When are applicants entitled to a refund of their fee in the event of non-determination?

A recent High Court judgment ruled for the first time that planning application fees may be refunded by local authorities, in the event they fail to determine applications within an extended period of time.

The 2012 Regulations state that fees shall be refunded if a planning authority fails to determine an application within 26 weeks of the date on which it receives a valid application. However, there are exceptions to the rule, namely where an extension has been agreed between the parties.

 Sir Wyn Williams sitting as a judge of the High Court agreed with the Defendant’s submission:

“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.”

However, the Court did not rule on circumstances where there has been an agreed extension of time, one of the exceptions to an automatic refund, but where the applicant has reserved its position explicitly. By, for example, making clear that whilst there has been an agreement reached to extend time, the applicant still reserves the right to seek a refund in the event the newly agreed deadline has not been met. This was the crux of this case, in that whilst there were actually multiple agreements between the parties to extend time, at no time did the Claimant suggest that it would seek a refund in the event of non-determination within the extended period.

It may be that after this judgement any such agreement would be non-binding, but for now this is untested.

It remains to be seen whether this will now precipitate many applicants not agreeing extensions for fear of not being entitled to a fee refund. It may also lead to a sharp rise in applicants lodging appeals for non-determination. 

The judgment can be viewed here: 

Author: Claudia Dietz

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