeing the scheme by themselves, perhaps driving themselves there at a time convenient to them. However this risks members seeing different aspects of the scheme, and increasing the risk that their opinion might have been swayed in some way if the applicant is present.
- A virtual site visit – using technology to stream video to the committee and to respond to their questions “live”. This might work well but could introduce failures of technology.
It may be that some councillors are in a high risk group or are shielding, and therefore some may choose to visit a site and others not. The planning committee protocol concerning who may (and may not) vote following a site visit attended by only some of the committee may need to be reviewed in this light.
Q1B.6 - What if it’s not safe to visit a site?
A - If a site visit is necessary, but after having weighed things up and exhausted all alternative approaches, it is not possible to either undertake a physical site visit in a safe way, or obtain the required evidence via an alternative means, then contact the applicant to seek an extension of time to determine the application.
In the absence of this agreement it remains an option to determine the application on its merits without a site visit.
- 2) FAQ: Local Plans and Monitoring
MHCLG want to see Local Plans progressing as a vital means for supporting economic recovery and in line with its aspirations to have plans in place across the country by 2023. MHCLG recognise and are working on the challenges some local authorities may face, from temporarily relaxing community engagement requirements / the need for physical documents, to engaging with the Planning Inspectorate on virtual hearings and written submissions.
Q 2.1 - We’re out for consultation on our plan – how do we deal with responses?
A - You could consider having an extended consultation response period to give people more time. Consider other options e.g. setting up an online forum where people can submit questions or a virtual exhibition.
With more people working at home rather than the office, you need to consider options for dealing with hard copy correspondence (e.g. mail re-routing) and (re)deploying your team at set times to deal with emails – this may mean changing access rights e.g. to 'admin' email addresses. You should continue to gather and record all consultation responses ready for the next stage of plan making.
Q 2.2 – Should we be concerned about making hard copies of plans available (Reg 35 - The Town and Country Planning (Local Planning) (England) Regulations 2012)?
A – On 16th July 2020 The Town and Country Planning (Local Planning) (England) (Coronavirus) (Amendment) Regulations 2020 changed the requirement for councils to make copies of development plan documents available for inspection at their principle office as set out in Reg 35 of The Town and Country Planning (Local Planning) (England) Regulations 2012. Councils can now comply with Reg 35 by making development plan documents available on the council’s website. This change applies from 16th July 2020 until 31st December 2021. Similar arrangements are in place for inspection requirements, set out in the Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA Regulations”).
A - With more people working at home rather than the office, it’s worth a double check that all responses are accounted for especially any postal/hard copy responses. Continue to record, summarise, categorise etc. the representations received.
Consider the opportunities that the current situation may present. Could you engage the wider planning team (if not redeployed) to: get additional input into and help fully consider responses; propose changes or areas for next steps; feedback to and engage with councillors differently and in different ways.
Q 2.4 - What should I do if my plan is ready for submission?
A - If you are ready to and able to submit you can do so. Remember MHCLG want everything to continue as far as possible. The Planning Inspector are now holding examinations virtually where possible and will continue to do so.
Q 2.5 - What should I do if my plan is at examination?
A - The Planning Inspectorate are now holding examinations virtually where possible so contact your Programme Officer (if you have appointed one). The Planning Inspectorate are encouraging all correspondence from their Inspectors to councils to be through them. Your Programme Officer should provide updates from the Inspectorate.
Importantly, put any information / updates about local plan examinations on your website and ask that any questions the public or participants have should be via the Programme Officer.
Q 2.6 - How can we comply with our SCI?
A - Certain SCI commitments will no longer be possible e.g. providing hard copies of documents in public locations (e.g. council offices and libraries) or holding face-to-face community consultation events.
Check your SCI - what elements are no longer be possible? What does it say about future updates? Does it commit to a public consultation as part of any review?
Check what delegation is in place for the Covid 19 emergency. Can an SCI update be done quickly under delegated powers? In the meantime, update the SCI front sheet and/or use your website to publicise what is no longer possible and alternatives you are considering (e.g. web-based comms/social media). The most important thing is to be clear and transparent on the immediate measures taken, and that longer term measures will follow. No-one expects you to have all the answers now but it is important to keep everyone in the picture.
If you are able to update your SCI and take it to a virtual committee then you should consider doing so.
Q 2.7 - Can we withdraw the consultation on our local plan?
A - Avoid withdrawing plans that are currently out for consultation. Instead consider having an extended consultation period and review your SCI (see previous FAQ).
Q 2.8 - Can we change the timetable of our plan without formally changing our LDS?
A - Use your website to make it clear what your Covid 19 response will mean for your Local Plan timetable. Consider putting together a special newsletter/update on progress of the Local Plan.
