Article 34 of The town and Country Planning (Development Management Procedure) (England) Order 2015 – the DMPO – sets out the requirement for councils to give the applicant notice of their determination of a valid application within a specified period – being either the statutory time limit or "such extended period as may be agreed in writing between the applicant and the local planning authority" (provided the applicant has not already given notice of an appeal to the secretary of state).
There is no prescription about when the agreement can be made following the receipt of a valid application, although the DMPO art 34 (2)(c) states that an extended period cannot be agreed if the applicant has already given notice of the submission of an appeal against non-determination.
Clearly, as the active word is "agreement", it will be good practice for any approach to agree an extension of time to be a process of negotiation between the council and the applicant rather than a unilateral request. Good practice also indicates that the appropriate time for this discussion will be once the outstanding issues about the application are identified and a mutual understanding reached as to the path for resolving them. If this path will take lead beyond the statutory target for determination, an agreement should be sought. An extension of time is best agreed as early as possible in order to provide certainty. In most cases this will be before the expiry of the statutory period. But if the applicant is agreeable to an extension at a later date and has not already given notice of an appeal against non-determination, this is possible.
It’s becoming a trend to see local planning authorities (LPAs) using ‘extensions of time’ to deal with planning applications. Yet while this process can be beneficial for all parties to ensure the application is completed properly, a reliance on these extensions is starting to be problematic and needs to be addressed.
In my opinion for the sake of the integrity of the planning system, EoT should be agreed in exceptional circumstances and efforts should be made by both sides to meet the statutory timescale wherever possible. However unfortunately more and more this is not the case. I appreciate that we are unprecedented times and the way in which people are working may take time to adjust for some. However, an email 7 weeks and 6 days into an application requesting an extension of time as the officer needs to consider information submitted by a statutory consultee within the 21-day consultation period doesn’t seem like an appropriate use of the systems.
Surely if officers are so overworked that they know weeks before the target date that they will not be able to determine the application “on time” this should be highlighted and addressed with proper resourcing rather than covered up with an extension to the target date.
This being said, the most concerning aspect of the process, to me, is the situation where a decision is held at ransom until an extension to time is agreed by the applicant. The continual need for requesting extensions of time puts developers in a tough position. If they don’t agree, then the planners could refuse the planning application, leading the developers to face the time and hassle of an appeal (which can take 6 – 9 months). The developers basically have little choice but to agree with extensions when, in reality, they shouldn’t be needed.
To compound the issue for applicants, agents and developers, extensions of time also remove the ability to obtain a refund of the application fee under the planning guarantee. The planning guarantee was brought in through The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2013. Section 9A of the fees regulation establishes the right to a refund of fees to the applicant if a planning application is not determined within 26 weeks. However, Paragraph 2 of the regulation provides that this does not apply where the applicant and the local planning authority, or, in the case of an application under section 62A of the 1990 Act, the Secretary of State, have agreed in writing that the application is to be determined within an extended period.
It seems that there is no simple solution; if extensions of time were abolished, it would result in more applications being refused. So, it’s a vicious circle resulting in applicants and developers, for the time being at least, arguably being held to ransom.