The coronavirus crisis presents unique set of challenges for the development industry with potentially long term implications. A swift and creative approach will be required by the Scottish Government and local authorities to ensure that planning regulatory tools work to support the development industry and ensure wider economic growth.
The Coronavirus (Scotland) Act 2020 ("2020 Act") received Royal Assent on 6 April 2020 and will come into force on 7 April 2020 and has implications for the next 6 months – known as the "emergency period".
So how has the Scottish planning system adapted so far?
Life of Planning Permissions Extended
Given the closure and social-distancing constraints relative to construction sites, the 2020 Act provides that where planning permission and planning permission in principle would lapse during the "emergency period", then the period in which development can commence is extended is until 6 April 2021 unless development has already commenced. This is regardless of whether the timescale for commencing development falls under statutory timescales or has been amended in a specific permission.
Where the last date for an approval for matters specified in conditions is within the emergency period then the deadline for that application to made is also extended to 6 April 2021. However, this currently only relates to applications that fall to be submitted under the statutory timescales and not where the timescales have been changed.
It should be noted that permissions which have already lapsed or required applications to be submitted before 7 April, will not be protected by these provisions.
Relaxation of Planning Conditions Relating to Retail Distribution
Supermarkets and food retailers dealing directly with the public will have seen a rapid increase on demand for their products and services.
In response to this, the Chief Planner, announced on 11 March 2020 that, as a matter of urgency, planning authorities should take a positive approach to their engagement with food retailers and distributors, as well as the freight industry, to ensure planning controls are not a hard barrier to food delivery and retailers can remain open over the period of the coronavirus.
Planning authorities have also been advised to avoid undertaking enforcement action which would result in unnecessarily restricting deliveries of food and other essential deliveries or in regard to extended store opening times.
Businesses Allowed to Offer a Takeaway Service
On 18 March 2020, the Chief Planner issued a further letter advising that planning authorities are not to undertake enforcement action which would result in unnecessarily restricting public houses and restaurants providing takeaway services on a temporary basis during the current exceptional circumstances.
Tenants who are parties to commercial leases, are advised to read the terms of their lease to ensure that they are permitted to deviate from their primary use class. If a lease is silent in the event of a pandemic, as many certainly will be, contacting and clarifying with landlords will be the appropriate course of action.
Pragmatic and Reasonable View to be Taken
On 3 April 2020, the Chief Planner and the Minister for Local Government, Housing and Planning, have provided further advised that there may be other situations not explicitly catered for within the above letters where it will be equally important to take a reasonable and pragmatic view.
Some examples include where temporary developments or changes of use can contribute to the response to COVID-19, or where staged payments fall to be due under the terms of planning agreements in relation to development sites which have temporarily ceased construction work.
The Scottish Government have not provided an exhaustive list of when planning and enforcement action should be relaxed but have rather left planning authorities to take this view for themselves. This may result in circumstances where approaches towards enforcement action and or planning control vary across local authorities.
Processing of Planning Applications
The Scottish Government have stressed that new applications posted in hard copy to planning authority offices, will in most cases not be able to be validated and progressed until those offices reopen. Therefore, any new applications and supporting information should be submitted through the online planning portal at eDevelopment.scot
For the duration of the emergency period, local authorities will have the power to exclude the public from their meetings on health grounds, to protect the public and local authority council members.
The Scottish Government are also preparing regulations which will suspend the requirement for Local Review Bodies to meet in public.
Planning authorities already have extensive powers to delegate decisions and the Scottish Government have stated that they will aim to very quickly approve requests by planning authorities to amend their schemes of delegation.
Neighbour Notification, Representation and Site Notices
Given that neighbour notifications or the lack of consideration of a represent may result in judicial review proceedings, the Scottish Government have been in discussion with Heads of Planning Scotland in order to understand the current barriers to carrying out neighbour notification requirements and receiving hard copy representation while offices remain closed. It is expected that further action or advice will be issued soon.
