News Type: Other

In the last few weeks, hot food takeaways have unexpectedly been afforded a new regard in light of their role in helping to feed the nation during the coronavirus outbreak.  Social distancing measures have increased our reliance on home delivered takeaways which prompted the introduction of new permitted development (PD) rights to allow pubs (A4 use) and restaurants (A3 use) to change use to hot food takeaways (A5 use).   In addition to many independent pubs, cafes and restaurants utilising these PD rights, some national operators including Burger King, KFC and Pret a Manger are now set to provide delivery and takeaway services from some of their outlets.

The new PD rights are, however, only in place for a temporary period of 12 months and it is worth remembering that in ‘normal’ circumstances, takeaways are not always seen in such a positive light.  Hot food takeaways were separated from restaurants and cafes (A3) and given their own use class (A5) back in 2005 as they were considered to raise different environmental issues, such as litter, longer opening hours, and extra traffic and pedestrian activity.  In more recent years, takeaways have been seen as a contributing factor to rising levels of obesity, particularly in children.  Planning policy has sought to play a part in controlling the location and access to takeaways but two recent appeal decisions have highlighted on-going inconsistency in applying such policy.

In both instances, the respective Councils have Hot Food Takeaway Supplementary Planning Documents (SPD) in place which set specific criteria for allowing takeaways in certain locations relating to children.  The first case (ref: APP/H4315/W/19/3228033) involved an appeal by Brothers Burger to allow an A5 use at an A3 restaurant in St Helens.  St Helens Metropolitan Borough Council’s SPD advises that permission for a hot food takeaway will only be granted provided that it is located beyond a 400m exclusion zone around a primary or secondary school.  Despite the fact that the appeal site was within 400m of not just one, but three primary schools, the Inspector allowed the appeal stating that ‘it seems unlikely that primary age pupils would be allowed to travel off the school premises to the site during school hours in order to purchase food’.  The Inspector was not persuaded that ‘healthy eating by school pupils, or indeed any resident in the locality, is likely to be affected to such a degree in this instance that the appeal should fail’.

In another case (ref: APP/H4505/W/19/3221736) relating to a new KFC unit at a retail park in Gateshead, the Inspector took a different stance. Gateshead’s SPD seeks to prevent the development of new hot food takeaways in wards where the level of obesity among year 6 pupils exceeds 10% of the cohort. The appeal site falls within just such a ward, Lamesley, and whilst it was agreed that there was a limited likelihood that the KFC would be a destination for school pupils, the Inspector considered that overweight or obese pupils are likely to become overweight or obese adults.   The aim of the SPD is to improve the health of the entire population of the district, and not just pupils.  The Inspector dismissed the appeal on the grounds that the proposal failed to comply with policy as it would ‘increase the access of citizens of Lamesley and the rest of Gateheads to unhealthy food’.

The latter appeal decision also includes an interesting discussion on what constitutes a Health Impact Assessment (HIA) as required by the the Council’s SPD.

There are currently calls for the temporary hot food takeaway PD rights introduced in response to the coronavirus to be kept under review and possibly extended or made permanent beyond 23 March 2021.  It is yet to be seen whether this will happen.  In any event, the PD rights only apply to the change of use of existing pubs and restaurants and there will remain a need for planning permission to be secured for new takeaway facilities.  The fact that two Inspectors can reach these different decisions illustrates the difficulties of assessing the effects of allowing a takeaway on the health and wellbeing of a community.

If you have any queries about the aforementioned appeal decisions, or takeaways more generally, please feel free to give one of the Firstplan team a call.

 

Following the introduction of recent legislation allowing committee meetings to be held remotely, the Royal Borough of Kensington and Chelsea (RBKC) hosted one of England’s first fully virtual planning committees last week.   Firstplan followed the proceedings on Thursday evening (9 April 2020) and found the committee to be well run, clear and importantly, accessible.

With the Town Hall meeting room sat empty, the Planning Applications Committee was conducted via the Microsoft Teams software. A link to the meeting was published 24 hours prior to commencement on the Council’s website and went live at 18:30 hours without delay.  Microsoft Teams allowed access to the meeting using a personal or an anonymous account. It was not possible to view how many other attendees were present or the names of those also watching. It is our understanding that the committee could be viewed by those using a computer, laptop, tablet or mobile phone.

To get proceedings started, the Committee Chairman (Councillor James Husband) appeared via webcam for a brief period to introduce each of the four additional Councillors and various case officers present.   After this, all correspondence between Councillors was conducted via microphone only.  All of the Councillors present were able to communicate clearly and fluently to one another and to the committee audience, whom remained muted throughout and were unable to submit questions or comments. Following introductions, the meeting went on to mirror a normal committee format with the reading of the committee agenda, declarations of interest and the signing of previous meeting minutes.

