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THE PLANNING SYSTEM

This briefing is constantly being updated
please email comments, or input on this or any other briefing to
info@planningsanity.co.uk

The planning system is the key part of local administration, and its scope means that it can be a force for protection of the environment, or as is sometimes the case, it can allow the indiscriminate destruction of social, cultural and environmental 'wealth'.

All developments should be in compliance with the the local development plan unless material considerations dictate otherwise. In the past there has always been an underlying 'presumption in favour' of development, but the Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) reverses this by requiring (in section 54A) that... 0"Where making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise".
Section 54A is further reinforced by section 70(2) of the 1990 Act...
"In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations ".


Therefore if we get the plan right many future headaches will be avoided. The briefing on development plans is contained in our Development Plan Forum. This forum contains full details of development plans, and how you can best affect the process.

This is very important - in theory, types of development not permitted in the development plan should not be allowed to proceed. In practice, it is not always so clear, especially where there are local 'vested interests', as is the case with Xanadu (promoted as Europe's largest indoor leisure complex and real snow centre), where the project has been put together by the Local Authority in collusion with the leading political group (Labour), and investment by the local business community.

One further restriction is that planning cannot make rulings on matters which are the statutory responsibility of other regulatory authorities. For example, although the waste local plan can set general guidelines for the siting of waste facilities, the terms of waste licenses cannot be set within planning. Another example is the emission's from factories or large industrial plants - although the general impact of the development is relevant in planning, the decision on whether or not the discharges are "safe" is not a matter for the planning authority.

There is a mountain of reference material on the WEB relating to Town & Country Planning, so much so that it can be overwhelming for local campaign groups objecting to a proposal for the first time, CfPS is attempting to redress this in our WEB site. This briefing is very much a brief introduction to the planning system, with as many pointers as possible, however there are a great many books available, that go into more detail, those we consider useful are listed in our book section, most will have direct links to purchase online (Please consider buying them through the link on our site as this gives us a commission adding to our fund raising activities, note that is not a reason for the recommendations).

Other resource material is your local library, however in our experience the majority of libraries are lacking in good legal resources, but nevertheless this is a good starting point. Local Universities and Colleges can have good law libraries, if you can gain access to them, they are to be preferred to public libraries. Go to our Book Forum for a full listing of recommended titles.

The Planning System

Planning and development control is effectively the front line of environmental protection, if we fail to challenge adverse planning applications or proposals, then we are simply building up problems for the future. The starting point should be the development plan process, however most local community involvement in planning objection comes with the announcement of a development that the local community objects to. This leads invariably, or at least in the early stages of a NOT IN MY BACK YARD mentality, this should be avoided at all costs, it is bad for getting public support, besides being morally wrong (why should others put up with what you are rejecting). Whereas to preserve and protect your local communities open spaces local communities need to become involved in formulating the development plan, this though is a whole subject of its own, as is various other aspects of the planning system, we have then split the whole process up into sections, which have all been allocated their own forums, the full list of forums is contained in the briefing forum page. This briefing is concerned with the planning system, and is therefore an overview

The topic headings of the planning system are:

As well as these there are a number of other fringe areas, most are referred to below

The planning system in the UK produces many varied decisions, that quite often the public and even professionals become confused over what may or may not be allowed, though it would never be admitted by officialdom but a large number of decisions are made on political lines, at all levels, albeit that should not happen.

We start out with the development plan process, which comprises the two plans (these will be incorporated together in a Unitary and Metropolitan areas), The structure plan administered by the County, and the local plan by the District Council. They both have different but complementary roles, the primary plan being the structure plan, which comes first, the local plan should then be in accord with the policies contained in it.

These two documents form the backbone, the bible of what should be allowed in any given area. On bringing them into being there would have been a local inquiries, all the policies, various sites, and other criteria would have been discussed, objections made, accepted or rejected, the inspector would then report to the Secretary of State for a final decision before the plan is adopted, as the primary guides to development in any given area.

From this you can see that if you want to protect your locality, that you should always look to making representation on what is needed, and more importantly what you do not want in your area, flag up individual sites that are suitable for development, and others that are in desperate need of protection, and make representation to include them in the next development plan review. The plans are drawn up every 10 years, with a mid term reappraisal and upgrade, however local authorities should at all times be mindful of the need to alter the plan as needed, therefore if you have wind of a potential development (before it is put in as a formal planning application), lobby councillors for a change in the status of the site to offer it greater protection, with a view to altering the development plan.

