Thursday, 14 August 2014

Proposed changes to the processing of planning applications

In this third post on the government’s recent consultation paper (“Technical Consultation on Planning”), I propose to take a look at what they are suggesting by way of further changes to the planning application process.

I wrote in May (“Validation nonsense continues”) that 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 in that earlier post are made - nothing less will do. Well, I am sorry to say that this latest set of proposals does nothing to address the issues which have caused concern to so many planning practitioners in recent years.

Parts A and B are narrowly focused on the involvement of statutory consultees in the process, including a specific proposal to notify railway infrastructure managers of planning applications for development near railways. This is followed by a brief and superficial suggestion, in Part C, that there might be a consolidation of the Town and Country Planning (Development Management Procedure) Order 2010 and a vague reference to the means by which the time taken in the various stages of the planning process could be separately measured, rather than the present measurement of the total time from making an application to its determination. This entirely misses the point. What matters is not the accurate measurement of the time taken in going through all the bureaucratic nonsense (which has greatly increased within the past 20 years) but urgent action to cut out all the unnecessary faffing about. Rather than being measured in greater detail, the process needs to be streamlined, which the government has signally failed to do, despite their claims to the contrary.

There are various different stages that can be identified in the application process. These include :

Pre-application consultation with the LPA
Community involvement
Submission of the application and supporting material
Validation (including requests for further information)
LPA’s consultation with neighbours and statutory consultees
Officer-level consideration of the application
Drafting of officers’ report to committee (or delegated report)
(including drafting conditions or reasons for refusal)
Determination of application by committee (or by designated officer under delegated powers)
Negotiation and execution of section 106 agreement (if required)
Issue of the planning permission
Submission of sample materials and/or further details required by conditions
Approval of materials and/or other details
Discharge of pre-commencement conditions
(Building Regulations consent - separate process)
Commencement of development

This is not intended to be definitive list, and readers can no doubt identify other steps in the process, but the essential message is that all these stages involve developers in significant time and costs, and there is considerable scope for cutting out a number of stages and streamlining this process.

Many developers have discovered to their cost that pre-application discussions are a waste of time and effort in far too many cases. It is often difficult or impossible to get planning officers to engage meaningfully with a proposal at the pre-application stage, and in any event no reliance can be placed on any views expressed by the officers at that stage, as it is all too likely that other (possibly more senior) officers may take an entirely different view when an application is actually submitted. The fees that are demanded by LPAs for a pre-application discussion do not represent value for money in many cases.

The requirement on the part of many LPAs that there should have been some community involvement in the formulation of the application involves an equally useless waste of time and effort. The response one gets to letters sent out in the neighbourhood (even where they contain plentiful information and illustrative details) and the response to exhibitions and meetings to explain the proposals is often minimal to non-existent, and the one or two responses that are forthcoming tend to raise points of minor detail or issues that are totally irrelevant to the application. The whole exercise is a useless waste of time not only for the developer but also for the local community. Neighbour consultations by the LPA after they have received an application are more than sufficient to ensure that local residents are aware of the application and that they have the opportunity to comment on it.

I have previously written about the information that must accompany a planning application. I won’t repeat myself, other than to state that the current rules are far too prescriptive. A very experienced planning consultant who, like me, has worked both in local government and in the private sector, agreed with me some time ago that the most effective improvement that could be made to the rules and requirements governing the submission of planning applications would be simply to repeal all the additional requirements that have been imposed in past 20+ years.

‘Major development’ should be identified as 50+ residential units or more than 2,500 sq m of gross retail floorspace. Industrial development should only be considered as ‘major’ if it falls into Class B2 and is within 400 metres of any residential property. All other development should be entirely exempt from the need for a Design & Access Statement. There should be a searching review (at ministerial level) of the justification for ecological reports, archaeological reports, Environmental Impact Assessments, noise impact assessments, flood risk assessments, heritage statements, land contamination assessments, lighting assessments, photographs or photomontages, sustainable construction statements or checklists, etc, etc, etc. In light of that review, strict (and restrictive) criteria should be laid down in the DMPO as to what information can legitimately be requested by an LPA in particular circumstances, so that only if such criteria do apply can the relevant type of information be required to accompany the planning application. This nationally uniform set of criteria in the DMPO would replace the local validation checklists individually adopted by LPAs, in contrast to the current position, where there are numerous demands for specific technical information and reports which are entirely inappropriate and unnecessary in many cases.

