Friday, 21 December 2012

Rules relaxed for planning applications

I am grateful to my colleague David Brock for drawing attention to the Town and Country Planning (Development Management Procedure) (England) (Amendment No. 3) Order 2012 made on 17 December, and due to come into force on 31 January 2013, which makes some welcome changes to the procedural requirements for submitting planning applications.

The amendment order relaxes the requirements of Article 4 of the DMPO in respect of outline applications and allows for certain details of the development which under the DMPO had to be included in the outline application to be treated in future as reserved matters for later approval by the LPA.

The version of the DMPO in force up to now required that where layout is a reserved matter, the application must state the approximate location of buildings, routes and open spaces and where scale is a reserved matter the application must state the upper and lower limit for the height, width and length of each building. The effect of the amendment is to remove the requirement to provide these details at the outline stage where layout and scale have been reserved. This effectively puts the position back to where it was before these requirements were imposed several years ago.

So far so good, but we still have to deal with those pesky ‘local lists’ setting out the LPA’s information requirements before the application can be registered. The amendment order does make a minor change to this requirement (although I confess that I do not understand precisely what practical effect this change will have in practice). In future, the only information requirements which are to apply to a particular planning application (i.e. all applications, not just outline applications) are those on a ‘local list’ which has been published or republished within two years before the planning application is made. This provision is to apply to all planning applications made after “31st June 2013” [sic]. I don’t think this is a misprint for 31st January, as it is presumably intended to give LPAs the chance to revise and update their local lists before this change takes effect. If the idea is that they should have six months in which to do so, then the date is presumably intended to read “31st July 2013”, and a correction will no doubt be issued to that effect.

For one wild moment, I thought we might have a window of opportunity early in the New Year to bang in applications without providing any of the information required in current local lists (unless LPAs had been very quick off the mark in republishing their local lists). However, a reality check suggests that no such thing was intended, but it does mean that LPAs must revisit their local lists within the next few months, and then again at intervals of not more than two years. My fear, however, is that these local lists will simply be re-published unamended or with only the most superficial changes, and so no advantage will in practice accrue from this amendment to the DMPO.

I have not had time yet to post my comments on the Growth and Infrastructure Bill, but it contains a welcome change in Clause 4 that will provide that in section 62 of the 1990 Act a new sub-section is to be inserted after subsection (4) (limitation of power under section 62(3) to require inclusion of particulars and evidence in an application) which will read -

(4A) Also, a requirement under subsection (3) in respect of an application for planning permission for development of land in England—
(a) must be reasonable having regard, in particular, to the nature and scale of the proposed development; and
(b) may require particulars of, or evidence about, a matter only if it is reasonable to think that the matter will be a material consideration in the determination of the application.

I have been asking for this change ever since the judgment of Langstaff J in Newcastle Upon Tyne City Council v SSCLG [2009] EWHC 3469 (Admin), so that the right of appeal under section 78 is restored where an LPA is being unreasonable in demanding additional information before registering a planning application. [See “Validation dispute goes pear-shaped” : Wednesday, 5 May 2010, and “A much-needed reform” : Friday, 13 August 2010.]

However, even this will not entirely eliminate the problems arising from local validation lists. De-CLoG really needs to get to grips with these local lists by assuming some sort of supervisory oversight of their requirements or by taking powers for the Secretary of State to relax the requirements of a local list where he considers those requirements to be unduly onerous on applicants. However, I am not currently aware of any such proposals. There really ought to be some way in which applicants can be relieved of the obligation to provide information which is in practice entirely unnecessary or irrelevant in the context of the particular application in question. At present, junior administrative staff, taking a ‘tick-box’ approach, are all too likely summarily to throw back applications for failure to comply with the requirements of the local list, rather than taking a pragmatic approach, and only asking for the information that is genuinely required, while forgetting about those items that are clearly not appropriate to the application before them. The restoration of the right to appeal in these circumstances against non-determination under section 78 is not the whole answer to the problem; developers and their professional advisers would much prefer that these problems over the registration of applications should not arise in the first place.

As this may be my last post before Christmas, may I take this opportunity of wishing all my readers a Very Merry Christmas. I may possibly publish one or more further posts before New Year’s Day, but in case I don’t get that elusive ‘round tuit’ in my Christmas stocking, let me also add my best wishes for a Happy, Healthy and Prosperous New Year.

UPDATE: (14 Jan 2013) My guess that "31 June" should read "31 July" was correct. The Order has now been changed to remedy this misprint. Incidentally, I did not spell it out in my orignal post, but the amendment to the DMPO abolishes the short national validation checklist as such, although the information previously specified in that list will clearly continue to be essential, and may well be inserted in local checklists in future.



Ben Wharfe said...

Martin, another interesting post thank you. Despite the welcome amendments to the DPMO is it still the case that an LPA can either i. consider it is unable to determine an application for outline permission and demand details of the reserved matters or ii. impose conditions on outline permission limiting factors that have been reserved?


Ben Wharfe

Martin H Goodall LARTPI said...

It is certainly my understanding that an LPA can still consider it is unable to determine an application for outline permission and demand details of the reserved matters. This has always been the case. However, it cannot refuse to register the application on this ground. A right of appeal under section 78 for non-determination would arise if there was total disagreement between the applicant and the LPA on this point.

As regards the imposition of conditions on an outline permission limiting factors that have been reserved, this is subject to the clear ministerial policy set out in Circular 11/95, and the remedy for the unreasonable imposition of such a condition would either be an immediate appeal under section 78 or (preferably) and application under section 73 to remove or relax the condition, followed if necessary by an appeal against the LPA’s refusal to do so, if they cannot be persuaded that the condition is inappropriate. The latter course avoids putting the planning permission itself in jeopardy in the appeal.