The COVID-19 crisis has had an impact on everyone across Northern Ireland over the past few months. Whilst many outstanding questions still remain for our planning system, planning professionals continue to try and rise to the challenge of adapting to new ways of working.
This legal insight summarises key points and implications arising from the Department for Infrastructure (DfI) Chief Planner’s Update on 27 March 2020 (the Update) and, more recently the temporary Regulations coming into force today on 1 May 2020.
The latter are of particular interest as these provide the first statutory amendments in the Northern Irish jurisdiction designed specifically to facilitate the progress of planning applications during this ongoing period of lockdown.
As of 1 May 2020, the Planning (Development Management) (Temporary Modifications) (Coronavirus) Regulations (NI) 2020 (the Regulations) come into operation, making temporary modifications to the Planning (Development Management) Regulations (NI) 2015.
The Regulations remove the requirement for a public event to be held as part of the Pre-Application Community Consultation (“PACC”) procedure for major development applications.
This applies when an application for planning permission is submitted either during the “emergency period” (1 May 2020 to 30 September 2020) or 6 months after it and in respect of which a Proposal of Application Notice is given to the planning authority before or during the “emergency period”. The Minister for DfI has confirmed that guidance will shortly follow on appropriate measures to replace face to face public events. Such guidance should enable a more consistent approach across the 11 Council areas and will hopefully prevent delays in major planning applications being submitted during the current COVID-19 crisis.
Whilst the Regulations are welcome news, developers must remain alive to all the public law duties which still apply, i.e. that consultations should be carried out in a procedurally fair manner and that there may be a legitimate expectation of further consultation.
Planning authorities must also recognise that their duties under s75 of the Northern Ireland Act 1998 still apply. Embracing online tools as a means of consulting must not result in inequality to a particular group within society, in particular older groups. The anticipated guidance is welcome as other tools should still be used such as telephone consultations, leaflets and newsletters to minimise the impacts on such groups.
The PACC procedure has been the subject of challenge in the High Court in the GRG case  NIQB 12 (in the matter of an application by Greencastle Rouskey Gortin Concerned Community Limited for Judicial Review  NIQB 12), which highlighted the need for judicial interpretation of the scope of that consultation process. Introduction of new measures, albeit for legitimate purposes in what are exceptional circumstances, inevitably creates the risk of further challenges if it is perceived that the legislation and common law principles around consultation have not been properly met.
The Regulations will be reviewed in 3 months’ time.
The Update encourages all planning authorities to take an innovative approach to progressing planning applications. If all local planning authorities embraced online submissions it would certainly lead to a more efficient planning process at this exceptional time. It may also pave the way for innovations that remain after the current lockdown ends.
Statutory consultees such as the Northern Ireland Environment Agency (“NIEA”) are still making efforts to support the processing of planning applications and are also publishing updates to the current COVID-19 crisis which are worth being aware of. See for example our recent article on how NIEA are dealing with water discharge consents here.
Councils are also being encouraged to progress Local Development Plans but adjustments to timetabling seems inevitable.
The Coronavirus Act 2020 provides the Department for Communities (DfC) with the enabling power to make regulations concerning Council meetings. In England, temporary legislation is already in place to enable Councils to hold planning committees without councillors being physically present. It would be no doubt welcomed if NI councils chose to follow suit with video conferencing for meetings in the near future and indeed the Minister for DfC announced on 30 April 2020 that provisions have been made to enable all Councils to hold meetings remotely, including planning committee meetings. This in itself will come with its own unique challenges, for example in relation to the risks of “trolling” in public meetings balanced against the need to facilitate public access.
Without decision making by planning committees, there could be a lack of democratic oversight if schemes of delegation are amended to give planning officers increased decision-making powers. However, there is a balance to be struck in light of, for example, the commercial imperatives to progress development applications and detailed legal advice should be taken by all planning authorities before delegating greater powers to officers.
Nevertheless, it remains firmly within the gift of Councils to ensure that applications are progressed as far as possible regardless of the uncertainty around the final decision making process. Councils must also be mindful of the prospect of non-determination appeals and the potential for adverse costs awards at appeal – will the lockdown always be seen as a legitimate reason for delay by the Planning Appeals Commission, or could inaction be seen as “unreasonable behaviour”?
Of course many matters are still progressing in the meantime such as s76 planning agreements and non-material amendment applications to name a few, however there does appear to be substantial variation between councils as to the level of engagement that is taking place.
There are concerns that a number of planning applications may expire if developers are unable to progress works to lawfully implement the permissions, for example due to inability to deploy workers on-site. Currently the 5 year duration of an extant planning permission in NI cannot be extended.
The Update notes that DfI is looking at the potential for legislative change. The Scottish Assembly has already taken steps to extend the time limits for planning permissions due to expire within the next 6 months. It remains to be seen whether this will materialise in NI but it is promising that the temporary Regulations to PACC public events have already come into operation, hopefully heralding further legislative changes in the coming weeks.
In the meantime, developers in NI should be doing what they can in the circumstances to lawfully implement permissions and ensure they remain live. This is not without its potential pitfalls, however, and both planning and legal advice should be sought to ensure that proposed works will be sufficient to preserve valuable permissions.
It is worth noting that a key focus for Councils should also be on reviewing enforcement files because the time limits for immunity cannot be extended as the legislation currently stands. This of course may also have knock-on effects for landowners/developers who are at risk of enforcement action where immunity periods have not expired.
The PAC offices remain closed and all arrangements for the submission of evidence and proceedings have been suspended. The PAC has no power to extend the time limits for the submission of an appeal meaning all appeals must still be submitted within the 4 month time period.
Various stakeholders have raised concerns that the PAC is not responding effectively to the crisis. It has become apparent over the last month that numerous decisions have been issued by the PAC electronically so whilst the backlog of decisions appears to be reducing, there will inevitably be an increase in pending appeals which places increased pressure on all concerned.
There is no legislative barrier to using video conferencing in NI and there are many circumstances in which it could be effectively used, particularly for more straightforward hearings. Embracing it in a way that would ensure procedural fairness would help to prevent a backlog of cases once something akin to normality resumes.
NI’s planning system generally seems to be behind the curve since both planning and appeals systems in Great Britain are embracing video conferencing technology with the first digital appeal hearing taking place in May, and uptake of the opportunities that this presents have yet to be taken advantage of. Whilst there are potential pitfalls, the benefits of facilitating development management surely outweigh those risks.
You can read the full Update here and find a copy of the Regulations here.
TLT’s Belfast-based Planning, Environment & Clean Energy team advises on all aspects of planning and environmental law in Northern Ireland and are qualified in Northern Ireland, England & Wales and the Republic of Ireland.
For more information, contact Andrew Ryan or Sarah Mulholland.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at April 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions