Covid-19 and restrictions on enforcement: 2021 update – an end in sight?

Since March 2020, when the Government passed an unprecedented raft of protective measures to restrict a landlord’s ability (in both the commercial and residential sectors) to pursue remedies for the recovery of arrears (but also other covenant breaches), the practical effect has meant that landlords have not been generally permitted to seek to take back premises from tenants based upon forfeiture for non-payment of rent during the Covid-19 pandemic. Additional restrictions on the use of Commercial Rent Arrears Recovery (CRAR) and restrictions on the service of statutory demands to prevent creditors (including landlords) from presenting winding-up petitions helped to complete this circle and afforded tenants with wide-reaching protections against enforcement action throughout 2020.

These protective measures were introduced as separate pieces of legislation but now run concurrently, and were supposed to be temporary in nature. However, throughout the course of 2020, landlords saw the availability of their usual gamut of enforcement options regularly pushed off into the horizon with the Government deciding (often very late in the day) to extend the moratorium/restriction deadlines. Since June 2020, commercial landlords and tenants have been encouraged to seek to agree rent concessions and have restructuring discussions (premised on a non-mandatory Code of Practice applying until June 2021, see here). Whilst commendable in some circumstances, this Code of Practice has not altered the fundamental underlying legal premise that, unless renegotiated with the landlord, rent arrears remain payable by tenants (and any guarantor) eventually.

The start of 2021 appears to be no different for commercial landlords, at least perhaps in the short term.

On 31 December 2020, regulations were passed extending the moratorium on bringing proceedings for forfeiture of commercial premises based upon non-payment of rent (under section 82 of the Coronavirus Act 2020) to 31 March 2021. However, this extension has been described by the Housing Secretary, Robert Jenrick, as “final” and so commercial landlords can perhaps breathe a sigh of relief that the end may be in sight before they can finally forfeit a lease for non-payment of rent without restriction. That being said, the announcement that this extension is supposed to be final was made prior to the announcement of the national lockdown on 4 January 2021, and so it is entirely possible that this date will nevertheless be extended further on the basis that the new lockdown has fundamentally changed the circumstances.

The table below lists the current enforcement rights of landlords which have been subject to restrictions, what those restrictions involve, and when the restrictions will expire.

Evictions ban announcement

Furthermore, on 8 January 2021, the Government announced that it would be extending by six weeks the ban on bailiffs conducting evictions (except for the most serious cases, eg trespass, extreme rent arrears equivalent to six months’ rent, anti-social behaviour, death of a tenant where the property is unoccupied, fraud and domestic abuse) which was due to expire on 11 January 2021.

This means that, whilst the wide-ranging stay on issuing possession proceedings at Court was lifted on 21 September 2020, the practical effect of this announcement means that no evictions can now take place until at least 21 February 2021.The Government has further stated that no evictions are expected until 8 March 2021 at the earliest and this is being kept under review.

What enforcement options remain available to landlords now?

Despite the range of protections currently available to tenants, landlords still have available to them the following range of enforcement measures either individually or in combination:

  • drawing down on rent deposits and seeking top-ups;
  • claiming against current guarantors;
  • claiming against Authorised Guarantee Agreements (AGA) or Guarantees of Authorised Guarantee Agreements (GAGA) for post-1996 leases;
  • claiming against former tenants or former guarantors for pre-1996 leases;
  • deploying the remaining CRAR remedies, subject to the additional restrictions imposed and set out in the table above;
  • (following the lifting of the stay in September 2020) issuing or progressing proceedings for possession, brought on the basis of breach of covenant other than that to pay rent (but subject to the evictions ban restriction referred to above); and
  • County Court/High Court commencement and service of proceedings for debt.

Whilst several restrictions still remain, the Government’s announcement of a “final” extension of the moratorium on forfeiting a lease for non-payment of rent until 31 March 2021 is perhaps an indication of the important balancing act that needs to be made between the competing interests of landlords and tenants, having regard for example to the fact that commercial landlords will generally have their own commitments, most critically in the form of their debt/finance arrangements.

