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Cornerstone Barristers Planning Bulletin - Issue 1

03.04.2020

Welcome to the Cornerstone Barristers 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.

Legislation

The Coronavirus Act 2020 (which applies in all parts of the UK and came into force on 25 March 2020) is, naturally enough, not principally concerned with the planning system. However the following provisions are of some significance to those working in the planning field:

S.52 and Sch.22 – power to issue directions in relation to events, gatherings and premises.
S.78 – power to enable (via Regulations) local authority meetings to take place and enabling attendance, speaking, voting, and otherwise participating, to be achieved remotely. The power is time limited to the 7 May 2021.
S.79 – the extension of Business Improvement Districts in England.

The restrictions on movement we are all becoming familiar with have been made by Regulations under the Public Health Act 1984. Those for the different parts of the UK are similar but not identical. See the following for England and Wales:

In each case, the Regulations last 6 months, expiring on 26 September 2020. Meanwhile the restrictions they impose must be kept under review every 21 days, with the first review due by 15 April (Wales) and 16 April (England). Clearly these restrictions have implications for site visits, and collaborative working between colleagues.

However, the challenges are not insurmountable. One area of potential confusion can be clarified immediately: the Regulations do not require that the work for which travel is essential is itself essential work.

On 4 April 2020, new Regulations [SI 2020 392] come into force, providing for meetings of local planning authorities in England and Wales to be conducted remotely. These spell out the circumstances in which attendance at meetings can take place remotely and will enable local planning authorities to keep taking decisions at planning committee (for example) while respecting current restrictions on movement.

Clearly, maintaining the essential decision making safeguards of the planning system, including public participation, may prove challenging and will require careful attention. See our analysis here.

Courts and Tribunals

The High Court is now conducting hearings remotely – either by video telephone – and focusing on urgent business. Other cases may be adjourned either with or without the agreement of the parties.

Where they are proceeding, the List office contacts parties as the hearing date approaches to ask them how they propose the hearing will proceed and there is accumulating a wealth of guidance on the subject to assist practitioners, including a new CPR Practice Direction 51Y.

The pool of experience of remote hearings is growing rapidly and the expertise of Cornerstone barristers on the issues presented by remote hearings is second to none. See for example the piece by Richard Ground QC and Ben du Feu.

The Upper Tribunal (Lands Chamber) has also issued Guidance. Those cases which require a site view by the tribunal are likely to be adjourned either to July or into the autumn.

New cases: remember time limits remain for High Court cases – the need to issue proceedings within 6 weeks for judicial review or a statutory review under s.288 remains in place.

PINS

All site visits, hearings and inquiries have been postponed and guidance is under preparation for a range of appeals and other casework. The Planning and Environment Bar Association is working closely with PINS so as to enable work to continue wherever possible. See the PINS update here. More definitive guidance is expected shortly.

Extension of takeaway permitted development rights: what you need to know

This is a desperate time for the hospitality industry. Luckily for some businesses, a temporary extension of the GPDO to allow restaurants, cafes, pubs and bars to provide a takeaway service will enable them to maintain some revenue despite otherwise being ordered to close.

The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2020 inserts a new Class DA into Part 4 of Schedule 2 to the GPDO. Class DA grants deemed planning permission for a change of use from:

Class A3 (restaurants and cafes)
Class A4 (drinking establishments)
Mixed A3/A4 use
Drinking establishments with expanded food provision (para AA of Part 3 of Schedule 2 to the GPDO)

to use for the provision of takeaway food.

The provision of takeaway food, for these purposes, includes any use within Class A5 (hot food takeaway) but goes beyond A5 use – it also includes providing hot or cold food prepared for delivery to or collection by consumers. The permitted development right under Class DA will expire on 23 March 2021.

By para DA.1, the right is subject to three conditions:

The developer must notify the local planning authority if the right is being exercised
The original use of the building is not affected by exercising the right
The lawful use of the building reverts to the original use on 23 March 2021 or whenever the right ceases to be exercised

This edition of the Bulletin has been prepared by Harriet Townsend with thanks to Matt Lewin for the contribution on changes to pd right