The Planning Application Committee agenda comprised a total of five applications, all of which related to relatively small-scale developments within the Borough. Each of the applications was presented using a PowerPoint style presentation and introduced by each of the case officers respectively, who shared a series of slides containing maps, photographs, plans/drawings and tables. The presentation appeared to be controlled by the Chairman with case officers and Councillors asking for the slides to be navigated as required.

It is understood that interested parties could register to speak at the committee, but the Chairman noted that none had done so. Officers made reference to any statutory and public comments that had been received during the consultation period. With no registered speakers, the Chair provided Councillors with the opportunity to ask questions and to suggest any amendments to the recommended conditions. Following this, the Chairman asked each of the Councillors in turn whether they agreed with the recommended decision. All five applications were recommended for approval and were subsequently supported and granted by the Councillors present.

Overall, RBKC’s debut trial of their virtual planning committee appeared to operate effectively with only very minor technical delays throughout, although these did not seem hinder the decision making process in any way.  One of the only technical issues that was picked up was that drawing annotations and smaller text/labels included on the slideshow were particularly difficult to read, but officers were able to provide a sufficient description of what each drawing showed.  The five applications included on the agenda were determined efficiently with each lasting between 15 and 20 minutes and the committee ending circa 19:45.

With local authorities given powers to decide their own voting arrangements, access to documents and the level of access provided to the general public there is considerable scope for procedures to vary from Council to Council.  Whilst RBKC’s committee is certainly a useful test case, it did not involve any public speakers joining the virtual meeting which is likely to be the biggest challenge for future committees.

The Planning Officers Society has helpfully published a Good Practice Guidance Note – How to manage committee decisions during the Coronavirus Emergency (dated 30 March 2020) which suggests that new procedures should be designed to be as simple as possible and should not rely on complex technology arrangements.  In this respect, we consider RBKC’s first virtual planning committee to have been a success.  Virtual committees will be an important step towards ensuring that the planning system continues to operate during these difficult times and we looking forward to other Councils following RBKC’s lead.

All sections of society have been disrupted by the COVID-19 pandemic, and the planning system is no exception. The government has, however, been quick to recognise the importance of the role that planning plays in the wider construction industry, and, broadly speaking, planning departments across the country have adapted with speed and pragmatism in difficult circumstances.

As a result, the planning system continues to operate and decisions are still being made.  Recent legislative changes and new working practices will nevertheless have implications for developers and we discuss some of these below.  What is already clear though is that there will be an increasing need for innovation and flexibility over the coming weeks, which can perhaps only be a positive thing for planning in the longer term.

The Impact on the Planning Application Process
Planning Authorities have been urged by the government’s Chief Planner, Steve Quartermain, to be pragmatic and continue to work proactively during COVID-19. In a letter dated 25 March, Mr Quartermain encouraged authorities to: “explore every opportunity to use technology to ensure that discussions and consultations can go ahead … to ensure the planning system continues to function, especially where this will support the local economy”.

Our experience is that the planning system is continuing to function well and several Planning Authorities have been swift to adopt remote working and we have seen examples of planners taking innovative steps to resolve issues including conducting virtual site visits, telephone and video conference pre-application meetings, and issuing consultation letters via external third parties.

We are aware that the majority of Planning Authorities are temporarily halting site visits, and, as a consequence, a number are requesting the submission of comprehensive application site photographs as part of the application pack as an aid for decision making. We also understand that a number of Planning Authorities are extending the length of public consultations and removing the requirement to submit paper copies of application submissions. We have, however, found that a number of Planning Duty Lines are no longer operating.

The government issued new regulations under section S78(a) of the Coronavirus Act 2020 which came into force on 4 April 2020. These allow authorities to hold remote meetings (including pre-application meetings) via electronic means such as telephone conferencing, video conferencing, live webcasts, and live interactive streaming for a temporary period (to May 2021). The new regulations also include provision for remote planning committees with electronic voting, although authorities have been encouraged to consider delegating committee decisions where appropriate.

One of the first fully virtual planning committees (on Thursday, 9th April) is being hosted by the Royal Borough of Kensington and Chelsea (RBKC). We are also aware of many other Planning Authorities that are currently putting plans into place to enable committees to be held virtually over the coming months.