Check what delegation is in place for the Covid 19 emergency. Can an LDS update be done quickly under delegated powers? The most important thing is to be clear and transparent on what the immediate measures taken are, and that longer term measures will follow. No-one expects you to have all the answers now but it is important to keep everyone in the picture.
If you are able to update your LDS and take it to a virtual committee then you should consider doing so.
Q 2.9 - We have just adopted our Plan/SPD etc. How do we stand on publicising the adoption (Reg 26/35), and allowing the judicial review period?
A – On 16th July 2020 The Town and Country Planning (Local Planning) (England) (Coronavirus) (Amendment) Regulations 2020 changed the requirement for councils to make copies of development plan documents available for inspection at their principle office as set out in Reg 35 of The Town and Country Planning (Local Planning) (England) Regulations 2012. Councils can now comply with Reg 35 by making development plan documents available on the council’s website. This change applies from 16th July 2020 until 31st December 2020.
Q 2.10 - How will we monitor completions?
A - The completion data for the monitoring year 2019/20 needed to be handled differently - basically without or with limited physical site inspections. Many councils made great use of data collection and only undertake the minimum site inspections which we can learn from. The monitoring year 2020/21 ends on the 31st March 2021 and should restrictions be in place the same need to undertake monitoring differently will apply.
- 3) FAQ: Neighbourhood Plans
Q 3.1 - How does the current Coronavirus situation affect neighbourhood plan production and examination?
A - There are implications for decision-making, oral representations for examinations, and public consultation. The government has issued guidance here which supersedes any relevant aspects of current guidance on neighbourhood planning, including in paragraphs 007, 056, 057, 061 and 081 until further notice.
Q 3.2 - How has Coronavirus affected neighbourhood planning referendums that were due to take place?
A - 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 in line with recently published legislation.
- 4) FAQ: Planning Applications
Q 4.1 - How will people submit applications to us? What about approval of details (e.g. materials)?
A - If you have closed your office you will need to explain how people can submit information and details of samples to you. You need procedures in place to ensure hard copy applications can be collected from the office and validated.
Q 4.2 - Do we still need to place site notices and send neighbour letters?
A – Temporary regulations and guidance have been brought into force from 14th May 2020 giving greater flexibility. If it is possible to place a site notice using social distancing measures and following assessment is considered low risk (e.g. outside with open access) then this can still be undertaken. If this isn't possible, the temporary regulations say you must take reasonable steps to inform anyone who is likely to have an interest in the planning application and publish the requisite notice on a council website. The reasonable steps include the use of social media and communication by other electronic means e.g. email. These regulations expire on the 31st December 2020, and the Government has stated that they intend to extend the period that these regulations will cover.
Q 4.3 - Do we still need to place newspaper adverts?
A – Temporary regulations and guidance have been brought into force giving greater flexibility. If publication of the notice in the newspaper is not possible (for example it is not being printed or circulated), then alternative means should be considered. This may include the use of social media and online newspapers and communication by other electronic means e.g. email. These regulations expire on the 31st December 2020, and the Government has stated that they intend to extend the period that these regulations will cover.
Representations - changes have also been made to the period of time for representations to be made once notice is given by publication in a newspaper or website from 14 to 21 days (relates to 15 (7)(c), 33(1)(f) and 34 (9)(f) of DMPO 2015).
Q 4.4 - Will performance targets for speed and quality still stand?
A - Yes, although the Government has demonstrated in previous years that they recognise that there are exceptional circumstances that mean it would be unreasonable to expect the performance thresholds to be met.
Q 4.5 - Can we suspend planning applications? What about prior notifications and deemed consents?
A - No. The "Dear Chief Planner" letter published on the 23rd March makes clear that planning applications need to continue to be dealt with in a timely way.
Q. 4.6 - Undertaking an Environmental Impact Assessment (EIA) during the coronavirus period. What about EIA applications?
A - Consider the risks of deciding an application with an incomplete or unreliable EIA. Could the application be withdrawn and resubmitted when data will be more reliable? If not, be aware of the time-limited elements i.e. ecological studies; could continue whilst observing COVID19/ social distancing rules? Transport, noise & air quality will be directly affected by decreased activity at this time; you'll need to find the right approach for each application; an option is to accept historic data, extrapolated through added tolerance levels. This can be checked later against national databases, and a later survey built in to check findings. Without sufficient historic local, regional or national data available to support decision making, application can't be determined.
Temporary regulations and guidance have been introduced giving applicants flexibility on advertising an EIA application. They must take reasonable steps to inform anyone who is likely to have an interest in the planning application. This includes the removal of the requirement for a hard copy of the environmental statement at a given address but it should be publicised where this is available through electronic means.