The whole concept of ‘validation’ should be entirely abandoned. It is of comparatively recent origin, and does not feature in the primary planning legislation. A planning application should be considered complete if an application form is submitted with payment of the application fee and is accompanied by such other documents as may be required by the nationally adopted criteria set out in the DMPO, referred to above.

The legal duty of the LPA (under section 69 of the 1990 Act) to enter the application on the planning register requires no separate ‘registration’ process. Time should run for all purposes from the day after the completed application documentation and fee are received by the LPA, and rules (again, written into the DMPO) should make it clear that the LPA is under an obligation to begin processing that application from that moment, irrespective of the date on which the purely administrative task of entering it on the planning register is completed. The essential point is that the application does not need to be registered in order to make it a valid application; registration is merely a matter of record keeping, which should not affect the processing of the application in any way.

There should be more clearly defined criteria that the LPA must follow in carrying out consultations. There should be a means (again, within the DMPO) of reliably identifying which neighbours and which statutory and internal consultees should be notified of the application, and which should not. There may perhaps be a case to made for prohibiting the consideration of representations made after the specified period (21 days) has expired, as well as a prohibition on entertaining representations made by other departments within the authority, if these are not departments having a legitimate interest relevant to planning in the subject-matter of the application. For all these purposes strict criteria should be written into the DMPO.

I have already explained my views on the use of conditions (which is dealt with elsewhere in the consultation paper). The problem for many years has been that, apart from the legal tests which have been established by the courts, the guidance has taken the form only of ministerial policy in circulars (most recently in 11/95 and now in the on-line Planning Practice Guidance). As a result, these requirements have been widely ignored by LPAs. The only reliable way to secure a uniform approach by LPAs to the use of conditions would be to write the well-established principles into the DMPO, so that they become mandatory rules which LPAs are bound by law to observe. The new rules might usefully restrict the circumstances in which approval of materials and other minor details can be required, and should also limit the circumstances in which pre-commencement conditions can be imposed.

Where conditions do require further approvals, the deemed discharge of the condition after a strict time limit following an application for such approval should apply, as the government has proposed, but it should be automatic and should not require the service of a further notice by the developer. The abolition of application fees for this type of approval would be a further incentive to LPAs not to impose such conditions unless they are really necessary.

Finally, it should be entirely unnecessary for conditions to be formally ‘discharged’. This is another comparatively recent innovation; I can certainly remember a time when conditions were simply complied with, and that was that. Some LPAs go to quite unnecessary trouble nowadays to formally determine applications for the discharge of conditions, even issuing a formal decision notice. Such bureaucratic nonsense was entirely unknown in my days in local government, and I can see no need for it.

The sad fact is that, despite their claims to be streamlining and improving the planning system, DeCLOG ministers have entirely failed to tackle these issues. The present consultation exercise probably represents their last opportunity before the General Election of achieving major reform of the planning system. They have botched it.



passerby said...

Hear, hear! Eric, I hope you're reading this.

Graham House said...

Spot on, Martin, this should be complusory readingfor all at DeCLOG

Paul Harvey said...

100% agree with Martin.
The only people who think that developers have an easy ride are people who have never submitted their own planning application!
As a small developer working on historic sites the red tape and bureaucracy is utterly disheartening.
"Jobs for the Boys."

Chris Hopkin said...