Impacts on Planning Appeals
In response to the spread of COVID-19, the Planning Inspectorate has temporarily postponed all site visits, hearings, and inquiries. This is likely to affect the time it is taking to deal with appeals. However, the Inspectorate are actively looking into ways to mitigate delays by using technology and other ways to process appeals – including using methods like video conferencing for events, and considering whether there are planning cases which can proceed without a site visit.

Keeping Existing Planning Permissions Alive in the Coming Months
The government’s social distancing measures had an immediate and direct impact on the construction industry with many sites shutting down.  The government has since confirmed that construction sites should continue to operate during the pandemic and Site Operating Procedures have been issued accordingly.  However, construction activity is anticipated to slow over the coming months and delays in starting work on site could lead to some permissions lapsing.

Any planning permission must be implemented within the specified time (usually 3 years from the date of the permission) to prevent its expiration.  While there are certain types of applications that allow for non-material amendments (under Section 96a) to planning applications and variations of planning conditions (Section 73), current legislation does not allow for extensions to time limits to keep permissions alive.

The Government has perhaps missed an opportunity to introduce legislative changes as part of the Coronavirus Bill to allow permissions which are due to expire shortly to be extended. Just such an approach has been taken in Scotland with provisions included in the Coronavirus (Scotland) Bill.  These allow the duration of all planning permissions which are due to expire during an ‘emergency period’ of 6 months to be extended, so that the relevant permission or time limit shall not lapse for a period of 12 months from the date those provisions come into force.

There is now pressure on the Government in England to introduce similar measures to those in Scotland, and, indeed, to those temporarily introduced in response to the 2009 financial crisis.

Until such measures are (hopefully) introduced, for any permissions due to expire in the next six months or so, we would recommend considering whether it is possible to commence a development to prevent a planning consent lapsing.

In order to lawfully commence development, it is necessary to satisfy the legal requirements in section 56(4) of the Town and Country Planning Act 1990. Usually, fairly minor works are sufficient to commence a planning permission and Firstplan can advise on the precise nature of any implementation works which may be required.

However, before a permission can be implemented, it is necessary to discharge any pre-commencement conditions.  This may prove somewhat more challenging at present because it may not be possible to gather the relevant information required for conditions until ‘normality resumes’ (e.g. the carrying out of noise, transport, or air quality reports). A possible route around this would be to amend the wording of any relevant conditions so that detailed information is not required prior to commencement of the development.

Similarly, if applicants are finding that there are major delays in determining pre-commencement conditions, it may be possible to seek to have a condition ‘deemed’ to be discharged. A number of conditions are exempt from this procedure, and strict requirements need to be followed to obtain a deemed discharge of a condition. Firstplan can provide detailed advice on this matter.

Shops, Pubs and Restaurants – Temporary Permitted Development (PD) Rights
Under the Town and Country Planning Act, (1) 2020 Amendment Order, new PD rights were brought in to allow the temporary change of use of pubs, restaurants and cafes to operate as hot or cold food takeaways under a new Use Class ‘DA’.

Anyone seeking to take advantage of this must notify the Planning Authority and revert to the previous lawful Use Class (A3 or A4) on or before 23 March 2021. It is relevant to note that these rights will not override any existing planning conditions that explicitly prohibit takeaway operations on the site. Firstplan can provide detailed advice on this matter.

The above permitted development rights do not apply to shops. However, the Ministry for Housing, Communities and Local Government issued a written statement in mid-March which outlined that all Local Authorities should take a positive approach in their engagement with food retailers and distributors, as well as the freight industry, to ensure planning controls are not a barrier to food delivery over the period of disruption caused by the COVID-19 pandemic.

Potential Impacts on Draft Local Plans
There are concerns about the implications of COVID-19 on the capacity of Local Authorities to prepare and progress local plans and support neighbourhood planning, particularly concerning public consultation. Planning Authorities have been encouraged to continue to work proactively with their community and other stakeholders to progress plans via electronic means. However, we do expect there will be some adjustments to timetables.
Whilst the last few weeks have seen changes to our lives that none of us could have envisaged, we are encouraged to see that the planning system has started to change and adapt, and is continuing to do so with pragmatism and innovation from both the public and private sectors.  We will continue to keep you updated as the situation evolves.

In the meantime, should you require any assistance or further advice on the above or any other planning matter please do not hesitate to contact the Firstplan Team on 020 3096 7000.

We wish to reassure our clients and colleagues that Firstplan continues to remain fully operational.  Our priority is of course, the safety of our team and others and, in accordance with Government advice, our staff will be working remotely for the foreseeable future.

We have actively implemented a business continuity plan and we are working hard to provide our usual comprehensive and professional service to all of our clients to minimise any disruption.

