Article 31 and SI 2274 issued 6/9/12 - Public forum - Planning Advisory Service (PAS)
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Article 31 and SI 2274 issued 6/9/12
Has anyone looked into the details of this SI. It would appear to require an Article 31 statement to include a paragraph or two which explains how the LPA has engaged with the applicant. I can see merit in this as it highlights those FEW councils who do not negotiate, permitting or refusing applications without contacting the applicant or his agent. However, it also requires such statements on refusals. It will be difficult, but not impossible for a case officer to explain how they worked with an intransient applicant in a “positive and proactive manner” . As an authority who was challenged (unsuccessfully) over the contents of an Article 31 statement, I worry what would happen if the statement was “I tried repeatedly to contact the owner, but was unable to” or “despite explaining that their proposals were contrary to policy, the applicant refused to withdraw the application”. Are these statements “positive and proactive”, proactive perhaps… At Stroud, we append the full officer’s report to every approval as part of an article 31 statement, not merely repeating policies that may have applied. Our first thoughts is to add a paragraph to the report with discussed the contact between the Council and the Applicant. Do others think that this is sufficient, and should it include relationship with the Parish and neighbours. I feel a raft of LGO complaints from neighbours when my officers start to say how they positively and proactively engaged with the architect, working with them to overcome the objections of the neighbours. I am not saying the complaints are justified, or would be upheld, just that they will come. Thoughts please?
What redress will an applicant have if he does not recognise what is set out in this statement? It will hardly say that we got the applicant to submit further reports from any specialist consultant that we could think of which cost him a fortune but we turned it down anyway.
Gordon Smith, modified 11 Years ago.
Re: Article 31 and SI 2274 issued 6/9/12
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There is a productive side to this (possibly the only one). It will force 'shy' or no-negotiation types to come out of their shell. Philip noted this in his comments above It can also work also well that applicants who are heading for a refusal to be told so beforehand, and asked if they have any comments on the refusal reason before a decision is taken. Tends to soften the impact a bit for householders in particular (and so often may not change a case officers mind in any event). I of course shall do a counselling course and now ask applicants in a silky voice how they 'fee'l about this.
This: "applicants who are heading for a refusal to be told so beforehand, and asked if they have any comments on the refusal reason before a decision is taken" One thing that leapt out at me from the feedback from applicants (on the benchmark postcards) is that this sort of thing reeeeeeaally annoys them. It is target-driven behaviour, of course, on the part of officers trying to meet their quota.
Gordon Smith, modified 11 Years ago.
Re: Article 31 and SI 2274 issued 6/9/12
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Fair point above. But I should also have pointed out that targets can sometimes be useful as part of a process of behaviour change (crude but necessary etc)
SI 2274: “(cc)where sub-paragraph (a) or (b) applies the notice shall include a statement explaining how, in dealing with the application, the local planning authority have worked with the applicant in a positive and proactive manner based on seeking solutions to problems arising in relation to dealing with a planning application; and”. This seems to be simply a measure supporting the requirements laid out in the NPPF which states: 187. Local planning authorities should look for solutions rather than problems, and decision-takers at every level should seek to approve applications for sustainable development where possible. Local planning authorities should work proactively with applicants to secure developments that improve the economic, social and environmental conditions of the area. I can see why Greg Clarke signed (or even proposed?) SI 2274 - the NPPF requires POs to work proactively with applicants in order enhance the chance of an approval being granted. He probably suspects that some DECISION MAKERS prefer TELLING applicants YES or NO rather than WORKING WITH applicants in an attempt to reach a YES. Anyway, if the NPPF is REALLY adopted by LPAs, including Clause 187 then I assume that applicants will notice quite a change in their dealings with their LPAs. However, only time will tell ...
Whilst understanding and agreeing with the need to be proactive and positive and solution seeking with applicants, and accepting that agents/applicants (or at least most of them) do want to have to have a dialogue with the case officer and to build a relationship, am I alone in thinking that the additional Article 31 requirement will add cost to the process with out any real benefit? For those who do currently engage in this way, maybe the paragraph or two will only take 5 minutes, but with around 400,000 planning decisions every year it will add up to a significant number, and there is always the question of where does the 5 minutes come from. For those who don’t engage with all/some/selected applicants, and/or all or selected types of cases as an ongoing practice, is this requirement going to be enough to change behaviour? Plus, I not aware that agents/applicants find the current Art 31 paragraph the most riveting part of the notice of decision, or that they read it instead of reading the officer report. We have yet to consider how we might meet the requirement, but Philip’s suggestion of a paragraph in every report covering ‘contact with the applicant’ looks a good starting point. PS just looked at S 187, does this only require the proactive working for developments that ‘improve the economic, social and environmental conditions of the area ??
While I can/have always advocated a positive problem solving approach - development management 101! I cant help but thinking that there is little to be gained by requiring an audit trail of engagement on the decision letter. Along with Bryan, I am concerned about the resources necessary to implement this against the benefits. While this process might be very useful for large significant proposals, imposing a universal requirement in respect of all applications is simply not proportionate. One of the interesting bits of information highlighted by the benchmark work is the high proportion of cost for many minor application types is down to simply recording the application and the decision rather than the "planning value" contribution. For some of the "cheap fee" application types, the fee doesn't cover the simple registration costs. In terms of reducing public costs by cutting the red tape, this seems perilously close to a retrograde step.
