The current sentiment is there remains a robust case for new homes and the right type of commercial development, and the current turbulence is not the result of any wider market failure but is due to this health crisis.
Developers’ immediate focus has been protecting staff and their businesses, preserving cashflow and dealing with the operational challenges of temporary site closures.
Our experience is showing that where an existing land sale is agreed but not contracted, the transaction is progressing, especially longer-term sales linked to receipt of a planning consent.
A number of developers and house builders will not consider new opportunities for immediate land at present, but we continue to see demand for sites being sold conditional on receipt of planning, and the market for strategic land remains robust.
We expect landowners to hold back new land sales until the ‘lock down’ is lifted and the market is clearer, resulting in less opportunities in the short term.
However, current sentiment remains that there is a robust case and need for new homes and the right type of commercial development, and the current turbulence is not the result of any wider market failure but is due to this health crisis.
We are seeing challenges in the procurement of planning consents due in part by decisions of some businesses and organisations to furlough staff but also due to the logistics of the planning process which has been affected by the lockdown.
As a result of our activity and recent experiences we set out below several FAQs which may assist those seeking to navigate the planning system and secure consent for development:
Are planning applications being registered in the normal way?
Many Planning Authorities have spent the first few weeks of April evolving processes to work on backlog applications submissions and registration. The number of applications being submitted has fallen rapidly allowing them to catch up.
Many Councils are well placed with skeleton staff still operating from the office with the planning administration manager or fully working from home. We are receiving acknowledgements from case officers and where possible duty officers who are facilitating cover.
Are planning authorities likely to take longer to validate and determine planning applications?
Given that most officers are working from home there may be delays in both validation and determination of those planning applications that cannot be determined using delegated powers. Councils are still efficiently progressing those applications that can be determined using their delegated powers.
The length of any delays to the determination period will be dependent on the success of the relevant planning authority’s remote working processes, the ability of officers to determine applications without site visits and the speed of consultee responses. Ultimately it is likely that some delays will result.
Some authorities have asked for lengthy extensions of time with the example of one Authority that in mid-April asked for an extension of time to determine a Planning Application until mid September 2020.
How are pre-application meetings being undertaken?
Many Councils are now using zoom/teams or skype for pre-application meetings, including for major schemes. Some authorities said initially that they would not undertake pre-application meetings virtually but this is slowly changing and, with our existing relationships, we are managing to speak to many of the relevant Officers.
Vail Williams is happy to set up zoom/teams meetings where officers are not able to issue use the software. This has helped a number of our public sector clients as well as planning officers.
Pre-Application meetings online need to be focused, time limited and have robust agendas.
Where full surveys have not yet been undertaken some LPAs are accepting caveated desk top information to establish principles and comment on details at a later stage.
The COVID-19 legislation enables virtual committee meetings. How will this work in practice?
The legal framework is in place to do so and planning committees are already trialing this approach. Westminster City Council, Reigate and Banstead and several others have conducted virtual meetings.
The cautionary note is that we have heard of several authorities whereby members are not happy for major or controversial applications to be heard online with concern around localism/voices being heard from the community (some with lesser IT connectivity) and Judicial Review (JR) risks.
Lawyers seem to be less concerned about JR given the legal parameters but we see some legal practices chasing JR on EIA grounds so this could be another avenue used.
We expect most Authorities to be conducting matters via virtual meetings by the Autumn 2020.
Are Design Review Panels taking place?
Design Review Panels are occurring virtually and can be successful. As with any meeting time spent in preparation is time well spent – clear agenda, allocated items and a time for each. Preparation is key, Vail Williams is working closely with Design Team to prepare, including provision of details relating to the existing site given site visits are unlikely to take place.
Are public engagement events taking place?
Face to face events are clearly not taking place. Consultation at this time requires an innovative approach to sending out invites (perhaps reverting to a traditional mailshot where addresses are available) and also publishing the information in an accessible format.
