Here we take a look at some of the measures which already have been, or might yet be, adopted in a planning and building standards context to help businesses adjust to the far-reaching consequences of the coronavirus outbreak.
Takeaway food from pubs and restaurants
A number of restaurants and pubs which serve food for consumption on the premises have, following the closure of restaurants and other eating and drinking establishments as instructed by the UK Government, instead been offering takeaway food to customers.
A number of these premises do not have express planning permission to offer takeaway and delivery services, since 'hot food takeaway' is a stand-alone planning use which under usual circumstances would require planning permission.
On 19 March the Chief Planner of the Scottish Government issued a letter which offered comfort that no enforcement action would be taken against restaurants and pubs offering takeaway services. It is for individual local authorities to determine whether enforcement action ought to be taken for a breach of planning control, but the Chief Planner's letter states that "The purpose of this Chief Planner Letter is to make clear that the Scottish Government consider that, as a matter of urgency, planning authorities should not seek to undertake planning enforcement action which would result in unnecessarily restricting public houses and restaurants providing takeaway services on a temporary basis during the current exceptional circumstances."
The letter also states that this strong recommendation against the taking of enforcement action will be reviewed again three months from the date of the letter, i.e. 19 June 2020.
Retailer operating hours
Many supermarkets, other retailers and distribution centres are subject to planning conditions which regulate opening hours and the timing of deliveries from lorries and other delivery vehicles. These controls are designed to prevent local residents from suffering from noise and other amenity impacts.
Recognising the critical importance of ensuring the availability of food and other essentials, the Chief Planner issued a letter on 11 March which strongly encourages planning authorities not to take enforcement action which would unnecessarily restrict deliveries and the sale of food and other essential items.
Buildings Standards verification processes have also been temporarily reconsidered in terms of a letter of 20 March issued by Kevin Stewart MSP, Minister for Local Government, Housing, and Planning to the Chief Executives of all Scottish local authorities.
The measures announced in the letter are intended to allow the continued occupation of both residential and non-residential buildings where full inspections can no longer be carried out by local authorities. The measures set out in this letter include:
- The relevant person should submit the completion certificate to local authority verifiers with as full a set of information and certification as possible.
- Local authority verifiers should then work with developers and accept alternative means of demonstrating compliance. This might include using digital photographs or video, or using remote means to view completed buildings.
- Where site inspections can no longer be undertaken and acceptance of a completion certificate is not possible then a temporary occupation certificate with appropriate conditions should be issued, providing that the evidence provided is sufficient to address safety.
- Local authorities issuing temporary certificates should monitor which new domestic and non-domestic buildings have temporary occupation for follow up at a later date to obtain completion certificates.
Local authorities are also to take a "sympathetic and risk-based approach" to enforcement where no completion certificate or temporary certificate has been obtained, but not to the detriment of health, safety or welfare. The guidance is to be used for buildings up to 4.5 metres in height, and with discretion for buildings between 4.5 metres and 11 metres in height.
The guidance is not to be used for buildings over 11 metres in height or for buildings where the end use is considered high-risk, such as schools and hospitals.
Potential further changes to planning system
It seems likely that further measures will be needed. In particular, it may become necessary to temporarily suspend deadlines such as:
- the six-week statutory timescale for Judicial Review challenges to planning permission;
- the three-month statutory timescales for submission of appeals; and
- the requirement to make an application in terms of section 42 before the expiry of permission.
It may be that we also see an extension to the lifetime of planning permissions more generally, so that those planning permissions which have recently expired or are about to expire are extended to avoid new construction projects commencing for fear of a permission expiring.
Similarly, it may be that appeals against a planning authority's non-determination of a planning application within the usual timescales are temporarily suspended, to provide some leeway for planning authorities. No such measures have yet been introduced, but more measures may yet be announced.
It also remains to be seen whether any steps will be taken in relation to prior approval to exercise certain permitted development rights, which apply automatically if no response is given by the planning authority within 28 days,
Delays likely to be the norm
Despite measures being put in place to assist the continued functioning of planning and building standards departments, there will inevitably be delays. Impacts are particularly likely for those applications which have recently been submitted and for which the planning authority has not yet had the chance to carry out statutory requirements such as neighbour notification or the publication of site notices.
There is also likely to be a temporary stop on the processing of paper applications, with the closure of planning authority offices across the country, although an increasing number of applications are in any event now being submitted online. The ability of planning authorities to offer services such as pre-application advice is also likely to be impacted.
Get in touch
If you have any planning issues related to the current situation and would like to speak to a specialist, please get in touch with a member of our team.