Planning is a constant state of flux but very little changes. One of the best remedies for congestion has sometimes been to leave the system to settle and then deal with the real issues without the distraction of process engineering and policy posturing.
The current Covid-19 crisis is an exception to that rule. It underlines and exacerbates current resource shortages. It also shines a light on the process constraints imposed by a very analogue system.
Real changes will be needed in the short, medium and long term to deal with the current lockdown, provide a way through the next 9-12 months and then ensure long term resilience. Some solutions are short term. Some are perhaps things that have been waiting to happen for some time.
Stop/ Start – Conditions and CIL
Some investors have downed tools in the face of health and safety concerns and housing market than has effectively been shut down. Others are still building in line with the Construction Leadership Council’s operating guidance. Modular builders may fare better as they ship pre-constructed modules to be installed with a smaller on-site footprint than conventional construction.
Schemes will, inevitably be slowed, staggered and stopped. There will be consequences, requiring co-operation to find solutions in a public health emergency (which do not require primary legislation):
- Lapses: permissions close to their time-expiry cannot be extended by Section 73 applications. NMAs to carve out pre-commencement conditions for basic implementation works could be used.
- The Government could equally simply amend the Development Management Order in the way that it did in 2009 to allow a soft ride for applications for ‘replacement planning permission subject to a new time limit’.
- CIL: CIL starts can be punishing at the best of times because payment is mandatory, but when work is stopped for a pandemic all of the following should be considered:
- Instalments policies that push CIL liability back for most or all CIL-bearing schemes
- Exceptional Circumstances Reliefs decisions that use parallel S106 obligations to give a blanket relief from CIL so that schemes can proceed and pay before a subsequent trigger.
If there is Parliamentary time, a statutory change that makes the first payment due on an event closer to the definition of Implementation included in most planning agreements would be sensible.
A larger number of permissions are subject to viability review mechanisms than ever. Once the dust has settled and the economic scarring (and the level of incentives to investment needed to return to growth) are clear, there will have to be adult discussions about how these work.
What should be included in the costs in any review mechanism? For most schemes there will be significantly increased holding costs and slower sales rates when markets return. In many review clauses the finance costs are excluded in any review. Is that fair?
Early review grace periods – incentivising early starts – may need to be extended. Where properly drafted, they should already allow for automatic extensions in some circumstances, but this should now allow extension to deal with due to public health emergency.
Lending terms will tighten and debt is likely to become more expensive. Risk and return may increase. Profit margins, finance rates and surplus sharing rates may need to adjust.
PINS is grinding through how it can unblock its blocked caseload pipeline for NSIP, appeal, Call In and rights of way work. It will be a mammoth undertaking: while the Rosewell Review shone a light on simple ways to speed the process up, it was very muted on technology. Perhaps because of the challenges associated with it but also because of the high value that many parties place on the ability to robustly test evidence.
Efforts to virtualise the planning appeals process should therefore be approached with real care bearing in mind that they rely so much more heavily in some cases on visual and oral evidence than the kind of remote hearings that the Civil Courts are dealing with.
The Planning Bar has generated two separate proposals so far. One of which remains under wraps at the time of writing, but is likely to involve video conferencing and screen sharing protocols as the default for Inquiries. The other, by Landmark Chambers is a sensible and fair alternative to collapsing back into written representations:
- the Inspector identifies main issues
- (topic) specific remote hearing sessions are held using video or telephone conferencing (plus a general interested parties session)
- represents on each topic would be invited to participate in the remote hearing session
- the Inspector would decide on cross-examination vs round-table format.
- hearing sessions would be streamed online
The round table format can be a breath of fresh air at Inquiries. It can, however, rob the process of accountability where chosen unwisely, because the scope for destructive (and therefore constructive) cross-examination of weak or irrational evidence can be lost in the back and forth around the table.
There were 315 Inquiry appeals in 2017/18 (accounting for just over 42,000 homes). Over 57% of these were for an average scheme size of 87 homes. Clearly, there are a significant number of cases where virtual Inquiries will help.
It is, however, worth bearing in mind that the vast majority of the planning caseload is dealt with locally. District level authorities granted 364,000 decisions, 47,500 of which were residential (of which 6,400 were for major developments in 2018/19).
Freeing up resource to deal with this local caseload will keep the development pipeline going both by granting new consents and ensuring that there is confidence that investment in new planning applications is worth making.
The next blog will address the challenges and opportunities in local decision making during a pandemic.