UK & Europe
As the industry begins to unpick the impact of lockdown on the development sector, we have sought to look to the future and anticipate the changes and challenges which are likely to arise within the planning system in a post COVID-19 world.
Prior to COVID-19, the country was already in the midst of a national housing crisis. Unsurprisingly, the restrictions implemented following the virus have had a significant impact on house building which - in turn - will invariably impact local planning authorities' housing land supply figures. Whilst the full impact of COVID-19 on 5YHLS may not be known until April 2021 (when the next annual monitoring reports are published), it is inevitable that housing land supply will be hit hard. We have already seen one Inspector deduct housing numbers from Wokingham Borough Council's 5YHLS and, going forward, we would expect COVID-19 to be a material consideration in major residential applications and appeals. As a result, in the immediate post COVID-19 world, it might well be the case that even local planning authorities who could previously demonstrate a 5YHLS will struggle to do so.
For unallocated sites, this presents a potential opportunity for developers to make up any shortfall and/or take advantage of the NPPF's tilted balance.
As we are tentatively approaching (hopefully) the end of an arduous lockdown period, it is already apparent that the economy has suffered a significant blow as a result of the restrictions. The Government will need to incentivise and encourage construction and development in order to ensure long term economic impact is minimised. As well as encouraging development generally - particularly residential development in view of the ongoing and worsening housing crisis - we would expect to see further Government commitment to infrastructure projects. By way of example, construction workers for HS2 are already back on site (albeit, in a limited way) and we would anticipate this commitment, to HS2 and other infrastructure projects at various stages of the development consent process, to ramp up as restrictions are lifted.
To encourage this increased development, we would expect accelerated changes to policy, either through amendments to the NPPF/PPG, the publication of related guidance or a relaxation in planning rules to encourage development and further boost the economy. In terms of the latter, we have already seen some evidence of this following the Government's update on 13 May which announced (amongst other things) an intention to relax the CIL Regulations to allow temporary deferral of payments and to disapply (or return) late payment interest.
The planning system has already become more digitalised as a result of the lockdown with a number of local authorities having conducted virtual committee meetings following the changes in law introduced by the Government. In some form, we would expect this modernisation and digitisation of the planning system to survive the lockdown period. Much airtime has, rightly in our view, been given to the potential legal pitfalls of virtual planning committees. However, digitalisation of meetings and online publication of documents (particularly where online publication has not previously been sufficient to satisfy consultation requirements) also has potential to increase accessibility, reaching a wider, more representative cross-section of the public and, ultimately, increasing engagement with the planning process in the future.
Other possible changes we could expect to see for large schemes and infrastructure projects include virtual exhibitions and 'village halls', 'ask the expert' sessions and topic-specific webinars held for the public, whilst not abrogating traditional methods of public engagement and consultation. Again, all of these measures would encourage broader engagement with the planning system.
The COVID-19 restrictions have given rise to a number of unintended consequences which will impact the planning system for some time to come. These include significant reductions in traffic and noise levels as well as air quality improvements. This raises questions as to how fluctuations in data taken during (and immediately after) this period will factor into development management. Will an 'uplift' effectively be applied to low traffic or air quality data taken at this time? Or will such data be discarded as anomalous? A further complication is that it is not yet clear whether such changes will become longer-term trends (e.g. reduced traffic if people continue to work from home regularly). This is likely to affect future development proposals and decision-makers will need to adopt a flexible approach to these development management issues. If disputes are to be avoided, prompt Government guidance will be required to clarify how such data should be managed.
Lockdown has brought into sharp focus that the existing Use Class Order is outdated and not fit for current needs. This is particularly true in respect of retail, restaurant and community uses that have been so seriously affected by the COVID-19 restrictions.
One of the ways the Government has already used planning to respond to COVID-19 has been the introduction of new permitted development rights, such as allowing restaurants to become hot food takeaways and emergency development for local authorities and health services. It is likely that some of these new PD rights may be here to stay and, moreover, we would hope further relaxation would be introduced in the future (particularly in respect of town centre uses). Given that units in high streets and town centres may become vacant after the lockdown, greater flexibility in both use classes and PD rights would help regenerate high streets and town centres boosting local economies.
We would expect the Government to make substantial amendments to the Use Class Order itself or, potentially, to introduce an entirely new Use Class Order.
COVID-19 restrictions have led to people spending an unprecedented amount of times in their homes and local amenity space. As a result, there has been a fair amount of public criticism in respect of residential dwellings which meet the current statutory standards but are not, from a socio-perspective, providing acceptable standards of living. Top of the list in terms of negative press have been some office to residential conversions, issues with which had already been highlighted in the Government's White Paper, 'Planning for the Future'.
As the Government and local authorities come under increasing pressure to ensure satisfactory living standards are set and enforced, we would expect to see a policy update to reflect a strengthening of these residential standards (along with public amenity and play space).
A number of local authorities have not validated planning applications during the lockdown period and development proposals will inevitably have been put on hold. Once lockdown restrictions ease, local authorities will need to deal with any backlog which will mean that any delays to developments are likely to continue and 'business as usual' may not return for some time.
Many local authorities have already significantly increased the number of applications determined under delegated authority whilst others have resisted any changes to their existing scheme of delegation. For those authorities where this has become an accepted practice, we anticipate increased delegated decisions to become the norm. In fact, we would expect other authorities to follow suit the longer the lockdown continues.
One key legislative amendment which we would expect to see imminently is to those parts of the EIA Regulations that require physical inspection of the Environmental Statement to be made available at a specified address. Under current Government guidance, it is not possible to comply with the EIA Regulations.
Whilst the UK has removed the requirement for physical inspection in some instances (per The Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) (Coronavirus) (Amendment) Regulations 2020) this should extend to all EIA development. Now that Parliament is back, we would expect this to be addressed as a matter of urgency and, following on from the recent Government update, it would appear that more detail in this respect can be expected imminently.
As to the Government's awaited White Paper 'Planning for the Future', we would expect this to be recalibrated to take into account the practical issues arising out of recent events, albeit we would not expect to see these amendments until much later in the year.
Unsurprisingly, points 1 – 9 above all have potential to lead to an increase in litigation.
A number of campaign groups have already signalled concerns about virtual decision-making, as well as increased delegation, and whether this is resulting in restricted public engagement. Equally, without Government guidance, it is very likely that we have only seen the tip of the iceberg in terms of arguments over housing land supply. Additionally, disputes over the correct application of data and/or interpretation of any new Government policy and guidance are likely to give rise to litigation.
Should you require any assistance on planning matters which have been impacted due to the lockdown or are interested in how any development proposals could be impacted post-lockdown, please do not hesitate to contact our Planning team.
Authors: Ian Ginbey, Emma Barkas and Rajpreet Uppal