In light of the current COVID-19 outbreak and social-distancing constraints, the Scottish Government are taking further steps to help keep the planning system moving during the crisis.
Emergency temporary regulations were laid before the Scottish Parliament on 14 April 2020. The Town and Country Planning (Miscellaneous Temporary Modifications) (Coronavirus) (Scotland) Regulations 2020 (“2020 Regulations”) are due to come into force on 24 April 2020. They temporarily suspend a number of requirements which can no longer be carried out due to current social distancing rules.
Suspension of a Public Event for Pre-Application Consultation for major and national developments:
- The requirement for a ‘public event’ as part of pre-application consultation (PAC) during the 'emergency period' (24 April 2020 to 30 September 2020) will be temporarily suspended.
- The need to give details of the public event in a newspaper at least seven days in advance is removed.
- This applies where a proposal of application notice (PAN) was served on the planning authority before or during the emergency period; and where an application for planning permission is made during the emergency period or within six months of the end of the emergency period.
- The Scottish Government will also be issuing guidance on alternative online approaches to PAC in the absence of a public event.
- Planning authorities will still be able to use their existing powers in relation to PAC to require additional steps relevant to the proposed development.
Local Review Bodies (LRB) Meetings:
- The requirement for LRB meetings to be held in public during the emergency period; and use written submissions and a hearing session to determine a review where they require further information is also temporarily removed.
- Hearing sessions are to be held remotely if those making representations agree or LRBs may agree to confine proceedings to written submissions.
Environmental Impact Assessment (EIA) Procedures – EIA Reports:
- The need for an applicant to make a hard copy of the Environmental Impact Assessment (EIA) Report available for inspection by the public is removed. Instead, the EIA Report will be accessed online by the Scottish Ministers or planning authority to which it is submitted.
Additionally, the Department of Planning and Environmental Appeals division of the Scottish Government (“DPEA”) have published new guidance as they adapt and aim to keep casework progressing during lockdown.
Operations during lockdown:
- The DPEA will use written procedure instead of oral procedure, where possible.
- In circumstances where it is not possible to use written procedure, they aim to proceed with oral procedure using technology such as Zoom.
- Cases will be treated on an individual basis and decisions on how oral procedure is to be adapted are for Reporters to make in each case.
- Their office in Falkirk has now closed until further notice and non-email communication has now been suspended.
Illness of Reporters & Participants:
- A decision to sist proceedings may be necessary where a sole appointed Reporter thinks that they have COVID-19 or has been in contact with someone with COVID-19.
- If there is more than one appointed Reporter on a particular case, a decision on a sist will depend on the circumstances, such as the ability of other Reporter to keep the case going or whether any planned oral procedure is scheduled.
- The DPEA are to be alerted if any party or key employees of any party to proceedings thinks they have COVID-19 or are self-isolating as this may have an impact on their ability to participate or pursue their interest in the proceedings effectively.
- No physical site inspections are taking place.
- Site inspections will only be allowed once travel restrictions are lifted.
- Reporters will consider determining matters before them without a site visit, using plans and any photographic evidence already submitted.
- Alternatively, a Zoom video meeting can be used to conduct a site inspection.
- Where a physical site inspection is required and satisfactory alternatives are not possible, the Reporter will sist the case once it can be progressed no further.
- Pre-examination meetings, hearings and inquiries will be organised to take place by either an exchange of written representations or a virtual meeting (or a combination of both).
- The alternative ways in which proceedings can go ahead will be dependent on the subject matter, size and nature of proceedings; any impacts of wider operational restrictions and prioritisations applicable to users which limit their ability to function at this time; availability of witnesses; and the central obligation to ensure a fair hearing.
There are also potential challenges which the DPEA will have to consider such as the capacity of parties with limited internet access and their ability to use video or conference call facilities; the difficulty using legal representatives to obtain instructions when they are separated from their client; and the feasibility of operating by virtue means for large numbers of participants.
Public Local Inquiries
The DPEA accept that there are potentially significantly greater practical and other challenges for inquiries in comparison to pre-examination meetings and hearings.
- In some circumstances a Public Local Inquiry is a legal entitlement and therefore parties may have to make a difficult decision as to whether to proceed by way of written representations alone, involving waiving their entitlement to an inquiry.
- Inquiries are more formal than hearings and are generally used for more complex cases. A key element of inquires is that witnesses give their evidence in front of a Reporter and can be cross examined by other parities. The virtual examination of witnesses is likely to prove difficult and less satisfactory than it would be in one physical location.
- As a result, in cases where the virtual or written procedure are inappropriate or unsuitable then the Reporter will consider a sist of proceedings. As sisting is undesirable, the DPEA urge co-operation of all parties with the judgement of the Reporter.