Planning Legislation

There is a mounting of planning law, most of it is complex, all of it should intertwine, unfortunately this does not always happen, there are many conflicts, these lead to inconsistent decision making, with the result that many local communities are destroyed through excessive adverse development. However, once we accept that the system as complex as it is to us, can in reality work as much for us as it does against us, after all it is just as complex for them, if we start to look closely at the legislation, to see how we can mould it to suit our needs.

The first source to dip into, are the Planning Policy Guidance (PPGs), there are 25 in total, we include scanned versions in our PPGs Forum. They are set out in topics, but more than one may apply to your case, in particular PPG1, which is general policy and PPG13 which is transport. We then move on to Regional Planning Guidance (RPGs), Some of these are in our Regional Planning Forum, at present there are 13 RPGs, prepared by the DETR, however these are all under review, and will be the responsibility of the Regional Councils, check in your area to see if the consultation period has ended, as again this is another opportunity for affecting the planning policies before you get developments forced upon you.

There is also the Statutory Instruments (S.I.s), these are secondary legislation, that has been approve by parliament for the administration of primary legislation. Go to our Statutory Instrument Forum. There is also a number of best practice, and other general guidance, these do not have quite the same legal status as the other documents, but nevertheless should be taken account of. More info on our Guides Forum. There are other more specialist policy documents, in particular Minerals

Last but not least, we have European Legislation, some of this is vital to our preserving wildlife and the environment, UK law would never have moved to protect so much had it not been for EC Directives, good examples are the COUNCIL DIRECTIVE on the conservation of wild birds (79/409/EEC)(the Birds Directive) and the COUNCIL DIRECTIVE On the Assessment of the Effects of Certain Public and Private Projects on the Environment (the EIA Directive). Euro Forum.

On top of all of this there is guidance issued by the many quango's, some must be followed, others are simply advisory, more info on our Guides Forum. All of this might seem daunting, and it can be, but remember there is always help at hand to guide you through the mountain, and at the very least point you in the right direction.

Planning permission

The application for planning permission can be split into the following sections, the first is the application and consideration by the Local Planning Authority, then there is the appeals/call-in process, normally catered through inquiries (although a good proportion are actually decided on the paperwork), and finally the appeal or challenge through the courts.

Primary planning legislation in England & Wales comes from the Town and Country Planning Act 1990. Development applications are started with an application to the LPA to either carry out development or for the change from an existing use to a new use. The basic process is much the same, whilst a potential developer can choose to make an application for full planning permission at the outset, the majority are by an application for outline permission (note outline permission cannot be granted for change of use), which is no more than the principle of carrying out the development, with an application for full permission giving the fine detail later.

Over and over again we hear politicians telling local communities not to be to concerned about applications for outline permission as these are no more than the principle to develop, but they should hold off until the full application is put forward. This is totally wrong. If local communities accept this advise it is fatal, effectively preventing them from making representation, as there is no right of comment at the full permission stage, this advise must therefore not be listened to.

The LPA on receiving the application will put it on public display, erect site notices, and inform local residents effected, and will also for some developments place an advert in the local paper, the public then have 21 days from the date of the notice (14 days from date of notice in paper) to make objection, this very short time scale is the biggest obstacle to meaningful public involvement in adverse planning application's, as quite often by the time the public become aware, get together with others, form a committee and lodge objections they are out of time, albeit that most local authorities will allow late objections to be made. So it is very important to move quickly (this is the primary reason for setting up CfPS to give local communities access to information and advise quickly, in order that they do not need to continuously reinvent the wheel), put in basic objections, and then beef this up after more research. The regulations on publicity for planning applications is contained in the DETR Circular 15/92 - Publicity for Planning applications

The failure to put in objections in this period has a knock on effect if subsequently there is a public inquiry, by preventing those who failed to object from appearing, albeit that the decision is in the gift of the inspector, and he should not unreasonably withhold it, but given a large number of objections, the inspector may say only those that have placed formal objections can speak. That is why we advise a brief objection at the outset, beefing that up with fine detail later. All that is needed is a straight forward single paragraph that you object, stating that detailed grounds will follow.

When making objections you must ensure that you base your arguments on "material planning considerations". It is very simple to say 'hey I don't want that here', its another thing to say 'hey I don't want that here, it breaks the planning rules because ...........', therefore as a campaign we must ensure we are saying the right things to the right people, in this way we will win through.

