Planning authorities and under-performance

Housebuilding iStock 000008203889XSmall 146x219Ministers have revised the criteria on under-performing planning authorities and when developers can submit applications directly to the Planning Inspectorate. James Garbett and Philippa Plumtree-Varley report.

The Department for Communities and Local Government (DCLG) has published revised criteria for deciding which local planning authorities (LPAs) are to be regarded as ‘poor performers’ in relation to their handling of planning applications. The approach enables such designated LPAs to be bypassed, so major planning applications in their areas can be submitted directly to the Planning Inspectorate. The altered criteria will take effect after the statutory 40-day Parliamentary consideration period has passed.

Background

As part of the Government’s intention to make the planning system work more efficiently and effectively, initial performance criteria for LPAs were published in 2013. Under these, those authorities which determined 30% or fewer major planning applications within the statutory period or had more than 20% of their decisions overturned at appeal could be designated as under-performing. However following consultation earlier this year revised criteria have now been published, with some thresholds having been increased and exemptions introduced.

Designation Criteria and Assessment

The performance of LPAs is assessed by considering two key elements: the speed at which applications are dealt with and the quality of decisions made.

Under the revised criteria, where 40% or fewer major planning applications are determined within the statutory time frame during the two-year assessment period, the LPA will be regarded as under-performing. The statutory determination period of 13 weeks must be adhered to, unless the application has involved the need for an Environmental Impact Assessment (where 16 weeks is the alternative) or any extended period was previously agreed with the applicant. There will be a limited exemption for LPAs that have decided only two major applications during the 24-month assessment period. 

The quality of decisions is measured via the percentage of major development permissions subsequently overturned at appeal in the nine months following the assessment period. This measurement threshold remains at 20% under the new guidance. Again there is an exemption from designation, where the authority authorities has decided ten or fewer major applications in the assessment ‘window’. 

Exceptional Circumstances and De-Designation

An LPA will have the opportunity to avoid being unduly labelled as a ‘poor performer’ if it believes exceptional circumstances apply and designation would be unreasonable. Prior to any designation being confirmed, LPAs falling below one of the thresholds have a two-week period to submit arguments in their defence and these will be taken into account before final decisions are made.

Correspondingly, the Secretary of State will annually decide whether any designations should be lifted. In examining existing designations, consideration will be given to:

  • the potential capability of the designated LPA to deal effectively with future major development applications; and
  • how effective the designated LPA has been in dealing with applications while being designated.

In the immediate aftermath of any designation, there is an expectation that the relevant LPA will have prepared an action plan outlining its areas of weakness, detailing how such issues could be resolved, and will have ensured this is approved by DCLG. A designation will be revoked provided:

  • the Secretary of State is satisfied by the designated LPA’s evidence that it has sufficiently improved in the areas of weakness initially identified in its action plan;
  • the relevant LPA would not still be eligible for designation on the basis of existing criteria at the time;
  • certain administrative requirements have been fulfilled; and
  • there have not been unreasonable delays by the LPA in signing any section 106 agreements associated with applications submitted directly to the Inspectorate during the designation period.

Comment

The possibility for developers to utilise the provisions of section 62A of the Town and Country Planning Act 1990 and submit applications directly to the Planning Inspectorate where the local LPA has been designated, does offer the potential to speed-up and generally improve the process of obtaining development consent. 

Only applications for ‘major development’ can take advantage of the by-pass process. However, the applicable definition is wide and encapsulates development that involves one or more of the following:

  • the provision of ten or more dwellinghouses or (where the number is not initially known) the work is on a site with an area of 0.5 hectares or more;
  • the provision of a building(s) where a 1,000 square metre or more floor space will be created; and/or
  • the work is on a site with an area of 1 hectare or more.

A number of LPAs have been designated to date. Trafford Council has become the most recent authority to be placed in special measures based on county matter applications. Gloucester and Castlepoint are also amongst these. To date, Blaby District Council is the only LPA designated for district-level applications.

In light of the updated designation criteria, new regulations have been developed governing the procedure to be followed by applicants submitting a relevant application direct to the Planning Inspectorate.

James Garbett and Philippa Plumtree-Varley are solicitors at Walker Morris. James can be contacted on 0113 399 1741 or This email address is being protected from spambots. You need JavaScript enabled to view it., while Philippa can be reached on 0113 399 1836 or by email. Both regularly contributes article and updates to reach.... ®, the free Walker Morris knowledge database and alerter service.

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