The High Court in Provectus Remediation Ltd v Derbyshire County Council [2018] EWHC 1412 (Admin) has recently considered when the right arises to be refunded a planning application fee following non-determination by the local planning authority in accordance with Regulation 9A of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits)(England) Regulations 2012.
Legislation
Regulation 9A states as follows:
- Subject to paragraph (2), any fee paid by an applicant in respect of an application for planning permission, or permission in principle or for the approval of reserved matters shall be refunded to the applicant in the event that the local planning authority fail … to determine the application within 26 weeks of the date when a valid application was received by the local authority …
- Paragraph 1 does not apply where:
(a) the applicant and the local planning authority … have agreed in writing that the application is to be determined within an extended period;
(b) the Secretary of State gives a direction under section 77 of the 1990 Act in relation to the application before the period mentioned in paragraph (1) has expired;
(c) the applicant has appealed to the Secretary of State under section 78(2) of the 1990 Act before the period mentioned in paragraph (1) has expired; or
(d) any person who is aggrieved by any decision of the local planning authority or the Secretary of State in relation to the application has made an application to the High Court before the period mentioned in paragraph (1) has expired.
Facts
The developer submitted a planning application to develop an area of land for coal mining which was validated on 25 January 2016. The application fee was £44,752.00 (which was originally paid on an earlier withdrawn application). On 28 April 2016, the council sought further information from the developer by 28 June 2016. Following requests made by the developer's agent, the response date was extended to 29 July 2016, at which point the required information was provided.
On 3 August 2016, the Council sought an extension of time for determining the application. The developer's agent agreed to this and the period was extended to 7th November 2016. On 28 December 2016, following further correspondence and dispute over requested information from the council, the developer appealed against the failure to determine the application within the agreed extended period and sought a refund of the application fee.
Decision
The High Court found that the wording of Regulation 9A is clear and unambiguous in that any agreed extension beyond the 26 week period disapplies the right to a refund of the application fee. In particular, the judge noted the following:
“it is of some note that the 26 week period mentioned in reg. 9A (1) is not the statutory period within which planning applications must be determined in accordance with the statutory provisions governing the time limits for making decisions upon applications. Depending upon the nature of the development in question the statutory time limit for determining a planning application can be 8 weeks, 13 weeks or 16 weeks. It follows that the period of 26 weeks specified in reg.9A (1) is a period chosen specifically by Parliament and which relates to a point in time after which a fee refund may be due. In my judgment, however, in specifying that period (which is significantly longer than any period allowed for determining a planning application) Parliament has quite deliberately chosen to limit the circumstances in which a fee is to be refunded to those mentioned expressly in the 2012 Regulations. That is not surprising. The fees payable upon the submission of a planning application go some way, at the very least, to fund the administration of the whole system of planning regulation”.
Lesson: When asked by the council for an extension to the date for determination of your and/or your client’s planning application, you should first consider whether such extension would exceed the 26 week period under Regulation 9A. As noted by the judge, this is a different period than the statutory periods for decision making. If it will exceed 26 weeks then you should consider whether or not, strategically, you wish to agree the extension and forego any right to an application fee refund (especially where the fee is significant).
