It is the proper time to study the ‘planning guarantee’ as the Local Planning Authorities (LPAs) are taking ever more time to decide on the application.
I understand the bulk of the work of the local planning officer, including their capacity and skills to do all the work, but still, they have the responsibilities and liabilities to adhere to this policy:
Regulation 9A of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 (hereinafter “the 2012 Regulations”).
“Refund of fees in relation to planning applications not determined within 26 weeks
9A.—(1) Subject to paragraph (2), any fee paid by an applicant in respect of an application for planning permission or for the approval of reserved matters shall be refunded to the applicant 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.
(2) Paragraph (1) 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 Secretary of State gives a direction under section 77 of the 1990 Act(1) in relation to the application before the period mentioned in paragraph (1) has expired;
the applicant has appealed to the Secretary of State under section 78(2) of the 1990 Act(2) before the period mentioned in paragraph (1) has expired; or
any person who is aggrieved by any decision of the local planning authority or the Secretary of State in relation to the application has made an application to the High Court before the period mentioned in paragraph (1) has expired.
(3) In this regulation “valid application” is—
where the application is made to a local planning authority, to have the same meaning as in article 29(3) of the Development Management Procedure Order;
where the application is made under section 62A of the 1990 Act, to have the same meaning as in article 29(3) of the Development Management Procedure Order (but with the references in that definition to articles 5, 6, 8 and 12 of that Order being construed as references to those articles as applied by a development order made pursuant to section 76C of the 1990 Act).”
It is not normal for me to scrutinise the application of government policy however I now have a case which has lead me to look further into it.
The planning application was validated on 23/05/22, and the 26th week period for non-determination is on 21/11/22. The law implies that the 26 weeks will start when the local planning authority receives a valid application.
I do not know if the case officer is aware of Regulation 9 of the 2012 Regulations of the Town and Country Planning Act (TCPA) 1990 “Refund of fees in relation to planning applications not determined within 26 weeks”.
I am also not keen to know if there are LPAs that returned the applicant’s payment for non-determination of the application.
Paragraph 9A does not apply if the applicant and the LPA have agreed in writing that the application is to be determined within an extended period. The LPA’s case officer has not asked for a time extension even though the decision’s due date of 18/7/22 has been passed. On the face of it then the fee is due for a refund.
However what happens if the council and the applicant agree an extension?
In the case of Provectus Remediation Limited vs Derbyshire County Council the High Court ruled that
“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.”
The above statement makes clear that my client is liable for a refund. However, my client is not interested in the refund. He wants his application to be determined. This then demonstrates the one sided nature of the regulation.
If he demands the refund then application will then be set aside as it will be out of time and not a priority.
If he agree’s an extension then the LPA may determine the application in the time period given but he also loses the protection of the planning guarantee.
The court decision on Provectus Remediation Limited vs Derbyshire County Council on 8 June 2018 is a good example of the proper interpretation of Regulations 9A. But, in my opinion, is not fair to the applicant because if the council asked for a time extension and the applicant agreed, there is no time limit on the determination of the application. It is just a one-time extension agreement between the local authority and the applicant, and the local authority can have unlimited time to determine the application, and the applicant’s fee cannot be refunded.
The applicant should think twice before agreeing to the time extension, but in my opinion and in my experience, the applicant does not have the choice to disagree because no policy or law protects the applicant once they disagree. I can say that this Regulation is one-sided once the applicant agrees with the time extension. How unfortunate!
By Anchie Balbido