Decisions - Positive planning Questions and answers on Agreements to extend the time for decision


  1. What is the legal basis for extensions of time?
  2. Why is there a need for formal agreements to an extension of time?
  3. What is the format for an extension of time agreement?
  4. When should an extension of time agreement be made?
  5. Could there be more than one agreement to extend the time for determination?
  6. How does an extension of time affect the right of an applicant to appeal against non determination?
  7. How does an extension of time affect the planning guarantee
  8. What are the incentives to agree an extension of time?
  9. For councils, how will the extension of time agreements be recorded?
  10. How can we learn from performance on extension of time agreements?

1. What is the legal basis for extensions of time?

Article 34(2)(b) of the Development Management Procedure Order 2015  sets out the requirement for councils to give the applicant notice of their determination of a valid application within a specified period – being either the statutory time limit or "such extended period as may be agreed in writing between the applicant and the local planning authority" provided the applicant has not already given notice of an appeal to the secretary of state).

2. Why is there a need for formal agreements to an extension of time?

Agreements to extend the time for determination can be made for both major development applications and other applications that would normally be determined within 8 weeks. However, for the overall credibility of the planning system, extensions of time should really be the exception and efforts made to meet the statutory timescale wherever possible.

It is well recognised that not all applications for major development are equally complex to deal with. For most of these applications the 13 or 16 week statutory period will give long enough, particularly where issues have been resolved through effective pre-application engagement. But for complex proposals, when pre-application engagement has not happened or when unforeseen issues or the need for amendment arise through the course of considering the application, there may be good reasons why the application will take longer to determine and the s106 agreement to complete. The interests of neither the applicant, the council nor the wider economy are served by councils prematurely refusing permission for an application just because the 13 or 16 week threshold is approaching. In most cases additional time will provide an opportunity for matters to be resolved positively so that a proposal can be recommended for consent. If an application is unacceptable in principle or cannot be modified to become acceptable it is likely that it will be determined within the statutory period.

Similarly non-major applications can give rise a wide variety of issues, some of which may take some time to evaluate and where necessary modify or mitigate. These may take longer than 8 weeks.

A planning performance agreement (PPA), agreed during pre-application discussion or a written agreement setting out a timescale for the decision notice to be issued will establish a new, individual target date that takes into account the particular circumstances of the application.

This is the date that the council will be measured against for PS2 returns, provided applications are then determined within the agreed time, the applications will be counted positively for the purposes of the performance management of the local planning authority. 

3. What is the format for an extension of time agreement?

There is no prescribed form for an extension of time agreement.  It can be either an exchange of letters or a completed agreement form and it can be either electronic or a hard copy.  

The critical features are that the agreement should clearly set out a new date by which the decision letter issued and be signed by both the LPA and the applicant. Who is required to sign the agreement on behalf of the council will depend on the delegation agreement for each council.  An agent acting on behalf of the applicant could sign for his/her client. Good practice examples from the sector also include provision for the agreement to include a short explanation of why the extension of time is requested.

The agreement should be signed by the applicant or his/her agent and the council. Who signs for the council will depend on the delegation arrangements for the individual council. 

The form of the agreement should be proportionate to the complexity of the unresolved issues and the point in the process of determining  the application. In most cases, it will be sufficient to simply agree a new date by which time the council will have determined the application. 
 
But where there are more complex issues outstanding the agreement may need to include other milestones (such as the date by which information or studies will be submitted by the applicant, the target date for a committee to consider the application, the completion of the s106 obligation following a resolution to grant at committee). Very occasionally, for transparency only, it may also be appropriate to include a milestone that refers to the consideration of material by a statutory consultee, although it is unlikely that the statutory consultee will be party to the agreement. 
 

