Consultation on planning performance and the planning guarantee – agreed ex - Public forum - Planning Advisory Service (PAS)

I think in strict accordance with the old BVPI 157A excluding the PPA applications would in a false skewing of the data which would result in authorities being regarded as failing when they were in fact working with the development industry. This cannot surely be the intention of the Government, and would result in consequences which would be counterintuitive. A similar situation would occur when a PPA was signed which committed an authority to determine a major application in 8 weeks to ensure delivery of the scheme (I have had such an agreement) and therefore the 13 week target was met, but would be excluded from BVPI157A. One of my recommendations to CLG will be that rather than exclude PPA applications, count those which were successful (delivered within the agreed timetable) as being determined within the statutory period... Now look at Article 29 (The Town and Country Planning (Development Management Procedure) (England) Order 2010) for definition of time period for decisions. 29(2)(c) is very specific “...in relation to any development, unless the applicant has already given notice of appeal to the Secretary of State, such extended period as may be agreed in writing between the applicant and the local planning authority” Provided the PPA is drafted with Article 29 explicit, the definition of BVPI157A should be 13 weeks OR that agreed by way of Article 29(2)(c). This would resolve the whole issue very nicely. For the measure to ignore the statute (The Town and Country Planning (Development Management Procedure) (England) Order 2010) would be totally illogical and obviously not what Her Majesty’s Government (HMG) would want. With regards to PPAs being used in minor and other applications, Article 29 allows extensions of time against each, and as such I would suggest that HMG should consider this amendment to the statistical definition of “Failing”. If this approach was taken, I personally would consider a proposal to perhaps raise major and minor performances to 70% from their existing 60 and 65% marks. LPA’s often make rushed decisions which the developer/householder/community don’t want, merely to hit the targets. The ability to use Article 29 in the way it was surely intended would be benificial to all concerned. Happy to discuss the pit falls of premature decisions at length elsewhere. Best Wishes and Seasons Greatings Phill Link to consultation.... https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/14961/Planning_performance_and_the_planning_guarantee_-_Consultation.pdf Link to DMPO... http://www.legislation.gov.uk/uksi/2010/2184/article/29/made

The other proposed measure of performance relates to Major appeals over a two year period. It's suggested that an authority is poor performing if less than 80% are dismissed. This seems very harsh given how few Major appeals are usually decided. We've had only three Major appeal decisions over the last two years, two of which were allowed - so our performance is only 33%! The consultation refers to possibly excluding those authorities which have received less than 5 Major appeal decisions over two years - this needs to be supported by all parties in responses made to the consultation. I'd welcome the views of others on this point. Mike Gilbert Planning development Manager Vale of White Horse DC

Hello Mike. I think you make a valid point about the small numbers. But that's not the way I read the consultation. The key phrase is "We therefore propose that the measure of quality should be the proportion of *all* major decisions made that are overturned at appeal, over a two year period" [my emph] Using some illustrative numbers I'd work this out like this: All decisions = 27 Appeals = 5, of which 3 are allowed Performance = 3 / 27 = 11% This is only my opinion. Any other interpretations ?

Given that Richard is a statistical legend, I feel very hesitant to challenge him, but I can’t see that this is a % of all decisions made on Major applications. Using Richards model, and if you were turning out 100 Major decisions a year, you would need to have at least 21 majors at appeal each year and then get them all overturned to be put in special measures! On a wider point, I do have concerns about this being a good ‘Quality of service/decision’ test. Although recognising that this is easy to collect and count, it is a narrow criterion to assess the quality of a DM service, and doesn’t reflect other aspects of the decision eg both the process (ie was there good public involvement?) or the outcome – ie is it the right development in the right place, and is it sustainable? etc My memory is that there have been various attempts at defining a measure of service/decision quality in the past, but they all struggled to come up with an objective way of scoring. Can anyone recall what happened to such proposals.?

@Bryan - Richard is a different kind of legend in PAS land! Anyhoo, everyone should come along to our January events where DCLG and PINs will be talking/explaining the proposals. Planning Performance and improvement - the changing landscape Book at http://www.pas.gov.uk/pas/events/events-list.do Look forward to seeing you there.

In light of Bryan's comments above my gut feeling is also that what is written in the consultation is not what is really being thought of. I would imagine the thought is that 20% of refusals overturned/appeal decisions being won is the trigger intended. in that sort of calculation 20% would sound fairly reasonable. A further point - is it just appeals against refusal that will be counted, or non-determination appeals, appeals against conditions etc? The consultation doesn't look clear on that point.

At the risk of being sanctioned (again) about my unguarded comments on this forum, my opinion on the *intention* as opposed to the words as written is in line with Bryan and Jon. You'd think [rest of post deleted]

The need to exclude PPAs (and there will be a lot under the proposals in order to avoid the 13 week failure stats as most applicants aren't hung up on 13 weeks) really begs the question of the relevance of 13 weeks for majors. Some of us have long argued that the major category is too wide in itself for 13 weeks to be a reasonable measure of timeliness across such a wide spectrum. Our 13 week performance for example goes up and down like a yo-yo when measured on a quarterl by quarter basis. To measure only the residual non-PPA major applications will make it very suspect indeed. And when one adds in appeal decisions allowed, we move into the realms of fantasy - especially given uncertainty about how to interpret and apply the "approximations" of the NPPF when making individual decisions. The performance target "trip" of the 2000s was abandoned as an incentivising device for LPAs although it remains a useful tool (including the new 26 week planning guarantee) at the local level for DM management purposes and at the national level for showing national trends. Those two levels of interest should be kept apart. LPAs will play the performance league table game again if they have to do so but the old horrors will return (refusals to meet targets). I look forward to the January PAS seminar for further discussion.

