The End of Twin Tracking
What is twin tracking?
From 6 April 2009 local authorities became entitled to refuse to accept ‘twin tracked’ applications. Twin tracking is a tactic that has until now been used by developers to try and secure a planning consent in terms acceptable to them as quickly as possible. A developer submits two identical planning applications to the Council, paying a fee for each. If consent has not been granted at the end of the statutory period then the developer leaves one application open for negotiation with the Council and appeals the other application for non-determination.
Why twin track an application?
Developers have considered that despite the fact that they have to pay two planning application fees, the benefits outweigh the cost. The perception is that it will speed up the grant of an acceptable planning permission by showing a willingness from day one to appeal the application for non-determination if the Council do not reach a decision in the statutory period. Such tactics are also often considered to put the Council under pressure to grant permission in order to avoid the costs and resources they would otherwise have to dedicate to an appeal. The potential downside of twin tracking however is that it can be seen as highly aggressive and ruin relations between the developer and the planning officers leaving nowhere to go but to appeal.
Discouraging repeat applications
In a bid to address the situation, section 43 of the Planning and Compulsory Purchase Act 2004 sought to discourage repeat applications. The first part of section 43 came into force on 24 August 2005 and gave planning authorities the ability to decline to determine an application where it is the same or similar to one which has previously been turned down and which the local authority believed had been submitted with the intention of wearing down opposition to the proposed development. This did not however apply to two applications submitted at the same time.
The end of twin tracking
The remainder of section 43 of the Planning and Compulsory Purchase Act 2004 has now come into force on 6 April 2009 giving local authorities the power to decline to determine planning applications which are the same and which overlap. This will now spell the end for twin tracking. In future developers will have to submit an application for a scheme and negotiate it with the local authority during the statutory period. If the local authority does not reach a decision or agree an extension of time for reaching a decision in the requisite period then the developer will have to choose whether to appeal to the Planning Inspectorate or to leave the application with the local authority whichever he believes will achieve the desired result in the quickest timeframe.
Whilst there is no question that measures to improve the fairness and transparency of the planning system can only be a good thing, it is not enough to simply remove twin tracking from the system, the Government should be considering why it was ever considered to be a necessary tactic by developers in the first place and addressing those issues. In an ideal world, developers would undertake full pre-application discussions in order that even before an application is submitted all parties have already agreed the principles of the new development in order that it could be determined within the statutory period. In reality however, local planning departments are as stretched as they have ever been, dealing with an ever changing and increasingly complex planning system without the resources to dedicate as much time and man power as they may wish to pre-application discussions or to process an application for a complex scheme once submitted in the desired timescale.
This article was first published in the Property Law Journal on 18 April 2009.
