Long Players: Time & Money

Is there more that can be done to encourage timely resolution of issues that arise at planning application stage?

Two prompts for this blog post:

1.Provectus Remediation Limited v Derbyshire County Council (Sir Wyn Williams, 8 June 2018), which considered the circumstances in which an applicant for planning permission is entitled to a full fee refund if the application is not determined within 26 weeks.

2. The Secretary of State’s Lotmead Farm, Swindon decision dated 13 June 2018 to accept his inspector’s recommendation to award the local authority its costs against the appellant for unreasonable behaviour in relation to two appeals – on the basis that the appeal process had been used to “evolve the schemes“, contrary to the Planning Inspectorate’s procedural guide (the Secretary of State having dismissed the appeals in a separate decision letter of the same date).

Planning application refunds

In our ridiculous legislative patchwork you need to look at the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2013 which amended the 2012 Regulations from 1 October 2013 so as to introduce, as Regulation 9A, the right for an applicant to have its application fee refunded “in the event that the local planning authority fail, or the Secretary of State, in relation to an application made under section 62A of the 1990 Act fails, to determine the application within 26 weeks of the date when a valid application was received by the local planning authority or the Secretary of State, as the case may be.”

Regulation 9A (2) provides that the right does not apply where “the applicant and the local planning authority, or, in the case of an application under section 62A of the 1990 Act, the Secretary of State, have agreed in writing that the application is to be determined within an extended period“, the application has been called in, is the subject of an appeal or of judicial review.

In the Provectus case, the claimant had submitted its planning application on 14 September 2014, paying an application fee of £44,000, withdrew the application and resubmitted the application on 22 December 2015 (no additional fee payable due to Regulation 9 of the 2012 Regulations), which was registered by the local planning authority on 25 January 2016. Further environmental information was requested by the authority in April 2016, which was provided (following an extension of time requested by the claimant) in July 2016. On 3 August 2016 the authority requested an extension of time for determining the application and an extension to 7 November 2016 was agreed. Further environmental information was then sought by the authority during the period, the claimant’s agent agreed to that and then was replaced by another agent, which no longer agreed to provide the information, arguing that it had in part already been provided and in part was unnecessary. In December 2016 the claimant appealed on the basis of non-determination and in March 2017 requested that the authority refund the fee.

So in short, a real mess but unfortunately not an unusual sequence of events. From a limited knowledge of events gained solely from the account in the judgment, I would guess that neither side particularly smelt of roses.

The claimant judicially reviewed the decision of the authority to refuse to refund the application fee. The authority took the position that Regulation 9A (2) disapplies the right where the applicant and authority have agreed an extended period for determining the application. The claimant argued that this should not be the case if the application is not then determined within the agreed extended period. To assist their respective stances, both parties’ counsel sought to rely on different parts of the explanatory memorandum that accompanied the 2013 Regulations.

Wholly unsurprisingly, the judge rejected any purposive interpretation:

“A refund of a fee paid at the time of a planning application should be made only if a period of 26 weeks has elapsed from the receipt of a valid application and that application has not been determined by the local planning authority. In my judgment, if the applicant and the local planning authority agree in writing that the 26 week period should be extended the planning fee paid by the applicant does not fall to be refunded even if the local planning authority fails to determine the application within the extended period.”

So the claimant did not recover its £44,000 and now faces not only a costs bill from its own lawyers but liability to pay the authority’s costs in relation to the litigation.

The case does highlight a few things:

1. Don’t forget about the right to a refund.

2. Take it into account in your decision making as to whether to agree a time extension.

3. The Regulations plainly risk giving rise to perverse incentives: (1) it is so much safer for an authority if it can agree an extension of time, after which it is not at risk of a fee refund however poor its performance and (2) canny applicants may decline to agree time extensions where an application is running into the sand.

I did wonder to myself why the argument wasn’t made by the claimant that at least 26 weeks had already passed between the submission of a valid application in December 2015 and the agreed time extension but I assume that this wouldn’t have worked given that the formal request under the EIA Regulations for further environmental information would have had the effect of stopping the clock running until the information had been provided and/or that the agreed extension of time for providing that additional environmental information may have itself disapplied Regulation 9A? As ever reality is more complicated than legislation envisages.

