Friday, 13 August 2010

A much-needed reform

I have mentioned before the frustrations which many of us are experiencing in getting planning applications registered in face of the lengthy shopping lists contained in national and local check-lists. There seems to be an increasing tendency for LPAs to demand ever more information (even if it is demonstrably irrelevant to the development for which permission is sought) and to refuse to accept the application as valid until every bit of information, no matter how unnecessary or irrelevant to the application, is provided. I even heard recently of an LPA that rejected an application as ‘invalid’ but refused point-blank to say why they had done so. They simply told the applicant’s agent to read the check-list!

This nonsense has got to stop. Unfortunately, the obvious step of appealing against non-determination has been blocked off by the decision of the High Court in Newcastle Upon Tyne City Council v SSCLG on which I commented in this blog in May (see “Validation dispute goes pear-shaped”).

The original thinking behind the introduction of a single application form (1APP) was to assist developers and their professional advisers by introducing a standard application form across the whole country. The check-lists which were introduced with 1APP were intended to clarify what information should accompany a planning application, but (as I predicted at the time) the practical effect has been precisely the opposite of what was intended and, far from making the business of submitting a planning application simpler and more straightforward, it has made it far more difficult, bureaucratic, and hair-tearingly, blood-boilingly frustrating.

The government claims to be open to suggestions for law reform aimed at removing unnecessary bureaucracy. The requirements associated with the submission of a planning application must be a prime candidate for such reform. At the very least, an early opportunity should be taken to amend the wording of Article 20(3) and (3A) of the GDPO so that under 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), “such particulars or evidence as it is reasonable for the authority to require under section 62(3) of the Act”, together with the requisite application fee. Paragraph (3A), which limits the scope of the requirement for the particulars or evidence etc. referred to in paragraph (3) to items in the local checklist should also be amended to refer to “such of those items....[in the local checklist] are reasonably required”. This would allow the reasonableness of the LPA’s information demands to be tested in an appeal against non-determination (thus reversing the effect of the Newcastle judgment) and would be a salutary discipline, backed up with awards of costs where necessary, to persuade LPAs to be reasonable in their demands for information.

The introduction of the ‘Decentralisation and Localism’ Bill (a Planning Bill by any other name) will provide the opportunity to amend Section 62(3) of the 1990 Act (as inserted by the 2004 Act). Ideally, the whole concept of national and local check-lists ought to be entirely swept away; we did perfectly well without them for well over 50 years. The opportunity might also be taken to do away with Design & Access Statements, another entirely unnecessary innovation which all too often involves drafting some meaningless waffle, simply in order to enable the planners to tick that particular box.

If that is too radical even for this ‘reforming’ government, then at the very least Section 62(3) should be amended to read : “The local planning authority may require that an application for planning permission should include (a) such particulars as are reasonably required to enable the application to be determined, and (b) such evidence in support of anything in or relating to the application as may be reasonably required for that purpose”.

Perhaps planning professionals should make a concerted attempt to persuade the government to adopt reforms along these lines.


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