COVID-19 and planning measures

This article explores the temporary planning measures introduced as a response to COVID-19 across the UK and Republic of Ireland (ROI). Some of these measures have, and will, require urgent legislative change, while other aspects are about the recommended adoption of more innovative and flexible approaches.

Measures to deal with COVID-19 in Northern Ireland (NI) come under the UK-wide Coronavirus Act 2020. It contains specific provisions for NI during this pandemic in relation to the protection of public health, holding of inquests, use of video and audio technology in courts, mental health and mental capacity, and investigatory powers etc. The Health Protection (Coronavirus Restrictions) Regulations (Northern Ireland) 2020, made by the Department of Health, make provisions in relation to the closure of businesses, restrictions on leaving your home and the banning of public gatherings etc. However, neither the UK-wide Act nor the NI Regulations, provide for new provisions or amendments to the NI planning process or legislation.

As the lockdown largely continues, this article looks at measures being put in place to address issues such as the duration of planning permission, whether planning meetings are taking place, how planning decisions are being handled at the moment, and public events and consultations.

Duration of planning permission

With the understanding that it may be difficult to commence development due to current coronavirus restrictions, some jurisdictions have introduced measures to allow for the extension of planning permission. Scotland included provisions within the Coronavirus (Scotland) Act to extend the duration of all planning permissions due to expire for a further 12 months from when the provisions came into force.

ROI has allowed for similar extensions of permission (by 23 days) through the amendment of  251A of the Planning Act 2000, under the emergency measures brought by the Public Interest (Covid19) Act. The extension period can be altered by the Housing Minister in line with government restrictions if needs be, up until 9 November 2020.

However, as yet in England, time limits for applications have not been extended. A letter from the RTPI, RI CS and RIBA to the Prime Minister regarding support and assistance for the built environment practices during coronavirus asks the government to introduce a range of measures, including a temporary relaxation of time limits for planning applications and greater flexibility around the operation and submission of evidence to planning committees.

Scotland and the ROI have been able to extend planning permissions quickly through their Coronavirus primary legislation. However, the UK Coronavirus Act 2020 does not provide NI with the measures to amend the current timeframe for permissions provided under the Planning Act 2011. The Chief Planners latest update (May 2020) suggests that an amendment would require primary legislation which would take too much time and not help those whose permissions are due to expire in the near future. On this basis, the advice is that applicants should continue to seek the renewal of a permission before it expires.

Planning meetings and decisions

Regulations came into force on 2 April and provide local authorities in England with powers to hold meetings virtually. The same has been introduced in Wales under the Local Authorities (Coronavirus) (Meetings) (Wales) Regulations 2020. These Regulations make temporary provisions for local authority meetings and to exclude public and press access to these meetings during the pandemic.

Scotland has made provisions under the Coronavirus (Scotland) Act that allows meetings to be held virtually and for the exclusion of the public from meetings on health grounds. The Town and Country Planning (Miscellaneous Temporary Modifications) (Coronavirus) (Scotland) Regulations 2020, which were also brought into force on 24 April, suspend the requirement for local review bodies to meet in public. For further information see the Scottish Government’s Coronavirus (COVID-19): development management – frequently asked questions.

On 1 May, the Local Government (Coronavirus) (Flexibility of District Council Meetings) Regulations (Northern Ireland) 2020 were introduced to allow for local authorities to hold meetings remotely via electronic means. They also provide for measures to allow the general public remote access to meetings, through live streaming, video conferencing etc.

Submissions

The latest Chief Planner Update for NI advises the submission of applications, amended plans, representations and other general correspondence etc. via email, to local planning authorities.

ROI has stated that planning applications cannot be submitted electronically/on-line for the time being. Some local authorities, such as Dublin City Council, have an electronic system in place for minor applications. But, collectively, the Irish planning system does not currently facilitate the universal submission of electronic/online applications. For more information, the Department of Planning, Housing and Local Government has prepared a useful FAQ document, available here (see page 3).

Planning decisions

Currently, while local authority committee meetings are reduced and held remotely, the latest Chief Planners Update for NI encourages councils to make use of existing powers of delegation provided under the Planning Act 2011. This allows planning decisions to be taken by appointed planning officers, to reduce demand on committees and the need for face-to-face meetings. As a result, there has not been any mention of formally extending the decision-making time for planning applications. However, the update suggests that:

As regards determination timescales for planning applications, we should again work pragmatically with other stakeholders in these challenging times to consider and agree reasonable extended periods for submitting information or making decisions, as appropriate.

