Wednesday, 18 March 2020

“Business as usual” [?]

As readers are aware, this is my personal blog, but in view of my association with KEYSTONE LAW, I thought it would be helpful if I mention that our firm is in an excellent position to provide legal services to all its clients without interruption during the Coronavirus crisis. Working from home is normal practice for Keystone’s lawyers, supported by a sophisticated firm-wide intranet and a strong central administrative operation based in the firm’s Chancery Lane offices. A strong IT system has allowed our Central Office team to go over to home working as well, even for these central operations, and so clients should notice no difference in the delivery of the firm’s professional services while the coronavirus crisis continues, no matter how draconian government restrictions on personal movement may become. Even if any Keystone lawyers have the misfortune to be afflicted by the virus, colleagues in the same team will be able to pick up the (electronic) file and progress their matters.

The one factor we can’t control, and which may well impact on the conduct of planning matters and other transactions and disputes is the continued functioning of public sector bodies, such as local planning authorities, the Planning Inspectorate and the Courts. Whilst all these organisations will no doubt do their utmost to maintain public services, the potential impact of the current crisis on their performance cannot be predicted. It very much depends on the extent to which they are able to function with their staff working from home. LPAs may perhaps be able to continue processing planning applications by this means, especially as most planning applications are determined by officers under delegated powers, although this may be more difficult in the case of major applications.

One area where I foresee some potential difficulty is in the disposal of planning appeals, if these would involve a hearing or inquiry. Where possible, PINS will no doubt try to transfer hearing cases to the written representations process, but this may not be practicable in all cases, and there are of course still some appeals (admittedly a minority nowadays) that will have to go to a public inquiry, and this clearly poses a problem. So far as appeal hearings and inquiries are concerned, PINS has stated that, because of the likelihood of social contact with multiple parties, these will not proceed at the present time. At this stage PINS can’t say when they may be able to resume, but it is unlikely to be soon. For the same reason, all hearings and preliminary meetings in respect of nationally significant infrastructure projects have also been postponed until further notice.

As regards examinations in public of Local Plans, PINS say that local plan inspectors will continue, where possible, to progress the pre- and post-hearing stages of the examination, depending on the stage reached. However, they accept that it is inevitable that the progress of some examinations will be delayed. Two local plan examination hearings which were due to take place this week have had to be postponed, and (despite the assurance of further progress where possible) PINS have admitted that local plan hearings cannot currently take place.

PINS are nevertheless looking at possible technological solutions to enable appeal hearings and local plan hearings to go ahead, but they admit that (so far as appeals are concerned) this will not be straightforward, given the need to ensure fairness for all parties, especially third parties. As regards local plan examinations, PINS accept that technology would only be an option in a limited number of cases, because of the number of participants, the legal right to be heard, and the fact that local plan hearings take the form of “a structured conversation”.

This could seriously delay the adoption of quite a few Local Plans, and could (if the current crisis continues for a significant length of time) make it difficult for the Secretary of State’s recently announced December 2023 deadline for adoption to be met. In the case of the South Oxfordshire Local Plan, it looks as though it is going to be a practical impossibility to meet the much tighter December 2020 deadline that the Secretary of State was demanding in this case. It was widely considered that this timetable would be difficult to achieve, even without the added complications of the coronavirus crisis; now it really would seem to be impossible.

I can’t resist finishing with a mention of Brexit. The government is still stoutly maintaining that they will stick to the December 2020 deadline for completing trade negotiations, so that the transition period will end on schedule on 31st December. But the trade talks are at a standstill, due solely to the coronavirus crisis, and it seems very unlikely that they will resume in the foreseeable future. They require detailed and lengthy talks involving numerous personnel; it’s not just a one-to-one conversation between David Frost and Michel Barnier. It is absolutely inevitable that the current deadline will have to be extended, possibly for a year. An extension must be agreed no later than the end of June, but I suspect that the UK government will see sense rather sooner than that and will agree an extension with the EU. Nigel Farage won’t be a happy bunny, but who care about what he thinks nowadays?

[UPDATE (25.3.20): I have had emails from various barristers’ chambers with whom Keystone Law regularly works, confirming that they are still fully operational (although the delivery of papers in hard copy is no longer practicable, and there will be no face-to-face conferences). In practice, the necessary changes make very little difference to the way we habitually work with counsel, other perhaps than the conduct of site meetings. Meanwhile, the courts are clearly making efforts to find alternative ways of delivering justice, using IT. I am not sure that PINS is yet up to speed with efforts to get the appeals system back on track but, as suggested above, there are various ways in which quite a few appeals could continue to be processed and determined. As for LPAs, they still seem to be struggling; so we shall just have to wait and see how they cope with the problems they face.]



