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Cornerstone Barristers Planning Bulletin - Issue 2

14.04.2020

Welcome to the second 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.

Legislation

Last week we identified the key sections of the Coronavirus Act 2020 likely to be of significance to planners, and the key Regulations which restrict movement and economic activity on public health grounds. This week we focus (see commentary at the end of the Bulletin) on the new power conferred on local authorities in England and Wales to hold committee meetings remotely. The Regulations were made under s.78 of the Coronavirus Act 2020 and came into force on 4 April 2020. They defy any attempt at an acronym, their full title being The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 SI 2020/392.

Scotland already had such a power, and one can learn a great deal from practices and experiences north of the border.

For those looking for a supra-national legislative steer, whether from the EU or via treaty from the UN, we simply haven't got to that point yet if we ever do; but it seems likely that co-ordinated action will be necessary at some point. On 25 March 2020 the UN published a Global Humanitarian Response Plan which gives an idea of current estimates of the global impact.

Other legislation:

Both England and Wales have introduced new permitted development rights for a limited period for emergency development by a local authority (in England and Wales) or a health service body (in England). The development must be on land they own, lease, or occupy for the purposes of preventing an emergency; reducing or mitigating the effects of an emergency; or taking other action in connection with an emergency. See:

    • The Town and Country Planning (General Permitted Development) (Coronavirus) (England) (Amendment) Order 2020 [SI 2020/412], and
    • The Town and Country Planning (General Permitted Development) (Amendment) (Wales) Order 2020 [SI 2020/367].

Courts and Tribunals

Remote hearings are now the norm, and it is clear from the daily court lists that the amount of business in the Administrative Court (which sits at the Royal Courts of Justice in London and in Birmingham, Bristol, Cardiff, Leeds, and Manchester) is greatly reduced. Several of these court centres have no sittings this week. The HMCTS daily operational summary on courts and tribunals is a good point of reference on activity .

The Administrative Court has published Guidance on its practice across a wide variety of important questions including filing of applications, the payment of fees and expectations as to hearings. Meanwhile the Planning Liaison Judge, Mr Justice Holgate, has shared with representatives of PEBA and others some useful "top tips" for advocates.

Advocates should also refer to the Protocol on telephone and video hearings, last dated 26 March 2020, as it is very useful for those preparing for a remote hearing.

The Court of Appeal Civil Division is conducting all hearings remotely. Members of the press are entitled to attend and can do so by emailing civilappeals.listing@justice.gov.uk.

Judgments are now routinely handed down remotely by circulation to the parties, release to Bailii and publication on the Courts and Tribunals Judiciary website. One such case, in which judgment was handed down on 3 April 2020 is Hook v SSHCLG [2020] EWCA Civ 486, a s.288 challenge to the dismissal of a planning appeal where retrospective permission was sought for a temporary worker's dwelling ancillary to the agricultural use of the land. The problem for the Appellant was that the Inspector did not accept that the use of the land was agricultural and so ignored the agricultural occupancy condition proposed. Ashley Bowes, the Appellant's advocate, reflects on this decision here.

Other cases: Mr Justice Dove has given judgment for the Defendant in Sawkill v Highways England [2020] EWHC 801 (Admin): a case which grapples with the relationship between two sources of a similar statutory power (in this case to enter land for the purposes of survey). In such cases the question may arise whether they are both available to a public authority, so that it may choose which to rely on, or whether the authority may only rely on the narrower, more specifically relevant, power. The Judge's essential reasoning is at paragraphs 42-44.

On Thursday 9 April judgment is to be given by the Court of Appeal in Corbett v Cornwall Council – an appeal against the successful application for judicial review of a decision to grant planning permission for the extension of a holiday park in an area of great landscape value. See [2019] EWHC 1022 (Admin). Next week's bulletin will consider its significance.

PINS

There is no advance on the formal position of PINS since last week, but Inspectors should take the COVID-19 restrictions into account where relevant. An example is the enforcement decision shared by Estelle Dehon, DCS Ref 400-025-508, in which the Inspector upheld an enforcement notice requiring the demolition of an occupied dwelling house within 12 months. After considering the human rights implications of the requirement the Inspector states "I am also aware of the uncertain situation that currently exists with regard to COVID-19. Under s173A the Council have the power to extend the time for compliance with the notice. This is however, a purely discretionary power within the Councils' gift to exercise."

Another example is the enforcement appeal in Barnet, DCS 400-025-551, dated 6 April 2020 where the Inspector extended time for compliance with an enforcement notice requiring the cessation of use of a house in multiple occupation from five months to nine months.

Commentary

The Cornerstone Barrister team have been busy providing legal and practical tips on how to navigate the new Regulations which make provision for virtual local authority meetings. The headline points are set out here, and the slides from the  webinar (with nearly 400 attending!) can be accessed here.

The Q&A generated some interesting questions, which we intend to address in further detail in another webinar session in the next two weeks. Concerns expressed by attendees related to the practicalities of voting, how members are to 'see' and 'be seen' by the public, and the process for amending standing orders.

This edition of the Bulletin has been prepared by Harriet Townsend with thanks to James Findlay QC, Damien Welfare, Ruchi Parekh, Matt Lewin and Isabella Buono for their commentary on the new LA Meetings Regs.