Using the appeal system to “evolve” a scheme

Where there is lack of engagement on the part of a local planning authority, what real remedy is there aside from an appeal? And yet Annexe B of the Planning Inspectorate’s procedural guide seeks to encourage resolution of issues before an appeal has been submitted, reflecting the advice in the Planning Practice Guidance:

“Before making any appeal the party seeking permission should first consider re-engaging with the local planning authority to discuss whether any changes to the proposal would make it more acceptable and likely to gain permission. It is possible that a further planning application may be submitted without charge. However, this will depend on the circumstances of each case, so parties should ask the local planning authority for further details.”

Annexe M of the PINS procedural guide states:

“M.2.1 If an appeal is made the appeal process should not be used to evolve a scheme and it is important that what is considered by the Inspector is essentially what was considered by the local planning authority, and on which interested people’s views were sought.

M.2.2 Where, exceptionally, amendments are proposed during the appeals process the Inspector will take account of the Wheatcroft Principles when deciding if the proposals can be formally amended. In the ‘Wheatcroft’ judgment22 the High Court considered the issue of amendments in the context of conditions and established that “the main, but not the only, criterion on which… judgment should be exercised is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation”. It has subsequently been established that the power to consider amendments is not limited to cases where the effect of a proposed amendment would be to reduce the development.

M.2.3 Whilst amendments to a scheme might be thought to be of little significance, in some cases even minor changes can materially alter the nature of an application and lead to possible prejudice to other interested people.

M.2.4 The Inspector has to consider if the suggested amendment(s) might prejudice anyone involved in the appeal. He or she may reach the conclusion that the proposed amendment(s) should not be considered and that the appeal has to be decided on the basis of the proposal as set out in the application.”

The position in which the developer found itself at the Lotmead Farm appeals was that it had sought pre-application advice from Swindon Borough Council over a period from December 2013 to May 2015 in relation to a proposal for up to 2,600 homes together with associated development, on a site with a strategic allocation in the local plan. An application for outline planning permission for the whole scheme as well as an application for outline permission for an initial phase of 200 homes were made on 30 April 2015. The council made a series of requests for further information and for extensions of time. The council refused the applications on 30 June 2016 at a point where the developer was seeking to resolve or at least narrow the issues.

After submitting appeals against the refusals the developer then made a series of amendments to the proposals to seek to address the reasons for refusal. At a pre-inquiry meeting the developer indicated the scope of the amendments that would be made and that an ES addendum would shortly be publicised. The inspector postponed the inquiry to allow participants in the inquiry to have sufficient preparation time. The amendments apparently were then more significant than had been identified. The changes included an additional 2 form entry primary school, an increase in the red line area, changes to the transport proposals, to all of the parameter plans and to the illustrative masterplan and green infrastructure parameter plans. “Moreover, over the following months additional amendments and information were submitted by the appellant and corrections were made to submitted documents“. The ES addendum entailed six of the topic areas being superseded.

In his report on the appeals, the inspector sets out the amendments in detail before stating at paragraph 10.14:

“In conclusion, the amended schemes are very significantly different to those determined by the Council and have evolved considerably during the course of the appeals. To use the appeal process in this way is contrary to Procedural Guidance and does not sit comfortably with the Wheatcroft principle. There are no exceptional circumstances to justify this approach. No specific case of prejudice has been highlighted but compliance with the Procedural Guidance is the best way to ensure no-one is disadvantaged through the appeal process.”

She considered that it was appropriate to consider the appeals on the basis of the originally submitted proposals, although (since the appeals had been recovered for the Secretary of State’s own determination) she considered the proposed revisions in detail as well in case the Secretary of State took a different approach. She recommended that the appeals be dismissed, whether or not the revised proposals were considered.