Similarly, the requirement for site notices relating to some applications is being explored and regulations to suspend that requirement if needed will be brought forward.
Changes to the Pre-Application Consultation Process
There is an intention to bring forward regulations which temporarily suspend the requirement for one public consultation event to be held during the emergency period. However, the Scottish Government still expect prospective applicants to replace this requirement for a physical, face-to-face public event with an alternative, online version so that local people can still be engaged and have an opportunity to have an influence on proposals that affect them.
The Scottish Government will also be issuing guidance on good practice for online engagement, which may be supplemented through conversations between applicants and planning authorities about appropriate steps.
Documents for public inspection
The planning system requires that public bodies publish certain documents in a specific way or to make them available for physical inspection at a specified location. As a result of libraries and offices being closed, the 2020 Act allows bodies not to comply with these requirements but to publish documents and information online where possible.
Hearings, Appeals and Judicial Review Proceedings
The Scottish Government's Planning and Environmental Appeals Division (DPEA) has issued guidance in relation to Planning Appeals, Local Development Plan examinations and other DPEA work.
Site-visits and non-email communications are suspended in line with the closure of the DPEA's Falkirk office.
The DPEA has stated that each matter will be dealt with on a case by case basis, suggesting that the case officer in each case shall be taking the lead in arranging the most convenient plan of action in each circumstance.
On 24 March 2020, the DPEA also announced that the vast majority of DPEA work can be carried out with written representation with immediate effect. If it is not possible to use written procedure, then the DPEA will continue with oral procedure so that they can be conducted remotely using technology.
It is likely that video conferencing will be used for oral proceedings whenever and wherever possible.
Hazardous Substance Consents
The Scottish Government have acknowledged that hazardous substances such as medical oxygen and ethanol may be required in the battle against COVID-19. As such, there may be circumstances where those hazardous substances: a) are in greater quantities than provided for in a consent b) are required where there is no hazardous substances consent c) are being held at new locations on a site and d) are temporarily or transitory present.
Although the Scottish Government have acknowledged that the above circumstances may arise, there are no proposals to relax rules. Rather the Scottish Government have stated that while any enforcement action by planning authorities is discretionary, any breach of a hazardous substance consent is an offence and also liable to criminal prosecution. This is unlikely to give medical providers and other companies storing hazardous substances much comfort in such circumstances where they may have a need to hold such substances in greater quantities etc.
Further, there is a statutory time limit for the Health and Safety Executive (HSE) to reply to consultations by planning authorities on applications for hazardous substances consent. In circumstances where planning authorities receive no reply for HSE within the consultation period, the planning authority could decide to determine an application without HSE input.
However, the Scottish Government warn that where HSE matters are not given due consideration then this could result in long term exposure of the surrounding populations to high levels of risk. Therefore, unless permission has been obtained from Scottish Ministers, planning authorities should not determine applications for hazardous substances consent until a HSE response is received.
Wider Planning and Architecture Division work programme
The Scottish Government have also extended the deadline on the Call for Ideas for the National Planning Framework 4 ("NPF4") to the end of April.
Due to delays caused by COVID-19 they now intend to lay a draft NPF in the Scottish Parliament and consult publicly during 2021. The Scottish Government will also be looking to have the new development planning regulations in place alongside the NPF4.
There is also an intention to prioritise and fast track the investigation and implementation of digital tools to help support local authorities and other partners with the current challenges being faced across the planning system.
Additionally, the Scottish Government had committed to consult on regulations in relation to the arrangements for designating Short-Term Let Control Areas, and had been preparing to publish that consultation this spring. This has now been paused while they focus on keeping the planning system running.
Through engaging with local markets and both local and central governments, our Scottish Planning & Infrastructure Consenting Team are equipped and prepared to provide skilful and practical commercial advice and insight to both current and future clients in relation to the current climate. Through ensuring flexibility and creativity in their methods of operation, they will work to safeguard and develop your position in rapidly evolving circumstances.