Similarly having worked on both sides of the fence (and now in the twilight of my career, at the far end of the system in enforcement), to a certain extent I agree with the underlying premise of the blogpost – the current claims of streamlining the system by central government amount to fiddling around the edges and are not properly addressing (perceived) problems with the system.
I would suggest that any searching review of the system should actually start with what both the public and developers expect from the planning system. Many members of the public have unrealistically high expectations as to what planning can do and some developers use planning as a whipping boy, blaming delays and increased costs of development on planning rather than on poor project planning; dubious assumptions at the start of projects and poor cost control with contractors and consultants. Good developers simply get on with it.
Whilst the requirements for various studies – ecology, flooding, contamination, noise etc. will tend to increase – as public and legislative expectations increase, I am surprised that the blogpost does not touch on a significant underlying issue, the rise and rise of third party consultants. Many, seem to think that the physical weight of an ES / report is a better indicator of a job well done, rather than the quality of the content. This is not driven by L A planners as I am sure that most would prefer more concise reports that are to the point and written in plain English. This also touches on a discussion as to what streamlined alternatives could there be to the current system. Would developers have to seek a raft of consents from all of the various consenting bodies? Would each body have to create an extended enforcement function to manage development? Should we step back 30 years and remove much of the legislation that protects the people, property and the natural / historic environment in the name of economic development? I am not defending all of these sorts of requirements, but they have arisen in general from too many people taking advantage of the system too many times.
Significant streamlining of the system could be achieved by mandating that all applications go via the portal and that registration and validation in effect occur before the application reaches the LPA. This would also prevent the odd authority gaming the system to meet targets and would provide more of a level playing field – something, in my experience, that industry desires.
I strongly disagree that there should not be formal discharge of details required by condition – whilst I have sympathy with the view that planners do not always use conditions correctly – I would argue that the biggest hurdle to effective regulation of land use is the rubbish conditions DC planners impose coupled with poorly presented or inadequate submissions of details.
I am amused by the notion that stricter criteria within the DMPO would be a solution. Notwithstanding that the planning system is predicated on a site by site approach based on fact and degree; In my mind the quality of the work of the parliamentary draftsman has declined over the years and I am unconvinced that they would be able to adequately recast the planning system into the one size fits all approach. Indeed, I would suggest that this is more likely to be the cause of more litigation and legal challenge resulting in more barnacles of case law fouling the streamlined hull of a reimagined planning system.

As a final point, where has the expectation that developers should have an easy ride come from? Look at any local newspaper and every week there will be more than one planning related story and often an anti-something action group formed. People are understandably, if unreasonably, protective of their immediate environment. The planning system exists to regulate the use of land in the public interest. Yes the public interest includes developers making money, but it is not limited to that.

Anonymous said...

"Many developers have discovered to their cost that pre-application discussions are a waste of time and effort in far too many cases. It is often difficult or impossible to get planning officers to engage meaningfully with a proposal at the pre-application stage, and in any event no reliance can be placed on any views expressed by the officers at that stage, as it is all too likely that other (possibly more senior) officers may take an entirely different view when an application is actually submitted. The fees that are demanded by LPAs for a pre-application discussion do not represent value for money in many cases"

really? because from the point of view of the LPA the developers often provide shoddy inaccurate information at pre-app stage, fail to meaningfully engage with the advice offered, submit schemes which have no chance of sucess despite being told this, and which often bear little resemblance to the scheme discussed at Preapp stage, and the whole process costs the LPA far more money than the fee income generates...

But I do agree the government has singularly failed to speed up the planning process, and has in fact done the opposite. They have removed any certainty and consistency, and increased needless tick box exercises and I can assure you that LPA planners find it just as frustrating as you do.

I would say that developers could easily get rid of most conditions by submitting the information with the application. We LPA officers hate discharge applications more than you do! But hey, thats what the government brought in as a new waste of time. but then if you put in a detailed application rather than the shoddy bodge jobs that are usually submitted, maybe they would not be necessary.

Anonymous said...

An application is registered the day after it is received. If the LPA takes 2 weeks to validate it, thats 2 weeks less they have at the next stage to meet the statutory targets.

Sorry, this is just whining from someone who cant be arsed to do a proper job in submitting fully detailed applications.

The planning system is not here for developers enjoyment, its in the public interest. you have to submit applications detailed enough for the public to understand and comment on. Which should be simple from developers who do this day in day out, but the amount of shear incompetence I see day in and day out from developers and the lack of professionalism is staggering.

passerby said...

