Cornerstone Barristers Planning Bulletin – Issue 4
Welcome to the fourth edition of the Cornerstone Planning Bulletin, a digestible summary of planning law and practice to help all those with an interest in the planning system to keep up to date with changes made necessary by the coronavirus pandemic. It’s two weeks since the last bulletin.
Very little of note. Some details within the Restrictions Regulations for England [SI 2020/350] have been amended by SI 2020/447. Changes include the introduction of fixed penalties for breach of restrictions and some amendments to the list of businesses subject to restrictions. These don’t change the fundamentals but, as ever, it is important to have regard to the current version.
The Scottish Government has introduced, from 24 April 2020, some amendments to consultation requirements during the “emergency period” as that is defined within the Coronavirus (Scotland) Act 2020.
Policy and Guidance
So far, the theme from Government has been that the planning system should continue to function as near normally as possible, and this was one of the core messages of the Cornerstone Planning Enforcement Webinar on 23 April, see the materials and a recording here.
There have as yet been no changes to the NPPF or to NPPG; and what of the White Paper foreshadowed in Planning for the Future, published in March? This was discussed by Josef Cannon and Emma Dring on 30 April in their webinar White Paper Highlights.
Meanwhile, consistent with the overall theme, Natural England has published Guidance suggesting that survey work can continue during lockdown, as explained by Jack Parker and Ashley Bowes here.
In the same way that the emphasis has turned to “what happens next?” in the national news, so we are seeing increase in proposals for legislation to help the planning system continue to function. The letter 15 April 2020 from the City of London Law Society to the Secretary of State is just one of these. It has been made public and encapsulates well, I think, the wide range of issues faced by lawyers and the difficulties faced by their clients – and local planning authorities. A copy can be found here but in summary terms it seeks:
1) Guidance for local authorities on implementation of the Flexibility Regulations that allow them to hold remote planning meetings.
2) Clarification of the position of those who wish to make use of the new PD rights to operate as a takeaway but have a planning condition preventing them from doing so [see Article 3(4) of the GDPO 2015].
3) Extension of the powers conferred by the Emergency Development Regulations.
4) Recognition of the importance of cross examination, and – where it is not necessary – adaptation of the procedures being deployed by the Examining Authority in a DCO context, so that appeals can continue to be determined – using a combination of written representations and remote hearings.
5) Modest relaxation of determination periods for applications to local authorities and the court.
6) An urgent fix to the problem facing those with planning permissions close to expiry, and those facing deadlines for submission of reserved matters.
7) Changes to notification/publicity requirements (EIA and CPOs particularly) so that documents can be made available for inspection online (recognising there needs to be provision made for those who do not have access), and notices can be served by electronic means.
8) Guidance on varying s106 obligations and encouragement to the greater use of conditions: including confirmation that “exceptional circumstances” currently exist so as to justify imposing conditions that require a s106 to be entered into.
9) Amendment of the CIL regulations to allow more flexibility as to payment.
We will keep a close eye on legislative proposals and amendment to Guidance over the coming weeks.
Courts and Tribunals
The case R (Wiltshire Council) v SSHCLG and Howse  EWHC 954 (Admin) is a statutory review of an Inspector’s decision upholding an appeal and granting planning permission for the change of use of a residential annex to an independent dwelling. The case turned on the meaning paragraph 79(d) of the NPPF, which concerns the development of isolated homes in the countryside. These are generally to be avoided unless … they would involve the subdivision of an existing residential dwelling.
The Inspector thought this applied to subdivision of the planning unit, a thought that Mrs Justice Lieven has knocked firmly on the head (see paragraph 27). Perhaps the most surprising thing about the case is that there is any doubt about the question, but the several appeal decisions put before the court suggest that “there is considerable confusion about what “dwelling” in para 79(d) means” [para 20]. No longer.
The PINS Director of Operations, Graham Stallwood, is to deliver a short webinar on 4 May 2020 at 2pm, something organised by RTPI London.
The first fully digital remote inquiry is to take place on 11 May and others are to follow. See the Guidance published by PINS on 28 April 2020 here.
Commentary – Development Consent Orders
The National Infrastructure Planning Association (NIPA) has made representations to MHCLG setting out a series of practical measures that would allow projects proceeding under the DCO regime of the Planning Act 2008 (NSIPs) to continue to be prepared, consulted on, submitted, accepted, examined, determined, and implemented. The full submission can be accessed here.
Key points to note are that some of the important procedural requirements for NSIPs are ’embedded’ in the primary legislation (such as physical inspection of documents and the methods of service of notices on landowners) and so amendments to these statutory requirements to allow some flexibility would need to be secured . NIPA has suggested taking the ‘waiver’ directions precedent in the Transport & Works Act regime (allowed for by s.6(4)(a) Transport & Works Act 1992 and Rule 18 of the T&W (Applications and Objections Procedure) (England & Wales) Rules 2006) as a guide to what could be done. However, other matters could be addressed more straight-forwardly by secondary legislation or the issue of revised guidance.
In addition to compliance with regulatory requirements for NSIPs, there are practical issues in terms of assembling an adequate evidence base, especially where this is dependent on surveys which may be difficult to undertake at the present time (e.g. gaining access) or (if carried out) would not produce representative data (e.g. traffic, noise, air quality). The stance of statutory consultees where data may be incomplete will be critical and the early indications from Natural England are not encouraging. New guidance may be needed from Government to ensure a proportionate approach is taken.
Coincidentally, on 21 April 2020 the Examining Authority for the A38 Derby Junctions DCO (a scheme promoted by Highways England where the Secretary of State has already extended the examination period as a consequence of the pandemic restrictions) issued directions for future hearings in June 2020 which are likely to be held in a virtual format as a PINS trial, with the details to be advised in due course. The ExA has issued FAQs giving more information on what can be expected for the hearings, which can be accessed here.