Tuesday, 29 January 2013

The right to challenge information requests

As I mentioned in my last item discussing the government’s consultation paper on the proposed streamlining of the planning application process, the paper includes some detailed proposals on the right to challenge information requests.

The government thinks it is right that, where a local authority persists in refusing to validate a planning application on the grounds of purportedly insufficient information requested under the provisions of Section 62(3) of the 1990 Act, the applicant should have recourse to the planning appeals system (thus, at last, reversing the effect of the Newcastle judgment). Until that case was decided in the High Court in 2009, applicants could, after the expiry of the 8-week (or 13-week) period, appeal against non-determination under Section 78 of the Act. The Newcastle case put a stop to that, but the government agrees that some form of redress through the planning appeals system should be possible where there is a genuine impasse between an applicant and an LPA over the information required to validate a planning application.

The government is concerned that the reinstated right of appeal should be a last resort, but in practice it always was viewed in that way by developers and their advisers. Developers would much prefer an amicable settlement of any differences over these issues, but the availability of the appeal procedure (with the risk of costs that it carries with it) should prove to be a salutary discipline to persuade LPAs that they can no longer get away with the sort of nonsense over the validation of applications which we have so often suffered in recent years.

As an adjunct to the restoration of the right of appeal, the government also proposes the introduction of a new and simple procedure whereby an applicant informs the LPA in writing, setting out why it thinks the information requested by the authority to validate the application is not necessary. The LPA will have to respond to the applicant within the statutory time period for determining the application (or within 7 working days, if the statutory time period has already expired), either by validating the application or issuing a non-validation notice. The service of a non-validation notice (or failure to do so by the deadline) can then form the basis of a subsequent appeal. The DMPO will be amended accordingly, so as to allow applicants once again to appeal against non-determination under Section 78.

So it will work like this - where an applicant has informed the LPA in writing why it thinks the information requested is unnecessary, and the LPA has either issued a non-validation notice or failed to reply within the timescale set out, and the statutory time period for determination of the application had passed, an applicant will then be able to appeal against non-determination. Hopefully, these very welcome changes will restore sanity at last to the validation and registration of planning applications.

There is one other change canvassed in the consultation paper. This relates to the content of decision notices. The requirement to provide a summary of reasons for a grant of planning permission and of the relevant policies considered has caused a disproportionate amount of litigation on the part of third party objectors trying to overturn planning permissions on the grounds that this requirement has not been met by the LPA. It is a bureaucratic burden for LPAs, and so the government proposes to remove this statutory requirement. Article 31 of the DMPO will be amended accordingly.

This will not affect the requirement to give full reasons for each condition attached to a planning permission, nor will it remove the need to provide full reasons for refusal where planning permission is refused.

This consultation paper really has proved to be a breath of fresh air blowing through the corridors of power, and deserves the warmest welcome. I cannot recall such a thoroughly sensible set of proposals for real reform of the planning system for a very long time.


Monday, 28 January 2013

An end to validation nonsense?

Continuing our look at the government’s consultation paper on the proposed streamlining of the planning application process, the government wants to encourage a shift in the way local authorities approach validation. Under Article 29 of the Development Management Procedure Order, local authorities are required to publish a local list of information requirements. However, the current legal status of the local list has led to too many local planning authorities taking a ‘tick box’ approach to information requirements, with a lack of consideration being given as to whether the information being requested is genuinely necessary to validate the type of application in question.

Paragraph 193 of the NPPF clearly states that local planning authorities should only request supporting information that is relevant, necessary and material to the application. The government is determined that this principle should apply to every piece of information requested by the authority. I have already drawn attention [in a post dated 21 December 2012] to the provision in the Growth and Infrastructure Bill that paves the way for this change in the rules. In subsequently discussing the point, I was inclined to agree that this might not make a lot of difference in practice, but now that we have seen the detailed changes that are proposed it seems that there is real determination on the part of the government to cut through the red tape.

The government is also proposing to amend the DMPO to make it clear that, where an LPA requests an item of information on its local list, both the applicant and the LPA must give full consideration to whether the information in question is really necessary and meets the tests set out in the new Section 62(4A) in the 1990 Act. This new subsection in the 1990 Act will be the benchmark against which any dispute between the parties as to the validation of a planning application will be tested. (LPAs beware! You could be at serious risk at to costs in such circumstances. This really is going to be a game changer.)

So Article 29 of the DMPO is to be amended in line with the new Section 62(4A) to provide that information requests should be reasonable having regard to the nature and scale of the proposed development, and that information requests should relate to matters that it is reasonable to think will be a material consideration in the determination of the application.

I have previously drawn attention to the damaging effect of the Newcastle case in preventing an appeal against non-determination where the LPA refuses to accept that a valid application has been received. This will change, and I will deal in the next post with the detailed proposals for the right to challenge information requests.


Thursday, 24 January 2013

Streamlining the planning application process

Goaded by the cries of agony from planning professionals throughout the country, the government has been slowly and cautiously feeling its way towards a relaxation of the bureaucratic rules that currently beset the planning application process. Now at last they have published a consultation paper containing concrete proposals for amendments to the Development Management Procedure Order aimed at lifting a large part of the bureaucratic burden under which we have all been labouring [pun not entirely unintended].

