Wednesday, 5 May 2010

Validation dispute goes pear-shaped



Those of us advising applicants for planning permission have never been happy with the new validation requirements which accompanied the introduction of the standard application form (1APP) in 2008. The whole philosophy behind the standardisation of applications was to simplify the application process, and to ensure that there would be a degree of uniformity in the accompanying information requested by LPAs. The result was the opposite of those stated intentions and has turned the submission and registration of planning applications into a bureaucratic nightmare.

The problem stems from the use of national and local checklists which, whilst they may be justified in the case of major developments raising complex planning issues, are largely irrelevant to more straightforward proposals. I have generally found that if one takes the trouble to point out when submitting a planning application that certain information in the checklist has been specifically excluded and to explain precisely why it is not required, this will usually obviate any difficulties in getting the application registered. But what happens if the LPA disagrees with you and insists on additional information listed in either the national or the local checklist being submitted before they will register the application? In many cases, the practical answer will probably be to swallow hard and produce the requested material, simply in order to avoid any further delay to the processing of the application, even though you may think it unnecessary or irrelevant to the determination of the application.

There may, however, be cases where you and your client think the LPA is being utterly unreasonable, and that the application should be determined without the need for a lot of unnecessary extra information to be supplied. I think most of us had assumed that in those circumstances, after the expiry of the 8-week or 13-week period, one would be able to appeal to the Planning Inspectorate under s.78 against the non-determination (deemed refusal) of the application, and ask the Inspector to determine the appeal on the basis of the information already supplied. If the Inspector agreed, he would deal with the appeal on its planning merits, and you might even get an award of costs against the Council if the Inspector felt that their conduct had been unreasonable in demanding the unnecessary additional information.

Unfortunately, the decision of Langstaff J in Newcastle Upon Tyne City Council v SSCLG [2009] EWHC 3469 (Admin) appears to have put paid to any such hopes. The case turned on the precise statutory provisions by which the new validation requirements were introduced. These are Section 62(3) of the 1990 Act (as inserted by the 2004 Act) and Article 20(3) and (3A) of the GDPO (as amended in 2008). What Section 62(3) says is : “The local planning authority may require that an application for planning permission must include (a) such particulars as they think necessary, and (b) such evidence in support of anything in or relating to the application as they think necessary” Subsection (4) contains a proviso that these requirements must not be inconsistent with the terms of a development order made under sub-section (1) (which in practice means the amended version of Article 20 of the GDPO).

Article 20 is the provision in the GDPO which prescribes the time within which the LPA must determine the application (and which therefore triggers the right to appeal against non-determination). The time limit is prescribed by reference to the receipt by the LPA of a “valid application”. By Article 20(3), “valid application” means an application which consists of the prescribed application form, the ownership certificate, a design and access statement (where required) and, subject to paragraph (3A), “the particulars or evidence required by the authority under section 62(3) of the Act”, together with the requisite application fee. Paragraph (3A) limits the scope of the requirement for the particulars or evidence etc. referred to in paragraph (3) to items that fall within a list of requirements which has been published on the LPA’s website for the purposes of paragraph (3) before that planning application is made. Thus the scope of the particulars or evidence which the LPA thinks necessary under Section 62(3) is not open-ended but is confined to the items in the national and local checklists. Nevertheless, the LPA could in theory insist on being provided with each and every one of the items in those lists.

In the Newcastle case, the developer refused to produce items in the checklist which it thought it unreasonable to be expected to provide and, when the LPA refused to register the application, the developer waited for the end of the 13-week period, then appealed against the non-determination of the application. PINS accepted this as a valid appeal, but the Council made strenuous representations that the appeal should not be heard, and then applied for judicial review of PINS’ decision to consider the appeal. The issue for the Court was whether PINS had the jurisdiction to entertain the appeal, which would involve an Inspector considering the reasonableness of the Council’s insistence on being provided with all the information in the checklist.

In giving judgment in favour of the Council, Langstaff J put it this way :

There is in my view no room here for doubt as to what is or what is not a valid application in principle. That is defined by Article 20, which refers to s.62(3). In particular it seems to me that Article 20 means that an application is valid if it contains the particulars or evidence required by an authority under Section 62(3), and therefore it is invalid if it does not. And Section 62(3), containing as it does the words that the local planning authority may require that an application must include “such particulars as they think necessary”, is making the local planning authority the arbiter of what is necessary. The wording is not, as it might otherwise have been, “as are necessary” or for instance some such longer phrase as “such particulars as are items chosen from a local list by the local authority as may be necessary”. That would leave the question of what is necessary for the determination of others but that is not what the statute says.

Thus the LPA is left as the sole arbiter as to what information is necessary within the scope of Section 62(3) and Article 20(3), and this can now be challenged only by way of an application for judicial review on Wednesbury grounds, and not by means of an appeal to the Planning Inspectorate. The Treasury Solicitor has chosen not to take the Newcastle case to the Court of Appeal, and so it would appear that we are stuck with what many will see as a thoroughly unsatisfactory situation with regard to the validation of applications. The only hope is that, once the dust has settled after the General Election, a future review by the government of the validation requirements and their operation might lead to a more reasonable approach to the submission and processing of planning applications, and a simpler and fairer way of resolving any differences over the information to be supplied.

© MARTIN H GOODALL

2 comments:

Michael Hyde said...

A bit late in the day (and my concern relates to Scotland) but what would be the situation if the dispute related to the appropriate fee required for the application? Can a LPA simply interpret the Fees Regulations as it thinks is reasonable, without there being an ability for their ruling to be challenged via a non-determination appeal?

Martin H Goodall LARTPI said...

In answer to Michael Hyde, I am not familiar with the Scottish legislation, and I do not know to what extent (if at all) the Newcastle judgment would apply so as to preclude appeals against non-determination in Scotland where there is a dispute as to the validation nor registration of the application. In England this turned on the amended wording of section 62 of the English 1990 Act.

On further consideration of the point, it occurs to me that the Newcastle judgment ought not to preclude an appeal against non-determination in this case, even if it were in England, because this does not relate to the information requirements, which were the subject of the dispute in the Newcastle case, but rather the issue of whether or not the correct fee has been paid. The interpretation of the fees regulations must be a matter of objective judgment, and so it cannot be the local planning authority that is the sole arbiter of this. However, it would be advisable to check very carefully that the fees regulations can properly be construed in the manner for which you contend before you launch any appeal against non-determination.