ONLINE EVENT: Contracts, managing supply chain issues and the role of directors

The Government has introduced new regulations, which took effect on 14 May 2020, to relax the publicity requirements in respect of planning applications.

Planning applications are usually required to be publicised by way of site notices and local newspaper notices and applications are to be made available for public inspection. The Government has recognised that these actions may not always be possible in accordance with social distancing guidelines and in order that Councils do not delay applications as a result of an inability to comply with the publicity requirements, the Government has relaxed the requirements.

A Local Planning Authority is now required to “take reasonable steps” to publicise a planning application, which may be through use of online newspapers, social media, or other electronic measures. What is considered reasonable will depend upon the circumstances of an individual application and will be proportionate to the scale and impact of the development. A large development that has previously generated significant interest will require more steps to bring the application to the attention of all of those with an interest than a householder application. The guidance emphasises the role of the publicity requirements, namely to enable those with an interest to make representations and to effectively participate in the decision making process and therefore community engagement remains key. It is recommended that the officer’s report refers to the steps taken where a Council has relied upon the temporary publicity arrangements.

The requirement to make planning applications available for public inspection has also been temporarily suspended providing that the applications are available for online inspection. In reality most LPAs already provide such an online facility. Where individuals are unable to access an application online LPAs should make alternative arrangements, for example providing information over the phone or providing a hard copy set of documents by post.

The regulations however only amend the statutory publicity requirements. In addition to these, all LPAs are required to have a Statement of Community Involvement which may provide for additional publicity requirements and the LPA will be bound by these regardless of the temporary relaxation of any statutory requirements. Where a Statement of Community Involvement does go beyond the statutory requirements, the Government guidance suggests that LPAs update these to ensure that local communities can continue to be consulted in the current climate.

The regulations are currently due to expire on 31 December 2020.

It is almost impossible to completely guard against the risks associated with contractor insolvency, but there are some steps which can assist in mitigating and managing the risks involved.   To be in the best possible position, it is worth considering the following at the outset of any project:

• Check the contractor’s financial position – particularly the specific company which will enter into the building contract, as the employer’s rights will be against this company rather than the business as a whole
• Take legal advice to ensure that the building contract is properly drafted with appropriate provisions to deal with an insolvency event
• Consider requiring a performance bond and/or parent company guarantee (each serve slightly different purposes)
• Obtain collateral warranties from the consultants and sub-contractors involved, so that there are contractual rights against other parties if the contractor is no longer able to meet claims
• Consider requiring retention bonds, advance payment bonds or vesting certificates if necessary
• Project bank accounts and escrow accounts can also provide some further assurances for the parties involved

• Delays in preparing and submitting applications to comply with pre-commencement conditions. In this respect there can be lengthy timescales gathering evidence to support applications to comply with pre-commencement conditions, ecology, contamination and archaeology are examples of matters which can require significant periods of survey work
• Following on from the above the ability to get required experts on the site necessary to undertake the required survey work
• Delays in the determination of applications to comply with pre-commencement conditions. In this respect whilst there are deemed discharge provisions/procedures concerning certain matters, the provisions cannot be used to discharge all types of conditions
• The ability to get people on site to undertake material operations

In the circumstances, it is advisable to start considering the implementation of the planning permission early and the earlier the better. Under current legislation whilst it is possible to vary conditions, albeit potentially leading to wider issues, it is not possible to extend the life of a planning permission meaning that lawful implementation is essential to avoid the loss of that permission.

If a planning permission is lost, amongst other things it may not be granted again or may not be granted on similar terms. In the circumstances, it is advisable to seek advice given the specific facts of the case to minimise the risk of a planning permission not being lawfully implemented and expiring.

Employers had the ability to furlough extremely vulnerable employees who needed to shield.

If your employee is on sick leave or self-isolating as a result of Coronavirus, including as a result of track and trace, they’ll be able to get Statutory Sick Pay, subject to other eligibility conditions applying.

There is no special exemption for them, so they would need to meet the usual requirements to be placed on Flexible Furlough after 1 July 2020. i.e. They had to have been placed on furlough for at least 3 weeks before 1 July. Otherwise, they could not be furloughed.

Details of your MHFAs should be posted somewhere that everyone can access easily – a specific area on an intranet or whatever alternative exists. Regular comms involving the MHFAs, webinar sessions, Q&A sessions and mental wellbeing drop in sessions are all ideas that may work well.