While lockdown has eased in some areas of everyday life, social distancing is likely to be in place for some time. In this briefing we discuss the challenges that this provides to effective consultation and offer a few thoughts on how the challenges can be overcome.

What type of consultation do you need to undertake?

Consultation on a development proposal is anything but straightforward in normal times, with different types of consultation, some statutory, some non-statutory, required at different stages of a development or infrastructure project. It includes pre-application consultation and statutory publicity and notification requirements.  

In this briefing we look at the consultation processes that are most likely to be affected by social distancing and describe the specific rule changes introduced by the Government (in England) in response to the sudden and unique challenges posed by the Covid-19 pandemic.  

Pre-application

The public exhibition or meeting

Effective pre-application consultation is essential to getting your consent in place.  Done well, it reduces any opposition to the scheme and speeds up the grant of consent.  Developers should approach it with an open mind and listen to constructive responses that can improve the quality of the development.

The mainstay of pre-application engagement is the public exhibition where members of the developer's team are on hand to explain the benefits of the scheme and to listen to concerns.  It may be used because it's an effective, and traditional, public engagement tool or it may be a requirement of the local planning authority's Statement of Community Involvement (SCI) (or both!).

If the SCI sets out detailed expectations of the consultation that will be undertaken, such as the requirement in the Development Consultation Charter that sits alongside Southwark's draft SCI to hold public events for certain types of application, a failure to comply with the obligations could provide a ground of legal challenge to the permission; so do check the requirements in the SCI.   

As a consequence of the pandemic, the Government has encouraged local authorities to review their SCI to make any temporary amendments to local good practice, including allowing for digital consultations. (Government guidance on the Regulations and SCI amendments is available to view here).

Alternatives to a public exhibition

So in a socially-distanced world, the obvious "fix" is a virtual public exhibition using screen sharing video calls, with question and answer options supported by a project website that provides detailed information about the scheme.  Social media is already widely used to provide information and garner feedback.

The biggest challenge risk is that the consultation isn't inclusive, so how do you reach those people who don't have internet access or who are unlikely to follow your project on Twitter, Instagram or a Facebook page?  In an internet connected world, solutions here require recourse to tried and tested media:

• an advert in a local newspaper that provides a phone number by which a request of a hard copy of consultation material can be requested;
• an advert on a local radio station (probably only for the very biggest schemes);
• a direct mailshot to those local residents who are likely to be most affected by the scheme;
• notices outside supermarkets, doctors' surgeries and or at public open spaces closest to the proposed development;

The consultation timetable is also important; perhaps allow a little longer for responses to be provided to ensure that as much quality feedback as possible is captured.  

Planning Applications 

The Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 (Regulations) have temporarily relaxed publicity requirements for planning applications, listed building consent applications and environmental statements.

The Regulations apply where Covid-19 means that publicity requirements cannot, practically, be complied with and came into force on 14 May 2020.  Unless extended, they will remain in force until 31 December 2020. They provide that, where possible, statutory notification requirements must be complied with but where it is not reasonably practicable to comply with the requirements, for reasons related to the effects of the coronavirus, the authority must inform persons likely to have an interest in the application of the website where notice of the application can be found; those steps may include use of social media and must be proportionate to the scale and impact of the development.

The objection periods for each type of application have also been amended:

• for planning applications under the Town and Country Planning (Development Management Procedure) (England) Order 2015, the period for making representations has been increased from 14 to 21 days (or longer where the period includes public or bank holidays);
• for listed building applications made under the Planning (Listed Buildings and Conservation Areas) Regulations 1990, the period for objections to such applications remains at 21 days; and
• for environmental statements under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, comments must still be made within 30 days, however these must be made in writing to an email address specified in the notice on the relevant website.

The changes made by the Regulations are helpfully summarised in National Planning Practice Guidance. A link to the Guidance is here.

Infrastructure projects  

Orders made under the Transport and Works Act 1992 (TWOs) 

The Department for Transport's A Guide to TWA Procedures states that applicants are advised to consult thoroughly on their proposals with relevant statutory authorities, with utilities whose services may be affected and with anyone else who is likely to be affected by the proposals.   The relatively "light touch" guidance means that applicants have scope to design a pre-application consultation process that is comprehensive, meaningful and fair and also respects social-distancing restrictions.  As with planning applications, suitable alternatives to the public exhibition or meeting will need to be designed.  

The application process is governed by the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2006.  They set out requirements relating to the publicity of applications and the circumstances in which documents must be made available for public inspection; obligations that may be difficult to comply with in the current climate.  Helpfully, Rule 18 enables an application to be submitted to the Secretary of State for a waiver of procedural requirements and, in our experience, the Transport Infrastructure Planning Unit has looked favourably on such applications which has meant that applications have not had to be delayed.  

Development Consent Orders (DCOs)

The Government has not, to date, relaxed the extensive statutory consultation requirements that apply to DCO applications. 

A key requirement of that process is that an Applicant has to agree with the relevant local authority or authorities how it intends to consult the local community which must be described in the Statement of Community Consultation that accompanies the application.  The hope and expectation is that local authorities will recognise that, for the time being, the consultation methods that are appropriate have changed and will need to reflect the Covid-19 landscape.  

As with planning applications and TWOs, virtual exhibitions, videoconferencing and written consultation will need to replace public meetings. 

As with other types of order, the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 require application documents to be available for inspection at a "place" or "places" in the vicinity of the proposed development.  It may be that such inspection arrangements can be managed in a socially-distanced way but we would suggest that, as with compulsory purchase orders (see below), making the documents available for inspection online should qualify as a "place".  However, it would be helpful if the Government would clarify that it would interpret the rules in the same way.  

Compulsory Purchase Orders (CPOs) 

The two elements of the CPO process that are most likely to be affected by social-distancing requirements are land referencing and negotiations for the voluntary acquisition of land.  

Land Referencers traditionally knock on doors to gather information about interests in land, and Land Agents seek meetings to progress negotiations.  For the time being that won't be possible and alternatives will need to be designed: greater reliance will need to be placed on the Land Requisition Questionnaire, extra effort made to ensure that letters and emails are followed up and putting up voluntary site notices are another way of inviting responses without the need for face to face contact.  For negotiations, emails and phone or videocalls will be the way forward.

The Ministry of Housing, Communities and Local Government has published helpful guidance to acquiring authorities on compulsory purchase matters and Covid-19. It states that documents will still be deemed as being validly served under the Acquisition of Land Act 1981 despite the fact postal service providers, such as Royal Mail, are not currently capturing customer signatures. The fact that postal services are merely recording the name of the person who accepted the document is sufficient to qualify as recorded delivery under the 1981 Act.

The guidance also encourages local authorities to allow more time for responses to land questionnaires and to submit objections to an order. It adds that local authorities should seek alternative addresses, including email addresses, where qualifying persons may have difficulty receiving notices at their primary address, for example where businesses have been forced to close due to the outbreak.   

Where the 1981 Act requires acquiring authorities to name a place where a copy of the order and map can be inspected, the Guidance advises that publication of the order and map online fulfils the requirement to name a "place".  

Final thoughts

Prior to the pandemic the manner by which promoters undertook consultation was already closely watched by aggrieved third parties.  Ensuring consultation was undertaken appropriately was essential to minimise challenge risk.  A prolonged period of social distancing means that, while consultation requirements have in some instances been relaxed, and in other areas more creativity has been allowed under the rules, the risk of challenge nonetheless remains.  Having a robust consultation strategy in place which ensures an inclusive and transparent set of processes to secure public comments on your scheme is more important than ever.