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Cornerstone Barristers Planning Bulletin - Issue 5

15.05.2020

Welcome to the fifth 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 and, with the number of new cases in London (thought of as the epicentre of the virus' spread) at 24 a day, from a high of 200,000 in March, there are reasons to be cheerful.

Legislation and related Guidance

The main news concerns the temporary changes to the publicity requirements of applications for planning permission and listed building consent, introduced on 14 May 2020 with immediate effect by the Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020.

New guidance within the NPPG states the Regulations "give local planning authorities (and in the case of certain applications for EIA development, applicants) greater flexibility in relation to the way they publicise the planning applications if they are not able to comply with a particular requirement because it is not reasonably practicable to do so for reasons connected to the effects of coronavirus, including restrictions on movement." [ID 15-035]

This is followed by detailed guidance [paragraphs 15-035 to 15-052] on the issues raised by this change which will need to be digested in detail by all planning authorities.

Planning Authorities - keep calm and carry on

A Coronavirus (COVID-19) Planning Update was published on 13 May 2020. It refers to a Written Ministerial Statement which is also essential reading as it emphasises the role of the planning system in "enabling the delivery of housing and economic growth that will support the UK's economic recovery". The Government expects planning authorities (and the Inspectorate) to adapt to working virtually, and states "Moving to digital events and processes will be critical." In order that the planning system continues to function as near normally as possible.

The Planning Update refers planning authorities to guidance published by the Planning Advisory Service and states "To ensure planning decisions continue to be made, local planning authorities should take advantage of [the powers to hold virtual meetings] to hold virtual planning committees – rather than deferring committee dates. They should also consider using 'urgency powers' within their constitutions to give senior officers delegated authority to make decisions."

Continuing the theme, planning authorities are "encouraged to undertake an immediate review" of their Statement of Community Involvement to enable plan-making to continue, making "any temporary amendments that are necessary". See ID 61-076 to 61-078.

What about the neighbourhood planning process, given the current ban on referendums before 6 May 2021? New guidance within the NPPG seeks to clarify what progress can be made and the "significant weight" that may be given to a neighbourhood plan where a planning authority has issued a Regulation 18 statement detailing its intention to send the plan to referendum. See ID 41-107.

On compulsory purchase, the Government "wants to see CPOs continue to be progressed." It recognises the challenges involved, and asks acquiring authorities to consider "pragmatic ways" of adhering to statutory requirements given the "exceptional circumstances". The guidance issued on this does not promise any change to those statutory requirements, nor help with the question what "pragmatic ways" the Update had in mind. See the CPO-specific guidance.

For a collection of all relevant NPPG changes made on 13 May please see here with many thanks to Tetlow King for sharing this useful resource.

Courts and Tribunals

In court, on 12 May, Holgate J quashed the Secretary of State's decision to award an Appellant its costs against the Mayor of London in The Mayor of London v SoSHCLG and Harrow School [2020] EWHC 1176 (Admin). Successful challenges to awards of costs are rare, so it is worth a look on that ground alone, but Holgate J goes further and made some "observations" on the costs order which was made "to assist in promoting future good practice" [paragraphs 163-168]. You might want to keep a copy handy.

Appeal decision of the week – if only for the headline – a major housing scheme outside York has been sunk by a bog - despite the need for housing in a recovered appeal decided on 13 May 2020.

PINS

An update on PINS activity (described as "updated guidance" was published on 13 May 2020 as follows

Site visits, hearings and inquiries: "We will be commencing site visits where it is safe to do so as well as considering whether there are types of cases that can proceed without undertaking a visit. Case officers will be in contact with individual appellants and local authorities as necessary in order to make any necessary arrangements." The first fully digital hearing on Monday 11 May was a "successful trial" and PINS hopes to conduct at least 20 more examinations/hearings/inquiries in May and June. They are also considering hybrid procedures and "social distanced" events. See here.

Local Plans: PINS expects Inspectors to work with local authorities and programme officers in order to move the examination forward while ensuring public participation, recognising that for some this will mean moving ahead with virtual hearings. See here.

NSIPS: Examinations continue, with some extensions to deadlines, but hearings and preliminary meetings have been postponed. Some events may be conducted via telephone and videoconference – and the project-specific webpage is the best place to keep up to date. See here.

The Kent Minerals and Waste Local Plan (Early Partial Review), the Kent Mineral Sites Plan and the Thanet Local Plan

The inspectors appointed to consider the soundness of the Kent Minerals and Waste Local Plan (early partial review), and the Kent Minerals Sites Plan have found both plans sound subject to agreed modifications produced during the examination stages. This is an important step for Kent as Minerals and Waste authority, particularly in the context of its drive towards net self-sufficiency in relation to waste reduction and recovery and the move away from waste recovery options lower down the hierarchy.

The Thanet Local plan was also found sound after a lengthy examination involving two Inspectors. The Plan was the subject of Government intervention given historic delays to its production (much of it attributable to disagreement in relation to the future of the Manston Airport site which is currently the subject of a DCO process and the spatial options for strategic growth in a highly constrained area). The Plan, once adopted, will be subject to a compulsory early review which will take into account the outcome of the DCO process. The Plan will provide a strong foundation for housing growth and the provision of essential related transport infrastructure.

This edition of the Bulletin has been prepared by Harriet Townsend with thanks to Paul Shadarevian QC who acted for both planning authorities in Kent.