We have a comprehensive IT system already in place to allow the Firstplan team to work efficiently, effectively and securely from home.  All members of staff will continue to be contactable via our Direct Dials and emails, but should you have any issues please use our main number on 020 3096 7000.  We will also be embracing alternative ways of conducting meetings wherever possible with audio and video conference calling options available and already in use.

We will continue to work pro-actively and creatively with local authorities throughout this challenging and rapidly changing period. We will provide all of our clients with regular updates and will also be posting planning related news on our social media sites (i.e. our website, Twitter and LinkedIn).

We would like to wish all our clients and colleagues well and we would encourage you to contact us as usual with any queries.

In response to the coronavirus outbreak, the Planning Inspectorate (PINS) has issued guidance on site visits, hearings, inquiries and events. Full details can be found here.

In brief:

• Hearings and inquiries – will ‘not proceed at the present time’. The feasibility of utilising technological solutions is being considered although PINS acknowledge that this is not straightforward given the need for fairness to all parties, particularly third parties.
• Site visits – Unaccompanied site visits will go ahead where the Inspector can travel without using public transport. Accompanied site visits will not proceed at present.
• Local Plan Examinations – The two local plan examinations which were due to take place this week have both been postponed and local plan hearings cannot currently take place.

We are also aware that a number of local authorities are taking the decision to postpone or cancel upcoming planning committees.

We will of course be updating our clients directly on the latest developments where relevant. In the meantime, if you have any queries please feel free to contact a member of the Firstplan team. All our staff remain contactable via our Direct Dials and emails, but should you have any issues please use our main number on 020 3096 7000.

Firstplan is delighted to be recognised in Planning Resource this week as the planning consultancy with the second highest proportion of Chartered Female Planners in the country.  The article states that:

‘The firm with the second-highest proportion of female chartered planners is Firstplan, where 53 per cent are women, as are 40 per cent of its directors. Like Emery Planning, this appears to be a result of the company’s culture rather than any formal approach. “It hasn’t been a policy of the company to get a gender balance,” says director Michael Woolner. “It’s just sort of happened subconsciously. The key criterion for staff is talent.
 
It may not be deliberate, but Woolner believes that having a good gender balance does help create a more “harmonious” and family-friendly working environment. He dismisses the argument, once common among some business leaders, that women employees taking maternity leave causes disruption. Rather, he says, when associate – or director-level female staff take maternity leave, it provides an opportunity for more junior members of the team to step up and gain experience. Woolner also believes that, as a relatively small company, Firstplan is able be flexible in terms of employees’ working hours in a way that may not be possible at large corporates’.

Planning Resource’s research shows that of the 25 biggest firms surveyed, just 23 per cent of planning directors are female and that the overall proportion of female planners is just 36 per cent. Set against this shortfall in representation across the sector, Firstplan is particularly proud to have a good gender balance throughout all levels of our team.  Firstplan recognise that the success of our company is down to attracting and retaining talented planners. Offering flexibility has been key to this with many of our planners, both male and female, having been with our firm for many years.

Head over to our full team page to meet our full team of planners and support staff – www.firstplan.co.uk/team

 

Introducing the two newest members of the Firstplan team – Adam Bunn and Claire Stafford.  Adam joins Firstplan as an Associate, bringing with him over a decade’s worth of experience advising public and private sector clients with particular focus on retail, commercial leisure and town centres.  Claire joins us as an Assistant Planner having recently graduated from the University of Newcastle where she earned a masters with distinction in Urban Planning.  Claire is working towards membership of the RTPI.

It’s great to see the Firstplan team continue to expand and strengthen. To meet our full team of 27 planning professionals and support staff click on our teampage.

A great result at committee last week!  Firstplan secured planning permission for this high-quality mixed use scheme in Billericay.  The site is located in an employment area and the introduction of residential use is not normally something that would be supported by the Council.  However, Firstplan successfully argued that the specific mix of uses would enhance the viability of the employment area and we were delighted that members upheld the officers recommendation and allowed the application.  

Firstplan is delighted to have won an appeal against Lambeth Council’s decision to refuse a lawful development certificate for an L-shaped dormer.   The case came about as a result of inspectors issuing conflicting decisions on whether certain L-shaped dormers should benefit from permitted development rights.   We are pleased that the inspector in this case agreed with us that the government’s technical guidance already provides a clear, logical explanation on this issue and should therefore be followed.  The decision has earned a mention in Planning Resource and The Guardian!

If you have any queries regarding the appeal or roof extensions generally, please contact Tim Williams here.