Since 2013 there has been a system of “special measures” concerning the performance of local planning authorities in dealing with planning applications for major developments. These powers were introduced under section 1 of the Growth and Infrastructure Act 2013 (inserting sections 62A to 62C into the Town and Country Planning Act 1990 (as amended) (the “1990 Act”). This allows planning applications to be made directly to the Secretary of State for Communities and Local Government rather than to the local planning authority, if it has been designated by the Secretary of State.
Brian Hurwitz, planning lawyer with Sharpe Pritchard warns that this process is not without risk because the decision of the Secretary of State on such an application is final, with no further appeal. This is because in practice, the application will have been considered by the Planning Inspectorate in the first instance.
Section 62B of the 1990 Act requires the Secretary of State to publish a document setting out the criteria for designation or for revoking a designation. This is to be laid before Parliament and comes into effect 40 days later. The first criteria document was laid before Parliament on 3 June 2013 and came into effect 40 days later. The Secretary of State has now published the further criteria and these were presented to Parliament on 12 June 2014. They came into effect on 23 July 2014. See this link.
The earlier criteria of 2013 included two measures – the speed with which applications for major development are dealt with and the extent to which decisions are overturned at appeal. These were set respectively at 30% or less of the local planning authority’s decisions made within the statutory determination period (13 weeks for major applications) or any extended period agreed with an applicant (this would usually be by means of a planning performance agreement). In the case of decisions, the threshold was set at 20% or more of the local planning authority’s decisions on applications for major development being overturned at appeal.
The revised criteria raises the speed threshold to 40%. The percentage for overturned applications has not changed. The local planning authority is given an opportunity to explain why it should not be subject to special measures and why, in its opinion, it would be unreasonable for it to be designated as such. It has two weeks in which to do so. The government has set two general tests:
There are also criteria for de designation. A designation will be revoked if the Secretary of State is satisfied that the local planning authority has provided adequate evidence of sufficient improvement against areas of weakness initially identified. In addition, the designated local planning authority must still remain eligible for designation and must have completed any administrative tasks required of it in association with applications made directly to the Secretary of State in the local planning authority’s area in at least 80% of cases during the period in which the local planning authority was designated.
There is an additional factor relating to section 106 agreements that, in the view of the Secretary of State, the local planning authority has not caused unreasonable delay in signing any section 106 agreements associated with applications submitted directly to the Secretary of State during the designation period. In other words, should an applicant exercise its right of applying directly to the Secretary of State, this effectively allows an inspector to make the decision and the local planning authority will have to show that if a proposed section 106 agreement has been put forward but not agreed, this was not due to unreasonable delay on its part.
Special measures may be made in certain circumstances for district authorities, county authorities and unitary authorities. Only one district authority has been designated so far, namely Blaby District Council. The first application under section 62A has recently been decided. It involved a proposal for 220 new dwellings and school drop off/pick up zone with access and associated infrastructure on behalf of Gladman Developments Limited. The local planning authority was Blaby District Council. The planning inspector dismissed the application (see website at this link).
There were five reasons for refusing the application. These concerned unsustainable development, conservation and listed building grounds, loss of best and most versatile agricultural land for which no need had been demonstrated (contrary to the National Planning Policy Framework (NPPF) in respect of the use of high quality land) and two other grounds relating to development plan policies. It is worth noting that in the decision, the inspector confirms that his decision is final with no right to appeal. The applicant does, of course, have rights to challenge pursuant to an action under section 288 of the 1990 Act.
The decision follows from public hearings and site visits. The inspector was provided with a form of section 106 agreement concluded between the applicant and Blaby District Council. In carrying out his detailed assessment of the application, he referred to the proposed section 106 agreement in a number of places specifying whether or not, in his view, particular obligations complied with the tests set out in regulation 122 of the Community Infrastructure Regulations 2010.
The inspector concluded that the development would be contrary to the development plan as a whole and would be unsustainable. He also stated that material considerations did not indicate that the decision should be other than to refuse permission in accordance with the guidance of the NPPF.
One decision clearly does not provide a sufficiently large sample to assess whether or not the special measures route is likely to be followed. In the case of Blaby District Council, it is understood that this is the only application that has followed the section 62A route. Blaby District Council is not aware of any other applications seeking to follow this route and applicants and their agents are still engaging directly with the council on planning applications.
It is, of course, possible that over the next few months there will be a clear indication as to how popular this procedure is likely to be. That could depend on:
In the case of Blaby District Council, it is understood that their performance figures are now consistently above 40% and that they would expect to be de designated.
Blaby District Council has told us that they were pleased that the inspector, in refusing the application, recognised the special character and setting of the site and Blaby District Council’s record of housing delivery that enables it to demonstrate a five year land supply within the context of its up to date core strategy and refused the application.
