2. What is PAS ?
• PAS is a DCLG grant-funded programme but
part of the Local Government Association
• Governed by a ‘sector led’ board
• 10 staff – commissioners, generalists, support
“PAS exists to provide support to local planning
authorities to provide efficient and effective planning
services, to drive improvement in those services and
to respond to and deliver changes in the planning
system”
3. Scope of this Presentation
• To provide an introduction planning
• To help councillors understand their role
• To help councillors get the most from the
system
4. Introduction to planning
• What is planning?
• Planning legislation and policy
• Development management
• Decision making
• Appeals and Enforcement
7. Planning…
• sets out a long term vision for places
• provides a decision making framework to
manage competing uses for space
• balances economic, social and environmental
needs.
• provides legitimacy through consultation and
testing of evidence
• delivers change on the ground
8. Planning involves balancing issues
economic recession
climate change
environmental issues
meeting housing needs localism
long term strategies today’s pressures
brownfield development town cramming
retail “market forces” viability of town centres
individual interest public interest
9. Councillors have an important role
• Strategic leadership:– setting the vision and
direction
• Plan making: councillors try to reflect local
values and priorities in the policies
• Ward level: representing local views
• Neighbourhood planning – link between
community and the council, involved in local
decisions on spending
10. Councillors have an important role
• Development Management
–involvement with the community and
developers at an early stage
–Raising areas of concern
–Informed debate
–Wide range of issues and material
considerations to balance
–Making the right decision (not always the
easiest)
11. Standards in planning are important
• Planning manages the right to develop land
• It involves balancing private and public
interests
• Getting it wrong is costly (time, money,
reputation and long lasting impacts)
• Need to demonstrate, at all times:
–Fairness
–Openness
–Impartiality
12. Legislation, Policy and guidance
• The Planning Acts and Statutory Instruments
• The National Planning Policy Framework
(NPPF)
• Planning Practice Guidance (PPG)
• The Development Plan
- Local Plans and other development plan
documents
- Neighbourhood Plans
13. • national policy
• National Planning Policy Framework (NPPF)
• National Policy Statements
• G&T policy
• Planning Practice Guidance
• local policy
• development plan
• neighbourhood policies
• neighbourhood plans
Planning in England is policy-led
14. NPPF: purpose of the planning
system
• the NPPF emphasises the positive, rather
than the controlling or regulatory, side of
planning, to contribute to the achievement of
sustainable development
• Plans and decisions should be based on the
real world e.g. a sound “evidence base”, an
understanding of economic viability etc.
• 3 mutually dependent elements:
- economic, social, environmental
15. NPPF, plan-making and delivery
• Local plan must show how objectively assessed
development needs can be met in a (locally)
sustainable way
• Take into account local circumstances and market
signals… to inform judgements about demand
• Only where there would be significant and
demonstrable adverse affects which outweigh the
benefits when assessed against the framework as a
whole – should a development need not be met
16. Strategic Planning and the Duty to
Co-operate
• Many planning issues stretch across
boundaries and need a ‘larger than local’
response
• The duty to co-operate was introduced to
address these issues via the local plan and to
ensure that councils work with neighboring
areas on these issues
• Local Plans will be tested against the Duty
17. Local plans are :
• The key to delivering sustainable development
• Based on evidence
• Aspirational but realistic (deliverable)
• A reflection of a collective vision developed
through engagement with local communities
• Clear on the strategic priorities for the area
• Positive plans for development and
infrastructure required over a 15 year horizon
18. Neighbourhood plans
• Gives communities power to develop a shared
vision for their neighbourhood
• Prepared by town/parish councils or
neighbourhood forums and will have statutory
status
• Must be in general conformity with the
strategic policies of the Local Plan
• Should not promote less development than
set out in the Local Plan
19. The development plan is crucial
“If regard is to be had to the development plan for the
purpose of any determination to be made under the
Planning Acts, the determination must be made in
accordance with the plan unless material considerations
indicate otherwise”.
Section 38, Planning & Compulsory Purchase Act 2004
The “primacy” of the Development Plan depends on it
being:
– up to date
– in accord with national planning policies
This is not changed by the Localism Act or the NPPF!
20. Development Management
• Pre-application discussions, considering and
determining actual apps, monitoring and
enforcement
• Concentrate on delivery – not control
• Puts plans into action
• Councillor’s role – understanding the policies,
understanding the applications, getting
engaged, liaising with the community,
considering, deciding, reviewing
21. What is development?
Town and Country Planning Act 1990 s55
except where the context otherwise requires-
“the carrying out of building, engineering, mining or
other operations in, on, over or under land, OR the
making of any material change in the use of any
buildings or other land”
22. Development?
• Is there a material change to the external
appearance of the building, or a material
change of use?
• If yes, then it is development needing planning
permission
• But some things are ‘permitted development’
and don’t need planning permission from you
• Granted nationally by General Permitted
Development Order or Use Classes Order
23. Examples of Permitted development
• some house extensions, walls and fences,
garages etc.
