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.
© MARTIN H GOODALL