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.



  1. While a restored right of appeal for non-validation is essential, it could be argued that having to wait 8 weeks and then invoke the full might of Bristol (and, currently, incur a lot of further delay) simply because of a minor dispute about what should be included with the application is disproportionate, resource-hungry, and ineffective unless the applicant has a lot of time.

    Something else is needed in addition. The obvious answer, widely used in other fields, is ADR. Provided you have submitted online, all the papers are available to anyone, and an independent expert could easily look at these and determine the issue, usually in hours, at a small cost. Where the expert felt that one party had acted unreasonably he/she would award the costs against them, further concentrating the minds of the LPA and applicant in the way you suggest, but much more quickly and efficiently.

    This procedure should continue to be available after validation, which is probably when most disputes of this kind occur (and, although appeal is already available after validation, it is again disproportionate).

  2. The detailed proposals for resolving disputes over information request are dealt with in the post I shall be publishing today, and may offer some prospect of these issues being resolved without resort to an appeal. Nevertheless, I think the suggestion made above has a lot to commend it. May I suggest to my anonymous correspondent that he/she should formally respond to the DeCLoG consultation and put this suggestion forward.

  3. He will! ADR would be hard to argue against, because it is so much more efficient and proportionate than appeal (though a right of appeal is essential for the reasons you give). There may be a not-invented-here, "that's not the way we've done things in planning" cultural reluctance to engage with ADR, but that would not be a good reason not to take this forward - other professions have been using ADR effectively for decades.

  4. Before she retired from PINS, Leonora Rozee led a pilot study into the use of ADR in the planning appeals system. There certainly seems to be a willingness at an official level to consider it as an option, so maybe this is worth pursuing.