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

8 comments:

Anonymous said...

Interesting; so will the decision notice still require LPAs to set out how they have worked "positively and proactively" in line with 2012 SI 2274?

APTSec said...

"...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."

Could the same logic be used in support of 'Third Party Right of Appeal?

Martin H Goodall LARTPI said...

Sorry, I don’t see the connection with third party rights of appeal. There is clearly no appetite in government for third party rights of appeal (despite intentions expressed in opposition).

What the government is saying in the passage in question is that they hope the availability of a right of appeal where there is a refusal to validate an application won’t open the floodgates to appeals against non-determination on this ground. For the reasons I explained, I don’t think it will, unless applicants are so frustrated by the LPA’s behaviour that it seems to be the only way forward.

Anonymous said...

Martin am enjoying reading your thoughts on these matters, they echo the frustrations of many.

On a related topic are you aware of any issues regarding fees for preliminary enquiry submissions, a client has recently been asked to pay over twice the planning fee for a preliminary enquiry, i.e £4,200 for a development which would attract a fee of less than £2,000. What to do?

An appeal for common sense has fallen upon deaf ears, the problem may be that the LPAs self imposed categories do not include agricultural proposals.

Martin H Goodall LARTPI said...

By ‘preliminary enquiry’, I assume you mean a pre-application consultation. If the LPA is that grasping, then don’t use their pre-app process; it is rarely much help and most people consider it a waste of money. Just go straight to a planning application (or prior notification, if that is what is required in the particular case).

Martin H Goodall LARTPI said...

I think my replies to comments may get posted out of sequence, although I hope it is clear which reply relates to which comment.

Going right back to the first of these comments (on 30 January), the question as to whether the recently imposed requirement for the LPA to set out how they have worked “positively and proactively” with the applicant will now be removed is one that also occurred to me. I think this ought to disappear with the removal of the requirement to give a summary of reasons and policies. If so, it may be one of the shortest-lived amendments to the DMPO!

Anonymous said...

I've been away from planning law for a bit and am appalled to hear of the Newcastle judgement. Nor am I attracted by the current proposal of setting up a whole new procedure: there's been quite enough unnecessary tinkering with planning law. What is the case for not simply reinstating the pre-Newcastle position?

Martin H Goodall LARTPI said...

I entirely agree with the comment published above. However, what we have now been given (in the 2013 Act) is a slightly more complicated procedure involving the applicant’s having to jump through hoops to get the application validated/registered in face of the LPA’s intransigence over the information demanded, but it does at least allow a way out of the impasse.