A number of virtual events are taking place with documents shared on screen in a format that is perhaps more like a webinar.
Clearly these will not fully substitute face to face events but can be an acceptable alternative.
The proposed consultation approach should be agreed with the Local Authority and must accord with the local protocol.
How are local authorities continuing with local plan preparation?
Experience to date is that local plan preparation is largely stalled in the first few weeks of lockdown. However some well progressed consultations are being continued through electronic / digital consultations.
It is important to keep in touch with councils during this period in case they announce further consultation / request for information or extend the consultation period in support of the emerging policy documents.
A number of LPAs are in discussions with the Secretary of State over advice and potential delays. We are aware that some Extraordinary Council meetings are taking place to review officers recommendations/progress of Local Plan preparation/completion.
Can planning appeals still be submitted?
The Planning Inspectorate is still able to process planning appeals whilst working remotely. Validation of appeals may take longer which can extend the appeal process, thereby the time taken to receive a decision.
Inspectors are unlikely to be able to visit site which may impact on determination timescales.
Hearings and Inquiries are suspended (as at 21st April 2020) although the Planning Inspectorate is looking at the use of technology to progress them virtually.
What happens if planning permission is about to expire – can the implementation period be extended?
There is currently no primary legislation in place to extend the timescales to implement planning applications without resubmitting a full planning application.
It is important to seek early advice from your planning consultant to discuss the options that are available. In Scotland, a 6 month extension period is being trialed for those about to expire.
We are watching to see if this could be replicated elsewhere especially given the pressure being put on Government by industry (developers, lawyers and the Housebuilder Federation).
The Westminster Property Association and City Property Association have written to the Rt Hon Robert Jenrick, SoS to suggest, amongst other things:
- That an automatic extension of time by two years is granted for existing major developments where the existing permission would expire before 5 April 2021; and
- Separate to this proposed automatic renewal, applicants should be able to apply to the local planning authority to renew or extend all existing planning permissions by suspending the effect of s73(5) of the 1990 Act, or making alternative arrangements possibly based upon s97 of the 1990 Act.
We are aware that some applicants are reflecting on the potential to use s.96A (non-material amendment) to amend the timescale within which an applicant is required to commence development, given that an extension of time could be considered ‘non material’.
This approach would need to be agreed with the relevant planning authority and legal advice sought. Vail Williams has direct access to Bar and can instruct legal counsel as appropriate.
What if my application requires a number of surveys to be submitted in support of the proposed development (e.g. transport assessment, ecology surveys, noise surveys, air quality surveys)?
Many consultants have procedures and agreed alternative strategies in place to deliver work required to support planning applications, even if there is only anecdotal or formulaic data available. The councils’ ability or willingness to accept such surveys in support of applications will need to be considered with the planning officer at pre-application stage.
It might be the case that a recent application on the site or adjacent site or Highway Authority records provide sufficient data to assess the implications of an emerging scheme to enable consultants to undertake analysis of the impacts. Relevant consultants should be engaged to confirm.
Whatever is agreed with the planning officer, applicants will need to be mindful that any information or surveys submitted in support of an application will need to be robust to avoid any potential for judicial review.
Can I amend the trigger points for Community Infrastructure Levy payments and / or s.106 payments?
Once the Community Infrastructure Levy (CIL) quantum is agreed very little option appears available to amend the payment, usually upon ‘commencement’ of development.
Calls to allow for exceptions/temporary delay in the payment are taking place via the development and legal community, however, we believe primary legislative changes are required.
If the CIL charges have not been agreed then it may be possible to agree acceptable phased payments based on particular triggers.
A s.106 Agreement can be varied or modified by a Deed of Variation. Formal correspondence is required with the Local Authority following early discussions via Vail Williams with the Planning Authority is suggested. Legal advice will also be required.
Gov.uk COVID-19 response updated visit https://www.gov.uk/guidance/coronavirus-covid-19-planning-inspectorate-guidance.
