“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.]

© MARTIN H GOODALL