Kenya Sharland, Associate, discusses the implications of going through a Section 62A in relation to two recent examples Barker Parry has been involved in.
How does Section 62A work?
Section 62A of the Town and Country Planning Act 1990 allows applications for planning permission and reserved matters approval to be made directly to the Secretary of State where the Local Planning Authority (LPA) has been designated for this due to under performance. This is known as being in ‘special measures’.
At present, there are five local authorities subject to special measures. These are Uttlesford, Chorley and Lewes in respect of major developments and Bristol City and St Albans City in respect of non-major development.
The performance of the LPA is reviewed annually and if it has sufficiently improved, the designation is removed. Similarly, LPAs can also be added if they are under performing.
Presently, applications with Extensions of Time (EoTs) are excluded from the performance figures which in many cases skews the picture in any event. There has been talk that without EoTs, nearly all LPAs would be underperforming on decision-making timescales targets.
Applicants can apply directly to the Planning Inspectorate for pre-application advice (charged at £134 per hour and agreed via a PPA style schedule). LPAs are still expected to provide information to an applicant and the Planning Inspectorate including relevant policy/guidance, planning obligations, planning history and a list of relevant stakeholders.
Our experience
Barker Parry has recently been involved in the implementation of two S.62A consents. In both cases the client came to us after securing the initial permissions, one for full planning on an urban site and the other for outline consent on an undeveloped land parcel. The applications were not smooth sailing largely due to the mix of decision matters (SoS vs LPA).
Full planning example
For full planning it was necessary to return to the LPA for S.73 applications and discharge of conditions (neither of which can utilise the S.62A process). During this process the LPA were proactive but there were multiple occasions where the parties were trying to agree what the Inspector had meant or intended for matters in their ‘Decision and Statement of Reasons’.
This led to a lot of back and forth with the LPA which was time consuming and inefficient and would be unlikely to have been the case if the original permission had been determined by the LPA themselves. In this regard I have some strong sympathy for the LPA. While both parties input into conditions as part of the S.62A process, much like with an Appeal, the Inspector has final say on those imposed and the final wording.
An example condition was a pre-occupation requirement for details to be approved demonstrating that ‘adequate outdoor amenity space’ was to be provided for each residential unit.
Given the scheme was in full and not outline, this felt very much like a matter that should either; have been dealt with at the application stage (if you’re talking about quantum of provision – unclear!); or left to the hard and soft landscaping condition (if referring to quality of the space).
The LPA leant towards the quantum of provision interpretation but there wasn’t much the application could do but re-badge and tabulate the approved provision as anything else would have required a variation of the permission. After much back and forth the details were approved but it didn’t seem like the optimal way to have secured the detail.
Outline consent example
For the outline application, we were tasked with submitting the RM details. We initially advised that this be submitted to the LPA rather than re-use the S.62A process. Our view was that the outline approval had established the principle of development and there was a clear design code and parameter plans for the site making it sensible to seek LPA approval.
This initially seemed to be the correct strategy with the application going to Committee with an officer’s recommendation for approval confirming that design and layout matters complied with the outline requirements.
However, at the last minute the LPA chose to revisit a matter that was established at the outline stage (and was not a RM) due to a late consultee response. This resulted in a deferment from Committee and then returning with a recommendation for refusal.
Members then added additional reasons for refusal on matters again established by the outline approval as they did not agree with the original outline permission being granted. We then submitted a fresh RM application to the Secretary of State (SoS) under S.62A.
At the validation stage, the Inspectorate confirmed that the issue which caused the deferment from Planning Committee was not a reserved matter. However, the appointed Inspector went on to determine the RM application without due regard to the outline permission and its express requirement for the RM to be in accordance with the design code and parameter plans. This decision is now subject to a JR challenge.
This experience seems to indicate that the S.62A process can be useful for securing an initial permission which might otherwise be locally contentious, but it remains unclear as to whether this is securing/delivering the best quality decision-making. It seems an Applicant cannot rely on the SoS for consistency in decision-making, and that the LPA decisions can still be affected by local politics even when principles are clearly established.
So, do S.62As actually help?
Not to sound pessimistic but it appears that special measures can leave applicants between a rock and a hard place.
It also seems that being in special measures is not positively affecting the quality and timeliness of decision making.
Of course, this is just our recent experience and not necessarily reflective of the entire system. But it does seem that the measures in place to make things easier, do not, as it happens, always make things easier!
