Provectus Remediation Ltd v Derbyshire County Council, Court of Appeal - Administrative Court, June 08, 2018,  EWHC 1412 (Admin)
|Resolution Date:||June 08, 2018|
|Issuing Organization:||Administrative Court|
|Actores:||Provectus Remediation Ltd v Derbyshire County Council|
Neutral Citation Number:  EWHC 1412 (Admin)
Case No: CO/5456/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 8 June 2018
SIR WYN WILLIAMS
sitting as a Judge of the High Court
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Scott Stemp (instructed by Birketts LLP) for the Claimant
Hashi Mohamed (instructed by the Solicitor to the Council) for the Defendant
Hearing date: 3 May 2018
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Sir Wyn Williams:
In this claim, brought under Part 8 CPR, the Claimant seeks a declaration relating to the proper interpretation of Regulation 9A of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 (hereinafter ``the 2012 Regulations''). The nature and extent of the declaration sought is set out at paragraph 15 of the Claim Form. There is no need to reproduce that paragraph in this judgment; the nature of the issue between the parties will become obvious as this judgment unfolds.
The relevant background facts are uncontroversial and, in summary, are as follows.
On 14 September 2014 the Claimant applied to the Defendant as the local planning authority for planning permission to develop an area of land for coal mining. At the same time as the application for planning permission was submitted the Claimant paid a fee of £44,752.00 to the Defendant. On 7 September 2015 the application was withdrawn; however, by reason of regulation 9 of the 2012 Regulations if a further such application was made by the Claimant no additional fee would be payable. Such an application was submitted by the Claimant to the Defendant on 22 December 2015 although it appears that it was not registered as received until 25 January 2016. Thereafter, throughout 2016, the application was under consideration by the Defendant.
On 28 April 2016, pursuant to Regulation 22 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, the Defendant sought further information from the Claimant about the application. The Defendant asked the Claimant to respond by 28 June 2016. Following requests made by the Claimant's agent the date for responding was extended to 29 July 2016 upon which date the information sought was provided.
On 3 August 2016 the Council sought an extension of time for determining the application. It suggested that the application should be determined by 7 November 2016. By email dated 12 August 2016 the Claimant's agent agreed that the Defendant's time for determining the application should be extended to 7 November 2016.
On 12 October 2016 the Defendant sought further information about the application pursuant to the 2011 Regulations. On 25 October 2016 the Claimant's agent informed the Defendant that the information would be provided by 9 December 2016. However, on 7 November 2016 the stance of the Claimant as to the provision of further information changed. A newly appointed agent informed the Defendant that the information sought did not fall within Regulation 22 of the 2011 Regulations and, in any event, the further information requested had been supplied previously.
There were further exchanges about the supply of information in early December 2016. On 28 December 2016 the Claimant appealed against the Defendant's failure to determine the application within the agreed extended period.
On 7 March 2017 the Claimant requested the Defendant to refund the fee which it had paid in September 2014. The Defendant refused to do so on 7 April 2017.
Although this claim is for a declaration concerning the proper interpretation of a regulation at the heart of the dispute is the contention that, as a matter of law given the events which occurred in this case, the Defendant is obliged to refund the fee which the Claimant paid to the Defendant when it submitted its planning application on 10 September 2014.
Reg. 3(1) of the 2012 Regulations provides that where an application is made to a local planning authority for planning permission for the development of land a fee shall be paid to the authority. The regulation is subject to a number of exceptions which are set out in regs. 4 to 9 inclusive. Reg. 3(5) provides that any fee paid pursuant to the regulation ``shall be refunded if the application is rejected as invalid''. The fee payable in respect of an application is ascertainable by reference to Schedule 1 of the 2012 Regulations.
Regulation 9A reads as follows:-
``(1) 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 ......
(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;
(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.''
Mr Mohamed submits that the words of reg. 9A read in the context of the 2012 Regulations as a whole are clear and unambiguous. He argues that upon submission of a planning application a fee is payable unless one of the exceptions set out in regulations 4 to 9 apply. The fee, once paid to the local planning authority, is refundable only if the application made is invalid (reg. 3(5)) or the planning authority fails to determine the application within 26 weeks of the receipt of a valid application - reg. 9A (1). In all other circumstances the fee, once paid, is retained by the local planning authority.
