Re-advertising an application after decision is made? - Public forum - Planning Advisory Service (PAS)
Re-advertising an application after decision is made?
James Knight, modified 8 Years ago.
Re-advertising an application after decision is made?
New Member Posts: 3 Join Date: 17/12/15 Recent PostsMy understanding is that a planning application for something which is contrary to the local development plan has to be advertised – as well as having a site notice.
Their approach, however, is only to advertise such applications ‘if they think they are likely to approve them’ – and if Members pass an application which is contrary to policy then Officers ‘re-advertise’ the application ‘as a departure from policy’ after Members have made their decision.
I think this is wrong, because:
a) The Town and Country Planning (Development Management Procedure) (England) Order 2015 s15 says that an application which is contrary to the development plan must be advertised. It doesn’t say that it should only be advertised if Officers think it’s likely to be approved (which would amount to pre-determination);
b) Once Members have approved an application, the decision has been made – it shouldn’t be subject to further advertising or consultation;
c) there is no logical point in re-advertising after the decision has been made;
d) the applicant is entitled to a decision in a timely manner without unreasonable delays.
The Authority appears to be under the impression that the committee decision can be effectively deferred until after a further 3 week advertising period – after which the decision notice is issued. Quite what they would do with any representations received as a result of this further consultation period is unclear.
Their stated position is that advertising is expensive, and so they only wish to advertise applications which they think they would approve. Further, they state that they wouldn’t know if an application was contrary to policy at the time the application was made.
I would be extremely interested to know other views on this, particularly from any planning professionals who might be able to tell me whether my interpretation is correct.
Thanks!
Ed Murphy, modified 8 Years ago.
RE: Re-advertising an application after decision is made?
New Member Posts: 16 Join Date: 12/08/13 Recent PostsJames,
I think your authority's approach is defensible. I agree with their point that advertising is ridiculously expensive (it's about time the govt woke up, took on the Press Lobby, and changed the rules about publciity) and also that until you have carefully considered the application you cannot be sure that it would be a departure.
Most policies are shades of grey rather than black & white - it's so often a matter of weight, balance and judgement that leads to the recommendation/decision. If the cttee refuses PP due to conflict with the Devt Plan, the decision is in accordance therewith, there is no point in devoting public funds to a press advert.
An applcant is entitled to a timely decision - not disputed, 'timely' can include refusal or deferral for negotiation (= delay, but arguably negotiation is exactly what the govt exhorts is to do), or approval following a Departure advert because your cttee disagreed with your judgement. You have the facility of an extension of time if needed.
I'd think about the point of why the govt wanted to give publicity to departures: you shouldn't depart (materially) from your devt plan unless material considerations etc etc. If you determine the application in line with your policies, there is de facto no departure. I'd be pleased to learn if any LPA which advertises the way your own LPA does has ever been successfully challenged.
Nigel Scollin, modified 8 Years ago.
RE: Re-advertising an application after decision is made?
New Member Posts: 18 Join Date: 19/10/11 Recent PostsI would query whether the LPA had an established (and written) procedure with dealing with any objections which are received after the 're-advertisement' of the application in the locat press, when to all intents the decision has already been made. Does the application get returned to Committee (which would seem to be counter-productive) for consideration of these objections, or are the later objections considered by Senior Officers/Chair?
Other than this point, whilst it is not a method of working that I would recommend particularly, i would largely agree with Ed.
James Knight, modified 8 Years ago.
RE: Re-advertising an application after decision is made?
New Member Posts: 3 Join Date: 17/12/15 Recent PostsThanks both for your helpful replies.
I can understand why an Authority wouldn't *want* to spend funds on advertising applications which they may not approve (and yes it can be stupidly expensive) - but to me the wording of the Development Management Procedure Order seems pretty clear
http://www.legislation.gov.uk/uksi/2015/595/article/15/made
"An application for planning permission must be publicised by the local planning authority to which the application is made in the manner prescribed by this article."
and then goes on to say (inter alia) that it must have a site notice, an advert (if a departure from policy) and be placed on the Authority's website.
It doesn't say that they only have to advertise it if they think they might approve it - and surely that would be classed as pre-determination?
So although I sympathise from a cost perspective, there appears to me to be a clear obligation upon them?
There is then the logical issue of what happens after the decision has been made, but they decided to advertise (or re-advertise) 'as a departure'. What happens if there is an objection? Do the committee then have to re-consider their decision and potentially rescind the consent which they had already approved? Even if there was a documented process (which to the best of my knowledge there is not), how would this comply with the requirements of the NPPF and the Development Management Procedure Order?
Look forward to your further thoughts on how this is defensible, as I don't understand at the moment!
Thanks again
James
So now we're required to pay for more press adverts? Great!
I suspect your Council's approach is a hangover from more sensible earlier legislation which was phrased in terms of the LPA being minded to grant. That always seemed right to me because surely, strictly speaking, every refusal is made on the basis that the proposal is not in accordance with the development plan? Departure is a matter of judgement - and often one that can only me made towards the end of the process. And of course it is open to the Planning Committee to hold a different view on whether a departure would occur.
I'm being pedantic I know, but what you have described is not after the decision. The decision date is the date on the decision notice, so unless you issue it on the same day the Committee meeting, the Committee has either made a resolution or instructed officers, whichever way you like to view it.
Ed Murphy, modified 8 Years ago.
RE: Re-advertising an application after decision is made?
New Member Posts: 16 Join Date: 12/08/13 Recent PostsAgree with Mark, the decision isn't made until it's issued (whuich is why an application can be withdrawn between a cttee resolution and the time the notice is actually sent out).
If your officer at cttee is on the ball, he/she will advise the cttee that they cannot grant PP at that stage, but can be just 'minded to approve'. I suggest it's reasonable for a council to make a resolution along the lines of: Resolve to grant PP subject to (i) advertising as a departure (ii) if no new issues are raised in representations by the end of the publicity period, that decision to be issued, (iii) if new issues are raised the matter be brought back for further cttee consideration.
As before, I'd be happy to learn if anyone's been challenged relating to this issue.
James Knight, modified 8 Years ago.
RE: Re-advertising an application after decision is made?
New Member Posts: 3 Join Date: 17/12/15 Recent PostsOK that is helpful thank you Mark. My intention isn't to impose more costs on local authorities, but to ensure that they comply with the law and treat everyone fairly.
From what you say, the decision isn't finalised until the decision notice is issued - but what happens if someone comes up with a new objection after the committee decision?
Is that decision then somehow rescinded?
I can see how all this works for the LPA, but I don't see how it complies with the requirements of the DMP Order which is pretty clear on the subject - an application which is contrary to policy must be advertised. It doesn't say anywhere that a decision which is contrary to policy has to be separately advertised. If they complied with the requirements of the Order at the outset (and it could be a cheap advert in a free ads paper, it doesn't have to be the London Gazette) then they would not have the potential problems of having to advertise a decision after the event!
Thanks again
James
James, quite simply the new objection must be considered because the application is still live. If it gives rise to questions about the soundness of the Committee's resolution then it may be necessary to report back. Thankfully most post-resolution comments repeat what has already been taken into account and don't require further action.
I don't disagree with you about what the DMP requires, I'm just disappointed some common sense has been lost along the way.