With the national lockdown in full effect at the start of 2021, and a growing sense of unease about when things will “return to normal”, the Government’s latest announcement was an indication of some change of position. It seems entirely possible however that the current circumstances may mean that additional extensions may come into effect despite this. If so, it remains to be seen whether this will be the current (effective) blanket ban, or something more nuanced, perhaps based upon actual ability of tenants to pay. In that regard, the British Property Federation has identified what it calls a class of “can pay, won’t pay” commercial tenants that it considers may warrant an exception to the rule. The position is unlikely to be considered again by Government before early March 2021.

For further information, please contact:

Matthew Weal

Matthew Weal
Senior Associate, Real Estate Dispute Resolution, London
+44 20 7466 7535

Matthew Bonye

Matthew Bonye
Partner, Real Estate Dispute Resolution, London
+44 20 7466 2162

Rhian Arrenberg

Rhian Arrenberg
Professional Support Lawyer, Real Estate Dispute Resolution, London
+44 20 7466 2594

Business and Planning Act 2020 to support Covid-19 recovery now in force

In a previous blog post in June we reported on the Business and Planning Bill 2019-2020 (the Bill) and the planning measures relating to the planning appeals procedure, extension of the life of planning permissions, longer construction hours, inspection of the London Plan, and pavement licences. The Bill received Royal Assent on 22 July 2020. A copy of the Business and Planning Act 2020 (the Act) can be found here.

Not many changes have been made to the original text of the Bill in relation to the planning measures. The key changes are as follows:

Key changes

  • Life of planning permissions extended The deadline for commencing planning permissions and listed building consents that have been automatically extended or been given approval to be extended pursuant to sections 17-19 of the Act has been moved from 1 April 2021 to 1 May 2021. This also applies to the extended application deadlines for the approval of reserved matters. This will be welcome news for developers, who now have one extra month than previously envisaged to commence their planning permissions and listed building consents.

By way of a reminder, the automatic extension will only apply to

    1. planning permissions that are due to expire between 19 August 2020 (the date on which the relevant sections of the Act come into force) and 31 December 2020;
    2. listed building consents that have expired or are due to expire between 23 March 2020 and 31 December 2020; and
    3. applications for the approval reserved matters that must be made not later than any time between 23 March 2020 and 31 December 2020.

Planning permissions that have expired or will expire between 23 March 2020 and 18 August 2020 must be granted an additional environmental approval in order to benefit from the extension.

  • Pavement licences A local authority now must also have regard to the needs of disabled people and the recommended distances required for access by them when it is considering the effects that furniture on a public highway will have.
  • Local authority meetings The Coronavirus Act 2020 provides that regulations can be made relating to meetings held by local authorities (requirements, timing, frequency, place of, access to and attendance at the meetings). A new section 22 has been included in the Act in order to add a number of bodies (Mayoral Development Corporations, Transport for London, Urban Development Corporations and Parish Meetings) to the meaning of a “local authority” within the Coronavirus Act 2020.
  • The Bill provided that the dates specified in the Bill may be substituted by a later date by regulations made by the Secretary of State. The Act keeps these provisions, but gives further clarification that this only applies if the Secretary of State considers it reasonable to do so in order to mitigate an effect of coronavirus (SARS-CoV-2).

When do the planning provisions come into force?

For more information please contact:

Helena Mouratov

Helena Mouratov
Associate, planning, London
+44 20 7466 2778

Matthew White

Matthew White
Partner and head of UK planning practice, London
+44 20 7466 2461

Business and Planning Bill – to support Covid-19 recovery

Yesterday, the Department for Business, Enterprise and Industrial Strategy (BEIS) published the Business and Planning Bill 2019-2020 and supporting guidance. This is not the fundamental reform to the planning system that we have been told to expect; rather the Bill contains largely temporary measures to “support the transition from immediate [Covid-19] crisis response and lockdown into recovery and getting the economy moving again”[1].

