Fighting COVID-19: Permitted development to assist temporary hospital provision

I mentioned last week that planning rules are changing rapidly in an unprecedented way to assist the COVID-19 response.

The latest development is the introduction in Wales of the Town and Country Planning (General Permitted Development) (Amendment) (Wales) Order 2020/367 (“the Order”) from 30 March 2020.

Planning order

The Order inserts a new temporary 12 month permitted development right, Part 12A Class A, for “Emergency Development by Local Authorities” into the Town and Country Planning (General Permitted Development) Order 1995.

The 1995 order sets out Welsh permitted development rules following the extraction into a separate order of the English provisions.

A new class could have been inserted into Part 4 (Temporary Buildings and Uses) but those provisions extend to private land and entities. The insertion into Part 12 therefore emphasises that it is the utilisation of public authority assets that are at the forefront of the fight.

The new Welsh provisions are cast widely and permit “development by a local authority on land owned, leased, occupied or maintained by it” for the following reasons:

• Prevention of an emergency;
• Reduction, control or mitigation of the effects of an emergency; or
• Taking other action in connection with an emergency.

What constitutes an emergency?

What constitutes an “emergency” is also widely defined as “an event or situation which threatens serious damage to human welfare in a place in the United Kingdom“.

Events or situations that threaten damage to human welfare may involve or cause the loss of human life, illness, homelessness, damage to property, disruption of the supply of money, food, water, energy or fuel, disruption of communications, disruption of transport facilities or disruption of health services.

On first reading there appears to be caveats to this power. Most notably, what if:

• A local authority was not undertaking the development; and
• Proposals were not on local authority ‘controlled’ land?

In the current climate it is not outside the realms of possibility that a public health body would want to undertake such emergency development. These health bodies are not local authorities for the purposes of the Order. Local authorities do, jointly, have responsibilities for public health however.

The first condition clarifies a little by requiring developers who are not also local authorities to notify the local planning authority of the emergency development as soon as possible. So the ability to rely on the permitted development is broadened slightly.

Whilst reflecting the understandable haste with which the Order has been written, such commentary and analysis pales into insignificance in the context of the current need for the quick conversion of publicly ‘controlled’ assets, such as community halls or leisure centres, to house temporary ‘field’ hospitals to cope with the COVID-19 tidal wave that is expected imminently.

The planning position in England

Finally, it is also worth briefly contrasting the position in England given the establishment of the Nightingale Hospital in the London Borough of Newham, within days.

In this case an application was made for planning permission for the “temporary change of use of the existing building from an exhibition centre and associated uses to a field hospital and associated ancillary uses…” in the absence of a similar permitted development amendment order to Part 12 of the Town and Country Planning (General Permitted Development) (England) Order 2015.

The emergency situation has meant that the planning authority is processing the application through the normal planning process and is currently taking representations prior to retrospective determination of the already implemented hospital.

Whilst this approach leaves open all the legal possibilities of objection and judicial challenge it is unthinkable to imagine any objections or challenges in the circumstances. Nonetheless, this highlights the inherent risk where legalities and practicalities necessarily have to collide in unprecedented times.

The approach taken in Wales by bringing into effect the Order is more welcome and legally robust. Reliance on the new Part 12A Class A significantly reduces the risks of challenge to adapt so quickly in time of crisis.