Planning matters

In one of his last deeds as departing Housing Minister, Christopher Pincher, used his powers under S62A of the Town and Country Planning Act 1990, to issue a designation notice to Uttlesford District Council in respect of major planning decisions. S62A enables the Secretary of State to designate Local Planning Authorities where “there are respects in which the authority are not adequately performing their function of determining applications”[1] and in doing so give applicants the choice to apply for permission direct to the Secretary of State (with the application determined via the Planning Inspectorate) for the category of applications (major, non-major or both) for which the authority has been designated.

This is a notable undertaking. Uttlesford became only the fourth local authority to be designated under special measures, following Blaby District Council, Trafford Council and Bromsgrove District Council, with the latter being the last authority to be placed under special measures in January 2015.

Whilst such a drastic step by Government has inevitably raised eyebrows, the more pertinent question becomes, is pursuing an application under S62A likely to be worthwhile to applicants?

On the face of it, the ability to sidestep an underperforming local authority and seek a direct decision from the Secretary of State (via an appointed Inspector) might look attractive. As outlined in the S62A Procedural Guidance[2], there is a defined step-by-step timeline through a standard 13-week major application determination period. This provides an element of certainty that the application will be dealt with in a timely manner, something which is not a given for an undesignated LPA. If we take Uttlesford as an example, in the 24 months to Sept 2021, just 14.9% of major applications were determined within 13 weeks and even those that were subject to an extension of time, only 76% of decisions were arrived at within the agreed time period[3].

However, there are a number of potential drawbacks or uncertainties associated with the S62A process.

Whilst there is a set procedural timeline, there does not appear to be a clear timescale to the appointment of an Inspector. PINS will not provide prospective s.62A applicants with an indicative timeline for the allocation of an Inspector after an application is made. Will S62A applications be prioritised, or will applicants have to ‘wait in the queue’ with the already significant PINS caseload of local plan examinations and appeals? Government data from January 2022[4] confirms that a S78 appeal conducted through a hearing on average takes 72 weeks from submission to a decision, which might suggest inherent delays in the appointment of an Inspector. Whilst performance in respect of inquiry timescales has improved since the implementation of the Rosewell Review findings in February 2019, the time periods in other parts of PINS casework have extended. Notably, the average timescale from submission to decision for hearings has risen from 39.9 weeks in the 12 months December 2019 to 2020[5], to 46.6 weeks to December 2021[6] and as noted above is now at 72 weeks for the month February 2022. Meanwhile, planning inquiries have fallen from an average of 47.3 weeks to 41 weeks over the same time period.  This potentially suggests that other areas of PINS have been squeezed by the emphasis placed on reducing time taken for inquiries. Where will progressing S62A decisions sit on the spectrum?

Further, where the prospects of approval are uncertain, does the S62A process give applicants confidence their decision has the best prospects of success? Under the terms of the Act, the initial determination of the application is provided by an Inspector and there is no provision to appeal that decision or indeed to appeal against any of the conditions imposed on a permission granted under Section 62A. In essence, S62A gives an applicant an ‘all or nothing’ shot at securing a permission, without the benefit of being able to test a refusal via a s.78 appeal, potentially at a public inquiry[7].

But s.62A applications to PINS do not involve public inquiries, even for complex planning applications. The lack of an inquisitorial process for the ‘all or nothing’ determination of a high-stakes application can be a concern. The LPA and the relevant statutory consultees will be consulted by PINS, but the S62A hearing provides only the opportunity for the appointed Inspector to seek clarity on certain issues and does not provide the opportunity for cross examination. As the Guidance[8] confirms:

The ability to cross examine and interrogate a local planning authority’s assertions cannot be underestimated. If one considers the latest version of the Appeals Database produced by PINS[9], and reviews planning appeal decisions that have been decided at an inquiry or hearing, the success rate at inquiry is 58% as opposed to a hearing success rate of 39%[10]. Whilst the ability to cross examine won’t be the only factor determining this differential, it is nonetheless a matter for consideration. In the case of Uttlesford, there is no up-to-date local plan, so any major scheme on an unallocated site will be determined in a relative local policy vacuum, leading to inherent uncertainty about the principle of development.

In combination, the above makes the S62A an enigma for prospective applicants. How quick will a decision be secured given the unknown timescale for appointing an Inspector? And if the process – involving only a narrowly defined hearing – leads to a refusal from PINS, there is no recourse for matters to be considered at a subsequent appeal via a public inquiry; how confident is the applicant their scheme will secure a positive decision?

Perhaps this explains why take up of S62A by applicants has been so limited. A COMPASS search[11] revealed only one such application, from 2014, by Gladman for 220 homes and a school drop off/pick up zone on a 17.4-hectare site off Hospital Lane, Blaby. It resulted in a refusal[12].     

So, for those with prospective schemes in Uttlesford, the S62A order presents a conundrum. Is speed of process an overriding factor (the aforementioned 2014 decision took 90 days from validation to decision)? Is there sufficient degree of confidence that an approval will be achieved on first submission rather than requiring an appeal?

Government/PINS could perhaps make S62A a more compelling choice by providing clear guidance on timelines for appointment of Inspectors and also provide for a public inquiry format for more complex schemes that might otherwise face public inquiry if appealed under normal circumstances.

Absent that, S62A might remain one of those planning reforms – like Starter Homes and 5YHLS Annual Position Statements – that are announced to fanfare but don’t get the level of take up their advocates anticipated.