Planning appeals procedure

With one exception, the planning measures in the Bill are Covid-19 related and temporary. The exception relates to planning appeals, expanding the number of appeals methods that can be used from either written representations, hearing or formal inquiry to a combination of all three as the Secretary of State deems appropriate. This change is permanent, and is in line with recommendations of the Rosewell Review rather than arising solely in response to difficulties caused by the Covid-19 pandemic. However, bringing this forward now will help to speed up the appeals system and is welcome following delays due to Covid-19 emergency measures.

Life of planning permissions extended

The Bill temporarily extends the life of planning permissions and listed buildings consents due to expire during the Covid-19 emergency in response to “strong consensus across the industry and local planning authorities that unimplemented planning permissions should be extended to enable planned developments to be commenced over the next year”. These provisions are simple in concept although more complicated in execution. Essentially, planning permissions which will expire between the date of the relevant section of the Business and Planning Act coming into force and 31 December 2020 are extended to 1 April 2021. There is an additional level of detail for outline permissions –  deadlines for applications for approval of reserved matters are extended as well as commencement deadlines. Measures are also introduced to save permissions that expired between lockdown on 23 March 2020 and the coming into force of the Business and Planning Act – these permissions can be “saved” by applying to the local planning authority (LPA) for an “additional environmental approval”, which will then need to be commenced before 1 April 2021.

Construction working hours

Developers can apply to the LPA to allow construction activities to be carried on for longer periods than authorised by a planning permission and on days not previously authorised. The application must give at least 14 days’ notice ahead of the intended date of change (excluding bank holidays, Christmas Day and Good Friday), and any agreed modification must cease to have effect no later than 1 April 2021.

Inspection of the London Plan

The Bill removes the requirement that the London Plan has to be available for physical inspection or copies supplied if an electronic copy is made available instead. These changes in publicity requirements will expire on 31 December 2020. Guidance also asks the GLA to consider how members of the community who can’t access the London Plan by electronic means are not unduly prejudiced, suggesting that the GLA could consider “making arrangements with representative groups” or providing information by telephone or in writing if there is no alternative.

Pavement licences

Finally, of interest to owners and occupiers preparing themselves for businesses re-opening for trade from 4 July 2020 onwards, the Bill also introduces a new expedited process for applications for pavement licences.

Next steps

MPs are due to consider all stages of the Bill in one day next Monday, 29 June 2020, following which we can expect the Business and Planning Act 2020 to come into force without undue delay. In the meantime, we continue to anticipate an announcement on the wider reform to the planning system that we have been promised.

[1] See the Explanatory Memorandum to the Bill.

For further information please contact:

Matthew White

Matthew White
Partner and head of UK planning practice, London
+44 20 7466 2461

Fiona Sawyer

Fiona Sawyer
Professional support lawyer, planning, London
+44 20 7466 2674

Corporate real estate M&A: a post-Covid-19 perspective

The landscape for real estate M&A has changed considerably over the past few months. For those more familiar with real estate M&A, there will be a perceptible shift in the way deals are managed and negotiated going forward.

We have prepared a briefing exploring how future real estate M&A is likely to differ and what the new “normal” may look like for real estate M&A deals. Click here for the briefing, or please contact us.

For more information please contact:

Paul Chases

Paul Chases
Partner and head of corporate real estate, London
+44 20 7466 2386

Alex Wright

Alex Wright
Associate, corporate real estate, London
+44 20 7466 7454

Adapting Urban Centres for the “new normal”

In light of the restrictions on movement imposed by the Public Health (Coronavirus) (England) Regulations 2020, last week the government issued some guidance aimed primarily at owners and operators of public places in England (Coronavirus (COVID-19): Safer Public Places – Urban Centres and Green Spaces (13 May 2020)). The guidance has no legal impact and applies to England only, but nevertheless outlines how such owners and operators might keep people safe as the restrictions are relaxed and urban centres and green spaces become busier again.

