Sunday, 4 May 2014

Validation nonsense continues

I had hoped (perhaps rather naively) that the legislative changes made by the 2013 Act and by the accompanying amendments to the Development Management Procedure Order would put an end to the nonsense that we had been experiencing in recent years from some (in fact quite a few) local planning authorities over the validation and registration of planning applications, but anecdotal evidence indicates that problems over the registration of planning applications are still widespread, and in some authorities worse than ever. It is an issue to which ministers need to give urgent attention if they are serious about reducing delays in the planning system and general frustration over its bureaucratic complexities.

The root cause of the problem is the target culture, for which both the present government and their predecessors must share the blame. This has bedevilled so many parts of the public sector, inducing a tick-box mentality, and giving public sector bodies (whether it be NHS trusts or local planning authorities) a significant incentive to ‘fudge’ the figures by, in the case of the NHS, not putting patients on a waiting list for weeks or months after they have been referred to a consultant by their GP or, in the case of LPAs, by using any and every excuse to delay or avoid ‘registering’ a planning application. Budget cuts and the resulting paucity of experienced planning staff has only compounded the problem.

It was the introduction of local validation checklists that gave LPAs a heaven-sent opportunity to find all sorts of flimsy excuses for failing or refusing to register a planning application. It is a rare case indeed where more than a handful of the types of information set out in these validation checklists is actually required, but the fact that an item appears on the LPA’s standard checklist can give rise to endless arguments over whether or not a specific item of information is really necessary in a particular case. It is infuriating to be faced with a refusal to register an application in such cases, and even more annoying if it happens more than a fortnight after the application was submitted.

Examples are too numerous to list, but include a demand for photo-montages of the street scene (whether or not the site is in a conservation area), petty arguments over scaling of plans, demands for ecological reports when the development quite clearly raises no ecological issues, and so on and so on. I appreciate that there is now a mechanism for challenging and, if necessary, appealing against unreasonable demands for information, but very few developers would want to waste further time and yet more expense by going down that route.

I am told that some authorities no longer accept cheques in payment of application fees (although I have not encountered this myself), which causes a further headache for developers and their agents.

Clearly the legislative changes made last year have made no difference to the behaviour of many LPAs, and some authorities seem blissfully unaware of them or of the change of culture that they were intended to encourage. Something much more drastic is required in order to put a stop to the continuing nonsense over the validation and registration of planning applications. The whole concept of the ‘validation’ and the ‘registration’ of an application as a distinct administrative process is only a quite recent innovation. Ministers should take urgent steps to do away with this part of the process altogether.

A planning application should be considered valid if an appropriate form (which should not require a signature), and a plan “sufficient to identify the application site” (but not necessarily drawn to any particular scale), plus drawings of the proposed development in the case of an application for full permission, is submitted to the LPA, accompanied by the tender of the appropriate fee, whether by cash, cheque or some form of electronic funds transfer. The form should be considered complete if it identifies the application site by reference to its ordinary postal address or some other description sufficient to enable it to be identified and specifies the development for which planning permission is sought (in words of the applicant’s choosing). Other information may be given on the form (such as proposed drainage arrangements, etc.), but should not be considered mandatory at that stage. Note the absence of any reference here to a Design & Access Statement – they are entirely unnecessary, and should be done away with altogether.

The LPA should be obliged to enter this application forthwith in the planning register, irrespective of whether or not sufficient information to enable the application to be determined has been submitted at this stage, and time for all purposes should be deemed to run from the date of receipt of the application, irrespective of the date on which it is entered in the planning register.

Before planning officers throw up their hands in horror at these suggestions, they should be aware that this was exactly how the system worked before we got bogged down in all the bureaucratic nonsense that has been foisted on developers and their agents in recent years. There was, of course, and should continue to be, a right for an LPA to request further information. An LPA had, and would continue to have, the right to refuse permission on the grounds that insufficient information had been provided to enable planning permission to be granted. Faced with a request for further information which a developer considers unreasonable, there should be an immediate right of appeal (as there used to be). This would take the form of a full appeal under section 78, so that the planning inspector, if there is sufficient information to do so (including any additional information produced in the course of the appeal), may grant planning permission, or may alternatively dismiss the appeal if, in the inspector’s judgement, the information provided by the appellant is insufficient to enable planning permission to be granted.

