The Accelerated Planning Service

"In today’s Autumn Statement for Growth our choice is not big government, high spending and high tax because we know that leads to less growth, not more. Instead we reduce debt, cut taxes and reward work. We deliver world class education. We build domestic sustainable energy.

And we back British business with 110 growth measures – don’t worry, I’m not going to go through them all – but in summary they…

…remove planning red tape

…speed up access to the national grid

…support entrepreneurs raising capital

…get behind our fastest growing industries

…unlock foreign direct investment

…boost productivity

…reform welfare

…level up opportunity to every corner of the country

…and cut business taxes."

So the Chancellor, Jeremy Hunt, began his speech introducing the Autumn Statement last November, with the scourge of that dastardly planning red tape very much front and centre.

"It takes too long to approve infrastructure projects and business planning applications. Many businesses say they would be willing to pay more if they knew their application would be approved faster. So, from next year, working with the Communities Secretary, I will reform the system to allow local authorities to recover the full costs of major business planning applications in return for being required to meet guaranteed faster timelines. If they fail, fees will be refunded automatically with the application being processed free of charge.

A prompt service or your money back – just as would be the case in the private sector."

The Autumn Statement itself contained the following.

5.93 Planning system performance reforms – The Department for Levelling Up, Housing and Communities will bring forward plans for authorities to offer guaranteed accelerated decision dates for major developments in England in exchange for a fee, ensuring refunds are given where deadlines are not met and limiting use of extension of time agreements. This will also include measures to improve transparency and reporting of planning authorities’ records in delivering timely decision-making.

A few months on and DLUHC has brought forward plans for an Accelerated Planning Service (APS), which includes a decision on major commercial applications within 10 weeks (and a fee refund if this is not met), as well as changes to the use of extensions of time, including ending their use for householder applications and only allowing one extension of time for other developments. This will be alongside proposed new performance measures for LPA speed of decision-making against statutory time limits.

First things first. It will no doubt be pointed out with the number of planning permissions for new homes in the year to December 2023 dropping to the lowest for any 12-month period since 2014, and given the respective importance of commercial and residential development to the economy and wider society, that the notion that one type of application would be “prioritised” over the other would introduce a peculiar new dichotomy into proceedings.

That said, commercial development is often less contentious than residential development and if an APS is to be trialled then perhaps doing so in this sector affords more chance of success and a platform for the lessons learnt to be rolled out more broadly.

Regardless, the APS consultation is an opportunity for everybody involved in planning and development to shine a light on the lengthening of planning application timescales.

According to the RTPI, approximately 85% (354,000 of the 415,000) of decisions made in 2009 were within statutory time limits and without Planning Performance Agreements (PPAs), but by 2021 this figure had fallen to 49% (209,000 of the 427,000). As the RTPI noted, “whilst some of this could be put down to Covid, the trend over the last 12 years is worrying and highlights a downturn in the performances of LPAs.

As the APS consultation material notes, the statutory time limit to decide major planning applications are not met in the majority of cases. In the period July to September 2023, for example, only 21% of major applications were decided within 13 weeks.

The consultation material also notes that the average (median) time to determine a major planning application is estimated to be approximately 28 weeks, but, of course, the application period itself is only part of an approval process that takes in pre-application engagement before a planning application and the need to discharge conditions post-consent. According to recent data from Lichfields, the overall planning approval period can be 1.5 years for sites of 50 to 99 homes and 5.1 years for sites of 2000 or more homes.

Whilst the recent increase in planning fees and the Planning Skills Delivery Fund are not nothing, they, along with the proposed APS measures, will not make anything other than modest strides towards “a high-quality and timely planning service”. Even if 13 weeks is an appropriate measure, and the majority of those in the development industry would accept that the overall planning approval period is longer than 13 weeks, the proposed initiatives do not fundamentally address the reasons why only 21% of major applications are decided within 13 weeks. These are, by and large, the absence of substantive pre-application discussions (as research for the Planning Advisory Service (PAS) has identified), the role of consultees (statutory and non-statutory) and the convoluted process especially in two-tier administrative areas for signing Section 106 Agreements (for which template agreements are still not used as a matter of course).

Substantive pre-application advice from LPAs and statutory consultees is vital to the formulation of any development proposal. In working up proposals, an applicant will be assessing which uses could be appropriate within a given sites developable area based upon an analysis of opportunities and constraints. It is at this crucial stage of the development process that the land value that underpins contractual arrangements between landowner and prospective developer is established.

More often than not, however, substantive pre-application advice is not provided, which means that development proposals are worked up without a complete analysis of opportunities and constraints, which can result in schemes (and the contractual arrangements behind them) being amended once a planning application has been made or in a subsequent resubmission.

