COVID-19: the planning issues

The Coronavirus (Scotland) Bill was introduced into the Scottish Parliament by the Cabinet Secretary for the Constitution, Europe and External Affairs, Michael Russell MSP, on 31 March 2020. The Parliament agreed that the bill should be treated as an emergency bill at its meeting on 1 April 2020, and passed it that day. It came into force on 7 April 2020.

Amongst the many temporary measures included in the bill are a number to assist both planning authorities and developers in relation to the impact on the operation of the planning system.

There is concern that planning permissions may expire because developers are unable to undertake the steps required to preserve a planning permission. This is achieved by undertaking a “material operation” under s 27(4) of the Town and Country Planning (Scotland) Act 1997. As construction work has stopped at nearly all sites, developers are not likely in the current lockdown to be able to initiate these works. Planning permissions may therefore be lost, requiring them to be re-applied for.

To address this issue, paras 8, 9 and 10 of sched 7 to the Act provide that during the “emergency period” (six months beginning with the date on which this provision comes into force: 7 April 2020), a planning permission or planning permission in principle which otherwise would lapse because development has not begun will now lapse at the end of the “extended period”, which means the period of 12 months beginning with that date. In relation to planning permissions in principle which require the submission of a further application, the bill provides that if the latest date by which an application would otherwise be required to be made falls within the emergency period, that application may be made at any time before the end of the extended period. Ministers may by regulation amend the definition of emergency or extended period.

Further considerations

While these provisions are to be welcomed, there are a number of important points to consider. First, the provisions only relate to planning permission and planning permission in principle. Therefore, other consents (e.g. listed building consents) are not covered. Secondly, these protections do not apply to permissions which have expired before the “emergency period” began. Thirdly, development can only be lawfully commenced if all pre-commencement conditions have been discharged by the planning authority.

Local authorities are additionally impacted in relation to requirements to hold meetings in public. Paragraph 13 of Part 4 of sched 6 to the Act requires the public to be excluded from a meeting of a local authority whenever it is likely that, if members of the public were present, “there would be a real and substantial risk to public health due to infection or contamination with coronavirus”. Paragraph 14 means that the existing requirement for local authorities to provide hard copies of papers will no longer be compulsory and such copies need only be provided if it is “reasonably practicable” to do so.  This should enable planning committees and local bodies to continue to function.

The Chief Planner has also issued a very helpful letter dated 3 April 2020 explaining that the continued functioning of the planning system is a priority during this period and setting out a number of temporary and emergency proposals which will require secondary legislation. Amongst the measures proposed are the ability for pre-application consultation to be undertaken online; and measures in relation to neighbour notification, site notices and hard copy documents.