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
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.
© MARTIN H GOODALL