Relevant Planning Consideration

What is and is not a relevant planning consideration is a very difficult thing to explain, but it could be seen as a sliding scale of 'materiality' relating to law, government reports, local authority policies, but always starting with the Development Plan.

In practice, especially during inquiries, the relevance of documents is one of the material considerations you may argue. So we must look at not only the policy documents that relate to the project, but also the very latest documents giving the latest feedback from the government on planning policy, we might for instance look at Scottish policy, which quite often is issued as a test before it is introduced into England, however this version of this document has not yet completed such a task, but it most certainly will be in the very near future.

The main trap the public fall into when supporting/opposing a planning application is the need to ensure that all objections are 'relevant in terms of the rules on 'material considerations'. If the message from the public does not conform to the idea, in planning terms, of what is relevant, the LPA will disregard the objections from the public. What is worse, if the LPA accept objections which are not material as part of the reasons for refusing an application, the developer may appeal, win at appeal, and the development will go ahead with fewer planning restrictions than it might have had if the LPA had approved it, so when we consider this aspect we really do need to think very hard about content of the main objections to a project.

That is not to say that 'heart-felt' objections need not be useful - they often are, since to the Members making the planning decisions will view these as an indication of the strength of public opinion. But we need to use good planning objections too, thereby getting our message over to the planning officers better, and in doing so making life more difficult for the developers. Another reason for the use of heart-felt considerations, is amenity value, this is a term you should put at the top of your list, as it is a term that is enshrined in planning law. It is a term to be taken in its widest context, and can mean many things, such as visual, loss of facilities, or stretching facilities to their limit, the loss of recreational or other facilities, as well as personal intrusion, from light, noise and so forth

The idea of relevance is is similar in context to the rules of evidence used by the courts; evidence/submissions on an issue can be ruled as relevant or irrelevant, and weight/consideration applied accordingly. Unfortunately planning law has been made in parts, rather than having one central regulation on the relevance of evidence, and so the definition of what is relevant is wide, and may be different in different circumstances.

A ruling in the High Court (Glidewell L.J. - Bolton Metropolitan Borough vs. Secretary of State [1991] JPL 241) found that "relevant" need not be interpreted narrowly, but can be considered to mean any information which might cause the planning authority to form a different opinion on the application. but this case needs to be interpreted with care, since the reasoning behind consideration of an issue must be testable at any subsequent planning inquiry; but nevertheless a useful decision, since it means that the greater number of 'heart-felt' objections there are, can be interpreted by the Members as being a relevant consideration, or even lead to grounds of challenge, if they do not take them into consideration (which is different to them accepting those arguments, but they should consider them, even if they reject them).

Various government publications and High Court rulings have determined the following are relevant, and not relevant in planning applications....

Relevant:

Not relevant:

Issues related to a development, but not directly involved with the application - e.g. the quarrying of aggregates to make the concrete - are not taken as a relevant issues during determination. Only the direct physical effects are taken into account. Where such issues are brought into an application by the developer, they can then be considered as relevant. Except where there is an ES, in which it is taken as the subject of any determination, quite often the developer fails to give any indication at all in the ES, as to the materials to be used to construct a project, let alone where such materials are to come from, or how they will effect the local communities in those areas, and of course they should, because it is the direct and indirect consequences that the ES looks at.

With the EIA Regulations, a whole new batch of relevant items comes into play. These are specified in Schedule 3 and 4 of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 Detailed consideration of issues relating to the EIA Regulations is set out in our EIA Forum

If the development comes within the remit of a Schedule 1 or 2 development, and thereby requires an ES the criteria is very stringent, therefore rule one about any objection to a development is to check to see if it should come within the remit of an EIA development.

Challenges to applications.

The main challenges which can be lodged against an application are:

This list is not exclusive, many other considerations will come into play, but usually they are as a result of non-compliance with one of the above, for instance the development may form part of a wildlife corridor, and the development plans says that the local authority will protect wildlife corridors from unnecessary development.

Note that 'non-conformance' need not be on the part of the developer. It could be the planning authority which has breached the regulations - in which case either the developer, or in a few instances the public, have powers to force a new determination.

If the planning authority make a decision which the public do not agree with they have no right of redress under the English planning system, as third parties are given no rights. If the public wish, any decision made by the planning authority or the Secretary of State can be challenged in the High Court. This would normally cost between 20,000 to 50,000, and has no guarantee of success, or your money back if you win. There are alternative ways of funding, the main one being legal aid, but obtaining funding from other sources is based mainly on the 'winability' of the case, more on the topic of legal challenges can be found in the Legal Forum

LAW AND LEGAL CHALLENGES
DON'T TAKE NO FOR AN ANSWER `COMPLAIN'

There are normally three mechanisms for monitoring and complaint...

