The Housing Secretary, Robert Jenrick MP, announced on the evening of 12 May 2020 that with immediate effect anyone in England can proceed to move home provided that they comply with social distancing advice in a bid to re-start the housing market following the freeze on people moving home introduced towards the end of March to combat the spread of Covid-19. Amongst a range of measures, Robert Jenrick MP also announced the intention to introduce further planning reforms.
In these uncertain times one thing is clear: the consequences of Covid-19 will be wide-ranging. So far the government has acted swiftly and continues to introduce measures to mitigate impacts. We have already seen reforms introduced by the Coronavirus Act 2020 to allow Councils to take decisions remotely. A number of local planning authorities have already held virtual meetings to consider major and significant planning applications following the regulations made under the Act coming into force on 4 April 2020.Whilst further detail is awaited, the proposed further reforms announced on 12 May 2020, as outlined below, will supplement the reforms to decision-making and should assist both local authorities and developers by allowing greater flexibility during these unprecedented times.
More flexible construction site working hours
The Government announced the intention to allow builders to agree more flexible construction site working hours with their local Council. It is hoped that this proposal will make it easier to follow public health guidance onsite and stagger construction workers’ arrival times and their use of public transport.
It was feared by many in the construction industry that, even with sites remaining open or re-opening, development would be slow due to the need to ensure social distancing measures. This announcement will no doubt therefore be welcomed by those in the industry and should help to speed-up construction schedules and avoid significant delays in project delivery dates. This measure may however, not be so well received by those living close to construction sites, particularly now that more people are working from home and may generate a greater number of complaints for local authorities to deal with.
Publication of applications through social media
The Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 came into form on 14 May 2020 to allow local planning authorities to publicise planning applications and applications for listed building consent through social media and other electronic communications instead of having to rely on posters and leaflets. These arrangements can be utilised where it is not reasonably practicable for Councils to discharge the specific requirements for site notices, neighbour notifications and newspapers for reasons connected to the effects of coronavirus. The relaxation of publicity and consultation requirements also applies to environmental statements for EIA development.
At the time of writing further guidance has yet to be published. The Regulations stipulate however, that Councils must still take reasonable steps to notify persons who are likely to have an interest in the application of its website where further details can be found. Whilst reasonable steps can include use of social media and other electronic communications in lieu of the usual consultation and publicity requirements, such steps "must be proportionate to the scale and impact of the development".
We are aware that some Councils are struggling to put practical procedures in place to arrange for consultation letters to be printed and distributed during the Covid-19 lockdown restrictions; affixing site notices also has caused problems. This measure may assist Councils in swiftly publicising applications and clearing any backlog that may have built-up since the Government restrictions on movement were introduced in March.
Deferral of CIL payments for small to medium sized developers
The Government also announced an intention to amend the Community Infrastructure Regulations 2010 to give local authorities the flexibility to support SMEs by allowing them to defer CIL payments, to temporarily dis-apply late payment interest and to provide discretion to return interest already charged where appropriate. This measure should hopefully ensure that development can proceed during the pandemic by assisting those qualifying developers with their cashflow.
Again, the detail has yet to be published and CIL regulations cannot be amended without a debate in Parliament. It appears, however, that Government intends the flexibilities to apply to developers with an annual turnover of less than £45 million.
In the meantime whilst amendments to the CIL Regulations are considered in Parliament, the Government has published new CIL Guidance explaining the flexibilities permitted under the existing Regulations and setting out steps that local authorities may wish to consider to ease the burden on developers. The Government outlines that Councils could look at introducing instalment policies for future development noting however, that such policies cannot be backdated to apply to development that has already commenced. The Guidance further emphasises that any enforcement under the Regulations is at the discretion of the collecting authority, although again noting that there is no discretion for Councils not to charge interest on late payments. Consequently, as referred to above, the Government is looking to amend the CIL Regulations to dis-apply late payment interest and to allow authorities to return late interest already charged.
The new CIL Guidance also urges Councils to consider whether it is appropriate to defer payments of s106 contributions through deeds of variations, and sets out that a pragmatic and proportionate approach to enforcement of planning obligations is encouraged during this period.
Whilst clearly giving SME developers breathing space to pay CIL and S106 contributions is welcome, those who have contracts to acquire units from SME developers might take a different view. Typically such contracts require a developer to discharge the CIL and S106 liability as it falls due, which is normally before hand-over and consequently the purchaser is protected from any S106 and CIL liability as it will have already been paid. But if the payment date can be pushed back by an SME developer, there is a risk that the developer could go into liquidation leaving the new owner to foot the bill. We will have to wait and see if the proposed amendments to the CIL Regulations address this potential pitfall.
