Physical touch in the time of Corona

In his blog in early May 2020 Zack Simons identified three ‘roadblocks’ to the continuation of planning during lockdown. Whilst many aspects, such as site visits, the online submission and validation, consultation and publication of most planning applications, and the preparation of officer reports, was able to continue, what was not possible affected EIA applications, Local Plan consultations and sustainability appraisals for those plans. As with Environmental Statements, Local Plan Regulation 19 consultations and sustainability appraisals needed to be physically available for public inspection. Clearly that wasn’t possible under a lockdown situation, with restrictions on movement and closure of offices.

Those roadblocks in the process have now all been cleared.

New Regulations have been published, which came into force on 16^th July 2020: The Environmental Assessment of Plans and Programmes (Coronavirus) (Amendment) Regulations 2020 and The Town and Country Planning (Local Planning) (England) (Coronavirus) (Amendment) Regulations 2020 (Regulation 2(2) of which comes into force on 12^th August 2020).

The Plans and Programmes Regulations insert a new Regulation 18 into the SEA Regulations (The Environmental Assessment of Plans and Programmes Regulations 2004), which makes modifications to Regulations 11, 13, 15 and 16. Those modifications remove the requirement on the responsible authority to make documents available for public inspection at the authority’s principal office, and replaces this with the simple requirement that the same documents are available for inspection on a website. They also amend the requirements on the responsible authority (or Secretary of State) to notify the address where those documents may be inspected. This is replaced with a requirement to notify persons of a website address. The requirement to notify persons that a copy of documents may be obtained from an address is, accordingly, removed. The modifications are temporary; they apply from 16^th July 2020 and end on 31^st December 2020, fitting in neatly with the general write-off of 2020 being applied in many minds(!)

The Local Planning Regulations amend the 2012 Regulations. Regulation 2(3) inserts new Regulations 36A and 36B. The modifications are also only temporary. Regulation 36A makes modifications until 31^st December 2020 such that for the purposes of Regulation 35(1), a document will now be taken to be made available by a LPA when it is published on the authority’s website (as provided for by Regulation 35(1)(b)), thus removing the obligation under Regulation 35(1)(a) to make the document available for public inspection at the principal office and such other places the authority considers appropriate.

The requirement in Regulation 36 to provide on request a hard copy of those documents made available under Regulation 35 is removed.

New Regulation 36B makes transitional provision in respect of the documents made available on the LPA’s website in accordance with Regulation 35(1)(b) during the temporary period, which then continue to be made available after that point: as soon as reasonably practicable after the end of the temporary period on 31^st December, the LPA must also make the document available in accordance with Regulation 35(1)(a), until the end of the time required by the 2012 Regulations.

Regulation 2(2) amends Regulation 35(3)(b) of the 2012 Regulations to update a reference to s113 of the Planning and Compulsory Purchase Act 2004 following amendments made by the Criminal Justice and Courts Act 2015.

The changes are signposted in an amendment to the PPG (Paragraph: 079 Reference ID: 61-079-20200715) under the heading ‘How do The Town and Country Planning (Local Planning) (England) (Coronavirus) (Amendment) Regulations 2020 change the requirements to make certain documents available for inspection and on request?’

In summary, the new Regulations change the rules in relation to the publicity requirements for local plan documents until the end of the year, so that progress can continue to be made with local plans.

Not having to make documents available for inspection at premises or provide hard copies on request undoubtedly eases some of the impossibilities of the present time and may allow the preparation of local development documents to be ‘unpaused’ in many cases. However, problems may well persist in the production of the documents themselves, where officers or consultants engaged by the authority to prepare the various studies required can only get so far with a desk-based approach. At least one of the small number authorities targeted by the Secretary of State in recent times as liable for possible intervention due to the delay in its local plan progress has had to push back the timeline towards the adoption of its local plan, due to the inability of consultants to progress the necessary underlying studies under lockdown conditions.

The changes also assist those who are unable or unwilling to travel for the purpose of inspecting documents even if they were to be made physically available. However, new paragraph 080 of the PPG asks local authorities to consider how to continue to promote effective community engagement, in particular how to reach those sections of the community which do not have internet access. Reference is made back to guidance given earlier in May 2020. Paragraph 078 (Reference ID: 61-078-201200513) states that LPAs are “strongly encouraged” to use online engagement methods to their full potential, listing “virtual exhibitions, digital consultations, video conferencing, social media and providing documents for inspection on a public website” as appropriate methods. But in order to take reasonable steps to ensure that sections of the community that don’t have internet access are involved, the LPA will have to “consider alternative and creative ways to achieve this”.

Possibilities are to engage with sections of the community that do not have internet access “through representative groups rather than directly, targeting only people in areas most affected by proposals, and allowing individuals to nominate an advocate to share views on their behalf.” Consulting by telephone or in writing could also be used where feasible and where alternatives can’t be identified, and to make offline methods more cost effective, opportunities to combine public consultations could be explored.

Kate Olley