On Mayoral Call-In Powers and VAR

I said something clever the other week and thought it so clever that I made a note to hang a blog on it.

Mayoral call-in powers have the potential to do for planning what the Video Assistant Referee (VAR) has done to football.

Bear with me...

By way of a reminder, the consultation on planning powers for mayors in England that closed earlier this month states the following.

One of the key sets of planning powers which all mayors outside London will gain through the implementation of the English Devolution Act are the powers to intervene in relation to applications of potential strategic importance (PSI). These powers enable mayors to ‘call in’ applications allowing them to shape strategic development in their area. In turn, this supports the implementation of their SDS.

The Mayor of London has had the full set of powers since 2008, and successive mayors have successfully used them to shape London’s development.

The specific powers are:

• to require LPAs to consult the mayor on PSI applications
• before a final decision is made to direct refusal of PSI applications, or to direct call-in and become the LPA for the purposes of determining certain PSI applications.

The English Devolution White Paper stated that these powers would be available for mayors outside London once they had adopted their SDS. In view of government’s drive for housing delivery and economic growth, we now consider that the implementation of these powers at the earliest opportunity is important so mayors can use them to support the growth of their area as they prepare their SDS.

If the mayor decides to call in a PSI application, they will become the LPA for the application for purposes of determination. The LPA will be required to send all representations (including those by statutory consultees, members of the community and Town and Parish Councils) to the mayor for them to consider. The mayor may also call in any connected application (such as Listed Building Consent, or Hazardous Substances Consent) which is linked to the PSI application so these can be considered together.

Before the mayor can determine the application, they will be required to proceed either by way of holding a hearing in public or by way of written representations. This allows the LPA, the applicant and other stakeholders such as statutory consultees and Parish and Town Councils the opportunity to have their say.

Wait. What? Two planning application processes?

To return to the football analogy, the introduction of technology into football by way of goal line cameras and offside decisions worked because whether or not a ball had crossed the line is, well, blank and white, and similarly the offside law (however defined) is straightforward enough for a machine to interpret (clear and rules-based perhaps...).

The invidious creep of VAR into whether or not a foul has been committed now means interminable delays whilst one official comes to a subjective decision on whether a subjective view taken by another official represents a 'clear and obvious error'. Decisions that are over-turned might make for dramatic television, but they ultimately undermine the integrity of the game as a whole.

At face value, the call-in provisions have clearly been drafted as a bulwark against regressive LPAs blocking something that a progressive mayor thinks a good idea, and whilst at any time in the process a mayor can state that they do not wish to be involved and an applicant can request that the mayor to intervene if the application has not been determined within its statutory time period, what if a regressive mayor wants to block something that a proactive LPA thinks a good idea? Fundamentally, two decision-makers are being introduced into a process that currently includes only one.

That cannot be right can it? We should be working towards shortening planning application timeframes not lengthening them?

As Simon Ricketts points out in this blog, in London applicants engage in two parallel pre-app processes with both the LPA and the mayoral team, but still do not know upon submission of an application if the mayor will call it in. Again, that cannot be right?

If a mayor has the power to call an application in surely the applicant should have the right to submit an application to them directly?

The games should have one referee, not two.