The reduction in the time available to lodge a 'non-determination' appeal, from six to three months (taking a 'deemed refusal'), which affects all applications made from 5 September 1, has set alarm bells ringing.
First, it provides a useful reminder that where an application has been in the works for a period of time it cannot be assumed that, should negotiations with a planning authority eventually fail before it gets to committee, the applicant is able to lodge a nondetermination appeal.
If the application has been running for more than six months plus the eight weeks notified in the formal acknowledgement - not uncommon nowadays - then the Planning Inspectorate (PINS) is likely to return it as being out of time. This means making a whole new application, waiting eight weeks and then appealing, unless of course the LPA has meanwhile refused it.
In the 'old days' it was a matter of routine in such cases that the LPA would issue a request to the applicant for an extension of time to process the application. Most practitioners have not seen such a request in many years. Hence the widespread lack of awareness of this deadline. This despite the statement on the standard application acknowledgement.
That this is a problem is well illustrated by three such notices received in my office from a London borough in respect of applications made last July. Dated 1 October 2003, they say:
'I have until 18 September 2003 to deal with your application. If you have not been notified of any decision by then you may appeal to the Secretary of State. You must do this within six months' ('six months' from what starting point is unclear).
Fortunately the Secretary of State has, and does, exercise some discretion, but this cannot be relied upon.
PINS advises that where there is clear evidence that meaningful discussions have been going on until the lodging of the appeal, they can take this to mean that the LPA and applicant have agreed an effective extension of time for consideration of the case. I would advise all architects acting as agents to review current projects and identify the relevant deadlines, to advise clients and to contemplate lodging timely appeals where the circumstances so demand.
For most of these the six-month period will still apply, but new applications will all be governed by the new three-month rule. As my example above indicates, many applications will now have to be appealed tactically since there is so little chance of a decision within the time allowed. Hence more alarm bells.
PINS, when asked, surmised that there might be a flurry of extra appeals until things settle down. Not so. This 'flurry' is set to become a fixture for some time. And their response indicates that PINS hasn't recruited the larger number of staff and inspectors the change calls for, so appeals, having speeded up in recent times, might well take longer to determine in future.
While the onus is on the LPAs to seek more time from the applicant, a unilateral granting of a specified extension by an applicant in writing might be a useful protective move. The alternative is the unfortunate tactic of 'twin-tracking', that is to submit two identical applications at the same time, taking one to appeal as soon as the eight weeks, from valid receipt by the LPA, are up. This was previously seen as being aggressive and the planning Green Paper talked of banning it, but this hasn't yet happened and the new rule makes it a totally reasonable and often necessary action.We will see a big rise in tactical appeals in coming months. These changes do nothing to reduce workload, reduce the pressure on planning authorities, or to speed up the system.
Brian Waters is principal of the Boisot Waters Cohen Partnership, www. bwcp. co. uk. co. uk