FAQs - Planning & COVID-19 (Archived) | Local Government Association

1A) FAQ: Planners and Planning Departments

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

3) FAQ: Neighbourhood Plans

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 14^th 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 31^st 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 31^st 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?

A - Temporary regulations and guidance give council the flexibility to make the Planning Register accessible online if it is not possible to make it available for physical inspection.

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

8) FAQ: Delivery