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

It’ll take a long time to get quicker – how PINS is planning to change the inquiries process (slowly)

On 14 May 2019, the Planning Inspectorate published its Inquiries Review Action Plan to explain how it intends to implement the recommendations of Bridget Rosewell CBE’s Independent Review of Planning Appeal Inquiries. This blog considers what progress has been made and what are the main challenges to full implementation.

The Rosewell Review

The PINS Action Plan

Will it be successful?

The Rosewell Review

Having been involved in a large number of major planning inquiries in recent years, I found myself back in February of this year vigorously nodding my head in agreement with the findings of the Rosewell Independent Review of Planning Appeal Inquiries, in particular “that there is substantial scope to improve the planning inquiry appeal process from start to finish”. I fully agreed with the view that improvements were needed to significantly reduce the time taken to conclude planning inquiries while, crucially, still maintaining the quality of decisions and reports. The 22 recommendations set out in the Rosewell Review were designed to address key failings in the inquiries process, focused on three main areas: better technology, earlier engagement by the parties and shorter inquiry programmes.

However, I also approached the review with a healthy dose of scepticism. Having seen first-hand the immense strain that inquiries place on PINS, on top of all the other workstreams for which they are responsible not least of which being the development consent process, I was rather doubtful about how quickly (if at all) these recommendations could be implemented by PINS so as to have a noticeable and beneficial impact on the process.

The PINS Action Plan

A few months on and PINS has now published its Inquiries Review Action Plan to explain how it intends to implement the recommendations of the Rosewell Review. Overall, the PINS response is positive, praising the Rosewell Review for the practical, common sense nature of the recommendations which promise to lead to much faster decisions and to radically improve the experience of users.

The Action Plan confirms that PINS’ ambition is to be deciding planning appeal inquiries within a 26-week target by June 2020. A table of actions, with clear delivery dates, has been produced showing how each of the 22 recommendations will be implemented. On the issue of resourcing, PINS has recently begun its latest recruitment drive, this time looking to recruit another 20 senior planning inspectors. This follows an inspector recruitment exercise in January of this year, during which 200 interviews were completed, 106 offers made and almost all accepted.

So far so good. However, then come the warnings. The Action Plan notes that a recent pilot of the new system has “underlined the size of the challenge and that there isn’t a quick fix”. Indeed, PINS believes that “a sizable transition period is likely to be needed”. Only five of the recommendations have now gone “live”, one of which is the preparation of the Action Plan itself, with 17 recommendations yet to be implemented. PINS also warns that, for the reforms to have maximum effect, all parties involved with planning inquiries will need to adjust their approach. In other words, there are factors in play that are outside of PINS’ control.

A big sticking point seems to be the creation of a new portal for the submission of inquiry appeals (and publication of inquiry documents) by December 2019. According to the Action Plan, a third-party system is being used as an interim measure for the pilot scheme. However the Government Digital Service, with whom PINS is working to establish the new portal, has ruled out the long-term use of a third-party tool and instead required the development of a strategic portal solution that will be internally owned and managed by PINS. This has led to delays, with funding being an unresolved concern. Rather unfortunately this was Recommendation 1 in the Rosewell Review – has PINS failed at the first hurdle?

Having spoken to people involved in appeals that are part of the current pilot scheme, the feedback seems to be that the inquiries process is indeed significantly quicker. The requirement for appellants to notify local planning authorities 10 days in advance of appeal submission (only guidance but could become fixed in legislation) is an important part of this. However, speed has come at a cost, with rumours of inquiry dates being fixed by PINS when whole teams are on holiday, although PINS claims that “a degree of flexibility” will be allowed “in exceptional circumstances”.

The Action Plan notes that the successful delivery of the Rosewell Review recommendations is likely to mean that inquiries are determined more quickly than hearings, which contradicts the logic that inquiries are supposed to be reserved for the most complex casework. According to the Government’s website, it now takes 43 weeks from appeal validation to decision for a hearing and 41 weeks for an inquiry, which must in part be due to the pilot scheme.

To address this, the Plan identifies that PINS will put extra attention towards hearings to improve their timeliness. Sensibly (in my view) the Action Plan also acknowledges that, alternatively, a better approach might be for the length of time required for a case to be decided not to be determined purely based on which procedure it follows but instead on a new set of published priorities (eg focussing on housing delivery or other key infrastructure) as the key determinant for decision timings.

Will it be successful?

That depends on how you define success. Will PINS hit the 26-week target by June 2020? If they enforce tight, inflexible inquiry programmes then probably yes. Will the new system result in more successful legal challenges in respect of decisions made? Possibly, but as Rosewell herself has argued, that may be a worthwhile price to pay if it means that the appeal process as a whole improves. Rosewell has promised to issue a progress report, jointly with PINS, in September 2019, and a full implementation report in June 2020, exactly two years after her appointment as Chair of the review.

Author: Charlotte Dyer, Of Counsel, Planning, London

For further information please contact:

Charlotte Dyer
Charlotte Dyer
Of Counsel, Planning, London
+44 20 7466 2275

Recommendations from the Rosewell Review – how can planning appeal inquiries be made quicker and better?

A publication that has caught the attention of many in the industry this week is the government-commissioned ‘Independent Review of Planning Appeal Inquiries.’ The review, chaired by economist Bridget Rosewell CBE, was tasked in June last year with assessing how planning appeal inquiries could be made quicker and better. The report makes 22 recommendations aimed at reducing the time it takes to conclude planning inquiries, while maintaining the quality of decisions.

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