Legal Report - Validation revisions put speedier system at risk

Trevor Ivory, Planning, 16 May 2008

According to the government, its changes to the validation procedure are intended to "make the application process quicker and easier for the applicant by providing more certainty and standardisation about the information required". But there are fears that these reforms may cause more uncertainty.

Until 6 April, applications for planning permission were deemed valid as long as they included the relatively short list of items specified in the GDPO. Broadly speaking, these comprised an application form, a site plan, a land ownership certificate, the relevant fee and in some circumstances a design and access statement and environmental statement.

The GDPO provided a tried, tested and readily understood method for judging whether an application satisfied the relevant legal requirements. Local planning authorities were able to request other information following pre-application consultation, and indeed throughout the process, to enable them to make a judgement on the merits of the proposal.

Applications tied to local lists

Under the amended order, applications must now also include such information as authorities may require under section 62(3) of the Town and Country Planning Act 1990. These local lists of councils' requirements have to be published on their websites before they can rely on this provision. The government has published further advice on local lists in Circular 02/2008 and its guidance document The Validation of Planning Applications.

The guidance includes a model local list and sets out recommended non-statutory consultation procedures prior to adoption. However, councils are not obliged to consult. On the face of it, concerned parties can do little to challenge an adopted local list that requires more information than is necessary for a particular application. If a local list requirement is not satisfied, it appears that the application would not be valid.

Local planning authorities are urged to ask only for information that is necessary, reasonable and proportionate. Both the circular and the guidance suggest that the planning authority must provide a written justification of its demands for certain information if an applicant disputes the need for it. Unfortunately, there is no legal obligation for councils to provide such a justification.

The circular and the guidance confirm applicants' right of appeal, but this only arises where an application is refused or approved subject to conditions or the authority fails to determine it in the statutory period. The determination period only runs from the day after the date of receipt of a valid application. If an application is regarded as invalid because it does not include information on the local list the period never starts to run, effectively preventing a non-determination appeal.

Decisions could face scrutiny

Provided that leave is granted, grounds can be shown and the issue is identified sufficiently quickly, third parties may seek judicial review of a decision to adopt a local list. Alternatively, applicants may seek judicial review of a council's decision that an application is not valid. However, if a local list has been adopted and its requirements are not met, it is difficult to see how any challenge would be successful. The time and cost implications hardly make this an attractive option.

The common sense solution would be to include a right to appeal to the secretary of state similar to that available under the current environmental impact assessment regime. This enables applicants who receive a positive screening opinion from a local authority to appeal if they do not think that an environmental statement is warranted. No such mechanism is included in the validation amendments.

By providing local planning authorities with more powers to determine the criteria for ascertaining validity, the amended GDPO makes it more likely that applications will be deemed invalid. At the same time, the legal protection afforded to applicants to challenge council decisions is inadequate and unclear. Instead of creating a streamlined validation process, the amendments may well have made things more complicated, less predictable, more burdensome and more time-consuming.

- Trevor Ivory is an associate and Marcus Bate is a solicitor at Eversheds LLP.