On Stat Cons

Of the very, very many things announced by Michael Gove in the ‘Falling back in love with the future’ speech of December 2023 one of the most interesting and potentially most significant was the “rapid three-month review into the statutory consultee system” to be led by Sam Richards. Richards is campaign director and chief executive at Britain Remade and had been a special advisor on energy and the environment at Number 10.

The then Secretary of State said that he believed that stat cons are "an important check and balance within our planning system, safeguarding the environment, respecting heritage and ensuring health and safety considerations are properly taken into account", but expressed worry about “delay and procrastination".

"A superficial glance at the statistics suggests that most statutory consultees respond within the expected 21-day limit, but look a little closer, and you can observe the regular use of holding responses - effectively an 'I'll get back to you later' acknowledgement”, said Gove.

"If we want the 21st century infrastructure communities are crying out for then we need a 21st century planning system, and as part of this review I will leave no stone unturned", said Richards.

I was at a dinner at the end of April and asked the then Housing & Planning Minister Lee Rowley about the whereabouts of the "rapid review". He said that it was on his desk…

As to it’s whereabouts now, who knows.

The last Government had likely picked up on the identification of stat cons as an issue to be addressed by both the RTPI and the Competition & Markets Authority (CMA) .

RTPI research on local plan-making 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 was also identified by the CMA as one as one of factors driving up the length of the planning process. The CMA’s paper on planning states that.

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.

If, as the new Government hopes, the NPPF reforms trigger an uptick in planning applications being submitted next year, it is important that a light continue to be shone on their role.

Why is this such an issue? Well, both the development industry and the wider planning profession will have welcomed this scrutiny because the dreaded holding response has definitely become more prevalent in recent times. These are typically a generic ‘more information needed’ letter, that a cynical applicant can legitimately assume masks the simple fact that the submitted material has not even been looked at.

Before getting into the issue and possible remedies though, it is important to note that whilst Mr Gove talked about ‘the performance of Natural England, the Environment Agency, Historic England and other arm's length bodies' needing 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, which are attached to the vast majority of major planning applications.

It is also important to note that stat cons are not just important to the determination of applications and the subsequent discharge of conditions. Substantive pre-application advice from LPAs and stat cons is absolutely vital to the formulation of any development proposal because, in working up a scheme, a developer will be assessing which uses could be appropriate within a given site’s developable area based upon an analysis of opportunities and constraints. It is at this crucial stage of the development process that the land value which underpins contractual arrangements between the landowner and the prospective purchaser is established.

More often than not though, and as research by the Planning Advisory Service identified, 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 then result in schemes (and the contractual arrangements behind them) being amended once a planning application has been made or in a subsequent resubmission.

All of which contributes to the length of time it takes for planning applications to be processed and, once approved, for development to start on site.

So what is to be done? Mr Gove's speech mooted the doing away with of extension of time agreements, but the obvious unintended consequence of that would be more refusals or more issues being resolved by way of a condition.

There is probably a wariness about quantitative benchmarks generally if consultees can point to  quick and efficient responses when really they are sending a generic response in order to tick a box. 

The CMA made two suggestions. Firstly, a clearly defined set of national consultees with an ability for LPAs to consult other organisations as appropriate, but without adding to the national list.

Other suggestions in this vein are consultation by reference to the size of project or other such criteria (such as whether a proposal is consistent with a local plan that a consultee was involved with formulating).

Further, if an applicant has consulted the consultee at pre-application stage and there have been no substantial changes to the submitted application proposals then the pre-application response should be able to be used to assess the application (see below in relation to substantive pre-application consultation). This on the basis that consultees should not be able to divert from a previously agreed position without consequences proportionate to the disruption this causes.

A list of accredited technical consultants could be maintained by a LPA and where an applicant has sought the professional advice of such a consultant and relied upon a previously agreed position with the LPA and/or consultee that element of the application should not be subject to further scrutiny.

A further suggestion is that where stat cons recommend the imposition of a condition it should be capable of being discharged by direct liaison with the consultee rather than being processed by the LPA. A utility company, for example, should be able to approve a drainage design rather than advising a LPA that it should be approved. This assumes, of course, that no two conditions require the submission of potentially conflicting material.

The second CMA suggestion was a type of ‘use it or lose it’ approach to stat cons, upon which there are two schools of thought.

One is that the schemes submitted by the development industry are technically robust and there is, therefore, limited risk of legal or technical problems during construction. Comfort in this scenario is derived not from consultee sign-off, but the expertise and liability insurance of an in-house or external technical project team. Some in the industry might see a commercial advantage in ‘cracking on’ and avoiding the months of delays that can flow from stat cons responding late.

The other school of thought is that objecting to applications becomes a default stat con position in order to buy time.

There is a further wariness about a subsequent risk to the LPA of a legal challenge either by the statutory consultee itself or perhaps more likely third-party objectors.

If such an approach was introduced, it would need to be very clear that the stat cons do not have the ability to provide late comments that could affect scheme implementation. The applicant would either receive comments in the statutory period or be free to have the submitted scheme approved and built.

If such an approach was introduced without going this far or was introduced with so many caveats and exemptions as to effectively maintain the status quo (such as the exemptions associated with the deemed discharge of condition provisions), it would not, it can reasonably be said, precipitate the required change.

Whether or not any or all of these suggestions are introduced, solutions have to be found for soliciting consultee input in a timelier fashion.

‘Using it or losing it’ is a stick, but consultees need to be incentivised to, and compensated for, providing meaningful input into the planning process.

Perhaps consultees could be obliged to enter into PPAs and for pre-application responses to become binding.

A key measure contained in the Levelling Up & Regeneration Act is the ability for national stat cons to charge for providing “advice, information or assistance” on planning applications, but consultee pre-application processes need to be integrated into a single LPA-led process and not be conducted separately. Perhaps LPAs could distribute the PPA fee at agreed milestones and for an agreed level of input.

Underneath any procedural improvements though are two underlying issues that need dealing with.

Firstly, resources within LPAs are now better documented, but a lack of staff, and especially a lack of experienced staff, with stat cons likely tends towards risk aversion, which in turn tends towards objections or reams of conditions (that consultees are then even slower to respond to).

Secondly, whilst statutory and non-statutory consultees have become fundamental to the operation of the planning system (consider, for example, Lead Local Flood Authorities), in most cases planning is only peripheral to their respective core operations and not an activity that they receive funding for. Redressing that imbalance would arguably make the biggest practical and immediate impact on stat con performance.