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POWER TO IGNORE

PLANNING

In the summer, the government issued new guidance on changes to the development control system*. It changes rules fundamental to how planning applications are handled with immediate effect.

The circular introduces measures contained in the 2004 Planning Act, curtailing the duration of detailed planning permissions and listed building and conservation area consents so that they will normally be granted with the condition that the development of works must be begun within three years of the date of grant. The previous default was five years.

For outline permissions, an authority still has to impose two time limits: the first within which applications must be made for reserved matters approvals; the second within which the development must be started.

The first will normally be three years from the date of the permission and, as now, the second will be two years from the final approval of the last of the reserved matters.

This suggests the same timetable as currently (and allows the period from grant to commencement of development to be stretched as reserved matters are considered), but authorities are given flexibility and can impose tighter limits.

It should be noted that while authorities have the flexibility to impose longer deadlines, the ability to apply to vary such conditions has been withdrawn, so it is imperative that where the default three years may be inadequate, the applicant makes the case for a longer period before development has to commence.

The other change is more controversial. The run-up to the introduction of the new Act promised the end of 'twin tracking', the dubious practice of submitting duplicate applications with the threat of taking one to appeal should the authority not perform promptly and positively on the first. The circular achieves this but inflicts collateral damage, apparently with some intent. It says of the power to decline to determine applications: 'These new powers are intended to inhibit the use of repeated applications that are submitted with the intention of, over time, reducing opposition to undesirable developments.' It extends planning authority powers considerably.

The guidance goes on to say: 'Where an authority considers that an application is similar, it is not automatically obliged to decline to determine the application. However, local planning authorities should be mindful of the intention behind this power.' The judgement is in the hands of the authority, whose preference may be to resist a resubmission and to consider that the changes don't deal with basic policy objections, or are insufficient.

The only recourse the applicant has is to seek judicial review - a costly business which deals with procedure, rather than the substance, of the issue.

There is no single right to appeal.

One can foresee authorities increasingly seeking not just to return applications as being somehow incomplete but refusing to determine them on the grounds that they are similar to an earlier proposal.

If this sounds unlikely, then note the Act's definition of 'similar': 'It is if [and only if] the local authority thinks that the development and the land to which the applications relate are the same or substantially the same.'**

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