The guidance defines an “urban centre” as a publicly accessible area in an urban centre, such as high streets, transport hubs and shopping areas and aims to identify the key design issues and potential temporary interventions that may be needed to allow for social distancing. A decision tree suggesting some steps that could be taken to achieve this can be found here, but the key points for consideration are utilisation of pedestrian space, movement of people, queuing requirements and traffic management.

  1. How will this guidance dovetail with existing contractual obligations?
    Each location will have its own issues to contend with depending on its location and layout.  As an example, the guidance suggests a widening of footways and removing unnecessary obstacles to maintain a safe distance. Landowners will need to be careful not to impinge on the demise of any particular tenant where their property adjoins a footway or thoroughfare and, if necessary, may need to agree a short term suspension of any exterior seating licences or similar arrangements to allow sufficient space for pedestrians to safely navigate the urban centre.

    However, as restrictions are further relaxed there will be an obvious tension between the need to accommodate pedestrians and the desire for restaurants and cafés to provide outdoor seating areas.

  2. How long are the temporary measures likely to last?
    This guidance will no doubt continue to be modified and updated as restrictions over movement are gradually relaxed, which in turn will necessitate further interventions on the part of landowners to reflect these changes. Where possible, it may be sensible to agree a timeline for a phased return to normality so that all stakeholders have some reassurance that once restrictions are lifted, the status quo will apply.

If you would like to request a copy of our full briefing note on the guidance, please contact us here.

For further information please contact:

Jeremy Walden

Jeremy Walden
Partner and head of real estate, London
+44 20 7466 2198

Kate Wilson

Kate Wilson
Professional support lawyer, real estate, London
+44 20 7466 2650

Government’s proposals for temporary relaxation of the CIL regime to help development under COVID-19

COVID-19 has proved to be a catalyst for changes to the planning system designed to respond to the rapidly changing economic climate. The government this week published guidance on postponing payments of developer contributions such as planning obligations and CIL in order to alleviate one of the obvious obstacles to development coming forward. What kind of help has been identified and will it benefit all developers?

CIL

The government intends to amend the Community Infrastructure Regulations to ease the burden on developers. This will be welcome news in light of developers’ concerns about the effect of the inflexible CIL regime on their ability to deliver developments under the cloud of COVID-19.

Currently there is no scope in the CIL Regulations to change payment due dates. Unless CIL payments can be made in instalments in accordance with the local authority’s instalment policy (if published), payment is due on commencement of development and late payments result in mandatory interest charges.

The government is therefore proposing to introduce temporary measures to allow charging authorities to defer CIL payments and disapply the obligation to charge late payment interest. Furthermore, they propose to give charging authorities discretion to return interest already charged where they consider it appropriate to do so for developers that have an annual turnover of less than £45 million. 

The government’s focus seems to be on helping SME developers. CIL authorities are encouraged to use their discretion in considering any enforcement action in light of the government’s clear intention to introduce temporary legislation. CIL authorities “should take a positive approach to their engagement with SME developers”.

The government hopes that authorities will apply the new discretion widely in cases where the threshold criteria are met. 

The proposed changes will not benefit developers with turnovers in excess of the threshold criteria. The government points out that the current CIL Regulations contain a few limited powers available to charging authorities to assist and is encouraging their use. For example, regulation 69B allows for CIL payments to be made in instalments and a new instalment policy can be published at any time. On large scale phased developments, where each phase is a separate chargeable development, CIL charging authorities could introduce new instalment policies for the chargeable development which has not yet commenced. The existing flexibilities around enforcing CIL, including flexibilities over the imposition of surcharges, should be noted by CIL authorities for larger developers. 

Under regulation 85, authorities can also exercise discretion over enforcement action for non-payment and whether to impose surcharges.

Whilst there is nothing to compel charging authorities to use these powers, given the high stakes for the local and national economy, the government is encouraging authorities to take a pragmatic approach to assist developers to ensure that development is delivered.

Planning obligations

The government has not announced any proposals to assist developers in relation to the payment of section 106 contributions. Local authorities are, however, encouraged to take the current circumstances into account when negotiating planning obligations. 

