Karen Howard, Partner at DLA Piper explains how new legislation introduced in the Housing and Planning Act could impact the planning application process
Important legislation was introduced in the Housing and Planning Act 2016 (“Act”) which could change the landscape of the planning application process. Fundamental new provisions enable the Secretary of State (“SoS”) to make regulations to pilot a new planning application process which effectively allows applicants to choose whether to submit their application for processing to the local planning authority (“LPA”) or a “designated person” (ie. a third party company or another LPA).
Significantly, these arrangements shall only apply in certain areas of the country for a maximum period of five years, after which time the SoS shall report on the success of the pilot to parliament.
The consultation
In February 2016, the DCLG issued a consultation on the pilot. The summary of responses raise some intriguing points for debate:
Fees
Fees will always be contentious. Any pilot is unlikely to strike an effective balance between third parties wanting to “cherry pick” the more financially lucrative applications and local planning authorities wishing to keep a firm grasp on the intricacies of more complex applications.
The Act is clear that “designated persons” will not determine applications and their recommendations will not be binding on the LPA. Not only does this call into question the overall relevance of the pilot scheme, but it is also perfectly feasible that LPAs will repeat the entire process if they disagree with an outside recommendation. It is inevitable that a large degree of duplication will occur and it remains uncertain who should pick up the tab for this.
Fees will need to be standardised to avoid undercutting and to maintain a consistent performance standard. However, an unlikely balance needs to be struck – ensuring a quality service is delivered at the appropriate price; LPAs are not disadvantaged by supporting other providers, and applicants do not pay excessive fees.
Information Sharing
Third parties will obviously require access to information such as planning/enforcement history, local consultation protocols and address lists, but how they obtain this remains unclear. Providing unrestricted access to the LPA’s IT system raises concerns over leakages of commercially-sensitive data, although third parties cannot operate from the LPA’s public database alone.
If the answer to this conundrum means developing new software then who should foot the bill?
Maintaining high standards
Consultees were asked how high standards and performance could be maintained during the pilots. Of course, the consultation itself came as a direct result of criticism from many applicants who were dissatisfied at the poor service levels in local authority planning departments. Furthermore, planning departments themselves had been highlighting to the government that lack of resources was a significant challenge. Respondents broadly agreed that a key mechanism for maintaining high standards would be setting stringent criteria for assessing the suitability of potential designated persons. Some people thought RTPI accreditation was a vital baseline albeit not the sole criterion.
Designated person status
Concerns over profiteering and lack of accountability are just two issues that DCLG will have to grapple with as pilot schemes are brought forward. While research shows that the public cares more about the quality of the services they use rather than who provides them, the political narrative on the provision of public services is shifting – the perception that competition in the marketplace is a wholesale solution to underperformance within the public sector is not as strong as it once was.
Against this backdrop, some local authorities and professional body consultees felt that only other local authorities should be allowed to compete as they already have the necessary IT infrastructure and data safeguarding measures. However, many other respondents, especially developers and businesses, thought that any organisation assessed as being suitably qualified should be able to become a designated person.
The function of a designated person
The consultation’s findings were inconclusive on the question of what functions a designated person should perform. Many agreed that decision-making should remain with the local planning authority, but there was disagreement over whether designated persons should fulfil an advisory or administrative role. Whatever approach is taken, clearly the difficulty with dividing up responsibilities between local authorities and third party providers is that new hand-off points are created. This not only seems counterproductive – as it could lead to further costs and delays – but it means that when things do go wrong, the applicant won’t necessarily know where to place the blame.
Conclusion
A balance needs to be struck between the interests of LPAs and private third parties. However, the planning application process is a deep rooted systematic one – LPAs are unlikely to trust third party recommendations having established a functioning internal system.
In respect of challenging decisions, will we see a combination of LPAs and third parties defending their planning judgment? Surely an LPA cannot robustly defend a decision in which it does not have comprehensive knowledge?
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Karen Howard –Partner
Pieter Claussen– Associate
Alistair Paul– Associate
DLA Piper
Tel: +44 20 7796 6083
Twitter @DLA_Piper
