Planning performance consultation reveals increased threshold for designation

What changes are proposed to the criteria for designating poorly performing planning authorities? The threshold for the designation of authorities as underperforming is to be increased to 40% or fewer decisions made on time, but there are concerns that this could have a detrimental impact on the quality of decision-making.

What is the background to the consultation?

The consultation supports the implementation of the Growth and Infrastructure Act 2013, s 1, which allows planning applications to be submitted directly to the Secretary of State if a local planning authority (LPA) is designated on the basis of under-performance. The original criteria used for identifying under-performance were brought into force on 25 April 2013.

In March 2014 the government published a consultation on 'Planning performance and planning contributions”. This report summarises comments received and the government's response and next steps. The consultation sought views on:

  • changing the criteria for assessing LPA performance on the speed of handling planning applications
  • the scope to increase that threshold further in the future
  • whether LPAs dealing with a minimum number of applications should be exempted from designation, and
  • proposed broad tests to be applied in considering exceptional circumstances which might make a designation unreasonable

The consultation closed on 4 May 2014 and the government's response was published on 13 June 2014.

What changes does the government propose to make in light of the responses?

Speed of decisions

Legislation will be amended to increase the threshold for the designation of authorities as underperforming, based on the speed of deciding applications for major developments, from 30% or fewer decisions made on time to 40% or fewer decisions made on time. This 40% threshold will be kept under review with a view to increasing it in future.

The government hopes that raising the threshold to 40% will help to encourage continued improvements in performance.

Exemption for LPAs determining two applications or fewer

The government intends to introduce an exemption from designation based on the speed of decisions, for LPAs that have determined two or fewer applications for major development over the two year assessment period.

This exemption is considered appropriate, as two applications or fewer is insufficient to point to a record of poor performance and 'does not provide a robust statistical basis for designation'.

Exceptional circumstances

Tests for 'exceptional circumstances' are to be introduced. The tests set out are intended to provide a framework to be used to assess any cases put forward by LPAs that exceptional circumstances apply, and which would make a designation unreasonable.

This means that before any decisions to designate LPAs are confirmed, they will be given an opportunity to explain any exceptional circumstances which in their view would make a designation unreasonable. The tests are:

  • whether the issue significantly affects the reasonableness of the conclusions that can be drawn from the recorded data for the LPA, over the assessment period, and
  • whether the issue had a significant impact on the LPA's performance, for reasons that were beyond its control

The first of these tests will take into account corrections that need to be made to the data, where LPAs can provide clear evidence that such changes are justified.

The tests do not aim to prescribe or restrict what an LPA might choose to put forward as an exceptional circumstance. However, LPAs may wish to consider how any arguments they wish to propose relate to the tests.

When will the changes take effect?

Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2014, SI 2014/1532

Legislation enabling the amendments is proposed to come into force on 1 October 2014.

What does this mean for developers and local authorities?

So far, only Blaby District Council in Leicestershire has been put in special measures.

The changes should help to ensure that developers can secure planning permission for projects quicker, which could help to boost growth.

However, there is some controversy as to whether the speed of decisions is an appropriate measure of LPA performance.

There are also concerns that increasing the threshold for decision times might have a detrimental impact on either the quality of service provided by the LPA or the quality of the planning decision. It is inevitable that it will put more pressure on the already-stretched time resources of LPAs. The consultation acknowledges these fears, emphasising that 'quality should not be sacrificed for speed'. Not every decision will be able to be determined within 13 weeks, which is why the speed of decision measure takes into account planning performance agreements and agreed extensions of time. These safeguards are designed to minimise any risk of perverse outcomes, such as LPAs refusing applications in order to meet statutory timescales.

LPAs have also pointed out that delays are often caused by factors outside the control of the LPA, such as holding directions from highways authorities, delays by statutory consultees, or applicants taking a long time to prepare s106 agreements. If this does happen, LPAs may be able to explain this in their 'exceptional circumstances', before any designations are confirmed.

In addition, LPAs and developers may be advised to prepare and agree bespoke timetables to minimise the risk of such delay. The government has also put in place a package of support through the Planning Advisory Service for both designated LPAs and those potentially at risk of designation.

This article was written by Jen Hawkins, planning solicitor in the Lexis®PSL Property and Environment teams.  Click here for a free one week trial of Lexis®PSL Property.

Filed Under: Planning

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