Out-Law Analysis | 09 Apr 2020 | 1:14 pm | 6 min. read
Planners and developers in England and Wales are hoping that the Planning Inspectorate follows the courts and embraces technology to ensure upcoming appeal hearings can be heard and planning appeals progressed despite Covid-19 restrictions.
The latest guidance issued by PINS on 1 April 2020 says that all site visits, hearings and inquiries are postponed indefinitely. Given the uncertainty over the time that the nation will remain in lockdown, this current guidance will lead to excessive delays in the system if there is no change.
Solutions are available. We have seen this with the comparably quick uptake by the courts in conducting remote hearings which, even a month ago, would have been inconceivable. According to section 321 of the Town and Country Planning Act 1990, an inquiry must be held in public. The Civil Court Protocol on Remote Hearings acknowledges that a remote hearing can still be a public hearing, and that this can be achieved by streaming the hearing over the internet.
PINS is currently exploring the feasibility of using technology to conduct inquiries and hearings. However, PINS has reiterated the importance of ensuring "fairness for all parties, especially third parties". There is a particular sensitivity here when compared to court hearings where parties are almost always professionally represented. Planning appeals are therefore currently stuck in a limbo position, and will be unable to progress until PINS updates its guidance to bring it in line with the approach of the courts.
In an attempt to keep the appeal procedure moving, PINS guidance states that inspectors may invite parties to consider whether the case can be decided on the basis of written submissions. However, this is on a case by case basis only and will not be a suitable solution for all cases. We are also aware that some planning authorities are not so open to this approach even though written representations tend to present more challenges for the appellant rather than the authority.
A number of proposals have been submitted to PINS by barrister chambers, calling for the introduction of interim solutions. For example, Kings Chambers has held a virtual mock public inquiry with planning consultants to demonstrate the feasibility of technology. A proposal by Landmark Chambers explains why legal principles concerning fairness can be complied with temporarily by streaming planning appeals online. It suggests that the inspector identifies the main issues based on written material submitted. Issue-specific remote hearing sessions can then be held with anyone who submitted representations being invited to participate. A further remote hearing session can then be held which enables any other interested person to comment. The inspector would also have discretion, having consulted with the parties, to determine which remote hearing sessions will involve cross-examination and which will follow a round-table format.
Landmark Chambers argues that this temporary solution would comply with Article 6 of the European Convention on Human Rights - the right to a fair and public hearing - and Article 6 of the Aarhus Convention - making provision for public participation - and would preserve both oral hearings and the possibility for cross-examination in a flexible way, which can be tailored to the particular case.
PINS guidance states that it "will continue to monitor the situation and adapt as necessary," but it has been comparably slow in doing so.
Even if PINS is lagging behind in its uptake of technology, the courts have been quick to adapt. The Lord Chief Justice provided an early and clear direction that the courts will embrace technological solutions to continue to operate in these circumstances.
The public counters at the courts are now closed and, in an unprecedented move, all matters previously dealt with at the counters will now be dealt with electronically. This means that all claims and applications for judicial review and planning matters must be lodged electronically by email to the relevant email address of the courts. Any orders issued by the courts will be served on parties by email. Importantly, the time limit for lodging judicial review claims and legal challenges at court and serving on the other parties remain the same as do the deadlines for acknowledging service.
Given the widespread closure of offices and current constraints in the postal system, service by email is often the only option for correspondence between the parties. Practice Direction 6A of the Civil Procedure Rules already allows parties to agree to serve documents by email. However, this must first be agreed between the parties and inevitably there will be some who do not agree to this approach.
New Practice Directions 51Y and 51ZA were published on 25 March 2020 and 2 April 2020 respectively, in relation to remote hearings during the coronavirus pandemic. They establish that the court may exercise its discretion to conduct hearings remotely in private. Where the court does so, it must, where practicable to do so, order that the hearing is recorded and that any person may apply to the court for permission to access the recording.
The Civil Court Protocol on Remote Hearings states that remote hearings should be recorded on the remote communication programme being used, such as Skype for Business. This is currently the court's prevalent method. However, the protocol acknowledges that BT MeetMe, Zoom and ordinary telephone calls are also appropriate methods.
Court hearings are now taking place remotely by telephone or video conference. Both the Planning Court and Court of Appeal have already heard a number of planning cases via video technology with parties appearing in their respective living rooms.
A judgment handed down on 27 March in a case between Cordelia Gil and London Borough of Camden considered circumstances where Gil was unable to participate by phone or Skype in a remote hearing. The court approached this with flexibility, showing its willingness to accommodate differing circumstances during the pandemic and established that submissions could be provided by email.
Guidance issued by both the High Court and the Court of Appeal state that they are prioritising urgent matters. The Court of Appeal guidance defines this as "applications where it is in the interests of justice that there be a substantive decision within the next 7 days". Planning hearings are not listed as urgent priority hearings for the Court. Also, whilst Practice Direction 54E does set target timescales for "significant hearings." these are not sanctioned. We are therefore likely to see delays in planning claims and appeals if current circumstances persist in forthcoming months.
While the courts have adapted quickly and positively to the current situation the lag in court hearings for planning claims and appeals is a cause for concern, particularly for developers who will not want further uncertainty to affect their developments in these difficult times.
Having said that, there will now be a lot of experienced judges and part-time judges with more time on their hands and a willingness to get stuck into a caseload. At the very least it would be hoped that they could be deployed in dealing with cases on the papers, some of which will not need to proceed to a hearing.
There are likely to be fewer legal challenges on the basis that the planning process will not be churning out the same number of decisions. These factors should hopefully assist in alleviating the pressures caused by adapting to the current circumstances of remote working by the court system and, should the social distancing restrictions continue for some time, there will inevitably be further progress and refinement of the processes adopted to date.
This could in fact be a very positive move for the courts as it has forced the system to reinvent itself quickly and there will be many who will not want to lose the flexibility this provides when we revert to more normal times,.
The fast implementation by the courts of technological solutions during lockdown was impressive, and we are likely to imminently see new guidance issued by PINS applying temporary measures to kick-start the currently stagnant appeals process.
Many of these changes will be welcomed by developers and it is recognised that this could be a real opportunity for progress within the appeal system, to modernise and become more efficient. However, the new Practice Directions enabling remote court hearings, will expire following lockdown and any initiatives implemented by PINS will be temporary.
It is yet to be seen whether we will revert back to business as usual after the lockdown, or whether these challenging circumstances will provide a springboard for future, permanent integration of technology within the planning system.