It is not only in the interest of developers that local planning authorities might be willing to renegotiate the delivery of planning obligations. Once a payment is made under a section 106 agreement, it must be spent within a set time, otherwise it must usually be repaid to the developer with interest. Given authorities’ need to focus now on the delivery of essential services and the often complex and lengthy procurement processes before financial contributions can be used, it may be in the interest of the local planning authority to defer payments and other obligations where appropriate to do so. 

The government has called for “a pragmatic and proportionate approach to the enforcement of section 106 planning obligations during this period” and it is hoped that local authorities will heed this and be flexible in respect of both planning obligations and CIL.

For further information, please contact:

Matthew White
Matthew White
Partner and head of UK planning, London
+44 20 7466 2461
Izabella Suberlak
Izabella Suberlak
Senior associate, planning, London
+44 20 7466 2779

 

COVID-19: What are the new far-reaching restrictions on recovery of rent arrears?

The Government’s decision that it will temporarily ban landlords from serving statutory demands or issuing winding up petitions has sent shockwaves through much of the investment property market. In a press release on 23 April 2020, the Government announced that statutory demands served on “companies” between 1 March and 30 June 2020, and winding-up petitions presented from 27 April 2020, will be banned where the reason for non-payment of the monies set out in the demand or petition is that a tenant “cannot pay its bills due to coronavirus”. The measures build on the protections already afforded to all tenants in response to the COVID-19 pandemic, to “help ensure that [tenants] do not fall into deeper financial strain”. They supplement the suspension of a landlord’s right to forfeit a lease for non-payment of rent, whether by peaceable re-entry or the issue of proceedings, announced as part of the Coronavirus Act 2020, and supplemented by the Civil Procedure Rules Practice Direction 51Z. At the same time, the Government has announced further protection for tenants, as it has imposed restrictions that a landlord’s right to recover arrears under the Commercial Rent Arrears Recovery scheme (CRAR) and directly enforce against tenants’ assets as set out in the Taking Control of Goods and Certification of Enforcement Agents (Amendment) (Coronavirus) Regulations 2020. More on this below.

At present, there is very little detail surrounding the new restrictions on statutory demands and winding up petitions, and the only source of information is the Government press release. Many questions can be posed and requests for clarification made in relation to the timing, scope and impact of these changes, including:

  • How will a court interpret the phrases “cannot pay” and “due to coronavirus”? Many businesses will have experienced cash flow issues due to the current restrictions on trade. Other businesses will have already been in financial difficulties (and possibly also arrears of rent) before the pandemic. It seems that it may still be possible to present a winding up petition to the court, but where a winding up petition is presented on the basis that a company is unable to pay its debts, the court will be called on to determine why. Where a company’s inability to pay its debts is due to COVID-19, the petitions will not be presented and winding up orders will not be made. However, similar press release wording was used before the suspension of the right to forfeit, and when the legislation itself was published and passed, the linkage between arrears and COVID-19 was not included.
  • Will the measures, like the protection from forfeiture provisions, apply equally to all tenants and lawful occupiers of commercial premises, whatever the sector in which they operate, whether the tenant remains open for business or faces any restrictions on trade, and regardless of the tenant’s financial standing?
  • Will these new restrictions also apply to service of a statutory demand on an individual or partnership (the press release talks only of companies), and presentation of bankruptcy petitions (the press release talks only of winding-up)?
  • The information provided to-date does not suggest that there would be a similar ban on other debt enforcement methods such as commencement of Court proceedings so as to obtain a County Court Judgment (CCJ) or, for example, drawing down on a rent deposit. It is also not clear as matters stand whether the legislation would prevent claims against guarantors of tenants or against former tenants or their guarantors, eg under an Authorised Guarantee Agreement.

