Monitoring officer issues section 5 report over failure by council to refund planning fees

Bolton Council's monitoring officer has issued a section 5 report after it was discovered that the local authority had failed to refund certain planning application fees for the last decade.

Borough Solicitor and Monitoring Officer Helen Gorman wrote in the report that there had been instances where conditions were met for a refund under The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2013 – but no refund was made or attempted.

The report, issued under Section 5 of the Local Government and Housing Act 1989 (the Act), said the council contravened regulation 9A of the 2013 Regulations, which requires a planning authority to refund a planning application fee within 26 weeks unless a decision has been made or other agreements are in place.

Over the last ten years, applicants have not been made aware that they could receive a refund under these circumstances, according to the report.

Counsel's advice received by Bolton noted that "it is not tenable" that this obligation only extends to situations where the planning authority is asked to make a repayment.

The report continued: "The obligation arises whenever the conditions for the repayment are met. While the council could not be said to be acting unlawfully when an offer to repay was actually refused, or it was not possible to locate the applicant to whom the refund was due, it would not be enough to rely on the absence of a request or the absence of a means of making a refund without some reasonable steps having been taken to effect the refund."

Officers confirmed there had been cases where the conditions for a refund were met, but no refund was made or attempted, "which leads to a clear basis on which the Monitoring Officer can conclude that the past omissions of the Council have given rise to a contravention of Regulation 9A(1)," the report said.

The report also noted that the council had contravened Regulation 16(2) of the Town And Country Planning (Fees For Applications, Deemed Applications, Requests And Site Visits) (England) Regulations 2012, which states: "Any fee paid under this regulation shall be refunded if the local planning authority fails to give the written confirmation requested within a period of twelve weeks beginning on the date on which the authority received the request."

Work is underway to ascertain how many applications require a refund and how much money is to be refunded.

The report also stated that applicants were told that all electronic planning applications must be submitted via the council's planning portal incurring an additional charge when they should have been able to send an email application and incur zero additional fee.

In July 2023, the Monitoring Officer became aware of this practice and instructed officers to amend the council's website and other messages stipulating the use of its planning portal.

A number of actions have been taken or are planned to be taken, according to the report. These include:

• A replacement case management system introduced into the planning service that produces reports and provides monitoring information, meaning the risk of applications going beyond the 26-week period for the planning fee guarantee "has been greatly reduced".
• Those applicants who have requested a refund have been provided with one.
• Applicants who are entitled to a refund under the planning fee guarantee but have not requested one will be offered a refund.
• There will be ongoing reports to members to monitor progress with identifying applicants and making refunds.

In a full council meeting called to discuss the report on Wednesday (29 November), the leader of the council, Cllr Nicholas Peel, said: "As soon as it was confirmed that the authority was behaving unlawfully, in conjunction with the chief executive we put in place a full internal audit inquiry to look at those key questions.

"Why was the law never implemented? Who knew it wasn't being implemented? If people knew it wasn't being implemented, why was action not taken?"

The Labour councillor added: "Myself and the chief executive took the decision to take this issue straight to the local press. It is right and proper that openness and transparency is seen to be in operation in Bolton. 

"There will be no information of unlawful practice kept from the public."

Cllr Peel, who took over from Conservative leadership in May 2023, said he had forwarded this information to internal audit and requested it be part of the inquiry.

Adam Carey