4. When should an extension of time agreement be made?

There is no prescription about when the agreement can be made following the receipt of a valid application, although the DMPO art 34 (2)(c) states that an extended period cannot be agreed if the applicant has already given notice of the submission of an appeal against non-determination

Clearly, as the active word is "agreement", it will be good practice for any approach to agree an extension of time to be a process of negotiation between the council and the applicant rather than a unilateral request.  Good practice also indicates that the appropriate time for this discussion will be once the outstanding issues about the application are identified and a mutual understanding reached as to the path for resolving them. If this path will take lead beyond the statutory target for determination, an agreement should be sought.   An extension of time is best agreed as early as possible in order to provide certainty.  In most cases this will be before the expiry of the statutory period. But if the applicant is agreeable to an extension at a later date and has not already given notice of an appeal against non-determination, this is possible. 

5. Could there be more than one agreement to extend the time for the determination?

Yes, if agreed by all parties, but good practice would be to make sure the first, agreed new target date was realistic given the work to be done , so a further agreement wouldn't be necessary.  If a further agreement does become necessary, it will again have to be registered within the quarter to count for statistical performance management purposes.

6. How does an extension of time affect the right of an applicant to appeal against non determination?

The right to submit an appeal against non determination is set out in the Town & Country Planning Act 1990 s78(2).  An applicant can appeal to the Secretary of State if the LPA has failed to give notice of its decision within the relevant statutory period (if there is no extension of time in place). Where there is an agreed extension of time, an appeal cannot be made until that extended period has elapsed.  Either way, an applicant has 6 months from the expiry of the statutory or extended period(s) in which to give notice of an appeal.

7. How does an extension of time agreement affect the planning guarantee?

The planning guarantee was brought in through The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2013. Section 9A of the fees regulation establishes the right to a refund of fees to the applicant if a Major planning application is not determined in 26 weeks and a non-Major planning application within 16 weeks.  However, the regulation provides that this does not apply where the applicant and the local planning authority, or, in the case of an application under section 62A of the 1990 Act, the Secretary of State, have agreed in writing that the application is to be determined within an extended period. 

8. What are the incentives to agree an extension of time?

Our continuing work on helping councils to improve their planning performance  gives a strong indication that the development industry appreciates a clear service offer from councils and is willing to accept a longer time scale to work through legitimate issues if it is made clear as early in the process as possible thereby avoiding late surprises.

For LPA's an agreed  extension of time  means that provided the new, agreed deadline for issuing a decision is met, the LPA will have been considered to have met the requirements government's performance requirement. Additionally, where an agreement for extension of time has been reached between the LPA and the applicant, the provisions of the planning guarantee do not apply. 

For applicants, the advantage lies in the flexibility that an agreement gives, where necessary, to resolve outstanding issues rather than risk refusal of the application. It also provides the assurance of a clear timescale for eventual determination. 

Both councils and applicants have expressed fears that the other party will use the negotiation of an extended period to excuse poor performance or to exert pressure to accept poor quality development.  The government's response (para 46 of the response document June 2013) is to stress the advantages of a willingness to accept to both parties but to also open the door to such matters being taken into account by inspectors considering  an award of costs at appeal if the application were then to be refused.

9. For councils, how will the extensions of time agreements be recorded?

When an agreement for an extension of time is reached, councils will need to record the existence of the agreement and the final date for the LPA to give notice of determination.

This information will be required in order to complete the PS1/2 and CPS1/2 returns and will be used to demonstrate that the local authority has dealt with applications in accordance with the performance standards for speed to decision required by the Government.

If councils have any queries about the return or the notes, DLUHC has offered help through  [email protected]

10. How can we learn from performance on extension of time agreements?

The government statistics will provide a record of how many application are subject to extension of time agreements and PPAs (aggregated) and the number where the application is determined within the agreed period. The potentially more interesting learning about development management service standards will need to be collected by individual councils. PAS's suggestion is that each council maintains a database of all extension of time agreements, and, if an application does go over time (in relation to the statutory period or the date agreed in an extension of time agreement - whichever is relevant), notes the reason why this happened. This will be useful data for both service improvement and also for assuring applicants that the council maintains a positive attitude towards meeting extension targets. For this reason, the example extension of time agreements attached to this note provides a short checklist for recording the outcome of an extension of time agreement.
See more here.