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New guidance removes need for pre-application consultation events for planning applications

The planning sector has seen some big changes over the first four weeks in lock-down.

New regulations now allow councils at all levels to hold meetings without being face-to-face, and already we are seeing local councils take up the ability to hold virtual meetings to reschedule postponed or cancelled meetings – especially for planning matters.

We’re yet to see movement around planning appeals being held virtually, although there is an increasingly loud call from Chambers and other planning representatives for The Planning Inspectorate to mimic the Judiciary’s implementation of virtual hearings, where possible.

As we entered week five of COVID-19 Lock-Down, first Scotland then Northern Ireland brought in guidance to help the planning application process keep moving, and with it the question of how technology can reasonably replace the benefits of face-to-face public events.

In Scotland, The Town and Country Planning (Miscellaneous Temporary Modifications) (Coronavirus) (Scotland) Regulations 2020 came into effect on 24 April 2020, and temporarily suspended the requirement for public events in relation to Pre-Application Consultation (PAC) on major and national developments, and will remain in force until 30 September 2020, although this can be altered if necessary and appropriate.

In Scotland, the existing legislation relating to Pre-Application Consultation (PAC) on proposals for major and national developments require that a ‘public event’ is undertaken as part of the developer’s engagement with the community, rendering it impossible for applications for major and national developments to be submitted to the planning authority unless and until that requirement has been complied with. Full details of the Scottish briefing can be found here.

On 27 April, Infrastructure Minister Nichola Mallon announced changes to the process in Northern Ireland for major planning applications, also temporarily removing the requirement to hold a public event as part of the pre-application community consultation. The change will come into effect on 1 May 2020 and will apply for five months.

The Minister was keen to assure interested parties that public participation remains an important part of the planning process, and that ‘creative solutions’ will continue to be explored. The Northern Irish guidance is here.

Back on the mainland, the National Infrastructure Planning Association has looked at and beyond public consultation events and the impact COVID-19 is having on the wider planning sector.

NIPA has prepared a paper to consider and recommend alternative approaches to aspects of the Development Consent Order (DCO) regime during the current coronavirus pandemic, where there are severe restrictions on movement and congregation. Whilst recognising the obvious demands on resources at both The Planning Inspectorate and MHCLG (Ministry of Housing, Communities & Local Government), NIPA is joins a growing voice from within infrastructure calling for changes to be implemented to allow proposal development and decision-making to continue – and has identified five core areas of focus, along with recommendations and discussion points for each:

  • Documentation – alternatives when physical inspection is not possible
  • Consultation and engagement – how this can continue, particularly without physical attendance at events
  • Hearings – how these and other DCO examination meetings can take place remotely
  • Site access – approaches to environmental impact assessment (EIA), land referencing and development when access to and around a project site is restricted or not possible; and
  • Implementation of DCOs – that an extension of the time limits set out in some DCOs ought to be considered.

Whilst some councils have been quick to use the legislation which has been made in response to COVID-19 in recent weeks, others are yet to commit to the new meeting styles. There is a danger, however, that in the haste to create alternatives to face-to-face meetings and public events, developers are simply confusing the act of ‘engaging’ with one of ‘consultation’.

For online consultation to really compete against the open and accessible opportunities for people to view, discuss, challenge, debate and refine proposals, applicants will need to provide more than a few pdf documents and a feedback form or a survey link on a website.

We are already seeing some developments in the use of technology to provide a similar experience of consultation events in a ‘virtual’ scenario but those involved in delivering the engagement and consultation activity must be clear that virtual will not necessarily always be the best or the most appropriate method to use – and that engagement with stakeholders will require more than an internet connection and the provision of a platform. This is where the value of the public event really becomes evident through reaching a broader demographic within the community and as a result stronger dialogue. These in turn will open channels for that continual engagement consultors should be aiming for.

That said, we know there are pockets of the community who pro-actively choose not to attend public events, or engage in dialogue about proposed changes to their neighbourhoods and amenities. They may – or may not – engage electronically, and very likely do so within their own community groups.

Equally, we also know that there are many in our society who choose not to have smart phones, computers, tablets or any other device which could otherwise help their voice to be heard and to be a more vocal participant in community decision-making.

What has become apparent through this pandemic is that now – perhaps more than ever – we as consultors should be more open to using technology where possible and appropriate to encourage discussion and debate. Where it does not meet these tests, we should ensure that our engagement plans are robust and comprehensive, containing a range of methods and tools on which we can call to truly listen to and hear what people think of proposals we are bringing forward.

We should also be clear that the temporary removal of legislative requirements, or the implementation of technology to create new methods, should not remove the democratic right of those whose voices we should be listening to.

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