Pre-Planning
It is possible to apply for full planning consent or an outline planning consent. An outline planning consent leaves further detail for future decision. No works can commence until a full planning consent is obtained to dealing with the outstanding points of detail.
An applicant for planning consent should consider the local development plans, environmental issues and applicable planning policies. There is provision whereby a person or entity proposing to undertake development, may approach the planning authority for consultation prior to making a planning application. This may often be more attractive than an outline planning application.
There is a statutory procedure whereby a person who proposes to carry out works may seek a determination as to whether those works or change of use constitute development within the meaning of the legislation. The works may fall within the deemed planning consent provisions of the General Permitted Development Order and this question can be tested.
It is possible to apply for an outline planning permission or a full planning permission. An outline planning permission leaves the reserved matters for a future decision.The option of an outline planning permission has become less attractive given the necessity for further development consent and the fact that the outline application can itself be almost as complex as a full application.
It is common practice to hold discussions with the local authority before making a planning application. Government policy advises that pre-application discussions are critically important to enable developers and local authorities to ensure better mutual understanding of their objectives and constraints. It is common for applications to be amended by negotiation. However, informal planning advice given by officers of local planning authorities is not binding and does not in any way inhibit the powers of the local authority to deal with the application as it sees fit.
Planning Application
There is a national standard planning application form. Environmental impact assessments are required in respect of certain larger developments and certain types of developments under EU derived law.
The planning application, plans, drawings and documents are submitted in triplicate to the Planning Authority which is usually the district Local Authority, the London Borough or Metropolitan District Council. The fees are prescribed and vary depending on the scale of development. The Planning Acts set out the documents required in connection with a planning permission application. The Planning Authority can require additional documentation.
The fees for planning applications are laid down. There are scales and basis of charging applicable to different categories of development.
Unlike the case in Ireland, the applicant for planning consent need not be the owner of the land. He is obliged to notify the owner of the land and all owners and tenants of the application.
Since the 2004 an application must demonstrate how the design of the development takes into account its context. Its context means the physical, social, economic and policy context of the development. A short report must accompany and support a planning application in order to illustrate the process that has led to the proposal and explain and justify it in a structured way.
A decision is made within eight weeks of the application, or such longer period as might be agreed. If no decision has been made in this time, the applicant can appeal to the Department of Housing Communities and Local Government (“DCLG”).
Publicity
The planning authority is obliged to publicise the application in three different levels of publicity according to the nature of the proposed development.
Where the development requires an Environmental Statement or does not comply with the Development Plan, the publicity requires the display of the site notice for at least 21 days and publication in a newspaper.
Certain categories of major developments, which would include a development comprising more than 10 dwellinghouses or development of a building greater than 1000 square metre requires advertisement in a local newspaper and a site notice or neighbour notification. Other development requires a site notice only for a 21 day period. The local planning authority is obliged to notify and consult a variety of bodies in relation to planning applications of a particular type.
Where a planning authority grants planning permission which is not in accordance with the Development Plan, the planning authority must send details of the application and the proceedings to the DCLG. This is also required if a development exceeds 250 houses or more than 5,000 square metres of commercial development. Provided the DCLG does not exercise certain powers within 21 days, the planning authority is free to grant planning permission.
Planning Decision
A planning authority may grant permission, refuse permission or grant permission subject to conditions. Retrospective planning permission may be granted.
The planning application must be decided in accordance with the policies in the development plan. In the absence of other material considerations the development plan includes the local plan, waste plans, neighbourhood development plans, regional strategies (insofar as continue to be applicable) and the London Spatial Development Strategy where applicable.
The planning authority must act within the framework of planning legislation. It is subject to judicial review if it exceeds the bounds of its powers. A range of considerations may be relevant including
- financial considerations
- precedent
- planning gain
- enabling other development
The 2012 National Planning Policy framework is a very important consideration. The government has published 2014 Planning Practice Guidance which are a further relevant consideration.
There have been provisions for environmental impact assessments in respect of certain types of developments for over 30 years. Where applicable they may highly material considerations. The planning authority may have regard to other schemes of legislation including that for
- protection of listed buildings and conservation areas
conservation of habitats and species
countryside access legislation
Where the Secretary of State directs that he shall determine the application an inspector is appointed. He holds a public local enquiry and makes a report to the Secretary of State. The Department has published criteria in respect of the calling in of applications.
A grant of planning consent may be challenged only by way of judicial review. The courts will not readily interfere in the decision if it is within the broad bounds of reasonableness. In principle, a judicial review may be granted if
- account has been taken of an immaterial matter
- there is a procedural failure
- there is a failure to give proper reasons
- there is a failure to apply the requisite principles of the development plan and policies the requisite priority
Courts are, however, reluctant to second-guess the decisions of planners and judicial review quashing a consent will be granted only in exceptional circumstances where there has been a clear failure to adjudicate within the parameters of the legislation.
Nationally Significant Infrastructure Projects
The Planning Act 2008 created a planning regime for nationally significant infrastructure projects. Effectively they are the subject of a fast tracked procedure different from the standard planning procedure.
Developments capable of being NSIPs are defined. They are broadly energy ,water, transport and waste projects.The Growth and Infrastructure act 2013 expanded the procedure to cover business and commercial projects. Under the 2016 Act a Development Consent Order may allow housing to be built alongside a NSIP if it is functionally or geographically linked to the project.
Thresholds are defined. The Secretary of State can direct that an application for standard consent development in one of the categories should be treated as being of national significance and be therefore subject to the NSIP procedure.
The regime unifies consent under various legislation including ancient monument and listed building consent, as well as standard planning consent. A development consent may authorise the compulsory acquisition of property, the diversion of highways and the appropriation of greenbelt land.
NSIP Procedure
The procedure involves a
- pre-application stage
- acceptance stage
- pre-examination stage
- examination stage
- decision stage
- post decision stage.
The strategic environment impact assessment is undertaken at the pre-application stage. This requires widespread consultation. There is a statement of community consultation setting out the intended consultation which itself must be agreed with the local authorities.
The application is submitted to the Secretary of State who has 28 days to decide whether or not to accept it. Local authorities are invited to submit local impact reports in respect of its impact on their area. The Secretary of State decides whether to appoint a person or panel to undertake the examination stage.The Infrastructure Act 2015 provides for the examining authority to be appointed earlier and for simplification of the process for making material changes.
The examining authority has powers to decide how it handles the application. There is statutory guidance provided by the Secretary of State . There is a preliminary meeting to decide how the application should be dealt with. The applicant and interested parties such as the relevant authorities and statutory entities may participate.
The general form of examination is written in nature. The examining authority must arrange an oral hearing if it considers necessary for the proper examination of issues and proper participation fair procedures for parties having an interest.The examining authority must complete the examination within six months of the initial hearing.
NSIP Decision
The Secretary of State determines the matter having regard to national policy statements, the local impact report and a range of relevant matters.The Secretary of State may issue a national policy statement in relation to specific types of development the House of Commons is to approve national policy statements as well as amendments
The provisions for legal challenges to the development consent are limited.judicial review must be brought within six weeks. Permission may be granted for associated development.
The developer may enter planning obligations with local authorities. The consent requires that works be commenced within five years
There are enforcement provisions with substantial criminal sanctions where a development is not undertaken in accordance with the development consent order. They are enforced by the local planning authority. It may enforced by injunction.
