The following practical and legal issues have arisen in connection with the new working and living arrangements that have almost universally been implemented as a result of the emergence of COVID-19.
1 Pre-application consultation
In Scotland this is a statutory requirement before an application from a major development is submitted to the planning authority. Major developments include residential development for more than 50 units, retail development greater than 5,000 square metres, and any other development over two hectares. The regulations that govern pre-application consultation require a public event to be held. No further details are contained within those regulations or the primary legislation setting out what a public event should be. Holding any form of event in a physical public space is almost certainly off the table for as long as social-distancing measures remain in place. The options remaining for a developer are therefore either to delay pre-application consultation or to explore whether online platforms can be used to host a public event, with full details of the proposed development provided together with an opportunity to make comments on it. It is worth noting that some councils (notable Argyll and Bute) are tentatively exploring the use of technology for a range of matters.
2 Suspensive contracts and option agreements
If an applicant cannot carry out pre-application consultation then it means they would not be able to lawfully submit a planning application. If they are under a contractual obligation to do so, for example, under a suspensive contract to purchase, then that may lead to them being in breach of their contractual terms. In addition, this position may frustrate option agreements. If an application cannot be made then there is limited scope for the circumstances arising where an option would be triggered.
3 Pre-commencement of development conditions
Developers may also face difficulties if they are trying to obtain confirmation that all their pre-commencement of development conditions (suspensive conditions) have been satisfied. It goes without saying that planning officers are unlikely to be visiting development sites. They may also be difficult to get hold of, as councils get to grips with home working. It is likely that a fairly understanding view will ultimately be taken by councils in these circumstances, provided that the developer has done all that would be reasonably expected of them to both discharge the conditions and evidence that.
4 Submission of planning applications
There has already been a move by some councils (notably Edinburgh) to close their planning desks to the public. This means that applications and the related fees must all be submitted electronically. It is unlikely that this will cause a major issue for developers since this approach is generally adopted as things currently stand.
5 Planning committee meetings
This is currently the great unknown. Some councils have cancelled committee meetings for the time being. This means that, in the short term, decisions on applications will not get made. It is unlikely that this will be a sustainable position to maintain. Perhaps the most likely outcome across the board is that there will be a change in legislation, and within a council’s standing orders, to permit major applications (that would otherwise have to be determined by a committee) to be decided by the relevant director of planning.
The director of planning may have to consult with individual committee members before taking their decision in order to get a sense of their view, but the decision will most likely have to remain with the individual officer. More considerations on planning committee meetings can be found here.
6 Representation to the government
Homes for Scotland issued a note on Friday 20 March to say that the majority of these issues have been raised with the Scottish Government. Some form of action in connection with them can be expected relatively swiftly