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An accelerated planning system?

Simon Ricketts assesses the Government’s proposed new measures for an accelerated planning system intended to provide greater certainty to applicants and enable delivery partners to bring forward housing.

How clear do you think you are on the various pulleys and levers that make up the English development management system? A further series of proposed alterations were announced this budget day.

I will restrict this post to the Department of Levelling Up, Housing and Communities' “an accelerated planning system” consultation paper (6 March 2024), which seeks views by 1 May 2024 on “proposals to:

1. introduce a new Accelerated Planning Service for major commercial applications with a decision time in 10 weeks and fee refunds if this is not met

2. change the use of extensions of time, including ending their use for householder applications and only allowing one extension of time for other developments, which links to a proposed new performance measure for local planning authority speed of decision-making against statutory time limits

3. expand the current simplified written representations appeals process for householder and minor commercial appeals to more appeals

4. implement section 73B for applications to vary planning permissions and the treatment of overlapping permissions”

I will leave the 4th strand of that, section 73B, for another day as in order to do that justice I would need to go into some heavy legal engineering detail, but today I will summarise the main components of the rest of the proposals and then wrap up with a few guesses at the more obvious risks to be avoided, if acceleration is indeed to be achieved without unintended adverse consequences.

The Accelerated Planning Service

“9. All local planning authorities will be required to offer an Accelerated Planning Service for major commercial applications [i.e. applications for major commercial development which create 1,000 sqm or more of new or additional employment floorspace, including mixed use developments if they meet the employment floorspace criteria]. The applicant would pay a higher planning fee to the local planning authority which, in exchange, will be required to determine these applications within 10 weeks (rather than the 13-week statutory time limit), with a guarantee that the fee would be refunded if the application is not determined within this timescale.

10. We are exploring two options for the detailed design of this service. Under the first discretionary option, applicants could choose to use the Accelerated Planning Service where their application meets the qualifying criteria or they could use the standard application route for a major development (with a lower fee and longer timescales). A second mandatory option could be that the Accelerated Planning Service is the only available application route for all applications in a given development category. This would have the benefit of clarity and certainty for applicants and local planning authorities but remove the element of choice for the applicant.”

The service would not apply to applications which are for EIA development, although DLUHC is “interested to receive views on whether there is scope for EIA development to also be covered by an Accelerated Planning Service that offers a guaranteed decision before the 16-week statutory time limit.”

“The service would apply to section 73 and 73B applications which seek to vary existing planning permissions for relevant commercial development.”

“Over time, we are keen to explore the extension of the Accelerated Planning Service to similar major infrastructure and residential developments. But we want to ensure the Service works for commercial development before any extension is made, given that there are significantly more residential applications and often a larger number of matters to be considered with these types of applications.”

“The key aim is to ensure that these applications are prioritised through the local planning authority’s own internal processes faster. This would require local planning authorities to: set up efficient case work systems; ensure validation teams, lawyers and internal expertise are on hand; and, where relevant, convene planning committees on time. The availability of a higher planning fee (discussed below) is intended to ensure that local planning authorities have the resources to do this.”

The ten weeks’ deadline would be “used as the trigger point for when appeals can be made against non-determination and for monitoring the performance of local planning authorities”.

DLUHC recognises that it is “crucial that the applications submitted are of good quality with the right information” and to that end proposes that:

  • “local planning authorities should offer a clear pre-application service to potential applicants so they can discuss their proposals, key issues, information requirements and any other issues (such as EIA screening), and we will strongly encourage applicants to use these services… We will ensure best practice is disseminated across the sector building on the work the Planning Advisory Service has been undertaking on pre-application services”
  • “prior to submitting their application, applicants should notify key statutory consultees which are likely to be engaged that they are making an application under the Accelerated Planning Service… The government will look to use its oversight of statutory consultees to prioritise applications under the Accelerated Planning Service and to monitor their performance. In the meantime, we welcome views about how statutory consultees can best support this accelerated service. In most cases, early pre-application engagement will be important”

“To cover the additional resourcing costs, we propose to set a premium fee for an application through the Accelerated Planning Service… It is proposed that an applicant or the local planning authority would still have the ability to propose an extension of time to the determination of the application (for instance, if there is an outstanding matter which could be readily resolved to make an application acceptable). But such an extension of time should be an exception. An extension of time would not affect any potential refunds… We propose that either all or a proportion of the statutory application fee must be refunded by the local planning authority to the applicant if the application is not determined within the 10-week timescale, even if an extension of time has been agreed. This refund policy differs from the existing Planning Guarantee where a refund is not provided if an extension of time has been agreed.

"We have considered whether it is appropriate for the whole fee to be refunded if the application is not determined within the required 10-week period and recognise that if the whole fee is refunded at 10 weeks, in cases where no decision has been made, and the performance target is therefore missed, there is no further incentive for the local planning authority to make a decision on the application. To mitigate this, we consider that there is an alternative option, to stagger the fee refund. For example, if no decision has been made within 10 weeks, the premium part of the fee or 50% of the whole fee could be refunded at that point with the remainder of the fee refunded at 13 weeks, if the application was still undecided.”

As part of the consultation, views are sought as to whether the accelerated planning service should be optional or mandatory.

