DMPO Changes - Non Validated Applications - Public forum - Planning Advisory Service (PAS)

If the LPA considers that the application cannot be determined, it may be that they could choose to take no further action in relation to the application? The applicant could then appeal non-determination after the 8 / 13 week period.

Hi Dean, As far as I can tell, regardless of whether the LPA issues "a validation notice" or a "non-validation notice", the 8/13 week deadline would be calculated from the date when all of the information, except the disputed information, was received (unless the notice from the applicant is received during the final 7 working days of this period). Furthermore, in either of these cases, if the LPA fails to determine the application (e.g. to grant or refuse planning permission) by this 8/13 week deadline, then Article 33 provides that the applicant may proceed to appeal on the grounds of non-determination under section 78 of the TCPA 1990. As an example of the above, suppose that an applicant submits a householder application on 1 July. The LPA decides that the application is "invalid" on the basis that it doesn't include certain information that falls within the LPA's list of requirements (which has been published on its website within the last 2 years). The applicant considers that this information is not "reasonable", and sends a notice to the LPA under the new "validation dispute" procedure. If the LPA issues "a validation notice", then this would imply that the application was "valid" on 1 July, and therefore the 8-week deadline would be 26 August (as set out by Article 29(2)). If the LPA issues a "non-validation notice", then this would mean that the 8-week deadline would be 26 August (as set out by Article 29(2A)). In either case, if the LPA fails to determine the application (e.g. grant or refuse planning permission) by 26 August, then the applicant would be able to proceed to appeal on the grounds of non-determination. Firstly, with the above example (and assuming that the applicant sends notice to the LPA before the final 7 working days), the 8-week determination period and the right to appeal appear to be identical for the "valid" application and the "non-validated" application. In other words, the "non-validated" application is effectively treated as a "valid" application. As such, although the legislation sets out that an application needs to include the information that falls within the LPA's list of requirements (so long as the list has been published on its website within the last 2 years), it now contains a provision that effectively means that the application doesn't need to include this information if the applicant considers that this information isn't "reasonable". Regardless of whether or not people agree with the aims of this amendment, surely it would have been much better to have amended the legislation so that LPAs couldn't invalidate an application on the basis of information that falls within their list of requirements, rather than having a situation where LPAs can invalidate the application but where the applicant can then choose for the application to be effectively treated as a "valid" application? Secondly, the new provision is likely to cause significant problems for LPAs in terms of the determination period. With the above example, suppose that the applicant sends notice to the LPA on 14 August, which could be because the LPA has taken several weeks to send an invalid letter, or could be because the applicant has taken several weeks to act upon this invalid letter. Regardless of who is responsible for this delay, and regardless of whether the LPA issues "a validation notice" or a "non-validation notice", the 8-week deadline would be 26 August. The LPA would be unable to determine the application by this date (due to the consultation periods), whilst the applicant would be able to proceed to appeal on the grounds of non-determination immediately after this date. Thanks, Steve

Thanks Steve, Invalidating anything for want of a local requirement item now seems like a risky strategy, especially with the coming of changes to the fee regs requiring refund of fees if application not determined in 26 weeks. Would it be better to abandon local VR lists and rely instead on directions under the Application Regs of 1988 (SI 1988/1812) or under Article 4(2) of the DMPO for matters reserved in outline applications? Dean

Hi Dean, I agree that it'll now be risky for an LPA to invalidate an application on the basis that it doesn't include information that falls within the LPA's list of requirements. After all, if an applicant receives an invalid letter on this basis, then they now have the choice of either 1) providing the additional information, in which case the 8/13 weeks will start from when the LPA receives the additional information, or 2) not providing the additional information, in which case the 8/13 weeks would have already started from when the LPA received the previous information. I'm guessing that many (if not most) applicants would choose the latter option, even though this might increase the likeliness of their application subsequently being refused planning permission on the basis of a "fails to demonstrate" type reason for refusal. In terms of other options, it's worth noting that the new procedure ("validation dispute") doesn’t affect the other information required by the DMPO 2010 – i.e. the information required by Articles 5 and 6, the D&A statement (if required), the ownership certificate, and the fee. For example, Article 6 of the DMPO 2010 requires that an application for planning permission shall be accompanied by: "(i) a plan which identifies the land to which the application relates; (ii) any other plans, drawings and information necessary to describe the development which is the subject of the application". So, if an application is invalidated on the basis that it doesn't contain the "plans, drawings and information necessary to describe the development", and the applicant tries to send a notice under the new procedure ("validation dispute"), then technically the application would remain "invalid", and wouldn't become "non-validated". However, in my opinion, it becomes an even woolier concept trying to argue that an application doesn't meet the above requirements of Article 6, rather than trying to argue that an application doesn't meet the requirements of the LPA's list of requirements. Thanks, Steve

We have a local validation requirement that all drawings (other than the site plan) have a scale bar with a minimum distance of 0-5 or 0-10 metres. This is because we no longer use paper plans and it allows us (and members of the public) to measure stuff on electronic drawings, even if they are printed at the wrong scale. It also allows us to verify that drawings have been produced at the scale stated. Would people consider this to be a reasonable requirement?

