An application is made for planning permission. The Local Planning Authority (‘the LPA’) receives the application, registers and validates it, and proceeds to determination. Simple! Well, maybe not.

While the registration and validation of planning applications is undertaken by LPAs every day, there is surprisingly little discussion of the statutory and procedural requirements which must be met in order to perform these tasks correctly. What is the correct sequence of events for registration and validation? What constitutes an “invalid” application? And can validated applications be “un-validated?”

In this short article I set out the correct procedure for the registration and validation of applications for planning permission.

Registration and validation, or registration then validation?

The Planning Practice Guidance (‘the PPG’) advises that, on receipt of an application, an LPA will register it and send the applicant confirmation.[1] It states that applications should be validated as soon as practicable, but that delays in validation might occur if there are concerns about an application’s validity. In such cases the PPG advises LPAs to discuss their concerns with the applicant and provide clear advice on the steps which should be taken to address the concerns.[2]

The PPG therefore envisages registration and validation as sequential activities, rather than occurring simultaneously. By staggering registration and validation there is an opportunity to identify and rectify any obvious errors, minimising the likelihood of validating an incomplete application.

Time limits to validate?

There is no time limit for the validation process, with the PPG simply advising that “Applications should be validated as soon as practicable to allow the formal process of publishing and consulting on the application to begin.”[3] However, an LPA should be aware that, if there is a delay validating an application because of a dispute over the information required, an applicant can avail of the dispute resolution process under Article 12 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (‘the 2015 Order’).

What is an invalid application?

Article 11(6)(b) of the 2015 Order tells us there are two ways an application can be “invalid.”

Option 1: not a “valid” application per Article 34(4)

The full requirements for a valid application are set out in Article 34(4) of the 2015 Order. While the full text of the article is too unwieldy to be usefully reproduced here, I draw attention in particular to the following:

… a valid application is taken to have been received when the application, and such of the documents, particulars or evidence referred to above as are required to be included in, or to accompany, the application have been lodged with the appropriate authority mentioned in article 11(1) and the fee required to be paid has been paid.

This tells us that the LPA has no discretion as to the validity of an application. If the submitted application complies with the requirements listed in Article 34(4) of the 2015 Order and the fee is paid, the application is valid, and it is the role of the LPA simply to confirm it as such.

Option 2: a non-validated application per Article 34(5)

Article 11(6)(b) tells us that a non-validated application, as defined in Article 34(5), is also invalid. The difference between Article 34(4) and Article 35(5) concerns the operation of Article 34(6).

While most of the requirements for a valid application are nationally consistent, Article 34(4)(e) and Article 34(5)(e) both allow LPAs to establish locally specific information requirements, known colloquially as the Local List, as established in section 62(3) of the 1990 Act.

The information included in the Local List may be required as part of an application, as long as it has been published on the LPA’s website in the last two years; the requirements are reasonable having regard to the nature and scale of the proposed development; and concern a material consideration in the determination of the application.[4]

Non-validated applications can be subject to a validation dispute, the procedure for which is set out at Article 12 of the 2015 Order as referenced above. Detailed discussion of these disputes falls outside of the scope of this article.

Can an application be invalidated?

There is no power in the 2015 Order which permits an LPA to “invalidate” a valid application. The validation of an application is not a discretionary exercise. If the submitted application complies with the requirements listed in Article 34(4) of the 2015 Order, the application is valid, and it is the role of the LPA to simply to confirm it as such. Conversely, an application which does not comply with the requirements cannot be valid, and is, therefore, invalid.

Can an application be “unvalidated”?

If an invalid application cannot be made valid through any action of the LPA, it must follow that it remains invalid, even if it has been validated. This raises the possibility that an LPA may “unvalidate” an invalid application, to the extent that it is recognising and correcting a procedural error.

Conclusion

While the law sets out the requirements necessary for an application for planning permission to be “valid”, LPAs should be aware that if they decline to determine an application on the basis of invalidity, they may find this decision subject to appeal under section 78 of the Town and Country Planning Act 1990.[5]

An LPA which wishes to minimise the likelihood of appeal should engage constructively with an applicant prior to validation, in order to address any issues which might affect an application’s validity.

This article is the first in a series Solid Foundations in which I aim to help LPAs avoid common procedural or legal pitfalls surrounding the determination of planning applications. The next article is Solid foundations: avoiding problems with invalid applications.

 

[1] https://www.gov.uk/guidance/making-an-application#Validation-requirements-for-planning-permission, §045

[2] Ibid §047

[3] Ibid §047

[4] Article 34(6) of the 2015 Order

[5] Newcastle Upon Tyne City Council v Secretary of State for Communities and Local Government [2009] EWHC (Admin) 3469