In terms of accountability, the most effective means of redress for local people is the Ombudsman. Parliament has approved a 'code of conduct' for local administration. If it can be shown that an officer or a member has breached this code, then it is normally regarded as maladministration. However this will not stop a planning application, or reverse a planning permission, but might force the local authority to reconsider its procedures for the future, or to reverse other decisions, such as the failure to carry out enforcement action.

The public can influence their local authority to respond to consultations in the way they wish. It is a fact that most consultation responses are written by Officers, and approved 'on the nod' by Members. If local people can influence the Officer, or make the Members question the officers approach, changes can be made, with this in mind always look to targeting both the relevant officers, and members (remember that not all Councillors will sit on the planning committee, therefore it is well worthwhile getting list of all councillors on the planning committee, give particular attention to the chair and vice chair, but lobby them all, especially if the make up of the council, in political terms is very close, the numbers from each party on the planning committee, will reflect the make up of the council, therefore special attention should be given to those in opposition parties, who may vote on political grounds against the ruling party.

Of all local authority responsibilities, planning has the greatest effect on the environment. As such, it should receive the most attention. Despite the power of central government, LPAs have quite wide powers to interpret the law and planning guidance. It has to be so, otherwise the system would be too inflexible. There is nothing to say that the guidance must favour the applicant for permission - it could equally favour the environment, or the local community. So unless local people are there, with sufficient knowledge, damaging, un-sustainable developments do get passed, that is not to say that simply having local people involved would stop a project.

Development Control

The part of planning people most frequently encounter is development control. A developer applies for permission to do something, and the LPA assess the application. It is during the statutory public consultation period of 14 to 21 days that people find out about the application, and opposition/support for the proposal begins, while objections should always be in during that period, never stop sending in objections after the deadline, as sometimes the planning application is put on hold, altered or sent to a public inquiry, also some local authorities take a more pragmatic view towards objections and allow them to be received right up to the day of the planning decision, so while the statutory period of objection may have passed there is still a benefit in making further objections.

Determination and representations period.

On registration of the application the authority must make a determination within 8 weeks. If the application is accompanied by an ES this is lengthened to 16 weeks to give the authority time to consider the ES, but such periods of time can be extended with the consent of the developers. However, the public still has only 21 days to make representations. If the authority have not made a determination within the time limit the developer has the power to appeal to the Secretary of State for Environment for non-determination.

Other planning issues

Work in planning need not be reactive - it can also be pro-active. As well as the idea of working on existing or proposed development, it is possible for the public to initiate new issues. For example...

Of course the most pro active form of development control is achieved through influencing policies in the development plan - hence the importance of taking part in the development plans preparation procedures. So while the development plan is already in place, lobby for amendments, and watch out for updates, and also remember that the next plan is only about 7 years away from being compiled, make sure that such a new plan is as protective of the local environment as you can make it.

Permitted development

The first problem in considering development is deciding if development needs permission in the first place. There are a whole range of development operations which are classed as being 'permitted', under the Town and Country Planning (General Permitted Development) Order 1995, because they present minimal problems. To give an example, one of the unfortunate permitted development classes is telecommunication base stations, where the masts are fifteen metres or less in height. See Permitted Development Forum and Telecommunication Forum

General guidelines for determining the application are given in Town and Country Planning Act, 1990, s.70/71, PPG1, and where the application is accompanied by an environmental statement, the Environmental Assessment (EA.) Regulations [Plan.Law - SI no.1199/1988] Explanatory information is contained in DoE Circular 15/88 which has been published as a booklet - 'Environmental Assessment, a guide to the procedures'.

Appeals

If permission is refused, the developer may appeal. However, if development is permitted, but the developer does not like the conditions imposed, then they may also appeal. If the LPA fail to determine the inquiry within the period set in Regulations, the developer can appeal for non-determination. Likewise, if the LPA ask for a ES and the developer doesn't want one, they can appeal.

You must always, when considering your approach to the application, consider the risk of the developer appealing and winning. If the developer wins at appeal then the decisions on conditions are not considered locally, but by the Planning Inspectorate - this leads to all sorts of problems.

