Impact of the coronavirus lockdown on the determination of planning applications

Despite the ongoing crisis, statutory timeframes for determining applications remain the same.  The Coronavirus Act 2020, which received Royal Assent on 25 March 2020, made no provision for relaxing or suspending deadlines and at the time of writing there has not yet been any government announcement of any intention to do so.  Steve Quartermain CBE, in his final letter to local authorities as Chief Planner before he steps down from his role at the end of the month, advised councils on Monday prior to the Prime Minister's announcement to "continue to provide the best service possible in these stretching times and prioritise decision-making to ensure the planning system continues to function".

Notwithstanding the statutory requirements and government advice, applications that are due to be submitted or have recently been submitted but not consulted upon are most likely to face potential delays.  Whilst those councils we researched are still validating new applications (those applications submitted electronically at least), local authorities may be unable to physically send out consultation letters, affix site notices and carry out site visits during the lockdown given that staff will not be considered key workers.  We understand that some councils are still putting procedures in place to enable them to consult during the lockdown, but there are some that are unable to do so and consequently new applications may be held up until staff can return to their offices.

From our research, whilst some councils have either continued to hold planning committees subsequent to the Prime Minister's announcement or, as things stand, still have committees scheduled in the coming weeks, the majority have cancelled their forthcoming meetings.  However, with the Coronavirus Act 2020 receiving Royal Assent this week, regulations should follow shortly on procedures for committee meetings to be conducted remotely.  We suspect that many councils are already looking into holding remote meetings, so hopefully those applications which require member approval and which have already been consulted upon should be able to proceed to resolution in the coming months.  Further, those applications that have already been consulted upon and which can be dealt with under delegated authority should be able to move forward promptly with staff working from home. 

Developers may want to think very carefully about making amendments to their scheme if an application has already been submitted and consulted upon but not yet determined as material changes could trigger re-consultation depending on the relevant authority's statement of community involvement.  If changes are being considered, it will be worth exploring with the local authority if re-consultation will be required and, if so, whether they have the capability to do so during the lockdown.

Another issue developers may want to explore with their relevant authority is whether they have facilities to receive consultation responses received by post.  If not, this could open up potential grounds for judicial review if consultation responses are received but not considered prior to determination of the application.

Local authorities will be in a tricky situation with respect to prior approvals which require determination within 56 days or will be deemed approved. The Chief Planner in his letter issued this week advised authorities to prioritise these but acknowledged that it was open to councils to agree extensions to the approval date in exceptional circumstances.  The Chief Planner went on to state that where extensions of time cannot be agreed "an authority may need to consider whether prior approval is refused if the application cannot be considered with the requisite attention."

The Planning Inspectorate announced this week that they are suspending all future site visits, hearings and inquiries although they are considering if it might be feasible to utilise technology for events to proceed.  Consequently, PINS is likely to face a significant backlog once the lockdown is lifted.

Appeals against non-determination

In an environment where applications may not be determined within agreed or statutory time periods, developers should be mindful of deadlines for making non-determination appeals to the Planning Inspectorate, which also remain unchanged despite the lockdown.  Developers may need to be proactive and agree extensions of time in writing with the council.  Ultimately, if an extension of time is not agreed for whatsoever reason and the deadline to appeal to PINS is about to expire, developers may have little option but to appeal for non-determination in order to keep their application live.  

As referred to above, we are not aware of any councils not validating applications although some have indicated that they will only be able to validate applications received electronically.  If applications are not validated, developers should follow-up up the matter with the local authority and consider if it is appropriate to utilise the dispute mechanism provided under article 12 of the Town and Country Planning (Development Management Procedure)(England) Order 2015.  Again, if necessary to keep an application live, an appeal for non-determination can be made after the statutory period for determining the application has expired.