Today's entry reports on the disagreement between some project promoters and the Planning Inspectorate over how fees should be charged for Planning Act applications.
The case for paying fewer fees
The Fees Regulations set out how fees should be charged for various elements of an application made under the Planning Act 2008. As far as I am aware the only element where there is disagreement is for examinations. For the (up to) six-month period starting from the preliminary meeting, the fees regulations say that fees are payable for each 'relevant day'. A relevant day is
"a day on which the Examining authority examined the application"
And 'Examining authority' is
"the Panel or single appointed person appointed to examine the application"
The fewer fees case is that the law is clear and fees are only payable on the days that the inspector(s) actually worked on the application (i.e. not including Planning Inspectorate (PINS) officials). If an inspector is ill, on holiday or working on another application on any particular day, the original applicant should not legally be charged for that day. In fact, however, applicants are being charged for every working day during the examination, whether or not the inspector(s) examined the application.
Daily fee rates get steeper the more inspectors work on an application: £1230 for a single inspector, £2680 for three, and £4080 for more than three (only Hinkley Point C has had more than three so far, five). On the other hand, the chances that at least one inspector has worked on an application on any day will rise the more of them there are, so there are likely to be most non-worked days when there is only one inspector.
The case for paying more fees
When the fees regulations were issued, they were accompanied by an impact assessment. This clearly states (footnote on page 12) that examination fees are to be charged:
"Every day in the period from the start of formal examination to its end, normally excluding weekends and public holidays"
Charging this amount should therefore not be unexpected. In turn, guidance on fees was published. This reproduces the same text in the footnote below the table at paragraph 6, which is repeated in the 'policy intention' section on page 10.
PINS is obliged to have regard to guidance issued by its own government department and should not be faulted for sticking to it. There would be more of a fuss if PINS departed from government guidance. If there is a complaint it should be directed to the government.
How will this be resolved?
There is a bit of an impasse at the moment since not paying the fees demanded can delay an application and so promoters are reluctant to put up a fight. Judicial review would be a possibility, but would probably be too much effort on any particular application. Concrete evidence that an inspector didn't work on an application on a particular day could be hard for an applicant to come by, although there are examples of overlapping examinations with inspectors in common.
To try to get resolution, the National Infrastructure Planning Association (NIPA) has been pursuing the issue in Parliament via an amendment to the Growth and Infrastructure Bill. The amendment merely seeks to clarify the inspectors-only nature of the daily calculation. When it was debated in the Commons, planning minister Nick Boles MP said:
"Although I would not want to fetter the Planning Inspectorate's already constrained ability to charge fees for the valuable work that it does, I nevertheless take on board the concern about how such fees are charged. I have already had conversations with the Planning Inspectorate about how exactly it measures time and whether that time measurement relates to work done rather than just the clock ticking, and I will be sure to keep on the case."
Just to make sure he is still on the case, the amendment has been re-tabled in the Lords on NIPA's behalf by Lord Berkeley and the expectation is that it will be debated on 4 February. Watch this space.
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