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Energy e-briefing: UK: Changes to validation requirements for planning applications

  • United Kingdom
  • Energy and infrastructure

03-07-2013

On 25 June 2013, new legislative provisions were brought into force in England and Wales that provide a formal route for applicants to challenge requests for additional information by local planning authorities (LPAs) before a planning application can be validated. This will enable applicants to appeal against non-determination after the statutory time period has passed and no formal validation has taken place. This means that an LPA can no longer compel a developer to provide information simply because it is on a local validation list. The aim is to streamline the planning application process and reduce the costs of administration and delays in validation.

The effect of these changes is that the requirement imposed on applicants by LPAs to provide particulars or evidence in connection with a planning application must be reasonable, having regard to the nature and scale of the proposed development. Furthermore, the LPA may require particulars or evidence about a matter only if it is reasonable to think that the matter will be a material consideration in the determination of the application.

The old regime

Prior to 25 June 2013, an LPA could insist on the provision of any particulars or evidence that it deemed necessary for the planning application, if such information was specified in the LPA’s local validation list or required by national policy.

The failure of an applicant to include this information would have resulted in the application being deemed invalid, with no right of appeal. Appeal to the Planning Inspectorate was restricted only to instances, relating to the quality and adequacy of the documents provided rather than instances in which these documents were absent.
This position was established in the case of Newcastle City Council v Secretary of State for Communities and Local Government (2009), which concluded that the LPA is the sole arbiter of what documents are required to support a planning application and, subsequently, that there is no basis for an appeal to the Planning Inspectorate where such matters are in dispute.

The choice available to an applicant was either to provide the information requested or to seek Judicial Review of the decision. However, given the high costs and extensive delay that the Judicial Review procedure involves, this remedy was hardly ever a realistic option for applicants, since it was usually simpler to provide the information requested.

Effect of the new provisions

Following the recent changes, if an applicant considers that the information requested on a local list does not meet the required standard of reasonableness or reflect the National Planning Policy Framework, then they can challenge the need to provide it.

The applicant can now send a notice to the LPA specifying the particulars or evidence which it considers to fall outside the necessary requirements and request the LPA to waive its demand for its provision. The LPA must then notify the applicant of its decision by the end of the statutory determination period. This is generally eight weeks from the date of application but can be extended to thirteen weeks for major developments. At this stage, the LPA can either inform the applicant that it no longer requires the particulars or evidence in question by validating the application, or that it continues to require the documents by issuing a non-validation notice.

Should the LPA fail to determine a non-validated application within the statutory time period, the applicant may use the serving of the non-validation notice, or the LPA’s failure to deliver a decision, as grounds of appeal to the Secretary of State through the Planning Inspectorate once the statutory determination period has lapsed. For applicants, this is a positive departure from the old regime under which the non-provision of documents did not allow for such appeals.

The measures are aimed to complement the current requirement for LPAs to review their local lists at least every two years and have been implemented in order to prevent a ‘tick-box approach’ to planning applications. They seek to encourage LPAs to consider whether the information requested is genuinely necessary, relevant and material to the application.

However, a significant aim of these changes is also to ensure that applicants give full consideration to the request from LPAs and to their justification as to why they consider the required information to be unnecessary at the planning application stage. The Government has made clear that appeals should only be pursued in circumstances where there is a genuine deadlock between the applicant and LPA and only after negotiation has been exhausted.

The new provisions will mean that applicants now have a further opportunity to appeal against invalidity and non-determination of planning applications. They have been introduced as a means of facilitating the planning application process and encouraging development through imposing a reasonableness restriction on LPAs, making it easier for applicants to challenge LPAs’ decisions in the future. This is an improvement on the old system where no appeal at all was available.

To access the UK Government's Planning Reform Proposals, click here.

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