Quarterly in advance Summer 2018 – How to plan for a refund

09 / 07 / 2018

Refunds of planning application fees. Tips to ensure you remain eligible

As a consumer, you have the right to a refund if a service that you buy is not delivered with the skill and care that you’d expect, or in a reasonable time.

When a local planning authority (“LPA”) fails to deliver, can you expect the same with planning application fees?

The recent High Court judgment in the case of Provectus Remediation Limited v Derbyshire [2018] EWHC 1412 (Admin) (“the Provectus case”) sheds light on the issue and highlights traps for the unwary.

Planning application fees can be a considerable expense, as in this case where Provectus paid a fee of £44,752 to develop land for coal mining.

The statutory time limits for determining applications are usually 13 weeks in the case of major development and eight weeks for all other types of development, the exception being applications requiring Environmental Impact Assessment, for which the maximum period is 16 weeks.

These deadlines are often extended by agreement between applicants and LPAs, but the right to a refund of the application fee is only available if the application is not determined within 26 weeks of its validation, a time-limit that was set as part of the Government’s planning guarantee that all planning applications should be decided in a year, even if an appeal is required.

In this case, Provectus and the LPA agreed an extension which took the determination period beyond 26 weeks.  Provectus subsequently lodged an appeal when the application was then not determined in the agreed extended period, and sought a refund of the application fee.  The LPA refused Provectus’ request and Provectus judicially reviewed the LPA’s decision not to repay the fee.  The Court considered whether the legislation requires a refund to be made in these circumstances, which are all too common.

Regulation 9A of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 sets the 26 week refund period and lists the exceptions where it does not apply.  Those exceptions are where the relevant parties agree in writing an extended period for determination of the application, or where the application is called-in or appealed before the 26 week period expires.

Provectus argued that the Regulations should be interpreted so that the exceptions in Regulation 9 should not apply if an extension is agreed and the application is then not determined within that extended period.  The High Court agreed with the LPA that the Regulations are clear on the issue and ruled that Provectus were not due a refund as an extension had been agreed.

The case highlights the need for caution when agreeing extensions of time with LPAs.  In doing so, applicants could reserve their right to claim a refund, although it is not clear if that would be binding on the LPA.  Applicants should, as a minimum, monitor the progress of the application closely against the 26 week period, and take into account the potential refund in deciding whether to appeal or agree an extension.

Applicants should also think twice about entering into any planning performance agreements (“PPA”) and whether they are worth the expense.  They often do not result in the improved performance by officers and a prompt determination that applicants pay considerable sums for, and they generally extend the statutory determination periods automatically so that a refund may never become payable.  In entering into any PPA, do keep an eye on the 26 week period and if possible do not agree to waive your right to a refund of the application fee beyond that period.