Money back guarantee for planning – is it working?

money-back-guaranteeWe have already highlighted the varied outcomes from the Government’s ‘Planning Guarantee’ changes to the Planning (Fees etc) Regulations 2012.  The ‘Guarantee’ requires local planning authorities to refund fees for planning applications not decided within 26 weeks unless there is an agreed extension.  The threat of losing what in some cases may be several hundred thousand pounds of fees has undoubtedly focussed minds. But the guarantee is toothless in practice unless applicants are prepared to go their own way on appeals early on.  If the application period is extended then the right to a refund dies even if the authority fails to meet the extended deadline.

Local authorities are alive to the implications of exceeding the 26 weeks to issue a decision, often more so than applicants. They are willing to game the system to avoid losing the revenue from large planning applications. For example, some are requesting a solicitor’s undertaking not to seek clawback of the fee if the Guarantee period expires without a decision. Others are willing to raise the spectre of refusal – in some cases on the explicit – but bizarre – basis that the loss of the fee is a material consideration.  Once the 26 week limit approaches, there is often a concerted push to agree to extend time (killing off the fee repayment) in exchange for the promise of a slot at the next Committee.

The Fees Regulations are flawed.  They do not reflect the costs of switching to a non-determination appeal once the applicant has waited half a year for the authority to do its job.  Killing off the right to clawback the fee where the local route has been given one more chance undermines the purpose of the ‘Guarantee’. It is more like a special offer – get it while it lasts.

None of that is helped by the fact that many moderately complex applications are dealt with on the ‘bespoke’ programme, which means that the Guarantee does not apply to them.

Local authorities do face real resourcing challenges. In some cases they will face delays not of their own making as schemes submitted in a rush require backfilling, negotiation and amendment. In others, the mire of post Committee Section 106 haggling will drag timings beyond the deadline.

To get the most out of the current set up, both authorities and applicants may need to be bolder:

  • avoiding delay at the back end of the process by setting clear, detailed, heads of terms for planning obligations as early as possible (and ensuring draft agreements are largely agreed before the Committee);
  • being prepared, from an applicant’s perspective, to claw back the fee where there is timewasting locally (and use it to fund an appeal);
  • being willing, from an authority’s point of view, to draw a line early on points that will rightly lead to a prompt refusal if not detailed or corrected and those which can, genuinely be controlled or approved further down the line.

Assuming the Regulations do not change, working out a way to give peace a chance and live up to the intent behind the Guarantee – perhaps agreeing to Section 106 obligations that repay the application fee to the local authority where it has been clawed back at week twenty six, provided that the decision is made within the extended period.

Roy Pinnock

About Roy Pinnock

Roy is a partner in the Planning and Public Law team, bringing his experience of working on regeneration projects within local government and as a consultant to his legal practice.

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