Planning decisions and extension of time agreements (also CIL/s106)

[Oz07]

Local authority I have an application in with at the moment have a 6 week backlog before they even pick up applications. With the statutory time for a decision being 8 weeks (correct if I'm wrong) its clear they have no chance. I have noticed they are quite hot on getting you to agree to an extension of time with applications and getting this is writing. Why is this?

 

As I understand it you can go starting to planning inspectorate for a decision if past 8 weeks. Does this benefit you in any way? Are they likely to be more lenient? Or is it that the planning inspector will work to a very short timescale? (2/3weeks?)

 

If you refuse to agree to extension but then leave it in LA's hands what happens then? I assume they process as normal but it would become 'official' that they were late? There has to be a reason why they are so hot on getting that agreement.

 

Another angle, round here they charge S106 on new houses via a unilateral undertaking. They say they aren't making you 'buy' planning but effectively it is. Is it the case that if they are late with a decision, you choose to take it to inspectorate that they wont then implement the S106 as it is supposed to be individual to the application?

 

Interesting thoughts hope there is some planners/consultants that could shed light!

Thanks

[Temp]

Local authority I have an application in with at the moment have a 6 week backlog before they even pick up applications. With the statutory time for a decision being 8 weeks (correct if I'm wrong) its clear they have no chance. I have noticed they are quite hot on getting you to agree to an extension of time with applications and getting this is writing. Why is this?



 

To meet government targets. They are meant to process as many as possible within 8 weeks but they don't have to count those where the applicant has agreed a delay or longer time period.

 

As I understand it you can go starting to planning inspectorate for a decision if past 8 weeks. Does this benefit you in any way? Are they likely to be more lenient? Or is it that the planning inspector will work to a very short timescale? (2/3weeks?)

 

Unfortunately an appeal to the planning Inspectorate can take a long time. 

 

https://www.gov.uk/guidance/appeals-average-timescales-for-arranging-inquiries-and-hearings

Householder appeal	Valid appeal to decision
Written representations	14 weeks

Note you need to add another 2 week to that as it takes that long for them to go from receiving your appeal paperwork to deciding it's valid.

 

If you refuse to agree to extension but then leave it in LA's hands what happens then? I assume they process as normal but it would become 'official' that they were late? There has to be a reason why they are so hot on getting that agreement.

 

My local authority sends out a letter stating that they will assume you have agreed an extension unless they hear from you. As I recall the time period stated in the letter I got was vague. One option would be to find out how long similar applications are taking and subtract a few weeks or perhaps offer to extend to 16 weeks. However if you agree a delay beware of the timescales/window for an appeal may not be delayed. In other words if they delay long enough you can loose the right to appeal for non-determination. So if you agree a delay I would reserve the right to appeal for non-determination. 

 

[Temp]

S106 Contributions

 

Hope you like reading!..

 

Quote

Another angle, round here they charge S106 on new houses via a unilateral undertaking. They say they aren't making you 'buy' planning but effectively it is. Is it the case that if they are late with a decision, you choose to take it to inspectorate that they wont then implement the S106 as it is supposed to be individual to the application?

 

Not that I've heard.

 

There are complex rules that govern the use of S106 payments. Originally they were meant to be specific to the plot (eg your house uses up green space so you must contribute to the maintenance/provision of parks, that kind of thing). However councils got good at bending the rules so they were tightened up a few years ago. 

 

There is now a limit on the way many S106 payments are pooled. So for example if they have already agreed five or more S106 to fund the same thing (eg parks) then they cannot set up any more for the same reason. This was meant to persuade councils to move to the CIL. The exception is S106 for affordable housing.

 

I/this might be out of date but there is/was also an exemption/rule for small developments that would normally cover self builders. However the way this has been implemented by councils varies.

 

http://researchbriefings.files.parliament.uk/documents/CBP-7200/CBP-7200.pdf

Quote

 

 

There are specific circumstances where contributions for affordable housing and tariff style planning obligations (section 106 planning obligations) should not be sought from small scale and self-build development. This follows the order of the Court of Appeal dated 13 May 2016, which give legal effect to the policy set out in the Written Ministerial Statement of 28 November 2014 and should be taken into account.