However, ROI has amended its Planning and Development Act 2000 (S.251A), under the Section 251A Order, and extended the period to determine a planning application from eight weeks to sixteen weeks. The Section 251A Order also gives an interested person a further eight weeks to participate in the planning process, giving them up to thirteen weeks in total. This extension also applies to appeals made to An Bord Pleanála (operating under restricted hours 9-12 pm weekdays). These Orders will remain in place until 23 May; however, An Taoiseach has the power to amend orders before they expire up until 9 November 2020. For further information, the Department of Planning, Housing and Local Government has prepared a useful FAQ document, available here (see pages 2 and 6).

Public events and consultations

Across the UK and ROI, public events and consultations associated with planning have been postponed, some of which can be replaced using alternative online methods.

In England, according to the Chief Planners letter, the Coronavirus Act (2020) contains provisions for the postponement of electoral events and referendums. This includes local plan and neighbourhood plan consultations under Schedule 48 of the Town and Country Planning Act. The Chief Planner’s letter also explains that in order to circumvent the financial impact of such delays to the neighbourhood planning process, in 2020/21 local planning authorities will be able to submit claims for New Burdens grants at an earlier stage than normal as set out under Regulation 25 of the Neighbourhood Planning(General) Regulations 2012.

Scotland has introduced temporary regulations to suspend the requirement for public events for pre-application consultation (PAC) on major and national developments. Normally these would require at least one public event, but this cannot take place due to current restrictions on public gatherings. The Town and Country Planning (Miscellaneous Temporary Modifications) (Coronavirus) (Scotland) Regulations 2020 came into effect on 24 April 2020 and it is expected that online alternatives (e.g. web based consultations, live Q&A sessions etc.) will replace face-to-face events. For further information, see Coronavirus Planning Guidance for Public events.

Similarly, in NI the Planning (Development Management) (Temporary Modifications) (Coronavirus) Regulations (Northern Ireland) 2020, enforced at the beginning of May, removes, for five months, the requirement for Pre-application Consultation (PACC) public events. Applicants are advised to use alternative measures, such as online options, to allow for the exchange of views. Guidance on this has also been produced by the Department for Communities.

The ROI has also suspended public meetings on plans etc. to keep in line with public health restrictions. For more information on this see the Department of Planning, Housing and Local Government FAQ document, available here (page 8).

Permitted development rights

Robert Jenrick, Secretary of State for Housing, Communities and Local Government, announced a relaxation of planning rules to allow pubs, cafes and restaurants to provide delivery and take-away services without the need for a planning application. Currently, planning permission is required for businesses to carry out a change of use to a hot food takeaway. However, the UK Government has stated:

The government will introduce a time limited permitted development right through secondary legislation (negative SI) to allow the temporary change of use of a pub (A4 – drinking establishment) and a restaurant (A3 – restaurants and cafes) to a hot-food take away for a period of up to 12 months only.

Businesses will be required to tell the local planning authority when the new use begins and ends.

The Chief Planner letter for Scotland also highlights the importance of easing enforcement on businesses, such as supermarkets, who may need to operate outside their planning conditions in order to maintain key services and continue to operate. The same has been said for instances where there has been temporary development, or change of use, in response to COVID-19.

Similar measures have been introduced in Wales where the Welsh Government has instructed local planning authorities to temporarily relax the enforcement of planning conditions on the food industry and retailers.

In the NI Chief Planner’s March update, councils were initially encouraged not to take enforcement actions that would unnecessarily restrict pubs, restaurants and cafes from providing takeaway services, or any other response to COVID-19. The latest May update reiterated the message that councils should take a ‘pragmatic’ approach to enforcement in relation to the delivery of essential goods and takeaway services during the crisis period.

Local development plans

In NI, the Chief Planner’s May Update suggests that councils refer to the measures suggested in the PACC Guidance in relation to ensuring their Plan Strategy and Local Policies Plan (which form the local development plan) are prepared in line with councils’ Statement of Community Involvement (SCI). In light of this, the Department is allowing for greater flexibility around the finalising of LDP timetables. To allow for any potential changes/delays due to the COVID-19 crisis, the update states that when the situation changes, councils will be given up to six months to formally review their timetables.

For further information in relation to the operation of planning in NI during this period, please refer to the Chief Planner’s Updates.

ROI expects the preparation process of development plans to be greatly affected due to the cancellation of public consultations and the eight-week extension to all statutory periods and deadlines associated with the plan making process, under the Section 251A Order. On this basis, local authority teams are expected to use the period to continue research, review submissions, drafting etc., and to engage with statutory consultees through remote and electronic means. For more detail on this, see the Department of Planning, Housing and Local Government FAQ document, available here (page 9).