Power to decline to determine applications under Localism Act 2011 - Public forum - Planning Advisory Service (PAS)

Just to avoid confusion, the decision will have been made under section 70C of the Town and Country Planning Act 1990 (which was inserted on 6 April 2012 by the Localism Act).

Yet another planning application returned undecided by the same Council. It appears that this Council only recently discovered their powers to decline to determine retrospective applications under Section 70C in the Localism Act (or more formally the Town and Country Planning Act 1990 as inserted by the Localism Act as pointed out by Mr Courtine). This one seems even more absurd given that the original application was for a Certificate of Lawfulness for the retention of a single storey rear extension, whereas the resubmission is for full planning permission. This is only the second attempt and totally different rules apply, i.e. not Permitted Development as in the first application. If anyone at all has any experience whatsoever in dealing with section 70C issues I would love to hear from you. [I've spell-checked my post so hopefully no need for 'R' to correct any typos ;o]

Absurd indeed - I would love to know who is advising the authority! Presumably the enforcement notice was originally issued and appealed before 06 April 2012? Not only that, but the notice was dismissed on appeal. The Council is acting beyond the limits of its legal powers to refuse to validate the retrospective application in this case. Your legal remedy would be an application for judicial review, however note the strict time limits for issuing proceedings within 3 months and “promptly”.

Can't you also go for a non-determination appeal for this situation ? However I suspect that ultimately the most fruitful course of action is to attempt to "make friends" with the people concerned and find out what's going on from their perspective.

Some Councils, such as my own, see charging for pre-apps as counter productive, and would much prefer an open system of fees and charges. It would appear that it is Council's like this who are holding up fees reform as quite rightly the legislators are apprehensive of what we might do with new charges, given these experiences. My attitude to fees for pre-apps is that unless it is a token amount, the cost will be a barrier to applicants obtaining good front loaded advice. This will result in half baked schemes or increased enforcement. This is a downward spiral and a self fulfilling prophesy. I am well aware of financial constraints on Councils such as my own. The trick appears to be, not to create self generated costs through poor practices. If and when we are given control of planning fees, I would see an opportunity for Councils to introduce realistic pre-application charges, discounting these against future income from the actual planning fee. If the system works well, the combined fee should be lower than the current fee as frontloading reduces the workload of the planner. Or is this nirvana? With this case my first point of call would be the Council itself and find out what the problem is; is it a council wide policy dictated on income generation, or is it site specific issue where a planner(s) has a bee in his/her bonnet. A threat of JR may get a reaction. BTW, Ben, thanks for your assistance with the MSA, looking forward to seeing the judgement.

Many thanks for all your input. I would like to clarify that under the first application the appeal against the enforcement notice was dismissed (not the notice itself). This was on 23rd February 2012. Would the applicant however still have the rights to submit a revised application given that the enforcement notice was originally issued and appealed before the 6th April 2012? Can the Section 70C powers only be applied in the case where application or appeal decisions were issued after the 6th April 2012? I have sought the Council's justification and asked specifically clarification on their suggested pre-application service. My concerns are that where an officer do not agree at pre-app stage, and it proofs unfeasible to amend the plans, the Council would in any event decline a resubmission. The reply I received from their enforcement team leader was very unconvincing and merely stated and I quote 'That would be the case. Otherwise why amend the act with 70c? But offering pre application advice may allow a look at other potential development oppotunities'. This attitude is really unreasonable and is a bad public service. The LPA insisting on a pre-app in this case will certainly turn out to be a waste of a lot of the applicant’s money. It appears just because a site has an enforcement notice any subsequent applications are seen as an attempt by applicants to ‘protract the enforcement process’. This is unfortunate especially where an applicant has shown a very clear and honest attempt to address previous concerns/refusal reasons. I feel the applicant now has no further option but to follow the judicial review. I have considered a non-determination appeal however at this stage not sure which option would proof the most feasible. I feel it is unnecessary to try and 'make friends' with the authority as surely they should provide a public service in any event where it is obviously required. They are simply turning a blind eye by turning applications away. I get the feeling this is more of an 'easy way out' to reduce workloads than to proactively address the issues at hand.

This is only my opinion, but to pursue either a JR or non-det is wrong without first using the council's own formal complaints procedure. It smells like there are deeper issues at play, and the complaint process may bring them out.

Thanks for the swift reply Richard. Do you know whether the applicant do in deed have the rights to submit a revised application given that the appeal decision was issued before the 6th April 2012? Also, can a JR normally follow after the outcome of the Council's formal complaints procedure? Or does the 3 months to file a JR start from the date the Council issued the non-determination?

Richard/Erich Unless I'm mistaken, there is no right of appeal against a 'decline to determine' under section 70C (or for that matter 70A or 70B). Whilst not helpful to your case, the point is to 'stop the process in its tracks' so to speak. The time for JR would be from the date of the relevant decision (in this case, it would appear to be the decision to issue a notice under section 70C). In respect of whether the notice is valid, after a little searching, the relevant SI is 2012 No. 628. I've inserted an extract below. The relevant part of the Localism Act is section 123(2). In respect of your case, my reading of the below is that, as the EN was issued (and not withdrawn) and an appeal made before 6/4/12 section 123(2) of the Act does not apply. (i.e. there is no power to use section 70C). (please note that if there was an appeal under ground (a) of the enforcement notice, that would also give rise to a power to decline to determine - but see the terms of section 70A of the TCPA 1990 Act) As always, just my thoughts based upon the information available, a more detailed review would, of course, be needed to provide formal advice. Kind regards David Transitional etc. provisions: planning enforcement 13.—(1) In a case where, before 6th April 2012, an enforcement notice has been issued under section 172 of the 1990 Act(11) (issue of enforcement notice) and not withdrawn under section 173A of that Act (variation and withdrawal of enforcement notices) and either or both of the following sub-paragraphs apply— (a)an appeal under section 174 of the 1990 Act(12) (appeal against enforcement notice) has been made against that notice; or (b)an application for planning permission for the development of any land to which that enforcement notice relates has been made after the date on which that notice was issued, section 123(2) and (3) of the Act (retrospective planning permission) shall not apply to that case. (2) Section 123(4), (5) and (6) of the Act (retrospective planning permission) shall not apply to a case where, before 6th April 2012, an enforcement notice has been issued under section 172 of the 1990 Act (issue of enforcement notice) and not withdrawn under section 173A of that Act (variation and withdrawal of enforcement notice). (3) In the case of a breach of planning control— (a)which took place before 6th April 2012; and (b)in relation to which the time limits for taking enforcement action under section 171B of the 1990 Act(13) (time limits) have expired before 6th April 2012, section 124 of the Act (time limits for enforcing concealed breaches of planning control) shall not apply to that breach.

Hi David - many thanks for the very helpful information. I note that in the first case, given that the applicant has appealed the enforcement notice before 6th April 2012 that the 70C notice will not be valid. In the second case, no appeal was made against the enforcement notice, however it would appear that para 13.(b) applies. This allows a case where, before 6th April 2012, an enforcement notice has been issued and 'an application for planning permission for the development of any land to which that enforcement notice relates has been made after the date on which that notice was issued'. The emphasis here is that the application was submitted after the date on which the enforcement notice was issued. It would appear therefore that almost all retrospective applications made after and with enforcement notices served prior to 6th April 2012 will not be subject to section 123(2) of the Act. This is very useful to know in future. Once again many thanks for all your input.