Will site visits, hearings and inquiries still take place?
Due to the new guidance on social distancing and remote working, the Planning Inspectorate initially stated that site visits, hearings and inquiries would be cancelled. However, there is very much a push from the Secretary of State to keep the planning system moving notwithstanding the requirements to adapt to new ways of working. The Government now expects all hearings to be conducted virtually and where a virtual hearing is not possible, the expectation is that alternative arrangements will be put “speedily” in place and in accordance with social distancing requirements.
The Planning Inspectorate have been exploring ways of conducting hearings and inquiries remotely using technological means and conducted their first “digital” hearing on 11 May .
The Business and Planning Act 2020, which entered the statute books on 22 July 2020, includes provisions which allow more flexibility in relation to how appeals are determined including an ability for the Secretary of State to decide to adopt a procedure which is a combination of written representations, a hearing and/or an inquiry.
Site visits have re-commenced where it is safe to do so. The Inspectorate is looking at whether a site visit is necessary and has conducted a trial of “virtual site visits” where sites are assessed by means of photographs or video evidence.
The Planning Inspectorate have subsequently been scaling up conducting digital hearings, which also includes holding virtual local plan examination hearings.
Related FAQs
The majority of hearings are taking place by video or phone.
Court guidance has been issued on telephone and video hearings during the coronavirus outbreak:
https://www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavirus-outbreak
Where a Judge orders “teleconferencing”, it will take place using BTMeetMe, or video conferencing using Skype for Business or Cloud Video Platform.
All hearings are subject to the relevant jurisdictional rules and practice directions and usual court etiquette, including wearing appropriate attire and not eating or drinking during a hearing.
Electronic bundles of documents and authorities (if required) need to be prepared, indexed and paginated and sent to the Court well in advance of any hearing.
The Government acknowledges that there may need to be some flexibility to enable developers to meet any existing s106 obligations, in particular financial contributions, during the current health crisis and in recent guidance it encourages Councils “to consider whether it would be appropriate to allow the developer to defer delivery”. However, the Government considers that the existing arrangements for varying a section 106 agreement by way of a deed are sufficient and will not be legislating for any additional temporary mechanisms.
In the absence of any formal variation, the Government does however advise Councils to take a “pragmatic and proportionate approach” to enforcement of planning obligations at the current time.
The Government’s advice does not refer to concerns over the quantum of any planning obligations but is concerned only with the timing for delivery. However, the viability behind many sites is likely to change as a result of temporary site closures, or the availability of construction materials and labour once sites can re-open. Where there is already a s106 agreement in place, a developer may wish to renegotiate their position on the basis that certain planning obligations are no longer affordable.
Where a s106 agreement was entered into longer than 5 years ago, an application can be made to the Council to formally vary a planning obligation that is now “without purpose”. Any refusals can be appealed to the Secretary of State.
Where a s106 agreement was entered into within the last 5 years, the agreement can only be modified with the agreement of the Council. The ability to renegotiate a s106 agreement will therefore come down to the willingness of the Council to accept the revised viability position. Where Councils are willing to consider this, a robust viability assessment agreed with the Council is likely to be needed.
Changing to shift working may give employers the opportunity to change hours / pay whilst also focusing work when it is needed. Like the other provisions, this should be done fairly, either across the board or by selecting teams/individuals based on objective business reasons. Imposing without agreement would create significant risk, therefore would require fair selection and consultation.
All employers have a duty to prevent illegal working, and carrying out proper Right to Work checks are a fundamental part of this. In light of Covid-19, the Home Office has brought in some temporary measures for employers to use to carry out the requisite Right to Work checks. Failure to follow these could lead to enforcement action and penalties.
The government released further clarification on the Coronavirus Job Retention Scheme on 4 April. The wording referred to concerning public sector organisations and organisations receiving public funding remains the same.
The revised guidance does provide a helpful insight into how HMRC will deal with applications made to it for assistance under the scheme. It appears that there won’t be a particularly forensic approach adopted by HMRC. The guidance says you can furlough staff if you cannot maintain your current workforce because your operations have been severely affected by coronavirus.
It goes on to say that all employers are eligible to claim under the scheme and the government recognises different businesses/organisations will face different impacts from coronavirus. The need to demonstrate the impact of coronavirus on your business/organisation is not one of the criteria businesses/organisations are going to need to satisfy, so the government does not appear to intend to set a specific test to determine if a business/organisation is “severely impacted by coronavirus”. It is hoped that this should provide additional comfort to publicly funded organisations facing significant restrictions to their operations during the Covid-19 crisis.