Have you struggled recently to move your application forward, foundered at registration stage with no case officer allocated for months or stalled in the early phases of consultation? We freely admit we have. Through no fault of their own, brutal budget cuts and post-covid application surges have left many LPA’s with mountains of cases to deal with, yet inadequate resources to do so – there simply aren’t enough planners in the system, or apparently enough available to recruit. Whilst we genuinely have every sympathy for our public sector colleagues (it’s stressful and disheartening trying to deliver quality, collaborative service under such conditions), the implications of these early delays for the industry are far reaching. Applicants need to have a degree of confidence in timeframes – often regardless of the end decision – it affects certainty, investment, the economic viability of businesses and, ultimately, locational choices for development.
Whilst much of this is beyond the applicants control, there are a few measures that you might pursue to protect your position as best as possible. So if you weren’t aware, the following are available to you:
Appeal against Non-Determination (and protect your right to do so)
Whilst ordinarily you might be prepared to sit-tight and wait for an application to run its course, if there is little sign of movement (or simply no case officer) you could appeal against non-determination. This takes the decision out of the LPA hands and straight to the Planning Inspectorate (PINS).
An appeal for non-determination may be made if the LPA does not make a decision on an application within the set deadline (8 weeks for non-major applications, 13 weeks for major applications or 16 weeks for applications subject to an EIA), in the absence of the written agreement of both parties to extend the decision-making period (i.e. so if you’ve agreed an extension of time in writing with the case officer, the clock-restarts from that date). Timeframes follow the usual householder and S78 regime, so for a householder development, you must submit your non-determination appeal within 12 weeks of the expiry of the determination date, whilst for most other types of applications its within 6 months (excepting advertisements which are 8 weeks, and 28 days if an enforcement notice has been served). If your application runs beyond the determination date and you didn’t agree an extension of time, you will lose your right to appeal against non-determination, and are then at the whim of the LPA’s timescales – so it’s important to protect this option, even if you don’t intend to use it (and be explicit in any written communications over the extension of time – make sure that both parties are clear on what date has been agreed).
As per householder and S78 formats, you can opt for a Written Representation, Informal Hearing or Public Inquiry type of appeal, and the procedures should run as standard (be mindful that your full Statement of Case must be submitted up-front with Written Rep and Hearing options, and aware that the LPA will use their Statement of Case to indicate what their decision would have been on the proposals, if they had made it).
Latest PINS updates (Jan 2023) indicate that Written Representation appeals are taking on average 35 weeks to be determined, with Informal Hearings and Public Inquiries at 47 and 36 weeks respectively, and Householder Written Representations at 21 weeks. You’ll obviously need to factor these into your decision whether to appeal, as the LPA may deliver a decision sooner.
Should you wish to hedge your bets and aim for both an LPA and PINS decision on your proposals, you might consider ‘twin-tracking’ i.e. submitting a second application and appealing against the non-determination of this. This would enable you to keep your current application running and maintain your ability to negotiate over this (if necessary), but to receive a separate decision from the Planning Inspectorate in the meantime (ideally achieving a favourable outcome sooner – although as above, timings might not work). There is a risk with this strategy in that an LPA may decline to determine a twin-track submission depending on how it relates to any ‘similar’ application (i.e. your original application). As set out in Section 70B of the TCPA 1990, an LPA may decline to determine a second application if:
- It’s made on the same day as a ‘similar’ application
- it’s made at a time when a ‘similar’ application has been granted, refused or not determined within the determination period, but could still be taken to appeal
- a ‘similar’ application is still under consideration by the LPA and the determination period has not yet expired
- a ‘similar’ application is still under consideration by PINS (S78 appeal) and a decision hasn’t been issued, or is a deemed application in enforcement proceedings (S177(5))
Notably, Section 70B defines that ‘an application is similar to another application if (and only if) the LPA think that the development and the land to which the applications relate are the same or substantially the same’.
So an LPA isn’t obliged to determine a twin-track application, it’s at its discretion to do so (notably Section 70B only talks about the determination of applications – although its assumed that this also implies validation), but providing you comply with the above criteria it could well be worth a shout – if only to try and force the pace of negotiations with your current application. As an alternative, you might consider tweaking your twin-track scheme such that it is very marginally different from your original, which would obviously improve your chances of it being validated by the LPA and thus enable you to proceed straight to appeal after 8/13/16 weeks.
Claim your Refund
Another time-sensitive measure you might want to consider is applying for a refund of your application fee. Under the Planning Guarantee, a planning application fee must be refunded to applicants where no decision has been made within 26 weeks (unless a longer period has been agreed in writing between the applicant and the LPA). Whilst we rarely advise our clients to pursue this (and it may be a moot point if it’s you who have delayed the submission of further information), but you have every right to your refund, and it should not fetter the ongoing assessment and determination of your application (it may even off-set any extraneous costs the LPA delays have caused you). Just be mindful that if you’ve formally agreed to an extension of time, you waive your entitlement to a refund (even if the LPA doesn’t determine the application within the extended period). Be aware this option does not apply to householder applications, due to the timing of the process.
To secure your refund you first need to contact the relevant LPA, who will then confirm your request to the Planning Portal and return the amount to them. The Planning Portal will then process the refund directly back to you, via the original payment method (within 14 days of being agreed by and received from the LPA). The Planning Portal service charge will only be refunded if there is an error made on their part.
Fast-track your Conditions
Finally, if you’ve already secured your permission and are keen to get started on site/are already underway, but your Discharge of Condition application is looking likely to be delayed, remember that you have the Deemed Discharge procedure at your disposal. A Deemed Discharge of a condition means that the consent/approval/agreement of the LPA to any matter as required by the condition is deemed to have been given. The procedure can only be used for in certain circumstances (such that conditions relating to EIA, Flooding, SSS’s, Contaminated Land, Archaeology, Highways, Reserved Matters, Planning Obligations, Development Orders, SPZ’s and EZ’s, Crown Development or that which requires Government Authorisation are all exempt and require full discharge), but is definitely useful for fast-tracking less sensitive or controversial details.
The procedure needs to be activated by the applicant by serving a ‘Deemed Discharge’ notice directly on the LPA (not via the Planning Portal). The notice may only be served once one of the following have elapsed:
- at least 6 weeks beginning with the day immediately following that on which the application is received by the LPA; or
- such shorter period as may be agreed in writing between the applicant and the LPA for serving a notice
Thus if the applicant has served a deemed discharge notice and the LPA fails to determine the application by the date specified in the notice (or such later date as may have been agreed in writing), approval is deemed to have been given, and the condition deemed to be discharged. The date specified in the notice must be no earlier than the 8 week determination date, or 14 days after the day immediately following that on which the deemed discharge notice is received by the local planning authority, whichever is later.
The Deemed Discharge notice must provide details of the LPA application reference and the conditions applied for, as well as specifying the above dates, but no further information is required from the applicant and no LPA fee is payable. It is an efficient, useful and often overlooked tool.
So, a quick trot through some of the potential measures at your disposal if you’re despairing at how long it’s taking to get your application off the ground and advancing (or not) towards a decision. Be mindful of the various time sensitivities and caveats to consider, and use these tools shrewdly and efficiently. Or do give us a shout if we can help – always happy to discuss strategy.