Coronavirus: a guide for developers and landowners on planning issues

Alexandra Ground, Partner in the Russell-Cooke Solicitors, real estate planning and construction team.
Alex Ground
4 min Read

Members of the Russell-Cooke planning team answer frequently asked questions from developers and landowners to provide guidance on what to do during the coronavirus pandemic.

What happens to current planning applications and appeals?

On 23 March 2020 the Government introduced three measures to reduce day-to-day contact between people. Every citizen must comply with these measures, one of which is to stop all public gatherings of more than two people.

What will happen to planning applications scheduled for site visits?

Local authorities are in the process of considering whether planning applications can proceed without site visits. Some are recommending that photographs and aerial images should accompany any application.

What will happen to planning applications scheduled for committee?

The Government has now introduced amendments to the Local Government Act 1972 allowing committee meetings to take place virtually. Before this amendment can come into effect additional regulations are required. These are expected within the next 10 days.

Some local planning authorities have been keen to avoid delays whilst they wait for the amendments to come into force. They have instead been using delegated powers to move decisions to officers where they consider this appropriate. It is worth checking the constitution and scheme of delegation to see if this is possible; some councils have already approved changes to these to allow for more delegated decisions.

What about appeals being dealt with by hearing or public inquiry?

The Planning Inspectorate has provided guidance for appeals. This states that local planning and appeal hearings, inquiries and site visits are postponed until further notice. Some parties have made submissions to PINs and the Secretary of State requesting for appeals to continue using video and/or telephone technology. Over the next few weeks it is likely that some appeals will go ahead remotely.

Are statutory challenges and High Court hearings being suspended?

These are currently going ahead in the High Court via video and telephone conference. It is understood that at the time of writing Court of Appeal hearings have been postponed.

The court is likely to exercise its discretion to allow for extensions to the current six week deadline for judicial reviews. 

What about planning permissions due for implementation in the next six months?

A planning permission is usually subject to a condition that requires work to be undertaken within a specific time period. This is usually three years. For some this deadline will fall within the next six months.

For valid implementation of the planning permission, the relevant person must ensure all planning conditions are complied with and carry out certain works to implement it. However, with the implemented Government guidelines reducing day-to-day contact it will be difficult for any physical work or new use to be carried out.

The law does not currently provide for extensions of time for planning permission. As things stand, if work is not undertaken within the specific time period then a new planning permission will need to be sought with associated considerable cost and delays. It is hoped that the Government and local councils will introduce the necessary amendments allowing extensions of time.

Do the new permitted development rights allowing pubs/restaurants to operate as takeaways benefit all pubs/restaurants?

Amendments have been made to permitted development rights to allow a 12-month temporary change of use of pubs/restaurants to takeaways.

Not all pubs/takeaways however will be able to benefit immediately if there are conditions attached to the relevant planning permission or s106 obligation prohibiting this use; a s73 application will be required to remove/amend that prohibition or a s106 deed of variation both of which are only likely to be approved if it's considered there's no longer a planning reasons for the control so more likely is that an amendment would be approved granted a temporary relaxation for the duration of the temporary permitted development rights.

Also, the ability for businesses to operate as a delivery and takeaway service might not always be allowed under the terms of the lease. Before making this operational change of use consideration should be given to uses granted and permitted under the current lease.

What about payments of the Community Infrastructure Levy (CIL) under an instalment policy?

CIL is triggered on the implementation of certain developments for the purpose of contributing towards funding of local infrastructure. Some Local Planning Authorities have payment instalment policies within their charging schedules for larger CIL payments. Typically those policies require payment by reference to the commencement date opposed to the start of certain phases. If commencement has already happened, all subsequent instalments will become due regardless of the fact that construction may have been paused.

There are no provisions in place to defer these instalment payments. Only if a Local Planning Authority has included within its charging schedule an "exceptional circumstances" discretion could these payments be delayed. Most LPAs have not included this power. In terms of surcharges, if payments are late there is discretion by the LPA as to whether or not to impose surcharges and it is hoped most LPAs would exercise that discretion in this difficult times. Interest payments on late payments are not discretionary.

This note was correct at the time of publication but may be rapidly overtaken by events. For further assistance, please contact the authors or a member of the planning team.

Briefings Real Estate planning planning law coronavirus developers landowners Katherine Chambers Alex Ground Russell-Cooke