Friday, 2 August 2013

A (partial) end to validation nonsense


As other commentators have observed, there have been a lot of changes going on recently, one of which is the revised process for the validation of planning applications, which was brought into force on 25 June (but only in England).

The amendments made by the Town and Country Planning (Development Management Procedure) (England) (Amendment) Order 2013 are somewhat more modest than we might have hoped, and they fail to address a number of problems that have been thrown up by the current rules and practices surrounding the validation and registration of planning applications.

There is some limited relaxation of the requirement for Design & Access Statements. They are now required only for ‘major development’ (see below) or, if any part of the development is in a conservation area or a World Heritage Site, where the development consists of the provision of one or more dwellinghouses or the provision of a building or buildings where the floor space created by the development is 100 square metres or more.

‘Major development’, is defined by Article 2 of the 2010 Order, and includes mineral working or waste development, the creation of 10 or more homes, any other residential development on a site having an area of 0.5 hectares or more, the provision of a building or buildings where the floor space to be created by the development is 1,000 square metres or more, and any development on a site having an area of 1 hectare or more.

However, the requirement for a DAS does not apply to an application under section 73 (permission to develop land without compliance with conditions previously attached to a permission), an application to extend the life of a planning permission (under the limited powers currently allowing some permissions to be extended), an application for an engineering or mining operation or waste development, and an application for change of use. I confess to being slightly confused here. A DAS is not required for minerals or waste development, but these are, by definition, ‘major development’, which does require a DAS. Can somebody explain to me in words of one syllable how this apparent ambiguity is resolved? What obvious clue have my little grey cells missed here?

Article 5 of the amendment order introduces a new procedure for resolving validation disputes relating to the information demanded by an LPA before they will register an application. This effectively reverses the Newcastle judgment - [2009] EWHC 3469 (Admin) [see “Validation dispute goes pear-shaped”, published in this blog on 5 May 2010] - and restores the right to appeal under section 78 against the non-determination of the application, but instead of the straightforward appeal that could be lodged before the Newcastle case, the applicant will now have to go through a dispute resolution procedure before the right to appeal can arise, involving yet more time and more cost. But at least there is now a means to resolve the impasse where an LPA is refusing point blank to register an application.

The amendments made by Article 5 do not apply to any planning application made before 25 June 2013, but where an applicant is already at loggerheads with an LPA over validation of an application submitted before that date, it would be a simple matter to withdraw that application (which the LPA has not in any event accepted is a valid application) and resubmit it, whereupon the validation dispute procedure will become available in respect of that new application. The original fee should be refunded automatically in view of the non-registration of the application in respect of which it was paid, and a fresh fee will then be payable on the submission of the new application.

In order to invoke the validation dispute procedure, the applicant may send a notice to the authority specifying which particulars or evidence the applicant considers is unnecessary, setting out the reasons the applicant relies upon in holding that view and requesting the authority to waive the requirement to include those particulars or evidence in the application. The LPA must then notify the applicant either that the authority no longer requires the applicant to provide the particulars or evidence (“a validation notice”), or that the authority continues to require the applicant to provide this information (“a non-validation notice”). In either event the LPA must respond within the statutory determination period ( 8 weeks in most cases, longer for major developments and developments involving an EIA), unless the applicant’s notice was received by the LPA within 7 working days of the end of that period, in which case the LPA has a further 7 working days after that to respond. The application must be a valid application in all other respects, including payment of the fee, etc.

It is upon the service of a non-validation notice or the failure of the LPA to respond within the time limit that the right to appeal against non-determination under section 78 will then arise.

There is one missing element here. A chartered surveyor with whom I have worked on a number of planning cases over the years has pointed out that there is one LPA he knows whose performance is so poor that they are not even managing to register applications within the 8-week period, even where no dispute has arisen over the information supplied in compliance with the local validation checklist. When and how does a right of appeal against non-determination arise in this case? It is possible that the authority in question may get put into ‘special measures’, which I suppose will solve the problem in one sense, as the applicant can then apply for planning permission direct to the Secretary of State, but there could be other examples around the country where this is not going to be an option. My instinct tells me that a section 78 appeal could be run in such circumstances, and that it would not be precluded by the Newcastle decision. However, this is a situation which the DMPO amendment itself does not cover.

Article 7 of the amendment order has now removed the requirement for an LPA, when granting planning permission, to include a summary of their reasons for the grant of permission and of the policies and proposals in the development plan which are relevant to the decision to grant permission. However, this amendment does not remove the ridiculous requirement imposed in 2012 that the LPA must include a statement “explaining how, in dealing with the application, the authority has worked with the applicant in a positive and proactive manner based on seeking solutions to problems arising in relation to dealing with the planning application”.

© MARTIN H GOODALL

3 comments:

Anonymous said...

You know an awful lot of bother could be avoided if developers would just submit the information they know will be required up front.
They work in the business, they do this for a living, and yet I am continualy faced with seamingly ignorant and clueless developers who have not heard of simple things, like ecology reports when applying for major development. Or drainage plans. Or cant manage to show things like bin stores on housing developments or tracking details of how bin lorries will traverse the housing estate.

Seriously, its not overly burdomsome to just submit the information you should be producing in order to design the development in the first place.

passerby said...

I'm not so confident that the end is in sight. I see that the Royal Borough of Kensington & Chelsea has introduced a raft of additional requirements as a pre-condition of formulating planning decisions on subterranean development.

These include the provision of a Noise & Vibration Impact Assessment, Flood Risk Assessment (including Soil Investigation), and Construction Method Statement - all expensive and time-consuming to produce in the event that planning permission is not subsequently granted.

These aren't strictly Validation requirements, because I understand that proposals will in fact be validated without them. They just won't be approved, which puts applicants in an odd position of losing their 'one-free-go' on a withdrawal and resubmission of an application that was (from RBKC's point of view) effectively invalid to begin with.

I've heard that the Inspectorate has taken a dim view of this process, but I'm not aware that it has actually been subject to legal challenge. I suspect that this state-of-affairs will continue until it is.

passerby said...

By curious coincidence, I've just received confirmation from RBKC that they've "Article 4'd" permitted development in relation to basements, so this now applies to ALL basement development within the borough.