Q 4.7 - What planning rules have changed to help local councils and businesses respond to the Coronavirus emergency?
A - Two main things have happened regarding planning applications; a time-limited permitted development right came into force on 9th April 2020 giving an emergency permitted development right to support health service bodies and local authorities’ immediate response to coronavirus; and a relaxation of planning rules so pubs and restaurants can operate as hot food takeaways during the coronavirus outbreak. These have now been extended by another year until 31 December 2021.
Q 4.8 - What about responses from statutory consultees during this period?
A) All organisations are working out the effect of Covid-19 on the services they provide to others during this period. A quick internet search including the organisation name and 'covid-19' should get you to some useful information. As with most things, relationships are key so getting in touch with your key contacts and finding out what's new/changed is a good idea.
Q 4.9 – What should we do with the Planning Register?
- 5) FAQ: Virtual Planning Committees
Q 5.1 - Can we hold a virtual planning committee?
A - Yes. To ensure planning decisions continue to be made (rather than deferring committee dates) MHCLG are encouraging local planning authorities to take advantage of the Coronavirus Act 2020, and the enabling Regulations regarding virtual committees and to also consider using ‘urgency powers’ within their constitutions to give senior officers delegated authority to make decisions. See FAQ 5.2 for help setting up a virtual committee.
Q 5.2 - How do we go about setting up a virtual committee?
A – PAS has produced created 2 guides to help get you up and running. There are obvious physical and technical differences that you need to be aware of and accommodate, but generally the way the committee operates, is governed, items are debated, and decisions made should not need to change. Councils that are delivering virtual committees are finding that resembling their ‘normal’ committee as closely as possible is the best starting point. The guides encourage you to consider opportunities to improve how you do things and how you engage people in the planning process.
Communication will be key - you will need to be transparent about your preparations for virtual planning committee and the reasoning behind your approach. Perhaps produce your own guide / FAQs that set out your reasoning e.g. which cases might be deferred/which cases are going to committee, what platform you intend to use and how people can engage with the process.
Q 5.3 – What is the position regarding audio-only and audio/visual meetings – is either approach allowed?
A - It is lawful to do either. Our opinion is that the audio/visual committees are easier to follow and more inclusive. It is useful to be able to follow a presentation of the scheme as the officer presents, to have areas of concern pointed out on a plan and to be able to see the voting as it takes place. Most of the virtual committees we have viewed have used meeting platforms such as Microsoft Teams or Zoom for the participants and committee members, and then live-streamed the meeting e.g. on YouTube so that everyone else can follow. We think this works well.
Q 5.4 - What should the Chair pay particular attention to?
A – There are greater numbers of the public watching committees right now and even though they cannot be seen in the same way as a physical committee, they are still an integral part of the system. It is always important that the public understand the purpose of the committee and how it works, and this is even more important in the virtual setting.
In addition to normal requirements of managing a meeting, Chairs should pay particular attention to:
- the welcome, scene-setting and introductions of / roles of all participants;
- the order of business (e.g. officer presents, public speaking, questions to speakers, over to committee for debate/decision);
- explaining what will happen & when (timings, scheduled breaks);
- how voting will take place, how individual members’ votes will be recorded/communicated, and the overall recommendation;
- how technical failures will be handled
Q 5.6 - Should there be any difference in conduct of attendees at a virtual planning committee?
A - No. Planning committee is a window into the professionalism, integrity and transparency of the local council. Members and Officers are taking part in a ‘meeting in public’ and making decisions on planning applications that affect individuals and whole communities. In fact, given the nature of running virtual meetings, those involved in the meeting are arguably under more scrutiny than ordinarily.
All involved should conduct themselves appropriately and adhere to the council’s code of conduct. This means for Members ensuring that they:
- Focus fully on the proceedings and eliminate distractions;
- Read the agenda and reports pack beforehand;
- Limit the background visual and noise interference whilst in the committee meeting;
- Are alone, and do not communicate with other members;
- Only communicate with a person outside the meeting if they are experiencing technical difficulties – e.g. a ‘designated officer’ responsible for IT;
- Declare at the appropriate time if for some reason they had to leave/missed any part of the meeting as it could affect voting rights;
- Remember they are on view to all those watching.
Q 5.7 - What are the key things to consider regarding voting?
A – The most important things to consider in the virtual setting are:
- Is the Chair able to clearly identify who has voted? In our experience, a recorded vote where members firstly confirm they have heard the whole item is the most effective way of registering and recording the vote. A show of hands is a usual and practical way of voting, however, in a virtual setting, scanning a gallery of screens and poor picture quality can make it difficult to see clearly who is voting. Members should keep their hand visible until the Chair makes confirms that vote has been counted. The web platform you are using may allow some form of digital vote/’hand’ wave which could be used alongside a show of hands before officially confirming and recording the vote.