I appreciate the comments of all contributors, particularly about cost. However, my main worry is about judicial review. You have to remember that this statement will go on the decision letter, and as such forms an integral part of the decision. If we are merely to pay lip service to the requirement as alluded to by the Chief Planner, the requirement has no meaning. If, however, you take it seriously and feel that on major applications, a paragraph or two is required, you MUST, according to the Statutory Instrument, state how you worked with the developer in a “positive and proactive” manner. Let us assume that the application was for a site which was not in conformity with the development plan, the NPPF or any neighbourhood plan. I can say how I was proactive in explaining the issues, but the word “and” is a conjunctive, that is to say I must do both actions. I suppose I can say I was positive it would be refused. What if the applicant did not wish to negotiate? If the developer was aggrieved at the decision he could of course appeal… but why bother when all you have to do is Judicially Review the decision and state that the Council had not been “positive and proactive” in its approach. I know a JR merely quashes the decision, but it has the benefit that costs are not arbitrarily awarded, the loser pays. At the very least I can see some agents (and they do exist, trust me) that will say, “you have to find a way to help us get permission [para 187] or we will JR your decision process”. Do I need another stick to beat me with? I see no value in the statement, particularly if all I have to say is that we complied with para 187 of the NPPF, and considerable detriment should a judge think that meetings and correspondence were not positive enough OR that we were too positive and this had disadvantaged the local community and action group (more likely). I can see that we may have to start charging for pre-apps, merely so we can afford to document it in such a way that a Judge will be able to rule. I thought we were getting rid of red tape… frustrated of the shires….
Philip, you say "but why bother when all you have to do is Judicially Review the decision and state that the Council had not been “positive and proactive” in its approach." Such a challenge would be unlikely to succeed, as there is no requirement to be "positive and proactive" and article 31 does not create one. The amendment to article 31 is quite misleading in this regard.
Mark Chant, modified 11 Years ago.
Re: Article 31 and SI 2274 issued 6/9/12
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More bureaucratic crap. See also the NPPF 'Model Policy'.
>> More bureaucratic crap. NPPF Clause 187 was created for a reason. SI 2274 was created for a reason. The 'Model Policy' was created for a reason. Essentially someone, somewhere has decided that the planning system has failed planning applicants and/or the economy. Planning policy etc has therefore been changed to rectify the perceived problem ... and belt-and-braces additions have been created to make sure that any policy changes aren't simply ignored by LPAs.
andy plan, modified 11 Years ago.
Re: Article 31 and SI 2274 issued 6/9/12
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It seems to me that some are seeing this as a one-sided obligation on LPA's. However, remember that para. 187 of NPPF includes the words " ..... where possible". It seems to me that if there's a refusal and an application for costs at a subsequent appeal then this gives an Inspector a transparent test to see if the appeal could have reasonably been avoided in the first instance. To me that puts a responsibility on BOTH sides and might just stimulate a more responsible approach to decision-making by both applicants and LPAs. If both applicant and LPA take a level-headed approach to applications (I know some don't - but that's the whole point of this) then they shouldn't fear documenting and justifying decisions along the way to a final decision and should be able to demonstrate a positive and pro-active approach to agreeing what's reasonably possible. There's a part of me that thinks we wouldn't even need this if it hadn't been for the introduction of targets and the effect that has had on cutting down the scope for negotiation. It might also have the effect of making a Committee pause before refusing against officer recommendation - to allow a positive and pro-active approach to addressing the Committee's concerns with the applicant. We live in hope......
Mark Chant, modified 11 Years ago.
Re: Article 31 and SI 2274 issued 6/9/12
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"NPPF Clause 187 was created for a reason. SI 2274 was created for a reason. The 'Model Policy' was created for a reason. Essentially someone, somewhere has decided that the planning system has failed planning applicants and/or the economy. Planning policy etc has therefore been changed to rectify the perceived problem ... and belt-and-braces additions have been created to make sure that any policy changes aren't simply ignored by LPAs." You don't improve a system by making it even more bureaucratic. Both of these are silly wheezes dreamt up to give the pretence that "something is being done" to sort out planners but which won't have any tangible impact.
Just been doing a piece of work on how we will deal with the Article 31 requirement and are looking at the question about overturns at committee. So, officers (and I ‘m assuming officers are the ‘local planning authority’?) have worked in a positive and proactive way with applicants and are recommending that permission be granted. At the committee meeting, members (are they also the ‘local planning authority'?) take a different view on the merits of the scheme and want to refuse permission. Andy t’s suggestion is that the Article 31 requirement might mean members pause before refusing, ie decide to defer a decision for positive and pro-active discussions on the committee concerns, but not convinced this would happen in all cases. So, if it is overturned, any thoughts on how the Article 31 statement might read ? Incidentally, at a meeting with our Accredited Agents today, a suggestion made by one of the agents, was that proof of our positive and pro-active working could be a call to the agent to say when the site visit will take place.