Once a planning application has been made, the ‘holding response’ from consultees has become more prevalent in recent times, typically a generic ‘more information needed’ response, that, a cynical applicant might assume, simply masks that an application has not yet been read.

Statutory (and non-statutory) consultees have become fundamental to the operation of the planning system, but it most cases planning is only peripheral to their respective core operations. Redressing that imbalance would arguably make the biggest practical impact to the operation of the planning system.

The sector welcomed the ‘rapid three-month review’ into the statutory consultee system that was announced in December and it is a shame that the review has not been rapid enough to have emerged in time to feed into this consultation because the issue is a timely one.

RTPI research on local plan-making last year concluded as follows.

"There appears to be evidence that Statutory Consultee engagement, or lack of it, has delayed the publication or submission of plans, but this is difficult to draw out from the written sources. There are however examples of where the lack of ongoing engagement (possibly on both sides) has led to delays at the examination process."

Delays in receiving responses from statutory consultees has also been identified by the Competition & Markets Authority (CMA) as one as one of factors driving up the length of the planning process. The CMA’s paper on planning states as follows.

"LPAs reported issues with getting statutory consultees to respond within the 21-day consultation period. Responses from statutory consultees were stated to commonly be late and, in many cases, returned well in excess of the required 21-day period. This was largely attributed to resourcing issues within the statutory consultee organisations."

In setting out possible future planning reform the CMA goes on to suggest that LPAs could only be required to consult with a clearly defined set of consultees (although this would not prevent LPAs from consulting with other stakeholders, if they choose to, or other stakeholders from providing their views to the LPA) and that LPAs could only be required to take into account the views of statutory consultees if they provide their views within the mandatory 21-day period. Under this proposal, if a statutory consultee does not respond within 21 days the LPA can deem them to have consented to the planning application.

Whilst the Secretary of State’s ‘Falling back in love with the future’ speech stated that ‘the performance of Natural England, the Environment Agency, Historic England and other arm's length bodies needs to improve’, internal LPA consultees (highways, environmental heath, ecology, urban design, heritage, etc) and, in two-tier areas, County Councils (minerals and waste, flood risk, local nature recovery strategies, education and health), are equally as important to the formulation of policy and the determination of planning applications. Similarly, whilst not a consultee as such, internal legal resource is fundamental to the ability of a LPA to transact Section 106 Agreements.

Fundamentally, a lack of staff and especially a lack of experienced staff tends towards risk aversion that in turn tends towards objections or reams of conditions (that consultees are even slower to respond to).

The inevitable consequence of a single extension of time within the system as it is presently operating will be either an extension so long as to account for every conceivable worst case scenario or, if an applicant did not agree to such an extension, the refusal of an application.

Rather than face a refusal it is, of course, the case that an applicant could withdraw an application to remedy any perceived deficiencies in the first submission, but the appetite to do so and not appeal will have disappeared now that the ability to make a ‘free go’ application has been removed.

A further consequence could be LPAs persuading applicants to delay submission until it can be shown that an application is not just ‘oven-ready’, but stands up to scrutiny from every conceivable angle. It is not hard to imagine in this scenario that local validation lists, already onerous in many places and especially so for SMEs, become even lengthier.

In contemplating the fee for a new APS the consultation material states that it cannot exceed the cost of providing the service, but the cost of determining one type of major application within 10 weeks in one part of the country will differ considerably from the cost of determining another type of major application within 10 weeks in another. The consultation suggests that a centrally set flat rate would be fair and consistent, but the majority of applicants would likely accept that cost differential and perhaps not mind paying more for particularly complex proposals.

For planning consultants and planning managers operating at the coalface being able to work collaboratively with a LPA towards a pre-agreed determination deadline is arguably much more important than an arbitrary statutory target.

One might reasonably contend then that ‘bespoke’ might be a more meaningful ambition than ‘accelerated’ when considering appropriate time limit.

PPAs already provide a project management tool for larger and more complex applications and should reduce timescales and create more positive outcomes, as well generating resources LPAs, but PAS research has found that there is limited experience of their use within LPAs and often when PPAs are used it is on an ‘ad-hoc’ basis. PAS found that applicants are willing to pay for a PPA if the service promised is delivered, but that barriers exist to their more widespread use. These barriers though, such as skills, resources and buy-in from senior officers and council members, are not insurmountable and the benefits of improving the existing PPA proposition may provide wider benefits than the narrower APS.

Measures and thresholds have a role to play in working towards a planning service that delivers better outcomes in a more timely fashion, but it seems unreasonable to change the benchmarks against which LPAs are transacting applications without addressing the reasons why applications are not being transacted in a more timely fashion in the first place.

To tackle the use of extension of time agreements alone is to tackle a symptom of dysfunction within the planning system rather than the causes.