In the vast majority of cases, common sense would prevail on both sides, and developers would ensure that sufficient information is provided, either when submitting the application or subsequently, to enable the application to be properly considered. At the same time, LPAs would be less likely to make unreasonable demands for information. In contrast to the current situation, demanding extra information would be of no advantage to the LPA in ‘massaging’ its performance figures; in fact delays caused by unreasonable demands for information would have an adverse impact on their statistics.

Many of us who have to work with the planning system on behalf of developers will not take seriously the protestations of ministers that they are ‘reforming’ and streamlining the planning system, until the changes outlined above are made. Nothing less will do.



  1. I agree. We tell our clients 10 weeks (as opposed to the statutory 8) in anticipation of this delay. But the bit thing that drives me nuts is that they (the LPAs) always write a letter instead of picking up the phone or writing an email.

    Actually, I think the whole process should be administered via the Planning Portal from start to finish (and the business of OS maps is just ridiculous), but I guess that's another story.

  2. Absolutely. Should we start a petition.

    I had a fun one last year when the validation officer refused to accept an application for a stable yard in a rural location until we provided 1:100 sections through the whole site (this being a 20 acre field).
    Seizing the opportunity to expose the stupidity of the officer I sent by return a pair of 5 x 3metre drawings in PDF (quick and easy in this digital world) the size required to contain the drawings he had requested.
    He called me shortly afterwards to seek guidance on how these drawings could be printed, which I didn't see as my concern. He then requested we supply the drawings again at scale that enabled the sections to fit an A0 sheet. The proposed building at this scale being nothing more than a black blob 20mm wide!

  3. Hear, hear. As the someone who actually stood up to this nonsense and ended up at a judicial review leading to the revised Guidance on Validation having to be issued, I applaud you for keeping this matter alive. The guidance has not gone far enough and local authorities still ask for a gamut of unnecessary supporting information they do not really need, nor understand. Roll back the actual legislation and make everything simpler and at the applicant's discretion. The tail has been wagging the dog for too long. The lpas are there to serve the applicants and NOT the other way round.

  4. I have one where the planners wanted a location plan which was the same as the one accompanying a Section 106 agreement, I pointed out to them that plan showed the incorrect boundary for the LR Title number mentioned in said agreement so part of it was invalid anyway and in any event how could we apply to discharge an obligation from land that wasn't owned by the signatory. The fact that the plan they wanted was part of the application still delayed everything by four weeks.

    I also saw one where a pair of timber stables required sections through the whole site, they also insisted in having slates on the roof, at that rate it will be a house one day..

    I agree that Martin should be congratulated on keeping this issue alive, the LPAs seem to have forgotten that they are supposed to be providing a PUBLIC service.

  5. I recently had two separate conversations with duty planners at Lambeth council to establish exactly what information was required to be submitted with my Notification for Prior Approval B1-C3. Both advisors concurred and I submitted the application by email as agreed. 10 days later the application was made invalid by letter - requesting information which both planners had specifically advised me I did not need. It then took 48hrs for me to get hold of the validations team by phone and, after offering to send recordings of the conversations, they agreed to validate the application. Lambeth then wrote to me informing me that the determination date was to be 56 days after validation - which of course is incorrect. If the submission is valid, the clock starts ticking on the morning after an application is received by email. I wrote to them explaining this but did not receive any reply. The date has, however, now been changed online.

  6. Oh dear Martin, forgotten to sign the agricultural certificate again? Just kidding (although that accounted for over 60% of our invalid applications prior to amalgamating it with the certificates of ownership).

    There are lots of planning officers who would agree with you. Of course we could go back to the good old days of simple information but I'm afraid that the complexity reflects the increasing amount of material considerations in determining applications these days, coupled with the drive to 'front load' the process to meet the dreaded targets. Of course, planning is not just about having slick processes but achieving good outcomes and I'd like to think that the quality of development has improved over the years (in many aspects such as biodiversity, transport etc, not just design) which has come about through more informed decision making.

