Ready for take-off

Despite the time that has elapsed since they were first mooted in the  2001 Planning Green Paper,  the use of planning performance agreements are again being endorsed by the government. Benjamin Dove-Seymour assesses whether they really will become a permanent feature of the planning landscape.

The use of agreements between an applicant and a local planning authority (LPA) to help deliver planning decisions has had a long genesis. Originally raised in the 2001 Planning Green Paper, a pilot scheme in around 20 or so local authorities in 2006, run by the Planning Advisory Service (PAS) and the Advisory Team for Large Applications (ATLAS), followed in 2006. As a result of this scheme, in the 2007 Planning White Paper Department for Communities and Local government (DCLG) committed to introduce Planning Delivery Agreements, to help streamline the processing of major applications.

Since then, and a name change later – reference to "delivery" was substituted because it was felt it implied grant of planning permission was guaranteed – Planning Performance Agreements (PPAs) are again being endorsed by DCLG, as well as ATLAS and the PAS,  as useful tools to help deliver planning decisions. Billed as one of the complementary initiatives forming part of the government's response to the Killian Pretty Review, in truth they have found a place as part of that response that may help increase their use.

In late December 2009, the government published a consultation draft of a new PPS. Development Management: Proactive planning from pre-application to delivery will replace The Planning System: General Principles. The draft PPS sets out the approach to development management. It explains that whereas the traditional approach of development control is characterised as being process-driven, controlling, reactive, and cautious, the development management approach will help ensure a more proactive and positive approach to place-shaping and the delivery of sustainable development.

The draft PPS includes a policy annex on pre-application engagement. This – also called front-loading – is one of the key elements of the government's response to Killian Pretty. It is not limited to ensuring validation happens quickly. It includes a focus on engagement with key participants including statutory consultees, the local community, and local members. The government is exploring the role of statutory consultees (and potential causes of delay) as well as conducting an ongoing review of the rules regarding member involvement and pre-determination – which the Conservatives have also raised. Both of these exercises are welcome.

The draft PPS obliges LPAs to encourage pre-application discussions. Likewise, applicants are encouraged to take them up rather than deferring engagement until an application is submitted. Although they are not mentioned in the draft PPS, the government has identified the use PPAs as a key part of the front-loaded approach. PPAs are seen as a tool for enabling "collaborative working" between an LPA and an applicant from the pre-application stage right through to delivery of the development itself. In addition, the BPF has also endorsed their use. Together with Denton Wilde Sapte, the BPF has produced a guide to PPAs, published in December 2009.

To date, use of PPAs has been limited. It is clear that there has been some scepticism. This is for a number of reasons, partly because of the existence of the statutory determination periods and the pressure of performance indicator targets and Housing Delivery Grant. (The government is currently reviewing options for a revised target that is likely to include some assessment of the quality of decisions.) PPAs also have no statutory basis; they are not a requirement. Some see this voluntary status as a major weakness. As they are not required or designed to be legal agreements i.e. with obligations and penalties for non-performance, their effectiveness is limited. In many other instances, developers and LPAs have traditionally worked together collaboratively, including at the pre-application stage.

PPAs are not, however, simply a way of delivering decisions faster. They can have a useful role at the pre-application stage by setting out a framework – and timescale – for engagement. This role can run from the time before statutory determination periods apply, right through to the grant of planning permission (or not) and beyond, dealing with elements such as discharging conditions and reserved matters approvals. Approached in the right way, as a flexible tool, a PPA can also be amended to suit circumstances as they develop. If a PPA is not flexible nor able to respond to changes that may be beyond the control of any of those involved in the process, the benefits are limited. If discussions derail, an applicant is not prevented from making an appeal in the normal way once an application is submitted.

It is also important to recognise that PPAs will not be appropriate or necessary in every case. There is limited benefit in negotiating one for a straightforward development simply to set down a timescale for approval for which statutory time limits apply. They lend themselves to the most complex developments which, by their nature, usually require that the standard determination periods are extended in any case. For these projects, the benefits include: establishing a better understanding of a project's needs; a realistic timetable relevant for the size and complexity of the development; enabling the identification of problems and the process for resolving these; and also minimising the risks and costs of an appeal.

Some care is needed. A PPA is meant to be a flexible tool: the time taken to prepare one needs to be proportionate and should not become a project in itself. It is also important that a PPA can be considered fair, transparent and publicly available to avoid any suggestion of bias or undue preference. Any fees paid for the PPA or pre-application officer time should be able to be seen as work that officers would have carried out prior to or on submission of an application. ATLAS has suggested that LPAs adopt a PPA charter that makes it clear on what basis PPAs will be entered into, how charges will be levied and for what purposes.

Widespread use of PPAs is yet to occur. The government has commissioned ATLAS and PAS to explore the barriers that are the cause of this. It may be that the place PPAs have found under the Killian Pretty umbrella, and with greater understanding and use, best practice will develop that sees the benefits of PPAs recognised in the right situations. PPAs offer one solution for some cases.
Arguably, if LPAs proactively seek PPAs for those cases, and as part of an increasing emphasis on pre-application discussions, take-up will increase. In the context of better engagement, particularly at the pre-application stage, there is no reason why PPAs – used in the right circumstances – should not help that process and facilitate delivery of better decisions.

Benjamin Dove-Seymour is an associate at Denton Wilde Sapte LLP