I should have clarified of course, that the rush for more PPAs will happen in response to the 26 week planning guarantee measure. We have already written to agents advising them to carry out more pre-application discussions, and where appropriate to enter into PPAs, in order to avoid the increased risk of a refusal before the 26 weeks is reached. The risk of a 26 week refusal may reduce as CIL is introduced (less work on s106 agreements) but it may not if LPAs are instead faced with deciding just how to justify proposals when s106 is no longer available as a flexible tool to ensure propsoals are sustainable in a real sense.

Re the PAS seminars, unfortunately the local one for us was cancelled because a lack on interest and none of the alternative events were suitable. So as the end of the consultation period is coming soon, I was wondering if anyone who had heard about the proposals from CLG/PINS direct had any insights they could share? And could PAS share any presentations? As it stands, and on speed of decision, I’m thinking that we would want to change the ‘in time’ definition, so that all applications (ie Majors/Minors & Others) that are determined within 8/13 weeks or within the timeframe set out in a PPA OR an agreed extension of time (a quasi PPA) are counted. This is a more sophisticated way of using speed as a measure of quality and agents are always telling us that whether its 11/12/13/14 weeks doesn't matter that much, what they want is certainty and LPAs working together with applicants. On the quality question of decision question, not convinced that majors apps overturned at appeal is a good measure of the quality of a decision, as often such cases are overturned as the Inspector takes a different view on weight given to a key issue. There needs to be better qualitative indicators that looks both at the process (eg good community involvement) and what’s built, eg is it sustainable/does it deliver affordable homes or Core strategy objectives or new jobs created. Accepted such indicators are not as easy to count as appeal overturns, but they must be more reflective of what a good decision is. The planning guarantee and if no decision by 26 weeks, then the fee is returned. The concern here is that most of these cases will be the big cases (with sizeable fees) and often the reason for not issuing the NoD is out of LPA hands, eg a s106 is waiting to be signed. As it stands it could lead to unintended consequences, eg where an LPA issues a refusal on week 25 to keep the money, or an applicant in no rush to sign a s106 to keep the money. This could be avoided if applications with a decision to enter into a s106 agreement were added to the exclusions?

Hello Bryan, There'll be something more measured published shorly, along with all the presentations. Some immediate and personal thoughts from yesterday: - the appeal statistic is confirmed as applying to *all* decisions (as I calculated above) not just performance at appeal. In this way, if you are sufficiently positive in most of your decision-making you can "afford" to lose all your appeals and still not be designated ... however - there are changes to the way costs awards are initiated When listening to people on my table, some key questions they were wrestling with were: - Does the guarantee create a new game of brinkmanship ? If someone is delaying a s106 (perhaps for commercial reasons) why should they sign up to a PPA ? - No easy answers to this. It would be nice if "reasonable behaviour" could be taken into account at appeal, but (as things stand) PINS would find it tricky to attach much weight to an applicants refusal to enter into a voluntary agreement Nonetheless, I think it was pretty clear that job preservation meant that no council would allow the fee clawback to happen. People would prefer to take the chance at appeal than have to explain to councillors why they handed back a big fee. We didn't spend much time on how people were intending to approach the consultation itself, but if I were to have a guess based on the Q&A some people are going to say: - The definition of 'major' is too broad. It doesn't make sense to performance-manage urban extensions and horseyculture applications as if they were similar things - It's just not fair that the council is liable for a deadline when it relies on a collaboration between LPAs, stat consultees, lawyers, applicants etc. [the answer to this is 'use a PPA'] - The new system needs to allow for applicants who refuse to enter into a PPA. In some way, this needs to be a factor at an appeal that may have arisen from a 25th week refusal. - the retrospective 2 year timetable is like archaeology. And covers a timespan of mayoral CIL. It's a shame you couldn't be there, as always the discussions amongst practitioners are some of the best bits of the day. It would have been useful to have access to your brain. Any other thoughts from delegates ?

Oh - and one other thing. One question from the floor was something along the lines of: "Would it be OK if I retrospectively approached my applicants from the last 2 years and formalised [signed off] an agreement to vary the timetable ?" In this way the applications might be removed from the PS2. And some councils who currently might be facing designation may avoid it. The answer was "that does not sound like a problem". I'd suggest that councils who have poor statistics because of their problem-solving approach, and who have happy applicants who received a positive result, start this process now.

thanks, and presumably the removal of the applications with a post registration agreement to extend the time from PS2 returns, would also mean that they would be an exception to paying back the fee ?? (see para 74 of the consultation)

Clarification needed here, I think. At the moment, although there is no reason why a local authority can't agree an extension of time/post application agreement with a developer, they won't be exempt from PS2 returns and the 13 week target. The statutory backing for this isn't in place, at the moment it is just a proposal. Similarly, there is no detail around the transition arrangements, so please don't assume at the moment that it will apply retrospectively to already determined, or submitted, applications.