The question of what powers LPAs have to deal with old planning applications is raised by both applicants, concerned that their planning application may be unilaterally withdrawn, and LPAs, keen to understand their options for dealing with undetermined applications.
A LPA can decline to deal with an application if: (i) it is not made in the prescribed form; (ii) the circumstances set out in section 70A of the Town and Country Planning Act 1990 (‘TCPA’) apply (namely, the LPA / Secretary of State has refused a similar application in the previous 2 year period and there has been no significant change in the relevant considerations); or (iii) it constitutes an overlapping application under section 70B TCPA. However, there is no power for an LPA to actually withdraw a planning application.
Instead, an LPA may seek to record the application as “finally disposed of” to avoid the application remaining open indefinitely. What does this mean? What is the effect?
“Finally disposed of”
The term “finally disposed of” is used in article 40 of the General Development Procedure Order 2015 (‘GDPO’). Under article 40(2) GDPO, each local planning register authority must keep a register of every live application for planning permission relating to their area.
Article 40(13) GDPO sets out the circumstances in which an application can be treated as finally disposed of. In summary, this is where an application has been:
- granted or refused by the LPA and the time limit for appealing has expired without appeal;
- referred / appealed to the Secretary of State, who has issued a decision and any application to the High Court has been finally determined;
- withdrawn before being decided by the LPA / Secretary of State or an appeal has been withdrawn before the Secretary of State has issued a decision; or
- finally, the period for determination and appeal has expired no decision has been made. This means that a LPA can simply record an application as finally disposed of as soon as the period for determination and appeal has expired – so watch for that date.
Once any of these requirements are satisfied, the LPA may treat the application as finally disposed of and elect to remove the application from its Planning Register.
Best Practice for applicants
To avoid an application being finally disposed of, applicants should either: (i) agree to extend the time period for the Council to determine the application; or (ii) if the LPA fails to determine the application within the statutory period, appeal on the grounds of non-determination. Applicants should note that if the application period is extended, the right to a refund is lost, even if the authority fails to meet the extended deadline.
Best Practice for LPAs
Once the date for determination has passed, consideration should be given at regular intervals to whether the application should be deemed “finally disposed of” and removed from the Planning Register. Given the cost and expense of submitting an application an LPA should notify the applicant of its intention to treat an application as “finally disposed of” before doing so. This should set out a timetable for dealing with any outstanding matters.
Refusal as an Alternative
Rather than recording an application as “finally disposed of”, LPAs could simply refuse the application. However, LPAs are often keen to avoid this course of action for 2 reasons:
- Refusal rates are monitored nationally and, in theory, LPAs with clear policies and effective pre-application advice should issue fewer refusals. LPAs may therefore be concerned that refusing such application will have a negative impact on their performance figures; and
- It would reinstate an applicant’s right to appeal.
- Given the above, it is likely that LPAs will continue to treat applications as “finally disposed of” unless a formal procedure for LPAs to withdraw planning applications is implemented. This is unlikely to be high on the agenda at any time in the near future given the raft of more pressing planning matters.