    Some opponents of development schemes will look to see if they can attack the validity of an application in order to bog them down as well as the other more tried and tested routes. In this respect it would be something of a relief to do away with much of the unnecessary stuff.

    I have found on several occasions agents complaining that because an LPA exercised some sensible discretion about plans or other application materials on one site that this should apply to others they are promoting when clearly it would be inappropriate. I'm all for LPAs using common sense in validating applications but there must also be some shown from the other side of the table!

  7. In general, I agree, many officers do not seem to fully understand what the minimum requirements for a valid application are.

    To echo the penultimate paragraph of the blog, in my experience (albeit from the specialised dead end that is minerals and waste), those developers/ agents that take full advantage of pre-application advice, for the most part, avoid unnecessary delay in development control. Sadly, however, there seems to be a perception that pre-apps are “yet another way for the council to make money” as opposed to a sensible way to minimise the risk that there is insufficient information with the application to address the planning issues it raises. Whilst this unfortunate view and the tick box culture we are locked into remains, it is inevitably that (to some extent) LPA’s will game the system to meet targets.

  8. Just a minor point: "The lpas are there to serve the applicants and NOT the other way round."

    The LPAs are there to serve the communities they represent, not just the developers. Sure, developers pay a fee but residents pay a fee too - their council taxes. This should ensure that good developments take place and bad development's don't.

    The LPA is there to assist the responsible developer and to be a check on the irresponsible developer.

    There are several dogs, several tails and not all of the dogs or the tails are working well together.

  9. On the point about pre-apps, in general I think this process is best avoided. In my experience, even a 'successful' pre-app only gives the council more fodder upon which they can later refuse the application. I don't really see it as a money-making exercise for the LPA, but it is an additional expense for the client - especially, when you consider that an ordinary application can be amended and resubmitted under the 'one-free-go' system, regardless of whether that application is approved, refused or (pointlessly?) withdrawn. Hm, we really need a forum for this stuff.

  10. A few points- members of the public are consulted at the time the application is registered, they may then view the application on line or the paper documents and make their comments. It is therefore of key importance that all information is available at the start of the process to allow fair chance to comment. If, for example important documents were submitted later in the process, would you then expect the LPA to re-consult the public (at the LPA's expense and potentially pushing the application past it's statutory determination period), or would it be ok for members of the public to not be aware / have the chance to comment on this information?

    Sorry- but I think it makes most sense to ensure that the application is complete (as far as is possible), and then register and consult. This also allows the LPA the full statutory period to consult, consider and determine the application, which seems reasonable.

  11. As a planner with a nice old fashioned County planning authority, we seemed to get away with registering many applications when we knew more information was going to be required because it was good customer service and we trusted our customers (mostly) to at least meet us half way on getting things done in 13 weeks where possible.

    Of course we were threatened with special measures last year because our figures showed we were "under-performing" so now we make all our applicants provide large amounts of information up front, just in case.

  12. Let's abandon the location plan requirement. I appreciate that we need to pay for the maintenance of accurate maps, but let's provide this as a levy on all applications. I'm just reviewing information recently provided by one LPA to their planning committee. They didn't even bother to include the applicants 'redline/blueline' plan, instead just substituting their own 'greenline' OS map. It's just daft.

  13. Here's a reason for non-validation very recently provided by one Local Authority. I suppose they just haven't got around to updating their stationery:

    "The Town and Country Planning (General Development Procedure) (Amendment) (England) Order
    2006 (the GDPO), which came into effect on 10 August 2006, requires a Design and Access
    statement to be provided with this planning application [in a CA, but much less than 100 sqm]. The Design and Access Statement will need to conform with the requirements of the GDPO providing, as a minimum, all necessary information
    listed at Article 4C of the GDPO."

    In fairness, when I pointed out that this was incorrect, they did immediately validate the proposal, but time was lost. Still, I was fortunate enough to know they were wrong. I imagine many others would simply have accepted the statement at face value. It's not a huge ordeal to provide a D&A, but there is time and cost associated with it, and it's annoying to be asked to provide unnecessary documentation (like the pointless OS maps - see rant above)