In his decision letter, the Secretary of State accepted the recommendation that the revised proposals should not be considered:

“13. The Secretary of State has given careful consideration to the Inspector’s analysis at IR10.1-10.15. The Secretary of State has taken into account that all parameter plans and the illustrative masterplans were amended (IR10.6). The Secretary of State has further taken into account that the ES also was substantially reviewed, with six of the topic chapters being superseded. The Secretary of State has further taken into account at IR10.7 that further amendments were made including proposals for access, surface water management, trees and landscaping. For the reasons given at IR10.6-10.7, the Secretary of State agrees with the Inspector at IR10.7 that the evolution of the proposals results in an overall very considerable change to the schemes and to the quality of the supporting information.

14. For the reasons given at IR10.6-10.7, the Secretary of State agrees with the Inspector at IR10.8 that the amended schemes are not the schemes determined by the local planning authority in June 2016 and on which interested people’s views were sought (IR10.8). The Secretary of State agrees with the Inspector that the narrowing of the areas of dispute was of assistance to the efficient running of the inquiry but was carried out very late in the day. He further agrees that the approach adopted by the appellant during the course of the appeals has not been in accordance with procedural guidance (IR10.8).

15. As such, the Secretary of State agrees with the Inspector at IR10.9 that the changes to the proposals in the Masterplan and the Phase 1 appeals are sufficiently material that consultation on the amendments would be essential.

16. The Secretary of State has taken into account the Inspector’s conclusions on consultation at IR10.10-10.13. The Secretary of State agrees with the Inspector at IR10.14 that the amended schemes are very significantly different to those determined by the Council and have evolved considerably during the course of the appeals. He further agrees that to use the appeal process in this way is contrary to procedural guidance and does not sit comfortably with the Wheatcroft principle and there are no exceptional circumstances to justify this approach; and agrees that no specific case of prejudice has been highlighted but compliance with the procedural guidance is the best way to ensure no-one is disadvantaged through the appeal process (IR10.14). He concludes, in agreement with the Inspector, that the appeals should be determined on the basis of the original proposals (IR10.15).”

A separate report and decision letter addressed an application for costs that was made by the borough council. The inspector recommended that a full award of costs be allowed:

“Unreasonable behaviour resulting in unnecessary or wasted expense, as described in the Planning Practice Guidance, has been demonstrated in that:

• appeals were made on the original schemes when there was no reasonable prospect of success, and

• the appeal process was used to evolve the schemes, which was contrary to Procedural Guidance.”

She noted that if amendments to the proposals had been pursued through another application “there would be a greater probability of compromise on both sides, outside of the adversarial appeal process. The normal development management process has been avoided.”

The Secretary of State agreed.

Perhaps here the circumstances were exceptional but I do worry whether this is the right direction for the planning system to be heading in – although I appreciate that the Government and the Planning Inspectorate would prefer a clean, front-loaded appeal process that is only used as a last resort. If anything may conceivably focus a local planning authority on resolving matters with an applicant, it is the risk that its position may come under scrutiny at inquiry. I do not know if this was the case at Lotmead Farm but sometimes it is impossible to ascertain what the authority’s position is, or what changes to a scheme may be considered acceptable. If the developer has to wait for a refusal notice and start again with a further application before appealing, without the ability to bring matters to a head by way of the appeal and changes made as part of the appeal process, appealing becomes increasingly impractical as an option (and the authority knows it).

Of course there has to be a limit to the scale of any amendments made at the appeal stage. But as long as the amendments are fully consulted upon is there really such a problem if they improve the scheme and ensure that permission can be granted by the inspector or Secretary of State rather than a further application being required? Not only do we now have an appeal process that is increasingly slow, we have a process that is increasingly impractical in relation to complex schemes, where interation is inevitable and surely no bad thing.

At least through its appeal, notwithstanding not achieving permission and having an expensive adverse award of costs against it, the Lotmead Farm developer did manage to narrow various issues with the authority and third parties, and secure detailed comments from the inspector on various elements of its proposals, some negative, some negative, but sufficient presumably now to form the firm basis for a further application. The inspector even identified a series of elements of the section 106 package that did not comply with regulation 122 and which presumably will not be included next time round (which will save a substantial sum). It is just a shame that there is not the ability to secure, more nimbly, equivalent independent expert input during the application stage itself so as to resolve differences – rather than tie everyone up in a slow, expensive and adversarial process.

Simon Ricketts, 15 June 2018

Personal views, et cetera