 

These circumstances are that;

 

• contributions should not be sought from developments of 10-units or less, and which have a maximum combined gross floorspace of no more than 1000sqm

• in designated rural areas, local planning authorities may choose to apply a lower threshold of 5-units or less. No affordable housing or tariff-style contributions should then be sought from these developments. In addition, in a rural area where the lower 5-unit or less threshold is applied, affordable housing and tariff style contributions should be sought from developments of between 6 and 10-units in the form of cash payments which are commuted until after completion of units within the development. This applies to rural areas described under section 157(1) of the Housing Act 1985, which includes National Parks and Areas of Outstanding Natural Beauty

• affordable housing and tariff-style contributions should not be sought from any development consisting only of the construction of a residential annex or extension to an existing home25
 

 

 

The Ministerial Statement of 28 November 2014 is here..

https://www.parliament.uk/documents/commons-vote-office/November 2014/28 Nov 2014/2. DCLG-SupportForSmallScaleDevelopersCustomAndSelf-Builders.pdf

 

That was subject to some court cases which I think ended with the government winning in 2016.

https://www.planningpotential.co.uk/news/government-wins-appeal-to-exempt-small-sites-from-affordable-housing-contributions/?id=197

 

Quote

 

 

Government wins appeal to exempt small sites from affordable housing contributions (13 May 2016).

snip

During the recent Housing and Planning Bill debates, Labour peers attempted to remove the affordable housing requirement exemption for small sites. However they were unsuccessful. On 12 May, the Housing and Planning Bill has received Royal Assent after Lord Bob Kerslake withdrew the remaining opposition amendment.
 

 

 

However I have heard that some councils are still asking self builders for S106 payments for affordable housing. See this FOI request from 2018..

https://www.whatdotheyknow.com/request/government_changes_to_the_106_ag

To which the reply includes..

https://www.whatdotheyknow.com/request/464934/response/1146352/attach/html/2/Response.pdf.html

 

That basically says that decisions should be in accordance with the Local Plan and that National policy is "not the law". However the reply to the FOI appears to leave it up to councils to decide how much weight to give to the governments Ministerial Statement when writing the local plan. So you might find something in the local plan that is contrary to the Ministerial Statement and/or National Policy. It's also important to find out the status of the local plan. Is it just a draft? Has it been put out to consultation? Approved by the Planning Inspectorate? 

 

So what to do if they ask for a S106....

 

Find out if what they are asking you for is supported by the Local Plan. If not you could refuse to agree the S106. You would then have to appeal any decision or appeal for non-determination. However before doing that you should make sure all the other aspects of your application are likely to be approved.  One thing I do know is that Appeal Inspectors put a lot of weight on the Local Plan especially if it has been out to consultation and ratified. So if what they are asking for is consistent with a ratified local Plan you should probably just give in pay up.

 

Edited January 10, 2019 by Temp

[Oz07]

Cheers temp defiantly won't be agreeing to extension of time then just to make their figures look good. Wasn't particularly trying to escape 106 just wondered why they were so keen to have the extension!

[ProDave]

Our planning app took a long time.  When it got to the 8 weeks, they had only just started looking at it and asking questions.  I did look into appealing because of non decision, but it was not as simple as just bang an appeal in at 8 weeks and 1 day, there was a much more complicated procedure to follow.  That and the time it was likely to take for an appeal, I just waited for the planners to grind away at their own slow pace.

[Roz]

We had to agree to a couple of extensions of time. Mostly so they could consult other people on different parts of the project. It felt possible that if we didn't agree then they would reject the application in order to have it wrapped up in the right time frame, but I have no evidence that that's true, I could have just been being paranoid. 

[Oz07]

I think you could ask them whether rejecting the extension would result in refusal. Don't think they could admit to that pen on paper

[vivienz]

My application wasn't looked at for ages - this was called the validation period and didn't count towards the 8 week time limit. Validation consisted of making sure that all the information needed was there, even to the extent of checking that plan view details corresponded with elevations as well as the financial side of things. Once validated, i had my application granted dead on 8 weeks afterwards.