Hi Gerard, With regards to the quote in my post above from the DMPO 2010 (i.e. from Article 6 paragraph (1)), the subsequent paragraph of this legislation provides the following additional information: "(1) Any plans or drawings required to be provided by paragraph (1)(c)(i) or (ii) shall be drawn to an identified scale and, in the case of plans, shall show the direction of North." So, in my opinion, if there's no identified scale on the drawings, then you could invalidate the application on the basis that it doesn't meet the requirements of Article 6, and this couldn't be overriden by the new "validation dispute" procedure. However, if there's an identified scale on the drawings (e.g. an annotation stating "scale 1:50", etc), and you invalidate the application on the basis that it doesn't have a scale bar, then in my opinion this could be overriden by the new "validation dispute" procedure. Thanks, Steve

It appears that the 8 week and 13 week dates may lose some relevance as a result of this legislation- if there is some to-ing and fro-ing at validation stage and the application is them deemed 'non-invalid' it could be week five before an application is even registered. If it is simply impossible for the statutory timescales to be met in many cases they may lose their relevance as targets and statistics. It seems very odd that the applicant could have a right to appeal before the public consultation period has ended, the LPA would then have had no legal opportunity to determine the application. This would effectively provide the applicant an opportunity to bypass the LPA and have the Secretary of State determine the application.

Hello, can someone add a link to these Regs please as I can't track them down. Thanks

Link attached http://www.legislation.gov.uk/uksi/2013/1238/made

Having read the posts above and looked at the original CLG consultation on this issue together with their recent response, I am not clear what happens after the LPA issues a non validation notice. Do we then issue a refusal on grounds of lack of information within the 8 week period (from the date the information was not received) or just sit on the application to see whether the applicant submits an appeal against non detemination after the expiry of the 8 week period? If not I presume the status remains as non validation notice issued and the application is essentially closed on that basis. Any comments would be appreciated.

No formal wording for the notice of validity or invalidity appears to be issued by DCLG - has anyone produced them?

Hello, same query as Jenny's really. Has anyone decided how to deal with a non-valid application ? Being 'non valid' I am assuming LPA's wouldn't have gone through the statutory consultation/notification procedures with neighbours, Town/Parish Council's etc ? Assuming that's the case how can the LPA then proceed to determine the application as no one will know about it. Wouldn't such a decision be challengable ? Any thoughts please. Thanks

Pardon my ignorance, but why not deal with it in the same way you previously dealt with invalid applications?

Despite the helpful posts, I think I still might be confused. So, here is how I read it: If an applicant includes with the application a completed Article 10(A) notice, the next step is for the LPA to either A) agree (and send a validation notice) OR B) disagree (and send a non-validation notice) before the end of 8/13 weeks If it’s A), then the clock starts ticking from the day the application was received. If B), then I can’t see any reason why the LPA would want to hang about with this, and they would send the non-validation notice asap. Then LPAs have to determine the application within the 8/13 week period (presumably refusing because of inadequate information?), and if not (i.e. it goes out of time) then applicants can appeal. On the other hand, if the application has no Article 10(A) notice, and the LPA consider it is invalid, then they can send an invalid notification letter. The applicant can either provide the missing details or serve the Article 10(A) notice. If it is the Article 10 (A) notice, it looks like it can be served at any time the application remains undetermined, and if it is received within 7 working days of the end of the 8/13 week period, or after 8/13 weeks have elapsed, then LPAs have 7 days working days to respond, i.e. either make it valid or send the non-valid notice. If its made valid, then LPAs can determine (maybe with an agreed extension of time?), if its invalid, then once 8/13 weeks are up, the applicant can submit an appeal. Is this (more or less) right?

Following this legislation coming into force, are there any updates out there as to how LPA's are going to deal with 'non-validated' applications? It appears that an LPA could choose to take no further action in relation to the application, the applicant could then appeal non-determination after the 8 / 13 week period. Alternatively it appears that the LPA will need to 'back date' the application to the date national validation requirements were met, register the application and deal with it as they would any other. A lack of information could of course form part of a reason / reasons for refusal if the application is determined by the LPA.

Hi

Does anybody have a non-validation notice template that they could share please?

Many thanks

Faye