All stick and no carrot - New planning performance measures and a crackdown on the extension of time

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All stick and no carrot - New planning performance measures and a crackdown on the extension of time

All stick and no carrot - New planning performance measures and a crackdown on the extension of time

Sean Farrissey 21 Dec 2023
Alongside the 19 December 2023 publication of the revised National Planning Policy Framework (NPPF), the Secretary of State for Levelling Up, Housing and Communities, Rt Hon Michael Gove MP issued policy set out in a Written Ministerial Statement “The Next Stage in Our Long Term Plan for Housing, Update” regarding the NPPF and wider matters.
Lichfields’ blogs reflecting on the revised NPPF can be found here and blogs outlining and analysing policy announced in the WMS can be found here.
In a speech launching the revised NPPF and other national policy, new measures to monitor and improve planning performance were explained, building on announcements that accompanied the increase to planning fees.
“I am setting new expectations for faster delivery, strengthening accountability so poor performers can be better identified, taking further steps to enforce effective delivery of new housing where local authorities have failed most egregiously and putting other, failing, local authorities on notice of my intention to intervene if performance does not improve significantly”.
The measures to improve performance have been launched on “four fronts”: greater transparency, additional financial support, faster processes and direct action.
Several specific policy approaches and intentions fall under these four fronts, as explained below

LPA performance dashboards to be introduced

The Government is going to publish a Local Planning Authority (LPA) performance dashboard in 2024. The aim of the dashboard will be to clearly show which LPAs are underperforming and not meeting their targets. While it has not been explicitly outlined what criteria this will be based on, a reasonable assumption is that speed and quality of decision making will be the crux of the assessment.

Reducing use of the extension of time

It has also been outlined that the use of Extension of Time Agreements will be stripped back and a consultation will take place on limiting when in the process they can apply, prohibiting repeat agreements and banning their use entirely for householder applications. This reflects the Government’s desire to speed up decision making and tackle the backlogs of planning departments, but without having full addressed the lack of resourcing in LPAs. Therefore, there is a concern that this could lead to more refusals of planning permission. The loss of the “free go” means that the ability for developers and LPA officers to discuss the merits of a scheme post submission will be seriously diminished. The Government might say that pre-application discussions should be used for this process, but often there is no capacity to provide this service in a timely manner.


Planning fees must be spent on planning services

The Government has made clear that the increase to planning fees which came into force on 6 December 2023 is expected to coincide with an improvement in the performance of LPAs. Planning fees have increased by 35% for major applications and 25% for other applications. While fees have not been ringfenced for planning departments, Michael Gove has made clear that “Local authorities are obliged to spend these fees on planning services, and I am clear there should be no decrease in authorities’ spend on planning from their general fund”. Related to this, he made reference to the forthcoming local government finance settlement, which may be the only way to seek to control how LPAs spend planning fees in practice.
The Lichfields Insight Mo money, no problems? provides a detailed analysis of the changes to planning fees and the debates that surrounded them. The Insight notes the Government’s estimate that there will remain a funding shortfall of approximately £160 million annually, even after planning fees are taken into account. That is an important context for the planning performance measures outlined in this blog – notably the LPA performance dashboard and the intention to control and limit use of the extension of time process. 
The 180 LPAs that have been allocated a share of £14.3 million from the first round of funding from the Planning Skills Delivery Fund have been announced. The fund is designed to help clear application backlogs and provide LPAs with the skills needed to deliver the changes set out in the Levelling Up and Regeneration Act.


Consultation on structured PPA procedures

The Government is also seeking to regularise Planning Performance Agreements so that they are offered across England, have clear deadlines in place and that fees are set at an appropriate level. Fees will also need to be refunded when targets are missed. A consultation will follow on this in the new year.


