Our planning system must adapt to the new normal

An ongoing spirit of co-operation will be required to navigate the pitfalls ahead, writes Jacqueline Cook

Politicians have compared efforts to control the impact of coronavirus to waging a war. Whether or not you agree with the military metaphor, the world will undoubtedly bear social and economic scars for years to come. Modern town and country planning, born in the aftermath of World War II, enhanced regulation supporting reconstruction and the emerging welfare state. As an expression of socio-economic policy, our planning system must also once again adapt to the new normal to address the challenges in a post-covid-19 world.

While elements of social distancing will likely remain in place for the foreseeable future, recent changes to law and to working practices have enabled the planning system to operate remotely. Planning authorities are now accepting electronic applications where applicants can carry out consultations on their proposals online without requiring physical exhibitions.

More powers are also being delegated to planning officers to determine applications without referrals to councillors. Where councillor participation is needed, authorities are exploring the introduction of online committee meetings. By necessity or habituation, some form of working from home and an increased reliance on electronic procedures are likely here to stay.

To secure planning permission, applicants may enter into planning obligations (Section 75 Agreements), contracts requiring them to make payments or take action to offset adverse effects of their proposals. Current circumstances will harm applicants’ ability both to enter new agreements and comply with existing ones. Equally, planning authorities may lack the resources or appetite for hardnosed negotiations or enforcement action, particularly if it threatens the viability of a project needed within a local area. They could consider less onerous obligations including renegotiating existing agreements or opting not to pursue outstanding obligations in the short to medium term.

Meanwhile planning conditions governing how land is used or developed, such as specific store opening hours or delivery times for a supermarket, could also be relaxed. Planning authorities can choose to enforce breaches of these conditions but are not legally required to do so. The Scottish Government’s Chief Planner is encouraging authorities to use their discretion and not enforce in some situations. For example, authorities may effectively turn a blind eye to pubs now offering takeaway food, although in normal times this would require change of use consent. This serves the dual purpose of providing cooked food for communities and helping businesses adapt to the lockdown economy.

Developers with a valid but unimplemented planning permission may benefit from a statutory grace period to commence works. Where a permission expires on any date between 7 April and 7 October 2020, an automatic extension allows it to be implemented until 7 April 2021. Comparable time extensions could potentially apply beyond April 2021. This approach was taken in England after the 2008 financial crash to reinvigorate development and was generally welcomed. However, the impacts of time extensions demand careful consideration as they could lead to delays in the delivery of key infrastructure, like housing.

Other measures could be introduced through planning law and policy including new legislation, which is currently under review, to exempt some developments from requiring planning permission. To ease pressure on the system, these exemptions could be expanded to minimise the number of planning applications made in future.

Work on Scotland-wide policy, the National Planning Framework 4, seeks to identify land use priorities up to 2050. Both the process and substance of this framework will likely be affected by coronavirus. It could, for instance, place renewed emphasis on electronic communications infrastructure and broadband access, to facilitate anticipated increases in remote working.

As we all try to navigate uncharted territory, confusion and even errors in the planning system’s response to coronavirus may arise. These could lead to contractual disputes, appeals and court challenges in future, causing uncertainty when economic recovery remains embryonic. Positive collaboration between the Scottish planning community, regulators, legislators and developers in recent weeks has allowed the wheels of the planning system to keep turning. An ongoing spirit of co-operation, as occurred throughout World War II, will be essential to ensure this continues in the post-covid-19 world. Jacqueline Cook, head of planning at Davidson Chalmers Stewarts