Ed, your points are all well made in that they seem logical but when has planning legislation ever been logical? The legislation that allows the LA to charge for discretionary services is S93 of the Local Government Act 2003.
However, the "fiddling about" with the DMPO actually creates a status of "invalid application". This might seem mad I know, but it does so solely to allow for a valid appeal against a request for what the applicant sees as unnecessary information (otherwise you would be appealing against an invalid application which, as you point out, might be considered as nothing more than a bundle of documents). The submission of an application occurs when the application is submitted (not when it is validated). If the LPA decides that the application is invalid then it has to explain that to the applicant and advise them how to make it valid. If the applicant does not agree that the application is invalid they can serve an Article 12 notice on the LPA and the LPA must declare the application either valid (without the additional information) or declare the application as an "invalid application". The applicant then has the right to appeal the invalid application after the statutory processing period (8, 13 or 16 weeks) after the submission date of the invalid application.
The submission of an invalid application is still the submission of an application and must be processed as an application. One doesn't know if it is a valid or an invalid application on the date of its submission. Therefore, the first step in processing an application for a LPA is, therefore, merely to acknowledge receipt of the application, the second step is validation of the application to declare it as a valid application or an invalid application. The processing of planning applications is a statutory requirement of a LPA (other than some exceptions) and since the consideration of whether an application is valid or invalid is part of that processing, it too must be a statutory function of the LPA in determining an application. I suggest it is not, therefore, a discretionary service and S93 cannot apply.
I agree that my use of the term "withdraw" is confusing but I took this reference from the Planning practice guidance on this issue (Delays in the validation of an application) which sets out the validation process in a diagram. This states that if the applicant does not agree with the LPA that additional information is necessary to validate the application their choice is to "appeal to the Planning Inspectorate against non-determination" or "applicant withdraws application or resubmits application with the information requested"
I agree that this could result in the LPA having applications that remain invalid and are not withdrawn by the applicant. The right to appeal for non-determination will be lost after 6 months of the application being formally delared an invalid application under Article 12. In order to avoid a build up of paper I guess most LPAs therefore return the invalid applications to the applicant after this 6 month period (certainly not the 28 days stated on the AVDC website).
I also agree that to get to that stage the LPA has had to undertake some work that will have a cost associated with it for which they will not get paid. But I do not think that this situation is covered in the fee regs and, for the reasons above, do not think that S93 applies. There can, therefore, be no fee payable for making an invalid application.
