Trainee solicitor in the Planning and Development Team, Ellie Mullins discusses the recent case of Uttlesford District Council, who have become the first Local Planning Authority since 2015 to be designated following failure to meet key planning performance indicators.
The Government advised and wrote to Uttlesford informing them that they have made the decision to designate the Local Planning Authority under special measures by serving a s62A Designation Notice that came into force 9am on the 8th February 2022 and will remain in force until further notice. In the past seven years, no Local Planning Authority has been designated and only four Local Authorities have been placed under this supervision since the programme came into force in 2013. Hence, it is rare/unusual for these powers to be invoked.
When a Local Planning Authority is designated, it means that applications seeking planning permission may apply directly to the Planning Inspectorate and effectively bypass the Council.
Some may wonder why this has happened. The department for Levelling Up, Housing & Communities found that Uttlesford District Council was underperforming and that the Planning Inspectorate overturned 16.5% of Uttlesford Council’s decisions in the two years preceding March 2020.
To add to this, in October 2021, the Council was assessed, and it was considered the Council was not performing/meeting key planning indicators. For example, out of 79 major development applications, 35 of these applications were sent to appeal and the Planning Inspectorate decided that 13 of these applications should get the go-ahead.
It must be noted that this decision only relates to applications for major development and will only affect future applications made and not continuous ongoing applications. The designation gives an applicant the ability to apply to the Planning Inspectorate direct.
However, not all new applications for major development within Uttlesford will be decided by the Planning Inspectorate.
There are two reasons for this.
Firstly, to whom the application is made following a designation (i.e., Planning Inspectorate or Local Authority) remains with the applicant, so they can still choose to apply to Uttlesford. So, in short, the designation gives an applicant the choice as to where to direct their application – that being a choice they did not have pre-designation (i.e., all applications would need to be made to the Local Planning Authority).
Of note, if an application is made directly to the Planning Inspectorate, then Uttlesford does not receive the relevant application fee, which in many cases for major development can be significant.
Secondly, the Planning Inspectorate may refer the application back to the Council for determination (per s62A (4)) with that decision only challengeable by way of Judicial Review (n.b. s62A (5) confirms that the decision of the Planning Inspectorate to refer the application back to the Council being final and not subject to a right of challenge – hence the only way to challenge the decision is to demonstrate that it was perverse/Wednesbury unreasonable).
For the time being, however, the designation does change the position insofar as the making of new applications for Major development in Uttlesford District and, of course, given the basis for the designation is also a blot on the Council’s record of development control.
Lastly, in order for the designation to be revoked, Uttlesford will have to demonstrate a considerable improvement in performance in order to regain control over their major development planning applications.
As this decision relates only to future major development planning applications, any ongoing current applications relating to either minor or major applications can be decided by Uttlesford District Council. However, under the scheme, as the Council is designated, any future major development applications can now be sent straight to PINs to decide instead of going to Uttlesford Council.
Some residents have raised concerns as to whether the designation was justified but, further, that it is local residents that will suffer given new applications for major development applications are now potentially out of Uttlesford District Council’s control. Residents may also be mindful of the proportion of previous refusals that have been overturned at appeal by the Planning Inspectorate.
Applicants and developers now have a decision to make – in making a new application do they apply to the Planning Inspectorate direct (knowing that this could be referred back) or do they continue to apply to Uttlesford in the usual fashion. As a rarely used power, there is no prevailing view as to which might be best. Undoubtedly there will be a number of factors which will guide the decision as to where to direct the new application; this may include the likely timeframe for decision (from the Inspectorate and/or the Council) but also the ability to appeal.
If you are affected by the designation or believe you are affected by this decision, please do get in touch and our team of Planning Law specialists at Holmes & Hills will gladly assist you.
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