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26 June 2020

866: Progress on COVID-19 planning measures

Today’s entry reports on new developments in keeping the planning system going during the pandemic.

First, though, the Planning Inspectorate accepted three applications for Development Consent Orders (DCOs) on one day on 24 June: for the Sizewell C nuclear power station, the (resubmitted) Thurrock flexible generation plant and improvements to Junction 28 of the M25 (with the A12 in the north-east). That’s the first time that’s happened, although two on one day has happened surprisingly often.

So, on to the COVID-19 developments. They are twofold.

Business and Planning Bill

A new Business and Planning Bill had its first reading in Parliament on 25 June, and it can be found here.

The first 15 clauses of the bill deal with consumption of food and drink outdoors, the bounce back loan scheme, vehicles and driving licences. We then come to planning, but the bill solely deals with town and country planning and not infrastructure planning (however see below).

First, construction hours set by planning conditions may be applied to be extended via an expedited process (clause 16).

Secondly, any planning permissions that would lapse between the date the provision comes into force and the end of this year have their implementation dates extended automatically until 1 April 2021 (clause 17). For permissions that would lapse, or already have lapsed, between lockdown (23 March) and the date the provision comes into force, then the extension is not automatic but may be applied for, the difference being to deal with projects requiring environmental impact assessment and appropriate assessment (ie habitats).

Similar provisions then apply for outline planning permission and listed building consent (clauses 18 and 19).

Thirdly, there is to be more discretion as to the choice of appeal method rather having to go with the ‘most appropriate’ method (clause 20). Strange drafting, though, why not just say for ‘whichever of the following ways appears most’ substitute ‘such one or more of the following ways as appear’ rather than omitting ‘most’ separately?

Finally, the Mayor’s spatial development strategy may be able to be inspected only online, although that expires on 31 December 2020 (clause 21).

The bill is accompanied by some draft guidance that can be found here. It is expected to go through parliament at a fair lick, finishing its Commons stages and starting in the Lords by 6 July.

Written ministerial statement

Planning minister Christopher Pincher MP issued a written ministerial statement on the same day, 25 June, which can be found here.

The statement deals with online inspection of documents in relation to various regimes, including the Planning Act 2008 regime. For our favourite regime it says that in the cases where document deposit is set out in the act itself, ie regarding the Statement of Community Consultation (section 47) and publicising a made DCO for the purposes of compulsory acquisition (section 134), online-only inspection will suffice even though physical deposit is implied, although hard copies should be made available on request. In all other cases, a statutory instrument will be laid ‘shortly’ to amend the legislation not to require physical deposit. The distinction seems a little arbitrary to me, especially when there is a convenient bill into which the requisite amendments to s47 and s134 could have been made.

The final paragraph deals with extending DCOs, and says that unlike ordinary planning permissions, there will be no general extension to implementation periods. Developers will have to use the existing non-material (or potentially material) amendment process to extend their permissions (presumably even if they have or will have already lapsed). Given how long non-material amendments take on average, and that no material amendments have ever been made, one would hope that such applications would be fast-tracked through the system. Furthermore that will add to the cost of such extensions, when they have become necessary through no fault of the developer. Couldn’t they have been added to the bill as well? Perhaps not, since there is an issue that you can’t introduce public legislation that in effect only affects one or two specific cases because it might be considered to be a hybrid bill.

The other areas that get some attention are compulsory purchase orders, planning appeals, local development documents and spatial development strategies.

Finally, the Planning Inspectorate has updated its guidance to say that physical documents (and presumably things like USB drives) should not be sent to their offices at Temple Quay House in Bristol because it is closed.

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