Discouraging councillors from refusing against officer recommendation

The SoS’s WMS expresses concern that there are too many instances of refusals against officer recommendations and too many consequent award of costs appeals. Notwithstanding the second concern, the SoS has already “reminded the inspectorate that where it cannot find reasonable grounds for the committee having overturned the officer’s recommendation, it should consider awarding costs to the appellant”.
The Planning Inspectorate will now monitor and report back cases to the Government where a successful appeal is made against a planning committee decision, and the appeal decision is the same as the original officer’s recommendation. This information will be used to “lay out the details of which local authorities are most promiscuously rejecting planning applications against officers’ advice. And we will make transparent the amount that it is costing the local council taxpayer”.
And while the SoS has made clear that he considers the determination of significant applications by elected representatives to be important, he also intends to “consider what more we can do to support planning officers and the committees they serve to focus on the right applications. This might be about providing more training, or using guidance to share best practice on the tools that can help to prioritise a committee’s time – including the schemes of delegation that authorities adopt to determine which applications get determined by officers and which warrant committee airing”.

Reviewing the role of statutory consultees

The Government has noted that many statutory consultees meet their 21 day deadline by sending holding responses, which “disguises foot-dragging and delays development”. A three month review will look into the wider statutory consultee system to understand how best to direct their advice and resources to support speedy and effective decision making. A potentially proactive way forward is mooted: the SoS considers that too much caution serves no one, so the review “will look at whether the current group of consultees is right, whether the performance reporting is effective, and whether the absence of a reply within an appropriate timeline should be treated as a green light, rather than a red one”.


Intervening in the plan-making process

The Secretary of State outlined that when LPAs are failing in their duty, he will not hesitate to intervene. Although this has been said before, on the day of the SoS’s announcements, letters were sent to seven LPAs directing them to revise their local plan timetables within 12 weeks of the publication of the new NPPF with the threat of further intervention after this should they fail to do so. Isabella Tidswell’s blog
analyses the implications of the changes to the NPPF and other national policies on plan-making.


Housing Delivery Test

The Government identifies the Housing Delivery Test as a form of direct action. Twenty further LPAs have become liable to the presumption in favour of sustainable development (set out in paragraph 11 of the NPPF) after the publication of the 2022 Housing Delivery Test.  The Housing Delivery Test’s consequences have changed somewhat, as explained in this blog.   


Designating LPAs so that certain applications may be made directly the SoS

The LPAs of Chorley and Fareham[1] were directly targeted as they have been designated as ‘Section 62A authorities’ based on their “poor quality of decision making for applications for major development”,  linked to the percentage of appeals which go against the LPA. For these designated councils in special measures, along with Uttlesford Council that was designated in 2022, applications for major development may be submitted directly to the Secretary of State, via the Planning Inspectorate, for determination. The Planning Inspectorate also receives the fee. Both LPAs will be required to produce improvement plans which set out how they will improve planning performance. Failure to do so may result in further direct intervention from the Secretary of State, albeit it is unclear what form that might take. The designation lasts indefinitely.
The SoS intends to review the thresholds for designation “to make sure to make sure we are not letting off the hook authorities that should be doing better”.

London Plan Independent Review Panel

The Secretary of State has requested a review of the London Plan to identify where changes to policy could speed up housing delivery. The Housing Minister told Parliament: “We are also taking action in London, because the homes needed by the capital are simply not being built and opportunities for urban brownfield regeneration go begging as a result of the Mayor’s anti-housing policy and approach. […] If directing change in London becomes necessary, this Government will do that”.

Closing thoughts

When taken together, the new performance measures announced in this Written Ministerial Statement represent a substantial shift in the way planning performance is monitored and driven, building on the measures previously announced.
As discussed in more detail here, it is clear throughout the revised NPPF and associated announcements that the Government is placing great emphasis on LPAs having up-to-date local plans and improving timescales for making decisions and proposed changes to performance metrics and the wider policy context reflect these fundamental objectives.
While these objectives are laudable and desirable, this latest tranche of performance measuring approach appear to be all stick and no carrot. However, if consequences are not followed through or are not of a concern to the LPA, then these policies will not have widespread effect.

[1] It is worth noting that Fareham is a local planning authority which has had to consider nitrate mitigation for housing developments, which may or may not have impacted on its performance.