By way of background, a statutory demand is a written demand for payment of an undisputed debt (such as rent), and can be served on an individual, partnership or a company. A statutory demand can only be served if:

  • the debt is liquidated, ie for a specific amount that has been fully and finally ascertained (such as principal rent, or a reconciled final service charge payment);
  • the debt is undisputed; and
  • the debt exceeds £750 (in the case of a company) or £5,000 (in the case of an individual).

It is not in itself a method of debt recovery, but has long been an effective way to put pressure on a tenant to pay the amounts owed. The real “punch” behind a statutory demand is the consequence of non-payment: if the sums specified in the statutory demand are not paid within 21 days of service of the demand, that non-payment is treated as evidence of the tenant’s “inability to pay the debt” and opens the tenant to the risk that it could be (in the case of an individual) declared bankrupt or (in the case of a company) placed into compulsory liquidation, and ordinarily entitles a landlord to present a compulsory winding-up petition to the court.

CRAR is a statutory scheme under which landlords of commercial property may take “self-help” measures to recover principal rent by serving an initial notice and then instructing an enforcement agent to seize goods from the demised premises and sell them to recover the arrears and the landlord’s costs. A key limitation of CRAR was always that, in order for a notice to be served and therefore begin the CRAR process, a minimum of seven days’ principal rent (CRAR cannot be used in respect of service charge or insurance payment, even if these are reserved as rent) had to be outstanding. From 25 April to 30 June 2020 (although this period may be extended), CRAR can only be used where an amount equal to 90 days’ net rent (ie more than a quarter’s rent) is outstanding, thus further limiting landlords’ right to recover arrears.

The restrictions on serving statutory demands and presenting winding-up petitions will form part of the Corporate Insolvency and Governance Bill 2020, which has not yet been published. We await it with interest. Watch this space.

For further information please contact:

Matthew Bonye
Matthew Bonye
Partner and head of real estate dispute resolution, London
+44 20 7466 2162
Rhian Arrenberg
Rhian Arrenberg
Professional support lawyer, real estate dispute resolution, London
+44 20 7466 2594

Protection of empty, closed or infrequently used premises against squatters

Updated April 22, 2020

The Health Protection (Coronavirus, Restrictions) (England) 2020 (the Regulations), made under the Public Health (Control of Disease) Act 1984, required the closure of certain businesses and venues, and also restricted the trade which can be conducted at other types of premises. Furthermore, some tenants of commercial premises have made their own decisions to close or limit access to their business premises. Others, such as offices, are simply being used less frequently and by fewer people. High streets, retail and leisure parks seem deserted, and, against this background, travellers, protestors and squatters may see these premises as prime targets, particularly if there is a relative lack of security and ease of entry. Empty buildings pending development are equally attractive. This blog post sets out some tips for landowners, landlords and tenants to avoid trespassers entering onto land or into buildings in the first place.

Unfortunately, once squatters have entered and begun to occupy a building, they can be reluctant to leave, and removing them can be time consuming and expensive. New restrictions came into effect three weeks ago which limit landlords’ rights to issue or pursue proceedings for possession in certain circumstances[1]. After some consternation in the legal profession, it has been made clear that these limitations do not apply to the issue and progress of proceedings, and enforcement of any orders for possession granted, against trespassers[2]. This will no doubt provide comfort to landlords and landowners who were concerned that the restrictions inadvertently gave trespassers the ability to remain on premises without the normal recourse available to them to take back possession of land. The restrictions also do not limit the ability of landlords and landowners to apply for an injunction to prevent an imminent invasion of squatters or protestors, should the requisite evidence of an imminent risk, in support of that application, be gathered. Additionally, an injunction to require anyone to remove items, and desist from damaging, premises could also be granted and enforced.

However, anyone requiring access to justice in these uncertain times will conceivably see some delays and interruptions on the ground including in the service of proceedings, the availability of a hearing, and the enforcement of any order for possession by a sheriff or bailiff.  They are also likely to witness variations in the court resources available to them. Therefore, prevention of squatters remains the best cure. Landlords will be mindful of their obligations not to derogate from grant, and to continue to allow their tenants quiet enjoyment of their premises.  Given some tenants may wish to be free of a liability to pay continuing rent under a lease,  this continuation of access is important so as to counter any tenant argument that might be raised that the tenant had suffered an eviction, or that a changing of locks e.g. to access the demise meant that there had been a landlord’s termination/repudiation which the tenant could accept, or an argument that the lack of access amounted to the landlord accepting an implied surrender.

