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Planning and infrastructure- different approaches and unanswered questions

As the coronavirus continues to change the way we live and work, we are beginning to see the first moves to compensate for the changes it is forcing upon us. In the UK we had the fast tracked passage of the Coronavirus Act, which we wrote about here. Around the world different states have similarly legislated to attempt to counter the consequences of coronavirus. Much of the legislation however has been aimed (quite rightly) at tackling the immediate public health emergency. In doing so, many legislatures have imposed ‘social distancing’ and banning public gatherings.

Although these moves go a long way to slowing the spread of coronavirus, they introduce necessary barriers to the usual functioning of society. This brings about a whole range of problems, particularly into consultation and engagement where there is often a reliance on public meetings and events. An area where this will be felt most keenly is in planning which has high consultation requirements and in some cases, requires public events. Even when it does not require public events, it remains an area likely to be disproportionately affected by the current restrictions.

In the Republic of Ireland we have seen the passage of the Public Interest (Covid 19) Act 2020. The Act contains specific provisions concerning planning, dealing with time limits in the Irish Planning Code. Broadly speaking this section (s.9) has three key effects to be implemented by Irish Ministers by regulation:

  • Although planning applications can be made, they may not be finalised if the public consultation window has not expired
  • Public consultation periods for appeals to An Bord Pleanala (the Irish planning appeals body) are frozen
  • Time periods for enforcement deadlines are frozen

The Irish approach then seems very much to be one of amending time limits, rather than the requirements of consultation. Developers may still make applications for permission, but they will not get decisions as the public consultation window cannot close. For applications that are already open, decisions will only be forthcoming if the public consultation period closed before the start of the present emergency.

A different approach is being taken within the UK by the Scottish Government. They intend to bring forward new regulations which suspend the requirement in pre-application consultations for at least one public event, a requirement which applies generally to major and national planning developments. In the letter announcing the upcoming regulations, the Chief Planner states the expectation that face-to-face events will be replaced with alternative online versions. On this, they are directing that they will produce guidance on expectations and good practice. The regulations themselves are yet to be published, so it remains to be seen how this expectation will translate into practice. Will there be any presumption against permission for those that do not run online consultations and instead merely try to proceed without appropriate public event replacements? How will the adequacy of replacements be assessed? There are still many questions that will need answering.

And the rest of the UK? We’ve had a little clarity with the laying of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales Regulations 2020, which have made provision for meetings of local authorities and police and crime panels to meet digitally and using other mechanisms than face-to-face meetings. Much of the detail however remains absent or left to be filled in by local authorities by way of standing orders and other procedural mechanisms.

On the detail of how local authorities are going to come to grips with the new circumstances, and legislation analogous to that in Ireland and Scotland specifically tackling consultation requirements in planning we are still waiting. Councils and planning authorities may now be able to meet, courtesy of the new regulations, and the public may be able to attend, but there are many questions that will require answering. Some limited guidance has been forthcoming from the Planning Inspectorate, but this largely relates to how they plan to perform their functions, as opposed to being practical guidance for planners suddenly confronted with the issue of how to run consultations in a very different environment and under very different conditions than already planned. In many areas in the UK we have the advantage that the courts have a degree of flexibility in how they apply the common law, but in areas such as planning where consultation obligations are often statutory rather than being based on common law, the courts do not have as much liberty in interpreting how emerging situations might change obligations. If a statute says something is so, then it is so, and exceptional circumstances do not change that requirement in and of themselves. The Courts cannot easily reinterpret those statutory obligations to respect the new circumstances and ensure a ‘fair’ result. This means that any statutorily mandated consultations must proceed as required, until regulations change. Here we can see the risk of potential miscarriages of justice as planners try to comply with two competing and conflicting sets of rules.

The only absolute way for this problem to be corrected is either for Parliament to look at changing the statutes, or for ministers to look at introducing temporary regulations waiving old provisions in light of the circumstances. With Parliament in recess until 21st April, and possibly not returning in full session until they have alternative arrangements to meeting in the Palace of Westminster, a meeting of Parliament to change the statute would seem unlikely – indeed it would also seem excessive if the same effect could be achieved by regulation. Certainly ministers seem keen on using regulations to see us through these troubled times. Regulations brought under the negative procedure in the House would not require a vote of the House and could more swiftly be applied.

So how likely is this to happen? Although it is not a Government priority now, their focus appropriately being on the immediate problems of healthcare and likely increases in patient numbers, as time goes by the consequences of issues such as this will become more important, especially if it looks like the disruption is going to drag on for a long time. If this appears to be the case, we should not be surprised to see the issuing of some ‘tidying’ legislation, making changes to existing procedures to ensure the continuance, so far as possible, of normal everyday life. Planning should be an early beneficiary of any tidying legislation as an area of immense national importance, and we would expect requirements for consultation to feature in revised legislation. In other areas too it will become increasingly clear that the sort of clarity that can only be provided by legislation and official guidance is necessary. For people trying to plan for an uncertain future, it can’t come soon enough.

In addition to this article, our associate Ruth Shepherd has been writing about coronavirus, consultation and planning on our collaborative working space here

About the Author

Stephen serves as the Institute’s Legal and Parliamentary Officer. Before joining the Institute Stephen studied Law at Bangor University and pursued a Masters’ degree in Aviation and Space Law at McGill University in Montreal. After this, he returned to London and was called to the bar in 2016 at the Honorable Society of Gray’s Inn, before deciding not to go into practice and move towards public policy work instead. Within the Institute, Stephen provides legal, political and policy analysis of UK and global current affairs of interest to consultors and consultees.

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