In this and two further posts, I will briefly outline the current proposals, starting with the requirement for Design and Access Statements [‘DAS’]. These were introduced by the Planning and Compulsory Purchase Act 2004 with the intention that applicants should be required to explain how their design is a suitable response to the site and its setting, and to demonstrate that the scheme can be adequately accessed by prospective users. From August 2006, all planning applications and listed building consent applications were required to provide a DAS, apart from those for material change of use, engineering/mining operations or householder development (although they were still required in the last case in conservation areas and similar designated areas).

Quite frankly, a DAS rarely adds anything to an application, and they are simply an unnecessary burden on applicants. It is doubtful in many cases whether planning officers even bother to read them. So the government now proposes significantly to relax the requirement for a DAS and to reduce their specified content. In future a DAS will be required only for ‘major’ development (defined as mineral or waste development, residential development for more than 10 houses or on a site of at least 0.5 ha, and any other development that either creates at least 1,000 sq m of floorspace or is on a site of 1 ha or more). These proposals would, however, exclude certain major developments such as mining operations or waste development where the form of particular schemes will largely be dictated by their function.

I feel that the 10-unit threshold for residential development is too low but, apart from this, these proposals are very welcome.

On the other hand, the government proposes to apply lower size thresholds for a DAS in conservation areas and World Heritage Sites. Similarly, applications for listed building consent will still require a DAS. However, the rules are intended to be framed so that the majority of small developments in a conservation area or a World Heritage Site will not require a DAS. They suggest (quite correctly, in my view) that development plan policies on design and heritage will in any event ensure proper consideration of these matters for small developments. In these areas, a DAS will still be required for the extension of an existing building by the addition of more than 100 sq m of floorspace, or for the erection of a building with a cubic content of more than 100 cu m.

So far as content is concerned, the government proposes to remove some of the rigid statutory prescription in the DMPO and Listed Buildings Regulations. The changes proposed include removing the requirement to explain the specific design principles and concepts that have been applied to “amount”, “layout”, “scale”, “landscaping” and “appearance” and removing the requirement to give details of maintenance in respect of access.

So two cheers for a long awaited injection of commonsense into the planning application process.

In future posts, I will discuss the proposals intended to put an end to the current nonsenses we so frequently encounter over the validation of applications, and related proposals to reintroduce a means of challenging unreasonable information requests. In the near future the jobsworths who so enjoy holding up the validation of planning applications are going to have to change their tune.


Wednesday, 9 January 2013

More validation nonsense

You will have seen the comment posted on my last item on this topic. It seems that Hyndburn are not the only council making unreasonable demands in relation to the submission of planning applications. The following is the slightly abridged text of a letter recently issued by the London Borough of Newham.

I am writing to advise you that the Council has undertaken a review of the Local List of Planning Application Requirements and that from the 1st January 2013, the following will be required to be submitted with every application: -

For any application submitted by post, an electronic copy of the application submission (all plans and documentation) will need to be provided: -

o The electronic copy of the submission should be provided on a CD which is submitted with the application submission. Alternatively the documents can be emailed to [the council’s email address]

For all applications submitted by post or via the Planning Portal: -

o 2 paper copies of the application submission (all plans and documentation) will be required for any application that is referable to the Greater London Authority (GLA);

o 1 paper copy will be required for all other applications.

Applications will be made invalid until the above requirements have been complied with. Subsequently if the above is not received within 21 days, the application file will be closed.

So if you apply via the Planning Portal, they still want a paper copy (!!!), and if you apply in writing, they also want an electronic copy! This is frankly unacceptable, and arguably unlawful. Applicants for planning permission have the choice of either applying electronically via the Planning Portal or applying on paper, delivered by post or by hand. LPAs can’t have it both ways. The position is governed by the Development Management Procedure Order, and councils cannot demand more than is required by that Order.

My informant tells me that Newham are notorious for obstructive validation practices. On one occasion they printed an applicant’s colour plans on a monochrome printer and wrote to his agent to complain that there was no red line around the site on the location plan!

As I wrote in response to the comment on a similar demand being made by Hyndburn BC, it is high time the government got a proper grip on this and put a stop to all this nonsense. The new section 62(4A) of the 1990 Act may provide some limited relief from oppressive conduct of this sort on the part of LPAs, as it will restore the right to appeal against non-determination in a case where an LPA is unreasonably refusing to register an application (a step which has been denied to applicants since the High Court decision in the Newcastle case). Under section 62(4A) the LPA will no longer be the sole arbiter of the validity of a planning application; an objective test of reasonableness will apply, and LPAs may find themselves facing costs awards in addition to losing appeals in such cases.

But as I wrote before, most applicants simply don’t want this hassle, and can do without all the delay, worry and expense of running an appeal against non-determination. If Yorkshire’s largest export wants to prove that he really does have some use after all, he should bend his mind to this as a matter of urgency. It would do more to free up the planning system than any amount of tinkering with other aspects of the system.