All this suggests that it is advisable that landlords and tenants work together where possible, to do all they can to prevent squatters entering onto land or into buildings in the first place.

There are some practical steps which will mitigate against the risk of squatters entering properties:

  1. ensure that premises are as secure as possible. Depending on the nature of the premises, this could involve installing steel security doors and tamper proof locks to windows, skylights and doors, and fitting deterrents such as CCTV and sophisticated alarm systems;
  2. consider whether it would be worthwhile employing security guards to stay at larger or more open sites round the clock, to patrol the premises and ensure that there is no opportunity for trespassers to enter and take possession of a site;
  3. remove anything of value at the premises;
  4. block up any less obvious points of access, if this does not create eg issues with fire regulations/safety or easements;
  5. put up hoardings and signs to alert trespassers to the security measures which have been put in place, with the intention that they might then find the premises unappealing; and
  6. carry out regular monitoring and inspections of the premises internally and externally to make sure that they remain secure and free from occupation by anyone unauthorised, so that any necessary action can be taken as early as possible.

The cost of some of these measures may be recoverable from the service charge, depending on the provisions in individual leases. However, given that the restrictions in place are temporary, landlords and tenants alike will want a tenant to be able to use their premises as soon as the restrictions are lifted and the public health situation allows. Spending money on security and deterrents at this early stage may pay dividends in the long run.

Should you require any further information in relation to removing any unauthorised occupiers from development sites when the restrictions are lifted, please read our previous blog post here.

[1] Coronavirus Act 2020, section 82.

[2] Civil Procedure Rules, Practice Direction 51Z.

For further information please contact:

Matthew Bonye

Matthew Bonye
Partner and head of real estate dispute resolution, London
+44 20 7466 2162

Rhian Arrenberg

Rhian Arrenberg
Professional support lawyer, real estate dispute resolution, London
+44 20 7466 2594

COVID-19 – Planning FAQs

In light of the new measures put in place by the UK government in response to the COVID-19 pandemic, many projects are being assessed to determine whether they can continue or whether work should pause. Local authorities are putting in place appropriate measures for their areas to protect the health and safety of the public and their employees whilst trying to help businesses to survive. The impacts vary from council to council and national guidance is being updated regularly. Innovative technological and online solutions have been encouraged across the sector, including by the Planning Inspectorate and the courts, to find practical solutions to difficulties arising.

We have produced a FAQ fact sheet collating relevant guidance as well as our opinions on some of these issues. If you would like to receive a copy, please contact us.

Information is also available from the HSF Real Estate and Construction teams on landlord and tenant and construction issues. Please contact us if you are interested in hearing more from them.

For further information, please contact:

Matthew White

Matthew White
Partner and Head of UK planning, London
+44 20 7466 2461

Catherine Howard

Catherine Howard
Partner, planning and environment, London
+44 20 7466 2858

Julia McKeown

Julia McKeown
Associate (New Zealand), planning, London
+44 20 7466 2321

Fiona Sawyer

Fiona Sawyer
Planning support lawyer, planning, London
+44 20 7466 2764

Impact of COVID-19 on planning

This week, offices, schools and public places are being closed in response to COVID-19. Herbert Smith Freehills continues to provide a full client service, with our teams mostly working remotely but, as with all businesses, those involved in planning are trying to work out the best ways to continue with projects and what accommodations need to be made to do that. The impact of COVID-19 measures on national and local planning services could cause delay with planning applications, appeals and court proceedings. These are fast moving times and the news changes on a daily basis, but this is what we know so far regarding the impact of COVID-19 on PINS, local government, the courts and Parliament.

