Roadblocks - 3 planning laws to change in lock-down
Planning can largely continue lawfully under lock-down, but not all of it. Not yet.
[NB 16th July 2020 update - all 3 of these road-blocks have now been cleared by MHCLG 👏! The relevant regulations can be found here, here and here]
As I said here (sorry for that shaky sound, for which we can all blame my 4-year-old’s monstrous wifi-hogging) most procedures for planning applications and plan-making can carry on under lock-down without the need for any changes to the law.
When you combine the DMPO + the new LPA meeting Regs + the lock-down Regs themselves - things which can continue lawfully under lock-down are (depending on the case, and the LPA):
Pre-app meetings - e.g. over video-con.
Site visits - because they’ll almost always present a reasonable excuse to leave home.
Submitting and validating most kinds of planning application through digital portals - but not EIA cases, and I’ll come back to that below.
Consulting on and publicising most kinds of planning application - again, not EIA, see below.
Posting site notices - many LPAs are making applicants do this, and in any event - it’ll almost always present a reasonable excuse to leave home.
Receiving consultation responses, writing up officer reports, and then making decisions under delegated powers + now - already in 1/3 of LPAs with more to come (BRAVO!) - taking applications to virtual planning committee where required.
Making that lot happen, and happen lawfully, in only a few weeks has taken the sweat and tears of the law-makers at MHCLG along with LPA officers and planning committee members all over the country. Well done!
PINS hasn’t caught up yet. Plan examinations and appeals are - at least for now - another story. See my comments here already a week or two old + this week’s interview with Bridget Rosewell on the state of play. PINS tell us that plan examinations and inquiries are coming, but (i) not for a while yet, at least at any scale, and (ii) getting there may require PINS to sort its procedures out, but it doesn’t require changes to the law, and in any event the MoJ is ready to write new rules if required.
So here’s the question: under the current lock-down, what can we not lawfully do?
Here are 3 relatively big-ticket items:
EIA applications - of course, the vast majority of applications (over 99%) don’t need EIA. But for those which do, and by definition they’re going to be schemes of some substance and scale, the current EIA Regs in England require physical copies of your Environmental Statement to made available to the public to inspect at a particular physical address. Of course, we can’t do that under lock-down. Which means that new EIA applications in England can’t currently be publicised lawfully. The law on this has already changed to recognise the problem in Scotland, and in England too but only for some oil and petroleum projects. So there is, I think, an overpowering case for urgent reform here.
Local Plan consultations - it’s the same idea. Reg 19 consultation versions of a plan need to be available for physical inspection at the LPA’s office. Again, that can’t be done under lock-down. And again, change is required pronto. Ditto for SPD consultations. Lots of other documents in the plan-making process also need to be available for physical inspection (e.g. the docs submitted to the SoS for examination, the examining Inspector’s report, or a newly adopted local plan) but most can lawfully be made available as soon as reasonably practicable after they’ve been produced. That doesn't present the same kind of legal roadblock, because it doesn’t stop the plan progressing in the meantime.
SEA / Sustainability Appraisals - environmental reports prepared under the SEA Regs, which includes sustainability appraisals for local plans, have to kept at LPA offices for physical inspection by the public at “all reasonable times”. Now views may differ over whether lock-down constitutes a “reasonable” time or not! But the SEA Regs do not (understandably!) expressly contemplate consultation on SAs with no physical inspection of the documents at all. Again, changes are needed to clarify this point, and needed quick to avoid yet more delays to plan-making.
More widely, you’ll have seen lots of discussion on other desirable legal changes to e.g. the CIL regs (see e.g. here and here), extending implementation times for expiring consents as in Scotland, and changes to e.g. section 73 - something I touched on here. We’re told that MHCLG are thinking about those changes, and some raise difficult issues of principle to be thrashed out.
But not the 3 changes above. All 3 are fixable! Indeed, they’re easily fixable.
But they have not yet been fixed, and each is a major roadblock to progress - for applications and for plan-making.
So if I was in charge at MHCLG for the afternoon (heaven forfend) - and I only had an afternoon! - quick fixes to amend the “physical inspection” requirements in the EIA, SEA and Local Plan regs needs to happen, and I think they need to happen fast.
Stay well, #planoraks.
