The Consultation Institute (TCI) highlights how the UK has fast tracked passage of the Coronavirus Act, while around the world different states have similarly legislated to attempt to counter the consequences of coronavirus, and asks ‘Where do these changes take us?’.
image: Open Government Licence v3.0
The Consultation Institute writes:
Around the world different states have similarly legislated to attempt to counter the consequences of coronavirus. Much of the legislation however has been aimed (quite rightly) at tackling the immediate public health emergency. In doing so, many legislatures have imposed ‘social distancing’ and banning public gatherings.
Although these moves go a long way to slowing the spread of coronavirus, they introduce necessary barriers to the usual functioning of society. This brings about a whole range of problems, particularly into consultation and engagement where there is often a reliance on public meetings and events. An area where this will be felt most keenly is in planning which has high consultation requirements and in some cases, requires public events. Even when it does not require public events, it remains an area likely to be disproportionately affected by the current restrictions.
In the Republic of Ireland we have seen the passage of the Public Interest (Covid 19) Act 2020. The Act contains specific provisions concerning planning, dealing with time limits in the Irish Planning Code. Broadly speaking this section (s.9) has three key effects to be implemented by Irish Ministers by regulation:
- Although planning applications can be made, they may not be finalised if the public consultation window has not expired
- Public consultation periods for appeals to An Bord Pleanala (the Irish planning appeals body) are frozen
- Time periods for enforcement deadlines are frozen
The Irish approach then seems very much to be one of amending time limits, rather than the requirements of consultation. Developers may still make applications for permission, but they will not get decisions as the public consultation window cannot close. For applications that are already open, decisions will only be forthcoming if the public consultation period closed before the start of the present emergency.
A different approach is being taken within the UK by the Scottish Government. They intend to bring forward new regulations which suspend the requirement in pre-application consultations for at least one public event, a requirement which applies generally to major and national planning developments. In the letter announcing the upcoming regulations, the Chief Planner states the expectation that face-to-face events will be replaced with alternative online versions. On this, they are directing that they will produce guidance on expectations and good practice. The regulations themselves are yet to be published, so it remains to be seen how this expectation will translate into practice. Will there be any presumption against permission for those that do not run online consultations and instead merely try to proceed without appropriate public event replacements? How will the adequacy of replacements be assessed? There are still many questions that will need answering.
And the rest of the UK? We’ve had a little clarity with the laying of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales Regulations 2020, which have made provision for meetings of local authorities and police and crime panels to meet digitally and using other mechanisms than face-to-face meetings. Much of the detail however remains absent or left to be filled in by local authorities by way of standing orders and other procedural mechanisms.
On the detail of how local authorities are going to come to grips with the new circumstances, and legislation analogous to that in Ireland and Scotland specifically tackling consultation requirements in planning we are still waiting…..
The only absolute way for this problem to be corrected is either for Parliament to look at changing the statutes, or for ministers to look at introducing temporary regulations waiving old provisions in light of the circumstances…..
So how likely is this to happen? Although it is not a Government priority now, their focus appropriately being on the immediate problems of healthcare and likely increases in patient numbers, as time goes by the consequences of issues such as this will become more important, especially if it looks like the disruption is going to drag on for a long time. If this appears to be the case, we should not be surprised to see the issuing of some ‘tidying’ legislation, making changes to existing procedures to ensure the continuance, so far as possible, of normal everyday life. Planning should be an early beneficiary of any tidying legislation as an area of immense national importance, and we would expect requirements for consultation to feature in revised legislation. In other areas too it will become increasingly clear that the sort of clarity that can only be provided by legislation and official guidance is necessary. For people trying to plan for an uncertain future, it can’t come soon enough.
