John Pugh-Smith provides a brief overview of the current known position, watch points and continuing uncertainties as at 26 March 2020 now that the Coronavirus Act 2020 is in force.
The focus of this article is upon the implications for English and Welsh local authority meetings, and, particularly the discharge of continuing development management functions.
As a matter of bare law, Section 78(1), together with sub-section (11), of the Coronavirus Act 2020 (“the CVA”) grants the powers to the relevant national authority (the Secretary of State; the Welsh Ministers), by regulations, to make provision for:
(a) requirements to hold local authority meetings;
(b) the times at or by which, periods within which, or frequency with which, local authority meetings are to be held;
(c) the places at which local authority meetings are to be held;
(d) the manner in which persons may attend, speak at, vote in, or otherwise participate in, local authority meetings;
(e) public admission and access to local authority meetings;
(f) the places at which, and manner in which, documents relating to local authority meetings are to be open to inspection by, or otherwise available to, members of the public.
Given the potential for breaches of natural justice, Section 78(2) states that for the purposes of Section 78(1)(d) includes “in particular provision for persons to attend, speak at, vote in, or otherwise participate in, local authority meetings without all of the persons, or without any of the persons, being together in the same place”.
It should also be noted that Section 78(4) includes the power:
(a) to disapply or modify any provision of an enactment or subordinate legislation;
(b) to make different provision for different purposes;
(c) to make consequential, supplementary, incidental, transitional or saving provision
Section 78(3) states that the regulations may make provision only in relation to local authority meetings required to be held, or held, before 7 May 2021.
According to MHCLG’s Guidance https://www.gov.uk/guidance/coronavirus-covid-19-guidance-for-local-government (last updated on 25th March 2020) in respect of “Planning” the reader is simply cross-referred to the related Planning Inspectorate guidance. However, in his last pre-retirement advisory letter circulating last Friday, 20th March, Steve Quartermain, the MHCLG’s Chief Planner advised as follows:
We understand that some councils are concerned about the implications of COVID-19 for their capacity to process planning applications within statutory timescales. It is important that authorities continue to provide the best service possible in these stretching times and prioritise decision-making to ensure the planning system continues to function, especially where this will support the local economy.
We ask you to take an innovative approach, using all options available to you to continue your service. We recognise that face-to-face events and meetings may have to be cancelled but we encourage you to explore every opportunity to use technology to ensure that discussions and consultations can go ahead. We also encourage you to consider delegating committee decisions where appropriate. The Government has confirmed that it will introduce legislation to allow council committee meetings to be held virtually for a temporary period, which we expect will allow planning committees to continue.
We encourage you to be pragmatic and continue, as much as possible, to work proactively with applicants and others, where necessary agreeing extended periods for making decisions.
This aspirational advice, while reassuring, raises the following concerns:
- While existing decision-making arrangements could be significantly amended, including digital meetings as a result of Section 78(2), how quickly will “interested parties” be notified or become aware?
- If “digital meetings” are to take place, how can they sensibly operate, given ‘social distancing’ and the current visual limitations of current on-line video conference facilities to visually identify participants?
- If, as has already occurred, convened Meetings are interrupted by technical errors, suspended or adjourned, for how long and in what form should they then be reconvened?
- While a number of local authorities have already delegated, or are in the course of seeking to delegate, planning decisions to senior members of the paid service (such as CEOs), to what extent have such extensions of delegated powers been considered by elected Members or, indeed, are even permissible under that authority’s constitution without wider public consultation?.
- Similarly and procedurally, if there is inability for third parties either to be heard at Planning Committee and/or to make written representations to what extent are these planning decisions lawful and/or susceptible to judicial review?
- Finally, if so, given the challenges of remote working for “planning professionals”, the strict time and procedural requirements of CPR Part 54 and the logistical challenges faced by the Administrative Court is now operating on a strict e-filing system and trying to introduce appropriate remote hearing procedures how long is the overall determination process going to take or be free of legal challenge?
While it would be glib to say that only time will tell, as we all know even 24 hours is a long time period in the current crisis.
John Pugh-Smith is the Joint General Editor of “Shackleton on the Law of Meetings” (Sweet & Maxwell). Assisted by his colleagues James Burton, Jonathan Darby, Nicholas Higgs and Gethin Thomas at 39 Essex Chambers, it is hoped that the 15th Edition will still meet its scheduled publication date for Autumn 2020.