Planning Inspectorate guidance – updated 18 March 2020

PINS has published guidance on the impact of COVID-19 on site visits, hearings, inquiries and other events.

As at 18 March 2020, PINS has recommended that its staff avoid unnecessary or non-essential travel. Appeal hearings and inquiries will not proceed, although PINS is considering alternative arrangements, including the feasibility of technological solutions or whether a case can be decided by written submissions following questions raised by the Inspector. Site visits can continue to go ahead on an unaccompanied basis, provided that the inspector is able to travel to a site without using public transport.

Two local plan examinations which were due to take place this week, the North Hertfordshire local plan and the Chiltern and South Buckinghamshire local plan, have been postponed, although in the case of the Chiltern and South Bucks local plan the Inspectors have decided to consider duty to co-operate matters through written representations to ensure that the examination can continue until hearings can be resumed.

The PINS complaints service is also limited as a result of travel restrictions – see here.

Civil and Family Court guidance – updated 19 March 2020

On 17 March 2020, the Lord Chief Justice announced that, “whilst the latest guidance from government on how to respond to COVID-19 will clearly have an impact on the operation of all courts in every jurisdiction … it is of vital importance that the administration of justice does not grind to a halt”. The courts are working through the implications for operating the courts and “recognise the need to increase the use of telephone and video technology immediately to hold remote hearings where possible”.

The Lord Chief Justice confirmed this on 19 March, saying that “The default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely”. It was noted that “the rules in both the civil and family courts are flexible enough to enable telephone and video hearings of almost everything. Any legal impediments will be dealt with” and the courts are “working urgently on expanding the availability of technology, but in the meantime we have phones, some video facilities and Skype”, and “many more procedural matters may be resolved on paper within the rules”. In relation to civil appeals, it was noted that “most applications for permission to appeal … are likely to be suitable for telephone hearing”.

It was noted that arrangements are being made “to include those working in the courts within the scope of key workers who will be able to continue to send their children to schools”.

Local government guidance – updated 19 March 2020

MHCLG has published guidance for local government during the COVID-19 outbreak. This is further to the package of measures announced by the Chancellor in the Spring Budget on 11 March 2020. Amongst other measures, councils are to be able to use their discretion on deadlines for Freedom of Information requests and legislation may be brought forward to allow council committee meetings to be held virtually for a temporary period – for more information see here.

Council services such as planning may well be impacted by government guidance issued yesterday on which council staff are “key workers” for the purposes of maintaining essential services during the COVID-19 crisis. Staff defined as key workers include those working in:

  • key public services – which includes “those essential to the running of the justice system, religious staff, charities and workers delivering key frontline services, those responsible for the management of the deceased, and journalists and broadcasters who are providing public service broadcasting”; and
  • local and national government – but only including “those administrative occupations essential to the effective delivery of the COVID-19 response, or delivering essential public services, such as the payment of benefits, including in government agencies and arms length bodies”.

Staff of planning departments may not be seen as key workers. Those staff who are able to work may be asked to help with other departments providing essential services.

Parliament – updated 16 March 2020

On 16 March 2020, Parliament announced that all non-essential visitor access to both Houses would be stopped from 17 March 2020 and that from 20 March Westminster Hall debates would be suspended.

COVID-19 has also impacted the work of the Public Bill Committee considering the Environment Bill (see our blog on the Bill here). Sittings of the Committee have been suspended until further notice (see here). It remains to be seen whether it will be possible for the Bill to make its way through Parliament in time for the end of the Brexit transition period.

We are keeping an eye on developments as they happen.

Our construction team has also considered the impact of COVID-19 on construction contracts – see HSF Construction Notes here.

Please contact us for our briefing note on COVID-19 advice to landlords.

For further information, please contact:

Matthew White

Matthew White
Partner and Head of UK planning, London
+44 20 7466 2461

Catherine Howard

Catherine Howard
Partner, planning and environment, London
+44 20 7466 2858

Fiona Sawyer

Fiona Sawyer
Professional support lawyer, planning, London
+44 20 7466 2674