Free go after an approved application - Public forum - Planning Advisory Service (PAS)

The Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 ss 7 and 8 cover free gos. My understanding is that subject to the provisions in the regs an applicant gets one free go on a withdrawal/refusal and one separate free go on an approval. So a max of two free gos per applicant. I'm not aware of any change to this but would be interested to hear if you find anything.

Paragraph 91 of Circular 04/08 (Revised applications following permission) states: "A developer may seek to vary a planning permission by having a planning condition discharged or modified. Strictly speaking the developer would be applying (under section 73 of the Town and Country Planning Act 1990) for the same planning permission but without whichever of the imposed condition(s) he or she finds inconvenient. The first such application to vary a permission is entitled to a ‘free go’ under Regulation 7, subject to the rules and time-limits described above. More than one condition at a time can be removed or altered in this way, without any multiplication of the fee to be paid".

Thank you both very much. This is the way I thought it worked but always better to hear from others

Circuar 04/2008 seems to miss the point that the 1989 regs (s7and 8) say that following a grant of pemission, an application for full permission for the same charater and descripton of development can be made within 12 months without attracting a fee. The application does not have to be a s73 appllcation to vary a condition as the circular suggests it strictly has to be in para 91. CLG guidance "Greater flexibilty for planning pemissions" 2010, in para. 67, does not mention the possibilty of a free go for a s73 applcation for a material minor amendment. Planning Portal guidance on fees seems to offer the clearrest advice on fee exemptions.. Ironicaly, a fee applies to a s96a application for a non material amendment regardless of how soon it is submitted following the grant of permission..

Interesting posts, as I read it the regs s7 is clear in that a 'free go' is allowed following the approval of an application. subject to the same character and description conditions and refusals etc. as far as I can see the circular is incorrect in restricting it only refusals etc.

So, just to be sure, the general agreement is that a free go is allowed after approval? David Breeze says: "Planning Portal guidance on fees seems to offer the clearrest advice on fee exemptions". I presume he means at, http://www.planningportal.gov.uk/uploads/english_fees-feb_2010.pdf "If the proposal is the first revision of an application for development of the same character or description on the same site by the same applicant within 12 months of making the earlier application if withdrawn or the date of decision if granted or refused (including signs only if withdrawn or refused) and NOT a duplicate application made by the same applicant within 28 days". That's pretty clear, assuming we can trust the web site?

Evening all! Did we get a conclusive conclusion to this discussion? On the one hand the 2008 Circular seemed to miss out the 'free go' provision notwithstanding that it remains in the 1989 Regulations ... and on the other the guidance on fees on the Portal clearly says that you can still have one! On the same topic ... can a S73 application modify a permission is there is NO condition listing the approved plans? My reading of the guidance is that it can't. Thanks in anticipation!

Michael, A minor amendment cannot be made where there is no 'approved plans' condition. The best way round this appears to be to make an application for a non-material amendment to add an approved plans condition and then make a S73 application to amend that condition. I'm still of the opinion that you get one free go on a refusal/withdrawal and one free go on a permission.

Hi Nick ... thanks for that. Regarding your second point the Council I'm dealing with in England (I normally work in Scotland) are happy to let me have a 'free-go' in line with the 1989 Regs. Mike

A twist on this. Say an application is approved by planning committee, but the associated Section 106 Agreement is not yet signed by all of the multiple parties (6 at last count: all the land owners and their mortgagees). When can a “free go” (or a S.73/MMA - not yet decided which way to go) application be validated by the LPA? I.e. does it have to await the competed execution of the S106?

Surely a 'free go' or S73 application can only be validated once there is a permission to vary, and given that there will be no permission until the S106 is concluded and the decison issued ... such an approach would not be possible. Why can't the application just go back to Committee and with the recommendation that a variation be agreed before the decison is issued?

Many thanks. Interesting - I didn't realise that going back to Committee for a variation was an option. But unfortunately not in this case, because we need both permissions.

Wow, if I'm right, you can pay a single fee and get 3 applications and 3 Appeals..... Say, Application 1 is refused and is taken to Appeal 1. A Free Go against Refusal 1 results in Application 2 (under reg 8), which is refused and is taken to Appeal as Appeal 2. Meanwhile, Appeal 1 is decided and is Allowed, but Applicant doesn't like some condition applied by the Inspector, so he uses his Free Go under reg 7 as Application 3, which if refused can be appealed as Appeal 3. This cannot go on any further because it would be caught by the regulation, " (d) that no application made by or on behalf of the same applicant in relation to the whole or any part of the site has already been exempted from regulation 3 by this regulation" (And all applications have to be within 12 months of the refusal or allowal they refer to) Hope I never have to go that far!

Would appreciate some advice on this situation: We have a full permission for x2 dwellings. Applied for further permission to make each dwelling into x2 flats. Refused, appeal lodged, now pending determination. It has now emerged that the drawings for the original dwellings are wrong (being taken from OS). Asked LPA what to do. Replied that would accept downsizing of dwellings as non-material amendment (altering condition re plans submitted), but as size of site is different will need a full application. Any suggestions as to how to deal with LPA and PINS?

I suppose what you want is to make a “free go” repeat application, with the corrected plans. But because you say the “size of site” is wrong, you may fall foul of the requirement that the application be for the “same site”, to qualify for the free go. But, if what you really want is the 4 x flats, presumably your ideal would be if PINS would accept revised plans. The PINS document, “Making your Appeal” has (section J): “There is limited scope to consider revised proposals at appeal stage. If you want to put forward revised proposals at the appeal stage, you should send them with the appeal documents. Late submission can cause delays and lead to a claim for costs. If you submit revised plans, the Inspector will decide whether or not to consider them in line with the tests laid down by the Courts in Wheatcroft v SSE [JPL, 1982, P37]. These require that any amendments do not materially alter the nature of the application, and that no one who would normally have been consulted would be prejudiced by the lack of opportunity to comment on the revised plans. These tests would not normally be met by conducting informal consultation exercises.” Presumably the Inspector will be more likely to consider the revised plans if you have the LPA’s cooperation (which is sounds like you have if they offer NMA, which is always at their discretion).

Thanks Peter, that's helpful. You're right, what we really want is the x4 flats, but doubt if we will have the cooperation of the LPA who are contesting the appeal. Will give PINS a go, and see what they have to say.

Charlie, This went a bit "off topic", but let us know how it goes with PINS. I'm sure many will be interested to know the Inspector's attitude to acceptability of revised plans in your case.