Property Focus

Covid-19: NHS estate providing urgently needed facilities

Recent headlines have highlighted the need for speed in responding to the increased demand for healthcare premises, whether it is building new hospitals or the conversion of existing properties to support clinical needs.  In order to do this, asset management teams across the NHS estate have been identifying and assessing available accommodation and sites which can be reconfigured, whether owned by a health body or a third party. NHS estates and facilities teams should be applauded for reacting promptly, professionally and with the necessary determination to see through vital changes that support frontline patient care.

So what needs to be considered from a property perspective to ensure that vital accommodation is provided as quickly as possible?

Planning permission

On 9 April 2020, a new time-limited permitted development right came into force under The Town and Country Planning (General Permitted Development) (Coronavirus) (England) (Amendment) Order 2020.  This Order allows “emergency development” to be carried out by a health service body or local authority to provide additional temporary facilities until 31 December 2020.  The Order recognises that the detailed information usually required for a planning application may not be available, so written notification from the health service body to the local planning authority on the development in question is all that is needed, instead of a formal application.

The Order provides a broad right to include the erection of new structures with associated facilities as well as change of use for existing buildings.  Certain conditions will be attached to any permission including restrictions as to height and the location of the building in relation to the boundaries of the site and the impact on neighbouring properties.  There are also reinstatement provisions which stipulate that the land must revert to its previous use within 12 months after the date on which the use of the land for emergency development purposes ceases.

Documenting occupation

A licence or tenancy at will can be entered into quickly and is ideally suited to the temporary nature of the current requirements for additional space.  Inter-NHS agreements are being agreed by letter or email to speed up the process further.  All these arrangements need to cover a number of aspects, whether from the landlord (NHS body/third party) or the tenant’s point of view including:

• Term – this will vary depending on the circumstances; some will be for a fixed term where it is accepted that the premises will only be required for a relatively short time, whilst others will be terminable at any time (usually by either party). 31 December 2020 may be inserted as a long-stop date to comply with the permitted development right under the 2020 Order which expires on that date.
• Use – the use of the premises should be defined with a restriction that it can only be used for that purpose; the landlord will usually want a clear statement that it gives no warranty as to the fitness for purpose of the use of the premises. Non-NHS landlords will need to check that their insurers agree to the change in use.
• Access - it may be appropriate to designate a particular route for access and the location of parking areas. Depending on the location of the property, considering whether a restriction on the tenant’s use of the premises to specified times would be advisable.  There should be a reservation to allow the landlord and its authorised workers access to the premises on reasonable notice (except in the case of emergency in which case no notice will be required).
• Compliance with laws – to reflect the likelihood of ongoing changes, an obligation on the tenant should be imposed to comply with statutory legislation, guidance and any regulations put in place by Public Health England and other competent health authorities relating to the treatment, prevention and containment of COVID-19; in addition a sweeping-up provision to comply with all other reasonable regulations that the landlord may require would be recommended in the circumstances.
• Damage – inevitably damage will be caused to the premises by the tenant (including its staff, visitors, patients and invitees) so a clause stating that the tenant will make good any damage caused to the premises would cover this.
• Alterations – some premises will need considerable alteration and generally any works will have been pre-agreed between the parties before the agreement is entered into; but the landlord will need to retain some control and so a prohibition against further alterations without consent is expected. Where the landlord has authorised works, the tenant would be expected to carry them out in accordance with any reasonable conditions imposed by the landlord as a condition of giving consent.
• Disposal - a key characteristic of a tenancy at will or licence is that it is a personal arrangement between the landlord and tenant; a clause stating that the tenant cannot assign, sublet, part with the possession of, or share occupation of the premises is consistent with this type of temporary agreement.
• Reinstatement – thought will need to be given to the eventual return of the premises to the landlord; this can be covered by a clause obliging the tenant to reinstate the premises to the landlord’s reasonable satisfaction following termination of the tenancy (usually on the proviso that this only happens if the landlord requests it).
• Indemnity – the landlord would expect to be indemnified for losses, claims or demands, as well as costs or expenses as a result of the tenant’s occupation of the premises, including any claims or losses from the tenant’s staff, patients and visitors. There would also be an obligation on the tenant to ensure that it passes on any notices or correspondence relating to the premises to the landlord.

Comment

There is no doubt that the relaxation of planning laws under the 2020 Order has enabled councils and health providers to repurpose existing buildings far quicker than would normally happen.  A number of buildings have already been transformed; most notably London’s ExCel, a former conference centre which is now NHS Nightingale, as well as university buildings recently fitted out.  In addition, mobile buildings are being temporarily erected on land belonging to health service bodies and local authorities to provide a range of facilities such as temporary hospitals, coroner facilities, mortuaries and testing units.

Bevan Brittan’s expertise in acting for the NHS and other healthcare bodies over decades has enabled us to respond rapidly and produce documentation to reflect a variety of scenarios, many of which have not been encountered before.  Speed, flexibility and anticipating future problems is key when drafting property short form occupation for our healthcare clients - although we all look forward to when these urgent facilities can be decommissioned and “normal service” is resumed.

For further support and advice relating to the impact of COVID-19, please view our COVID-19 Advisory Service page.