Both Anonymous correspondents (are they one and the same?) are mistaken.

- I am routinely asked to provide (for example) D&A statements for applications which do not require them - or other irrelevant information. This may or may not impact upon the date of validation, but either way attending to these matters incurs expense.

- On smaller applications, pre-application advice is an expensive waste of time and, worse, liable to be detrimental to the safe passage of the subsequent application - even if all of the recommendations are incorporated. The decisions made under this process are not binding and it just gives (intrinsically conservative) Design & Conservation officers more time to think up reasons why a scheme should not go ahead. Much better to stick with the 'one-free-go' option.

Jay said...

Martin,the one sentence missing from your blog is;
"unfortunately, at a time when LPAs have been stripped of resources they are being further shackled by a raft of environmental guff wrapped up in European statute, from which they cannot escape and must pass to the developer."
As an LPA manager I am also stunned by the vagueness and poor quality of some applications from professionals who are quick to take top dollar for their efforts but either too lazy or incompetent to do a good job for their clients.

Sisyphus said...

Having worked for both sides over the years providing tree & landscape guidance the one thing that stands out to me is the perpetual and exhausting 'them & us' mentality of both parties involved. Most clients want to minimise discussion with the LPA because they don't trust them or because they think its cheaper and for their part many LPAs are suspicious, capricious and resistant to proposals. The result is a wholly adversarial drudge; a war of attrition through which a substandard result is held up as the holy grail of balance. I've had colleagues who openly resent applications (pre-cutbacks incidentally) and I've had clients who want to fell whole woodlands under cover of darkness. In terms of my profession at least the sole saving grace of the otherwise retrograde NPPF was the requirement in s187 for the LPA to work proactively with the applicant and to look for solutions rather than problems; but it really shouldn't need to be said. And to those who complain that developers need to raise their game too I would say - tu quoque. Even if you received nothing but a deluge of weak applications filled out in crayon by aspiring Gordon Geckos and their venal consultants it would not excuse poor behaviour or sharp practice on your behalf.

I was once told by a retiring senior planner that "...the point of planning is to make everyone equally unhappy about an outcome - people don't mind not getting their way if no-one else has either." I'd like to think he was just being facetious.

Anonymous said...

I agree with Siyphus about the benefits of losing the 'them and us' mentality. This does tend to read as if LPA planners take great delight in bathing in swaths of un relevant paperwork and reports. I cannot emphasize how much the reverse is true. Many LPA planners, particularly those who are whom have benefited from a more recent planning education are motivated by getting the best development outcome they can, balancing the interests of both the developer and the public. We are interested in outcomes, not processes. There is nothing an LPA planner would rather see than a streamlined and succinct file, with all the relevant information to decide the case swiftly and successfully. And it is quite rightly the responsibility of the developer to provide this information up front. Chasing for information during a live application is a recipe for delay.

The blog author does not seem to have an understanding of the benefits of separating the validation(rule based)and decision making (judgement based) processes. This is perhaps partially explained by the differences in levels of admin resource experienced by solicitors and LPA planners. There are no armies of legal secretaries supporting the average LPA planner. Despite what our managers tell us most departments are alarmingly inadequately resourced and the first thing to be cut is admin staff. In our own department we have 4 highly stressed administrators who collectively 'validate' hundreds of applications a year.

When a case reaches a decision-makers desk, it should ideally contain all the information required to consider the planning merits. Is the blog author saying that it is acceptable for a developer to submit, for example, a 3 turbine wind development with just an application form and a fee? How would he feel if he lived 50m from a proposed turbine and there was no noise survey? How is the case officer (and the public) supposed to understand the relevant issues of the case?

As far as EIA is concerned, agree with the above that consultants should be reigned in to produce more succinct reports. The requirement for EIA is there for good reason. Just take a look at the US and the devastation caused by fracking developments that have not been properly environmentally assessed.

On one point though I do agree, get rid of Design and Access statements, they are a complete waste of time.