Changes to pre-application consultation ("PAC") procedures for applications for planning permission will now come into force on 1 October 2022. Developers preparing applications for submission in the Autumn will need to take these into account.
Requirement for PAC
The requirement for PAC was introduced over 10 years ago, in 2009. It only applies to planning applications for national and major developments, although PAC might be undertaken for local developments and section 36 applications for electricity projects on a voluntary basis.
National and major developments are defined by legislation. For example, housing is a major development where the development comprises 50 or more dwellings, or the area of the site is or exceeds 2 hectares.
We won't delve into detail of current or future PAC requirements, but the following are the key changes:
- The PAC must include at least 2 public events (rather than the current requirement of 1 event), held at least 14 days apart (Note: although public events can currently be held online, they must be held physically once COVID restrictions are lifted; the Regulations do not facilitate a shift to virtual events going forward).
- At the final public event held, applicants must feedback on the comments received throughout the PAC.
- There is a new exemption to carrying out a PAC for applications for developments similar to the whole or part of a development where a PAC has already been carried out within the prior 18 months (subject to certain caveats).
- The content of the PAC report has been placed in legislation (rather than guidance)
So what are the implications?
Two public events
Public events are useful fora for the public to ask questions and broach subjects with applicants more directly. The more opportunities to do this, the better from the public's perspective. However, we find that generally, applicants do hold 2 or more public events/exhibitions as part of PAC, and therefore increasing the statutory requirement is unlikely to have a significant effect on the level of engagement for many applicants properly engaging with the PAC process.
The costs of a second venue and additional advertising in local newspapers, not to mention the applicant's time to arrange, prepare for and attend another public event will certainly need to factored in by applicants. These expenses are before an application is even made and may be seen as an additional expense required to jump through the hoops of the Development Management Procedure Regulations. However, as mentioned above, generally we see applicants holding more than one public event during the PAC process and therefore the costs may not be as significant as may first seem.
The new requirement for the applicant to feedback at the final public event on the comments received during the PAC should also boost local engagement (and the public can see how their comments and representations have been considered and addressed). This information is currently (and will continue to be) presented in the PAC report that accompanies the planning application. However, this new requirement to publicly present the information brings the obligation forward in the process, making it more available to communities (rather than just forming part of the application documents submitted to the local authority). There is not likely to be significant additional work here; it is just a matter of timing.
With the introduction of the exemption there are likely to be some applicants that will save time and money not having to repeat the PAC process for similar applications; a concern previously flagged by applicants. The exemption also provides some certainty. Where previously applicants of "similar" developments may have taken the risk of not conducting a repeat PAC for a similar development on the basis it was not considered necessary (particularly where there was not a long period between the 2 applications), others would have re-run the PAC process. Now that the legislation is clear on the position, this will be helpful for developers.
There perhaps remains some ambiguity of what constitutes "similar" development. The Regulations state that the exemption applies to applications where a proposed development is "of the same character or description" as a previous application "situated on or within the same site" as the previous development. It is therefore a question of fact as to whether an application is "similar" and whether the exemption can be relied upon. Accordingly, applicants must form a judgment on whether the exemption can apply, but the local authority must also draw the same conclusion on the facts.
Some of this ambiguity can be minimised, however, through obtaining a screening opinion from the local authority on whether a PAC is required (including whether the exemption should apply).
Applicants' most common complaint with the PAC process is the time delay it causes (if you have received the first COVID vaccine and are waiting for your second, you will know how long 12 weeks can feel). Although a second public event is mandatory, the overall minimum duration of a PAC remains at 12 weeks. Applicants will be pleased that the 12-week period has not been increased but may have hoped for the period to be reduced.