Legal report

Planning, 4 July 2008

Following the property slump and this April's dramatic increases in planning application fee rates, applicants will be keen to take advantage of opportunities to minimise their costs wherever possible.

Such an opportunity is presented by regulation 8 of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989. This allows submission of a second application for planning permission or reserved matters approval without incurring a further fee.

Strict criteria faced by free go

To qualify for this "free go", regulation 8 requires the second application to fulfil the following criteria:

- It must be made by or on behalf of the same applicant as the first.

- It must be submitted within 12 months of withdrawal, refusal or expiry of the determination period for the earlier application.

- It must relate to the same application site.

- It must relate to development of the same character or description.

- It must be a full planning application if the earlier attempt was also a full application

- The application fee must have been paid on the original attempt.

- Only one free go is allowed.

Whether the second application is of the same character or description as the first has caused difficulties in interpretation. The courts will only intervene where there has been a clear abuse of power. R v South Holland District Council ex parte Hey & Croft Ltd (1999) made the point that you cannot argue that a scheme has been amended to make it acceptable while at the same time suggesting it is the same for the purposes of the free go.

This sums up the difficulties of applying the provision in a nutshell. However, it also undermines the purpose of the free go. At the time of the case, Circular 05/1989 allowed greater scope than its successor for changes to proposals. For example, it indicated that changes in the numbers of homes or design alterations could qualify.

Under Circular 31/1992, only minor changes were exempt. Such changes were defined as those that a planning authority was satisfied would retain the character or description of the previous application. This move towards a stricter approach culminated in 2004 with the proposals to partially or wholly remove the provision. These were rejected by the government on the grounds that the regulation is a useful quality driver, because it encourages the revision and improvement of schemes.

Circular 04/2008, issued in April, drops the Circular 31/1992 qualification. It reverts to the test set out in regulation 8 and Circular 05/1989 referring to development of the same character or description as the earlier proposal. This suggests that a less strict approach should now be adopted when applying the test because the regulation is no longer limited to minor changes.

Where disputes arise as to whether a free go is applicable, recourse to the High Court may not be appropriate in view of the cost, delay and uncertain chances of success. While the statutory period for determination does not begin until the correct fee has been paid, it starts from the day after the date that the application is received by the planning authority, as long as it is valid at the time of submission in all other respects.

Appeal route open on disputes

So even if the planning authority refuses to validate an application because the fee has not been paid, the applicant can still appeal upon the expiry of the statutory period on grounds of non-determination. The secretary of state can then be required to resolve the fee issue as a preliminary matter on the validity of the appeal. If she agrees that a free go is not appropriate and an application fee is payable, she has no authority to hear the appeal.

The applicant may then decide to pay the application fee to the planning authority, which should then validate and determine the application. If the secretary of state agrees with the applicant that a free go is applicable and no fee is payable, she may then proceed to determine the application as an appeal case.

The relaxation of this test must be welcomed by applicants because it should enable more amendments to be made to second applications without incurring another fee. Bearing in mind that maximum application fee rates now range up to £250,000, recourse to an appeal might provide the answer in those cases where disputes arise.

Kevin Gibbs is a partner and Ashley Heath a barrister at Osborne Clarke.