26 March 2020

Many established rules are being altered or waived in recognition of the impact of the COVID-19 pandemic. However, some deadlines cannot be moved, and for the development industry it is important to keep a close eye on planning deadlines that will continue to apply during these difficult times.

Last Friday, we were involved in submitting four enforcement notice appeals for a client. If the appeals had not been submitted, our client would have lost their right to appeal entirely. Here, we look briefly at how the planning system is so far adapting to the COVID-19 pandemic and flag points for developers to consider. We expect the position to evolve.

The Scottish and UK governments have announced various measures to provide flexibility. The Scottish government has announced it is looking at ways to allow statutory pre-application consultation to continue without the currently obligatory public event. Regulations have already been introduced in England giving permitted development rights to cafes and restaurants to operate as takeaways. In Scotland, the Chief Planner has ordered Councils not to take enforcement action where cafes and restaurants operate as takeaways.

However, these changes can provide only limited flexibility. Where statutory deadlines continue to apply they must be observed, including ensuring appeals are submitted on time. Once an appeal has started, the Reporter/Inspector will have discretion to extend deadlines and accept late submissions. It is hoped they will exercise this discretion generously in the current circumstances.

In Development Consent Order (DCO) applications in England and Wales, we are already seeing hearings being cancelled and replaced by written procedures and PINS seeking to delay statutory processes, like environmental impact assessments (EIA) scoping, because of concerns about consultees’ ability to respond in the prescribed period. All of these need to be carefully managed if they are not to impact on tight development programmes, or give rise to later challenge risk.

The lifespan of existing planning permissions also needs to be considered, as planning permissions which have not been implemented by the relevant date will expire unless steps are taken. There are various options to extend the lifespan of a consent, but these need to be done while the consent is still live. Developers need to be mindful that implementation can trigger development contributions (s75 or s106 obligations, and/or community infrastructure levy (CIL) payments in England and Wales). There is no ability to extend the time period for implementation once it has expired. 

Many, if not all, local authorities have announced an extended Easter recess for Council meetings, and are also likely to be operating with a limited number of staff working from home, given the announced lockdown. It is therefore also worth looking at on-going planning applications, and considering whether extensions of time for determination should be agreed with the Council – helpfully that is one planning deadline which can be moved. Developers may also find themselves being asked to agree extensions of time for prior approval deadlines where they are proposing to carry out works under permitted development rights.

Many planning processes – such as submission of applications and appeals – can be carried out electronically, and Councils and the DPEA/PINS are actively looking at how to make best use of video conferencing and online submissions. 

We continue to monitor any further changes that are announced that affect the planning system and will provide updates.

For any further information on these issues or queries on planning issues more generally, please contact Gary Soloman.

Key contact

Julian Boswall

Julian Boswall Partner

  • Energy and Utilities
  • Infrastructure
  • Planning and Compulsory Purchase

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