This week, the House of Lords Secondary Legislation Scrutiny Committee has published a report raising concerns about two instruments which make permanent changes to publication and publicity requirements for certain planning matters that were initially introduced on a temporary basis during the current pandemic.
The instruments are the Environmental Assessment of Plans and Programmes (Amendment) Regulations 2020 (SI 2020/1531) and the Infrastructure Planning (Publication and Notification of Applications etc.) (Amendment) Regulations 2020 (SI 2020/1534).
The two sets of Regulations remove permanently requirements to make certain planning process documents available for physical inspection and replace them with a requirement to publish the documents online instead. The changes were initially introduced as a temporary measure in July 2020 to allow authorities to progress plans, programmes and projects while many public buildings remain closed due to the pandemic.
The Committee questioned the Ministry of Housing, Communities and Local Government’s (MHCLG) approach to making these changes permanent but the response and the measures put in place to mitigate the effects of the changes, did not allay the Committee’s concerns. These include:
- A lack of formal public consultation before making the changes permanent. While MHCLG says that no concerns were raised when the initial temporary changes were made and that the move to digital processes has been broadly welcomed, the Committee notes that support for the changes seems to have come largely from those involved professionally in the planning process and not from the general public who will be affected most by these restrictions to access physical information, especially those who have limited or no access to the internet, and who may not have been able to raise concerns during the pandemic.
- Provisions for hard copies of planning documents to be made available on request for a “reasonable charge”. The Committee expresses concern that this cost is undefined and again will disadvantage those who live in rural areas with poor internet connections who may wish to request hard copies of often lengthy and complex planning documents.
- Making temporary measures permanent on the ground that the changes support the Government’s aim of digitalising the planning system rather than legislating for an ` extension as has been done with other legislative changes during the pandemic. The Department also cited the need to use powers that were only available until the end of the Transition Period on 31 December 2020. As the instruments were laid and came into force before the expiry of the relevant powers at the end of this period the Committee feels the Department could have chosen to legislate for a further extension, rather than making the changes permanent. The report suggests the House may wish to press the Minister for further explanation of the Government’s approach.
In conclusion, the Committee expressed regret that these changes were made without a formal public consultation and that the Government has once again used secondary legislation to make significant, permanent changes to planning legislation during the pandemic, when primary legislation would have enabled full scrutiny by Parliament. The Committee urged the Government to monitor the impact of the changes and keep them under review and suggested that the House of Lords ask the Government to update Parliament on this impact.
Baroness Bakewell of Hardington Mandeville, Member of the Secondary Legislation Scrutiny Committee member said:
“We regret that no formal public consultation was undertaken before making the temporary changes allowed by these instruments permanent. This is especially pertinent as the changes have the potential for affecting vulnerable or disadvantaged groups the most alongside those with poor or no internet access.
“The changes could potentially reduce access to physical information, and the ability to make representations, in relation to important infrastructure, housing or other projects that may impact these groups. The possibility that requesting hard copies of sometimes complex planning documents may incur an undefined ‘reasonable charge’ also gives cause for concern.
“Taken as a whole, these proposals seem likely to increase rather than narrow any gap between the planners and the people whose lives may be affected. We ask the Government to monitor the impact of the changes on those with limited internet access and urge the House to ask the Government to report back on progress.”
Commenting further, Lord German, Committee Member said:
“We raised concerns previously about the Ministry of Housing, Communities and Local Government using secondary legislation to implement significant changes to planning regulations during the pandemic, when the temporary changes came into effect.
“We regret that despite these concerns the Department has continued to employ in effect a legislative sleight of hand to make the temporary measures permanent using secondary legislation, when such significant changes would have been more appropriately made using primary legislation to allow for much more thorough scrutiny by Parliament.
“I echo the concerns raised about the undefined nature of proposed charges for hard copies of planning documents and the lack of formal public consultation before the changes became permanent. The Government should ensure other voices are heard on these changes rather than only those professionally involved in the planning process and continue to monitor for any issues with the planning process as these changes become permanent.”