Planning performance and extension of time agreements

“the government has published a new Planning Performance Dashboard . This dashboard displays performance figures over a 12-month period and includes performance within statutory time limits, excluding extension of time agreements, so a true picture of local planning authority performance figures is accessible. We expect local planning authorities to report on their data from the Planning Performance Dashboard to their planning committees and other stakeholders, in order to drive continual improvements in performance, identify areas of weakness at an early stage, and help inform priorities for service delivery.”

“It is proposed that the new performance thresholds would be:

  • major applications – 50% or more of applications determined within the statutory time limit; and
  • non-major applications – 60% or more of applications determined within the statutory time limit

"The proposed thresholds do not preclude the use of extension of time agreements and planning performance agreements, but the expectation is that such agreements are used only in exceptional circumstances. The proposed threshold is also lower for major applications in recognition that, in more instances, extension of time agreements may still be required due to the more complex nature of the applications and major applications are also more likely to be subject to a planning performance agreement.”

“Following a transition period, it is proposed that we measure performance against both the current measure, which includes extension of time agreements and planning performance agreements, and the new measure, which would cover decisions within statutory time limits only. We would continue to measure major and non-major applications separately.

"Local planning authorities would be at risk of designation for speed [of] decision-making in the following circumstances:

  1. if a local planning authority does not meet the threshold for the current measure, inclusive of extension of time agreements and planning performance agreements (as per current regime), or
  2. if a local planning authority meets the threshold for the current measure, inclusive of extension of time agreements and planning performance agreements, but does not meet the new threshold for the proportion of decisions within the statutory time limit, or
  3. if a local planning [authority] does not meet the threshold for both the current and the new measure

"Where a local planning authority is designated, applicants may apply to the Planning Inspectorate (on behalf of the Secretary of State), rather than the local planning authority, for the category of applications (major, non-major or both) for which the authority has been designated.”

It’s worth clicking into that Planning Performance Dashboard which will provide some welcome transparency as to individual authority performance.

Performance for speed of decision-making is currently assessed across a 24 month period. DLUHC is seeking views as to whether the assessment period should be reduced to 12 months.

Incidentally, whilst there is a reference in the general introductory passages of the consultation paper to only allowing one extension of time, I couldn’t find it in the actual section on the proposals (paragraphs 40 to 46) – can you?

The proposed assessment periods and measures of performance for speed of decision-making are as follows:

Table 1

DLUHC proposes to remove the ability to use extension of time agreements for householder applications and is considering prohibiting their use where a repeat application is submitted.

Simplified process for planning written representation appeals

There is already an accelerated appeals procedure for householder and small commercial appeals, with for instance no opportunity for additional information to be provided at the appeal stage by the main parties or other interested parties. DLUHC proposes to expand this to a far greater range of written representations appeals, namely:

  • appeals relating to refusing planning permission or reserved matters
  • appeals relating to refusing listed building consent
  • appeals relating to refusing works to protected trees
  • appeals relating to refusing lawful development certificates
  • appeals relating to refusing the variation or removal of a condition
  • appeals relating to refusing the approval of details reserved by a condition
  • appeals relating to the imposition of conditions on approvals
  • appeals relating to refusing modifications or discharge of planning legal agreements
  • appeals relating to refusal of consent under the Hedgerow Regulations
  • appeals relating to anti-social high hedges

Time limits for appealing would remain unchanged but “appeals determined through the simplified route would be based on the appellant’s brief appeal statement plus the original planning application documentation and any comments made at the application stage (including those of interested parties). There would be no opportunity for the appellant to submit additional evidence, to amend the proposal, for additional comments to be made from interested parties or for the main appeal parties to comment on each other’s representations.”

Non-determination appeals would still follow the existing procedure.

What do we think about all this? From a development industry perspective I suspect that the proposals will be cautiously supported, but we all know it is all going to be about the actual implementation, about the proactive management and resources available to authorities and about closing off the obvious loopholes:

  • If there are hard-edged consequences for authorities of not determining applications within ten weeks, won’t some authorities be tempted to persuade applicants to delay submission until they can be sure that the application is oven-ready, or to delay validation (NB we really do need controls on local validation lists which have become lengthy shopping lists)?
  • Won’t we see more refusals where the authority is approaching the relevant determination deadline without being in a position to agree an extension of time and should the appeal costs regime be updated to ensure that authorities do not take this step unreasonably?
  • What about where any delay is not down to the authority (or the authority alone), as is often the case? The exhortation to approach statutory consultees at pre-application stage may not be enough to ensure a timely response.
  • Wouldn’t it be helpful for any guidance to encourage that a greater proportion of decisions are taken by way of delegated powers, particularly where applications are consistent with the relevant local plan?
  • How do we ensure that section 106 agreements are completed in a timely manner, given the lack still of any recommended template and, in particular, the delays caused by the push and pull of negotiations in two tier areas, whether county and district, or London Mayor and borough?
  • Does the idea of excluding third parties from written representations appeals accord with the principles of natural justice if issues arise or arguments made by the main parties which could not have been foreseen at the application stage?
  • Will there be time to introduce the necessary legislation before the election, whenever that may be, and how many of these proposals may in fact ultimately have cross-party support?

In the meantime, two further authorities have been designated for their poor speed in determining applications for non-major development: St Albans and Bristol, meaning that applications for minor development other than householder development and retrospective applications may be made direct to the Planning Inspectorate.

Simon Ricketts is a partner at Town Legal. This article first appeared on his Simonicity blog