He submits that this interpretation of the 2012 Regulations is supported unequivocally by an Explanatory Memorandum which was issued by the Department for Communities and Local Government and laid before Parliament at the same time as the 2012 Regulations were the amended to include reg. 9A by virtue of the Town and Country Planning (Fees for Applications etc.) (England) (Amendment) Regulations 2013. He relies, in particular, upon paragraph 7.10 of the Memorandum introduced by the heading ``Refund of the fee for applications which take longer than 26 weeks'' and which reads as follows:-
``[Reg.9A] brings into effect a measure to underpin the planning guarantee, and provides that the planning application fee must be refunded to the applicant where the planning application is not determined within 26 weeks from the date when a valid application is made. [Reg.9A] provides that where.... There is a written agreement to extend the period for determination, the requirement to refund a fee will not apply......''
Mr Stemp submits that the interpretation of Regulation 9A is not quite as straightforward as is suggested by Mr Mohamed. He argues that it is one thing to say that reg. 9A (1) does not apply if the applicant and the planning authority enter into an agreement in writing to the effect that the planning application shall be determined within an extended period; it is quite another to say that the fee is not refundable even if the application is not determined within the agreed extended period (my emphasis). He submits that a purposive approach to interpretation of the regulation would suggest that the fee should be refundable when a local planning authority fails to determine a planning application either within the specified period of 26 weeks or such longer period as may have been agreed between the parties. He, too, relies, upon the Explanatory Memorandum and, in particular, paragraphs 7.1, 7.2 and 7.4. These paragraphs read:-
``7.1 Timely decisions on planning applications give applicants the confidence to submit planning applications for development, give businesses the confidence to invest, and give greater certainty for communities.
7.2 The Government is committed to ensuring that planning applications and related consents are processed promptly. The `Plan for Growth' (March 2011) announced the planning guarantee to underpin this commitment. The planning guarantee means that planning applications should not spend more than 12 months in total with decision-making bodies, including any time at appeal. In practice the guarantee means that cases should spend no more than 26 weeks with either the local planning authority or, in the case of appeals, the Planning Inspectorate.
7.4 It is recognised that some applications need more than the statutory time period to be determined, and may occasionally require more time than the planning guarantee allows for, especially where the issues are particularly complex. In these circumstances the National Planning Policy Framework encourages the use of planning performance agreements. These involve a bespoke timetable agreed between the authority and the applicant where it is clear at the pre-application stage that more time than the statutory period will be required to reach a decision. Similarly, applicants and authorities may enter into a post-application agreement to extend the time period for determination, where it becomes clear that more time is needed to decide the application.''
Mr Stemp submits that the interpretation of reg. 9A put forward on behalf of the Defendant is inconsistent with the policy background which is said to underpin it as set out in the paragraphs quoted immediately above. Accordingly, Mr Stemp argues that reg.9A 2(a) should not be interpreted so as to apply to a situation in which the parties have agreed an extension to the 26 week period but the planning authority fails to determine the application within the extended period. He argues, too, that reg.9A(1) should be read as applying to a case in which the local planning authority fails to determine an application within an agreed extended period as well as the 26 weeks period expressly mentioned therein.
In my judgment, 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.
I have reached the conclusion that Mr Mohamed is correct in his contention that reg.9A of the 2012 Regulations is clear and unambiguous. A refund of a fee paid at the time of a planning application should be made only if a period of 26 weeks has elapsed from the receipt of a valid application and that application has not been determined by the local planning authority. In my judgment, 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.
It follows that the Claimant's claim for declaratory relief as formulated in the Claim Form is not made out.
I should add for completeness that during the course of the hearing I asked counsel whether any order for costs made against a local authority on the grounds of unreasonable conduct could, as a matter of taxation, include the fee paid at the submission of the planning application. They were not sure of the answer at the hearing but in an agreed note dated 11 May 2018 they concluded that no order could be made for the re-payment of the fee payable at the time of the application since an order for costs could relate only to unnecessary or wasted expenditure incurred as a consequence of the appeal. That appears to me to be correct. However, I should make it clear that I have concluded after some reflection that this issue can have no bearing upon the proper interpretation of the relevant parts of the 2012 Regulations.
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