But how?

There is a lot of talk at present about how the Planning Appeals system will continue to make appeal decision during the Coronavirus Lockdown.  I will attempt a round up of where we are in the appeals world in another post later this week, however as Philip Barnes noted on Twitter"planning appeals are a tiny minority of planning decisions.  The far bigger priority is the day to day decisions we need from LPAs. Some good work in play but need to see some action soon."  

Nicola's initial message of hope at the end of last week noted that "there are still problems to solve - for example how to get around the need for local councillors to be physically present at committee meetings." 

As such, I cannot promise a lot of original work in this post but what I will attempt to do is draw together the numerous fantastic resources out there in the aid of keeping our LPA's making decisions in this time of crisis so that when we return to "face to face" work there are permitted houses and infrastructure to be built.

The problem.

W/c 16th March Planning Magazine ran the news that a number of Councils had cancelled Planning Committees and were looking into alternative arrangements.  Quite right and quite sensible that face to face meetings have been put off for during this pandemic. 

Whilst they were looking at alternatives, their own in-house lawyers were hopefully aware of Charles Hollands comments on Linkedin that Schedule 12 of the Local Government Act 1972 which (according to the government's interpretation last year) requires members to be physically present at all council and committee meetings.  Charles put forward the idea that statutes are always speaking and "present" might be construed to include presence by videolink but any Council wanting to push that interpretation would be risking the validity of those decisions in these uncertain times.

The solutions

Delegation

By mid-week James Carpenter interim Head of Planning at the Royal Borough of Windsor of Maidenhead revealed they had moved to a full delegation of decision making powers. (Once this has all been dealt with (fingers crossed) I am sure those looking at Jack Airey's recommendation to de-politicise the planning system will take stock but that solution will not be popular with all aspects of the local membership - see here).

Or Videolink?

On Monday (23rd March) amendment NC20 was proposed to the Coronavirus Bill to allow committee meetings to take place remotely / by video link (but only until 7 May 2021).  Amendment NC20 is going forward in the Bill as section 78.

Landmark Chambers have since published a paper on fairness (principally as it relates to the planning appeals system) but equally applicable here); conclusions on fairness all stem from the broad assumption that virtually every household has a telephone, and the vast majority of people have access to a computer or mobile device on which video conferencing is possible.  Unfortunately figures differ on those still on the wrong side of the digital divide but it is likely that Councils, particularly those in rural locations, will need to use this new power pragmatically and sensitively with the means and resources of the interested parties in mind.

Chief Planner.

Steve Quartermain must have a very different retirement speech planned to his final Planning Update Newsletter.  He stresses that it remains important that authorities continue to provide the best service possible in these stretching times and prioritise decision-making to ensure the planning system continues to function, especially where this will support the local economy. 

He highlights the need for innovation and encourages the use of technology where face-to-face events and meetings may have to be cancelled.  He encourages the delegation of committee decisions where appropriate and notes that the Government has confirmed that it will introduce legislation to allow council committee meetings to be held virtually for a temporary period, which we expect will allow planning committees to continue.

In short therefore 

  1. Delegate (where appropriate).
  2. Hang tight - legal ability to deal with by phone/video link is coming (use where appropriate).
  3. Please don't defer for a site visit.  (Googlemaps can actually deal with this remotely, quite well, on most occasions already). 

Issues remaining.

Site visits - as I jovially point out above; if a site visit is so important to a matter that the whole committee needs to pop out it is clearly going to delay things at present.  Clear advice needs to be given to members and officers interpreting individual requirements for a site visit to explore all other means of understanding the site before making that decision to defer.

My second question to pose here though is "what about the applications that need a s.106 to be signed (in hard copy) before the permission is granted."  

Chris Bowes drew attention to the NPPG's reference to negatively worded conditions being justified in exceptional circumstances.  Whilst these are exceptional times; the NPPG was never envisaging national emergency when it quoted exceptional circumstances.  It was looking for clear evidence that the delivery of the development would otherwise be at serious risk from the delay caused by the negotiation of the s.106 which an early grant, commencement of ground works and maybe an initial phase with the s.106 pending, could resolve.  A negatively worded condition may release a planning permission but it simply moves the problem.  At its worst it is a planning permission with it's clock ticking before it needs to be - the question of time limits will be the subject of a whole other post.

The problem here is that a s.106 is required to be a Deed and to be a deed the document must:

  • be in writing
  • make clear on its face that it is intended to be a deed by the person making it or the parties to it. This can be done by the document describing itself as a deed or expressing itself to be executed as a deed ‘or otherwise’
  • be validly executed as a deed by the person making it or one or more of the parties to it (section 1 of the Law of Property (Miscellaneous Provisions) Act 1989).

Whilst our land system is slowly modernising the solution is in including an amendment to the Coronavirus Bill to allow Deeds to be electronically signed.  Allbeit it may be a bit too late for that suggestion and the ramifications in modernising the whole land system may also be wider. For any other suggestions I would say "answers on a postcard", but taking all precautions necessary is the theme of March 2020 so drop me a video message on Twitter?