After the appeal is made, the Secretary of State will either refuse the appeal (normally because it is plainly a stupid application), or an Inspector is appointed. The Inspector then receives written statements. The Inspector may decide upon the substances of the written statements, but if it is not clear then the parties involved will be asked for a closed meeting (the public cannot take part, but they may submit written statements to the Inspector). Finally, if the appeal still cannot be resolved, then a full public inquiry is arranged - at which any objector/supporter to the original application may appear (this is a good reason for writing in support of applications!).

Following the closure of the inquiry, the Inspector will report to the Secretary of State. The Secretary of State then makes the decision whether to refuse or approve the development.

At any point in this process the developer may withdraw the appeal, and the application - they normally do this to save money if they think they might lose and get costs awarded against them.

Enforcement

Another arm of the development control responsibilities of LPAs is the enforcement of the law. In terms of expertise, dealing with planning applications requires little knowledge of planning laws and procedures - although it helps enormously. Dealing with development plans requires a much higher level of knowledge, especially when dealing with complex development issues. The enforcement of development controls - this involves the regulation of permitted or illegal development - presents a further problem. On the one hand the problems would seem to be very simple - you have a house built without permission for example. But to be really effective in development control it is necessary to have skill in strategic planning, development planning, and have access to a library of case law, CfPS is attempting to redress this by making these resources available to community groups.

If development not consented in the planning permission takes place on the site, or operational conditions are breached, then it is possible for LPA to take action to stop or prevent the breach. The general guide to how local authorities should act in relation to enforcing planning control is given in PPG18(PDF file). This explains the enforcement regime set by the Town and Country Planning Act 1990, as amended by the Planning and Compensation Act 1991, as follows:

Development control and enforcement lends itself to some very novel forms of campaigning. If you have a landfill site which has a large volume of traffic, there will almost certainly be a condition of the planning consent limiting the number of vehicles which can enter the site. Many noisy developments have conditions on noise levels at certain hours of the day. Many commercial/industrial developments will have conditions limiting their hours of operation. Members of the public can, after getting a copy of the consent, check every condition is being enforced, and highlight those, if any, that are being breached. Where a condition is breached, the LPA are under an obligation to investigate the alleged breach, and take action if necessary.

An obvious tactic would be to just keep your eye on the site, and report every breach, and lobby for enforcement action to be taken. Especially on sites run by cowboy operators, the ability to make a profit requires the breach of planning (and often environmental) control. Keeping them to their consent will force such operators into the red, and eventually the site may close. Or alternatively, in very rare cases, if the violation is such that the development is totally contrary to the original consent, then the enforcement may require removal, that is they would need to demolish and start again.

Another form of control rarely used requiring discontinuance of use or alteration or removal of buildings or works, under section 102 of the 1990 Act. Para 1 states: " If, having regard to the development plan and to any other material considerations, it appears to a local planning authority that it is expedient in the interests of the proper planning of their area (including the interests of amenity)". It then goes on to state that orders can be made subject to confirmation by the Secretary of State to discontinue, alter or remove developments. The section also allows for the implementation of planning conditions, even though the development is fully functional. Local authorities are very reluctant to use these powers, which invariably would be challenged, thereby opening up the local authority to costs should they lose. In addition compensation is payable to the developer, albeit that the local authority must not take compensation into account in their decision making. The reality is that they would, either consciously or sub consciously, but nevertheless they would. But the provision is there, a major campaign could conceivably force a local authority to do so, and if, and only if, the circumstances were right, make an application to the courts for judicial review of a decision not to invoke their powers under that section.

Public registers

Section 69 of the 1990 Act requires registers of planning applications to be kept - but the precise form of these registers is defined in the Town and Country Planning (General Development Procedure) Order, 1995.

Basically there is the following requirement - the register must be kept in two parts:

Part I must contain a copy of every planning application submitted to the authority, and any application for the approval of 'reserved matters' in outline permissions, together with copies of plans and drawings;

Part II must contain -

There is also a requirement, elsewhere within the Act, to keep a register of:

Getting started

The best way to get started in planning is to buy a book or two (you can now buy books direct from our Book Forum, and thereby helping our fund-raising), however we are trying to get as much of the legislation as we can online, and as time allows to produce these briefing papers, all of which should enable you to get your initial objection and campaign of the ground with the minimum of fuss. However these efforts do costs us much needed funds, so please consider making a donation to CfPS, or even becoming a member, or affiliating your campaign, details of all of these options are available in our Fund-Raising Forum and Membership Forum.

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