  1. It seems that most planning applications will just be put on hold perhaps for a month.

    Councils do not seem able to work from home.

    Would welcome your thoughts on this.

    Does the 56 days still apply for PD?

    Now that the pound is at parity (almost) with the Euro (might be less than today!) and getting there with the US Dollar imports will all rise in cost massively. This could force us to look seriously at extending the agreement with Europe. Although even last night Boris was saying no!

    1. It should not be beyond the wit of man (or even of senior managers in LPAs) to devise a mean by which remote working is possible. Since my own law firm has always had this facility, and it is the way in which we habitually operate, I had naively assumed that other organisations would do likewise. It should in any event be part of any organisation’s disaster recovery plan. If LPAs have not provided themselves with this facility, then it really does look as though the development management process will rapidly grind to a halt. Maybe enforcement too.

      I had assumed that Inspectors could make unaccompanied site visits, if necessary, in connection with written reps appeals, so I don’t see why PINS can’t continue to process and determine written reps cases. And as I suggested, some hearings cases could perhaps be transferred to the written reps procedure. If PINS are serious about keeping the appeals system going, then this is the sort of thing they should be doing.

      As regards the 56-day rule, at the moment this still applies with full force, without exception (unless the applicant and the LPA agree an extension of time). However, we are daily expecting an amending order to the GPDO to allow temporary changes of us (for one year) from A3 or A4 to A5, and this would be an opportunity to relax the 56-day rule (and similar 28-day and 42-day rules that apply to other Parts of the Second Schedule to the GPDO). I wonder if MHCLG has the gumption to think of this when amending the GPDO.

      [Extending the transition period with the EU is a no-brainer. The government won't have any choice but to do so.]

  2. I'm not one to knock the BBC but the Newsnight editors seemed to care what Nigel thinks....

    1. There are many of us who could never understand why that man got so much air time, including numerous appearances on Question Time. His purported political party (a private limited company, and not a normal members’ organisation) has never had any MPs. Its performance at the last General Election was a joke. So why do the BBC still have him on? They don’t give the same facility to the Monster Raving Loony Party, so why does Farage get any invitations at all any more?

  3. PINS are already cancelling written rep site visits so i hold out no hope for the appeal system which was just starting to pick up from its previous inertia

    1. We have a allocated Hearing in June which the council tried to make the Inspectorate use Written Reps instead.It's a heritage and amenity issue but in reality a councillor who lived across the road issue and has now been a 15 year battle so we will be more than disappointed if we are subject to the potential 'spin' of Written Reps.
      Rather more importantly however is that my son who rents a flat on 29th floor of an ex LA tower block in Birmingham is now quite ill with Coranavirus and his partner who was due to be working from home when the laptops at her Insurance Company arrived is 21 weeks pregnant.Worrying times.

  4. The issue for local authorities is that all their teams are now needing to work from home for the forseeable future, and they can't be set up simultaneously, there just isn't the capacity in the system. Ahead of the planning teams will be those dealing with life and death. That includes social service teams, those who look after vulnerable children and adults. Ultimately, if your application is not validated within the presribed period no-one will die but if social services do not connect with community care and the emergency services, someone will.

  5. My OH works for an LA with vulnerable people.He draws plans for adaptations, extensions and oversees the building work.The problem is that if building work carries on, what is the contingency plan if the builder or client suddenly has to self isolate? You can't rip out the bathroom of someone who is vulnerable then leave it. As well as that tips are shut,builder's merchants are shut.If a vulnerable person allows people in their house and then gets the virus are you responsible?
    It's all very difficult isn't it?

    1. This goes part of the way to explain the government’s reluctance to shut down the construction industry. Their desire to avoid pole-axing the entire economy is no doubt another factor in the government’s thinking.

      If the government does bow to demands that building sites should be shut down, there will clearly be reasonable exceptions, and the situation that Spongemum describes might well be an example of such an exception.

      There are inevitably going to be risks of infection whatever course of action is adopted, although it should be possible to reduce these by taking appropriate precautions to maintain social distancing so far as practicable.