The Law Society of England and Wales Planning and Environmental Law Committee and the City of London Law Society Planning and Environmental Law Committee have outlined a number of planning measures to help to manage the impact of coronavirus.
They have written to Secretary of State for Housing, Communities and Local Government, Robert Jenrick, with eight suggestions on the steps that can be taken to ensure that the planning system and construction industry can deliver during and after the crisis, including amending primary legislation to extend the time limit on planning permissions.
As Parliament returns and can sit with a reduced number of MPs or even virtually, the committees acknowledge that amendments to primary legislation could suffer due to restricted parliament time. They have therefore looked at the appropriateness of development changes and where these can be made using secondary legislation or guidance.
They primarily focus on the Town and Country Planning Act 1990, and the suggestions, particularly those relating to consultation and expiry of permissions, "apply equally to the nationally significant infrastructure project regime under the Planning Act 2008 and compulsory purchase process".
The main concern for developers is the expiration of planning permissions, which requires an urgent fix.
The letter insists that when social distancing restrictions are lifted the economy will need the development industry to have sites ready to be built out, particularly given the need for new homes. The expiration of permissions may cause unnecessary expense and unsafe practice, going against government guidelines, of contractors being engaged to go to site to undertake works to save the permission, committees warn. There will be legitimate reasons why works have not yet been undertaken, such as the time taken to discharge pre-commencement conditions.
This issue was already considered after the economic downturn in 2008, where guidance and secondary legislation was published to make sure there was a streamlined application system in place to apply for replacement permissions where the original had been granted on or before 1 October 2009, later changed to 1 October 2010.
"At the time, the guidance suggested that there was no other way of extending permissions... but in our view, given the widespread disruption to the planning system and the urgent need to save planning permissions which are about to expire, all potential options need to be considered".
The letter calls for a "blanket extension" of six months to permissions expiring in the next few months, which has already been done in Scotland and Ireland. To achieve this in England, the committees make the following suggestions:
The committees say that it should not be inevitable that planning applications currently in the system or submitted in the next few months will be delayed, but it "should not be left to applicants and local authorities to agree extensions of time to allow for this delay on a case-by-case basis". They believe the Government should extend the statutory determination periods for planning applications and the time limit for appealing refusals, or deemed refusals, of planning permission, even if just by a few weeks. This would reduce the burden on local authority resources and allow time for internal reorganisation of decision-making structures, which is what Ireland has chosen to do.
The committee also considered measures for:
Sarah Hanrahan, partner at law firm Lewis Silkin, said: "The shortfall in housing was critical even before the coronavirus outbreak and unless more is done to help the real estate sector the ramifications could be felt for years to come. The introduction of regulations to allow committee meetings to be held remotely will certainly assist developers, but it is not enough. There are many large residential schemes that already have permission but for various reasons have not yet been implemented and are in danger of expiring. Legislation does not allow for extensions of time and given the current shutdown it is no longer even possible to go on site to make a material start to preserve a permission".
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