An applicant was not entitled to a refund of a planning fee where it had agreed with the local planning authority (LPA) that the period for determining the application was to be extended, and the LPA failed to determine the application within the extended period.
That was the decision of the High Court in Provectus Remediation Ltd v Derbyshire County Council in its judgment of 8 June 2018.
The case was an opportunity for the court to clarify the operation and effect of the somewhat ambiguous Regulation 9A of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012, which governs the refund of planning application fees in cases of non-determination. However, the unfortunate phrasing of aspects of the judgment creates uncertainties which will need to be resolved by future case law.
In this case, the agreed extension for determination of the decision went beyond the 26-week period after which a refund is due under Regulation 9A. The court failed to address with sufficient clarity what the position would be where an extension to the statutory period for determination is agreed but that extension does not exceed the 26-week refund period.
The applicant applied for planning permission for coal mining development in September 2014 and paid a fee of nearly £45,000. That application was later withdrawn and a further application submitted in December 2015, for which no additional fee was due. Correspondence passed between the applicant and the LPA during 2016 in which an extended deadline, of 7 November 2016, was agreed for determining the application.
The LPA sought further information about the application on 12 October 2016 which the applicant eventually refused to provide. The applicant argued the information was not of a type the LPA was permitted to request and that it had in any event been provided already.
The applicant appealed against the LPA's failure to determine the application by the extended deadline and sought the return of the application fee, which the LPA refused.
In this case the court had to determine the correct interpretation of Regulation 9A, which, so far as relevant, provides:
"(1) Subject to paragraph (2), any fee paid by an applicant in respect of an application for planning permission … 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 …
(2) 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;
… " (emphasis added)
The LPA contended that Regulation 9A was clear and unambiguous. It clearly disapplied the requirement to refund the application fee where an extended period for determination of the application had been agreed.
On the other hand, the applicant argued that in the interests of fairness it was only right that an application fee should be refunded where an extended deadline for determination was missed. Regulation 9A, it said, should be interpreted purposively so that a fee should be refunded if the application was not determined within 26 weeks but also, where the deadline for determination had been extended, if that determination had still not been made by the extended deadline.
The court therefore had to choose between the literal interpretation of Regulation 9A put forward on behalf of the LPA and the purposive interpretation preferred by the applicant.
In deciding in favour of the LPA, the court relied on the fact that the 26-week period was not linked to the statutory period within which planning applications must be determined, which can be 8, 13 or 16 weeks. The length of the 26-week period after which a refund is due is significantly longer than any of those periods for determination. The court felt that this was deliberate. The planning system relies on application fees to fund, at least in part, the administration of the whole planning system.
This undermined the applicant's argument. Where one of the usual statutory deadlines is missed, the requirement to refund the fee does not kick in until a considerable amount of additional time has elapsed. It was therefore not clear why a refund should be due on the expiry of an extended deadline.
The implications of the decision
This decision makes clear that no refund of planning application fees will be due where:
- an extended deadline for determination of the application has been agreed in writing; and
- that extended deadline does beyond the 26-week period from submission of the application, after which a refund is normally due; even if
- the LPA fails to determine the application by the extended deadline.
As such, the decision is a warning to applicants not to expect planning application fees to be refunded in every case where an LPA fails to determine an application in time. Planning applicants should therefore think carefully when considering whether to agree to an extended determination period and should be particularly wary where the extension will exceed 26 weeks from submission of the application.
However, the judge's unfortunate choice of language leaves uncertain the position where an extension to the statutory period for determination is agreed but that extension does not exceed the 26-week refund period. The concluding remarks of the judgment state: "… if the applicant and the local planning authority agree in writing that the 26 week period should be extended the planning fee paid by the applicant does not fall to be refunded even if the local planning authority fails to determine the application within the extended period" (emphasis added).
By referring to an agreed extension of the 26-week period for a refund, the judge appears to have confused the facts of the case. The extension agreed between the applicant and the LPA was to the period for determination of the application and not the refund period, which is a separate matter. The wording of Regulation 9A not does assist either, since it is unclear whether the wording "an extended period" in Regulation 9A(2)(a) (italicised in the extract above) means extended beyond the 26-week period, or extended beyond the usual 8, 13 or 16-week period for determination.
The logical conclusion to be drawn would be that the judge intended to refer to an extension of the period for determination which exceeded the 26-week refund period. That would have the result that, where an applicant agrees with the LPA that the 8, 13 or 16-week period for determination of an application is extended, provided the extension is still less than 26 weeks from submission, then a refund will still be due.
However, the lack of precision in the wording of both the judgment and Regulation 9A itself will leave planning applicants uncertain as to when they are forfeiting their right to a refund of fees. Expert legal advice should be sought to avoid inadvertently giving up such a right.