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Applying lateral thinking to your current real estate planning considerations

23 March 2020
The outbreak of COVID-19 has required some lateral thinking and application of common sense to the approach to planning rules, such as  temporary rights to changes of use for pubs and restaurants, relaxations in delivery times and changes to the Planning Inspectorate's approach to appeals.  Advice has also been issued for local authorities in respect of decision-making where meetings cannot proceed in person. 

Temporary rights for hot food takeaways

Ministry of Housing, Communities and Local Government (MHCLG) have now announced that planning rules are to be relaxed for pubs and restaurants to operate as hot food takeaways. The effect of the announcement is that all pubs will be allowed to operate as Class A5 to enable them to supply hot food for consumption off the premises – a change that would, ordinarily, require planning permission.  The relaxed rules will be for a period of 12 months only for the purpose ensuring that business can continue to operate, whilst minimising social contact.   Pubs and restaurants that wish to take advantage of the new relaxed rules must inform the local planning authority of the start date of such new activity.  Pubs and restaurants will be able to serve alcohol, but such service will be subject to existing licensing laws. 

Relaxation of delivery times to retailers and distribution warehouses

Local authorities have been advised by UK Government not to enforce planning restrictions (temporarily)  on deliveries to retailers and distribution centres.  This kind of planning restriction is usually included in planning permissions for retail parks/outlets and supermarkets and may restrict numbers and times of deliveries to safeguard residential amenity. Due to current unprecedented demands on food supplies, medication and other essential items, retailers (including pharmacies) need to receive additional deliveries at additional times to ensure that they meet demand.

Guidance from the Planning Inspectorate in relation to appeals

The Planning Inspectorate (PINS) has issued guidance in relation to site visits, hearings, inquiries and other events, which is updated on a daily basis.  Following guidance from UK Government to avoid non-essential travel, this will inevitably result in postponement of many of the activities of PINS in relation to planning appeals, local plan examinations, rights of way, Commons Act and similar matters, particularly where a public inquiry or other gathering of the public is involved.  PINS have issued guidance that where a case can be decided purely on written representations and submissions and this will not result in unfairness (e.g. by some parties being able to make such representations), then these may be decided as scheduled.  Site visits may go ahead where the Inspector is not obliged to use public transport, and where visits can proceed unaccompanied. Those with appeals and other PINS matters schedules are encouraged to email the case officer concerned, but to be aware that they are dealing with a large number of such requests, and advice and protocols are being constantly updated. Be aware that many planning committees have been cancelled for similar reasons, as these are public meetings and not appropriate in the current climate.

Local Authority Decision Making

Local authorities are required to hold meetings to make decisions. The Local Government Act 1972 requires members to be physically present in order for a meeting to take place. The exception to that rule is in Wales, where remote attendance is allowed under the circumstances provided by section 4 of the Local Government (Wales) Measure 2011 provided there is a quorum of 30% physically present.  In light of the current pandemic and need for social distancing, LLG and ADSO have issued the following advice to local authorities; 

  1. In terms of day to day executive authority, those with executive leaders or elected mayors can rely on single member decision making without the need for Cabinet meetings if their Constitutions allow. Even where those decisions must be made in the presence of an officer, (which is a sensible approach taken by many), this can be arranged in a different way or authorities can change their schemes of delegation now to alter those rules to accommodate remote presence in exceptional circumstances.
  2. For other decisions or authorities with a committee system, almost all delegation schemes include a reserve power to their Head of Paid Services to undertake responsibility for delegated functions of the authority in exceptional circumstances. Given that these times are exceptional (and a declared pandemic should meet the test for this), meetings might be cancelled and replaced with alternatives.
  3. Decision making might take a number of forms; the most inclusive is that a decision, that would otherwise have been on the agenda for a committee, is now made by an officer, but that the officer is advised in their decision-making by the views of members of the committee, which are then accessed remotely at an agreed time by way of Microsoft Teams, Skype, etc. The officer cannot in law fetter (constrain) their discretion entirely, but that does not mean that they cannot give almost overwhelming weight to a vote of committee members responding remotely to a report and officers’ advice, or even after seeing videoed submissions in lieu of public access.
  4. Local authorities are advised to review their schemes of delegation to ensure that provision is made for other officers to take urgent decisions in the event of the Chief Executive/Senior Management Team being indisposed due to the virus.
  5. Where meetings must be held - authorities can only rely on the quorum and discussion with the political groups. If they agree, then the meeting could go ahead on a quorum basis, made up proportionately from each political group. This would allow, for example, a full council meeting to quickly agree core business only and be made up of a quarter of their number, each sitting as spaced apart as the chamber allows.

Further Reading