- Summarising the result of the vote – In the interests of clarity and transparency for all those viewing/participating, the Chair should summarise which members have voted and which way they voted.
- Have members heard all of the facts presented and the debate? Members must have heard the whole item (e.g. the introduction, officer presentation, speakers, debate) to be eligible to vote. Normally members being present in a room are assumed to have heard the whole debate. In the virtual setting, a lost connection or a screen freezing for any length of time could be construed as excluding that member from part of the debate and exclude them from voting as they would not have heard all of the facts/debate. The Chair must use their discretion and the support of the legal representative if a technological failure interrupts the meeting which casts a doubt on a member’s ability to vote.
- 6) FAQ: Post decision
Q 6.1 - Can CIL payments be postponed where development has stopped?
A - This question was replaced by 6.3 on the 13th May 2020
Q 6.2 - How do we seal and witness Section 106 agreements?
A - This article in the Local Government Lawyer considers the legal position on the execution of deeds during the COVID-19 outbreak. It is not conclusive and, erring on the side of caution, it would suggest that the Law Commission's approach of witnessing deeds in physical presence is still required. Planning Agreements: Local Authority Fixes for the New Normal is another helpful planning law blog from Dentons with a focus on preventing the delay of grants of planning permission.
Q 6.3 - What flexibility do we have to vary CIL payments and Section 106 obligations?
A - On the 13th May MHCLG published new guidance on CIL in response to the impacts of COVID-19 and subsequently laid new CIL regulations on the 30th June. It is intended that these regulations will come into force later in the summer. The regulations set out a method by which LPAs can use their discretion to defer payments for small and medium sized developers, and introduce a new concept of the "material period". The guidance explains how the regulations are intended to work and reminds LPAs that they already have the ability to agree to vary Section 106 obligations in order to minimise the stalling of sites.
Q 6.4 What flexibility do we have to extend the 3-year limit for the commencement of planning permissions?
A - On its enactment, Clauses 17, 18, 19 of the Business and Planning Act 2020 (Act in force: 22nd July 2020) modifies Section 93 of the Town and Country Planning Act 1990 and Section 18 of the Planning (Listed Buildings and Conservation Areas) Act 1990, to provide for the automatic extension of the duration of some planning permissions including outline permissions, reserved matters and listed buildings. For permissions due to lapse between the date the Act comes into force and 31 December 2020, the time limit for commencement on site or submission of reserved matters is extended to 1st May 2021. Permissions that lapse between 23 March this year and the date the Act comes into force require an additional environmental approval to be submitted and local planning authorities will be required to make a decision on the environmental approval within 28 days. MHCLG will set out further detail on this process 'in due course'.
- 7) FAQ: Planning Appeals
Q 7.1 - What is happening with planning appeals?
A- See the updated coronavirus advice from PINS here, PINS are not currently holding physical-only hearings and inquiries, but are running hearings and inquiries virtually. They are also trying blended events, involving a mix of virtual and in-person formats.
- 8) FAQ: Delivery
Q 8.1 - How do we progress Compulsory Purchase Orders (CPOs)?
A - In the guidance published by Government in May and a written ministerial statement on 25 June 2020 they have made clear that they want to see CPOs continue to be progressed. They encourage authorities to be pragmatic in their approach to adhering to the statutory requirements for making and confirming a CPO in these exceptional circumstances. Guidance is provided to help acquiring authorities on specific matters including servicing and exchange of documentation, consultation time periods, dealing with claimants and payment of compensation. They have also changed arrangements for accepting CPOs for confirmation. Acquiring authorities should contact MHCLG’s Planning Casework Unit (PCU@communities.gov.uk) if you are expecting to submit a CPO within the next six months.
Q 8.2 - What is the Government saying about the housing market?
A - On 12th May the Housing Secretary set out the Government's plans to restart the housing market.
Q 8.3 - How do we progress Development Consent Ordrers?
A - Temporary changes to some publicity requirements were introduced through the Infrastructure Planning (Publication and Notification of Applications etc.) (Coronavirus) (Amendment) Regulations 2020 (the 2020 Regulations). The 2020 Regulations came into force on 22 July 2020 and apply until 31 December 2020. They have been introduced to allow the Statement of Community Consultation and other documents available for inspection online.
Changes in social distancing guidelines and lockdown measures may permit the reopening of buildings and increase their accessibility during the period where the temporary changes in the 2020 Regulations are still in effect. In these circumstances relevant documents should also be available for inspection in public buildings in the vicinity of the relevant land where reasonably practicable and safe to do so.