• temporary buildings and use
• agricultural buildings and operations
• some changes of use
• minor works by statutory undertakers
24. Change of use
• a few specific changes are defined in the Act as always
“material”, eg the subdivision of a single dwelling house
• otherwise there is no statutory definition; extensive
decisions of the courts have established various tests
and principles
• secondary legislation has established broad “use
classes”; changes of use within these classes are not
development and so do not need planning permission
NB: a change between classes does not automatically
mean there will be a material change of use
26. Delegated and committee decisions
• Delegation procedures aim to ensure that the
Planning Committee only considers the most
significant or contentious applications
• Aim for at least 90% of decisions delegated
• Time and resources
• Costs of committee decisions
• Local democracy
27. NPPF and decision making
• Local planning authorities should:
– approve development proposals that accord
with statutory plans without delay; and
– grant permission where the plan is absent, silent,
indeterminate or where relevant policies are out of
date…………………..unless
– ….adverse impacts of allowing development
would significantly and demonstrably outweigh
the benefits, when assessed against the policies
in the Framework taken as a whole
28. Making a decision
• Start with the development plan policies
• Take into account other material
considerations, including:
• National policy
• Other council strategies
• Context and merits of the particular application
• Technical consideration
• Consultees views on planning aspects
• Other material planning matters
• Come to a view
29. Material considerations include…
• Financial considerations
• Overlooking/loss of privacy
• Loss of light or
overshadowing
• Parking, highway safety and
traffic
• Noise
• Effect on listed building and
conservation area
• Layout and density of
building
• Design, appearance and
materials
• Disabled person’s access
• Nature conservation
• Previous planning decisions
30. Non material considerations
Matters that should not be taken into account in
deciding planning applications include:
• Loss of view
• Negative effect on the value of properties
• Land ownership or restrictive covenants
• Applicant’s personal circumstances (unless exceptional such
as relating to a physical disability)
• Business competition
• Matters controlled under building regulations or other non-
planning legislation
31. The Development Plan
Section 38 of the Planning & Compulsory
Purchase Act 2004:
‘If regard is to be had to the development plan
for the purpose of any determination to be
made under the planning Acts, the
determination is to be made in accordance
with the plan unless material considerations
indicate otherwise.’
32. The Development Plan again
• Policies can be interpreted differently
• Some policies conflict with each other
• And decisions can seem to conflict the with
plan
• You can make these decisions provided that it
is based on the merits of the case, in the light
of all other material considerations
33. The decision
• Grant planning permission
- subject to conditions
- subject to planning obligations
• Special types of approval or consent e.g. prior
approval, listed building consent,
• Refuse planning permission (or prior approval,
LBC, etc.)
34. Refusals
• must be lawful
• must be justified by reasons, based on the
Plan and any other relevant material
considerations
• may be subject to appeal
• unreasonable or invalid refusals may result in
cost awards against the council; but
considered decisions properly defended will
not, even if lost at appeal
35. Conditions
“Planning conditions should only be imposed
where they are:
•necessary;
•relevant to planning and;
•to the development to be permitted;
•enforceable;
•precise and;
•reasonable in all other respects.”
Para. 206 of the NPPF
36. Appeals
• against a refusal
• against a condition on permission
• against an enforcement notice
• against failure to determine within the
statutory period
37. Assessing an appeal
• written representations
• public hearings
• public inquiries
• much-simplified process for householder
cases
• Councillors can be involved, but take
guidance from officers
38. Award of costs
• one of the parties must seek an award or an
inspector has the discretion to award.
• it can be for full or partial costs (you can actually
“win” the appeal and still have costs against
you)
• the other party must have behaved
unreasonably, causing unnecessary expense or
delay
39. Developer contributions: S106 and
Community Infrastructure Levy
• S106 obligations – site specific, includes affordable housing,
negotiated and agreed
• CIL is set out, and fixed, in a charging schedule
• The aim of CIL is to help pay for infrastructure needed to
support new development but not to remedy existing
deficiencies unless the new scheme will make it worse.
• Councils must spend the income on infrastructure – but you
can decide what (and that can change over time).
• Rates can vary by geographic area, use, and size
• CIL applies to all permitted development above 100 sqm
• Self build projects are CIL exempt
40. Enforcement 1
• Discretionary
• Act proportionately in responding to suspected
breaches of planning control
• Publish an Enforcement Plan
• Works without permission not an offence
• Legal notices
• Other action
41. Enforcement 2
Options available:
•Submit a retrospective application
•Submit a Certificate of Lawfulness application
•Negotiations between the alleged offender and
Council officers
•Enforcement appeal
42. Behaviour - Rules and Codes
• Nolan Report (Standards in public life) 1997
• Local Government Act 2000
• Local Authorities (Model Code of Conduct)
(England) Order 2007
• Local codes for planning
• Killian & Pretty – role of councillors
• Localism Act 2011
• Probity in Planning 2013
43. Councillor conduct and role
• As a Ward Councillor…
…you can support or oppose an application and
represent the views of your constituents
• As a Planning Committee Member…
…you still can, but you must still retain an open
minded disposition; if not it could compromise your
(impartial) role on the committee.
‘Avoid favouring a person, company, group or locality
or putting yourself in a position where you appear to
do so’
• Applies to policy making as well
44. What’s changed?
Localism Act – section 25
• Makes it clear that councillors are entitled to
campaign on issues, express views etc. without
disqualifying themselves from decision-making
PROVIDED you can demonstrate absence of
"bias" or "predetermination”.
45. • Be prepared
• Be focused: focus on the precise points where
you agree or disagree with officer assessment
• Know your policies
• Stick to policies and material considerations
• Ensure your points are valid in planning law
(take advice in advance if necessary)
• be aware of the need for probity and the public
perception of your actions
Being effective at Committee
This is intended for councillors new to planning. It covers planning basics and a councillor’s role in decision making.
It is a long presentation, but is intended for you to dip in and out of to use the most relevant aspects for your needs. There are other councillor presentations on our website that go into certain areas in more detail.
We provide
Brief introduction to the content of the module
Help Councillors be clear about their role and engagement.
Explain that there are other Councillor presentations which go into the various topics in more detail – today’s presentation is very much an INTRODUCTION TO PLANNING
These are the main elements of the planning system that Members making decisions need to be familiar with.
From the basics of “What is planning? “ to essential technical and legal procedures such as enforcement and planning obligations.
Planning has been in the news more over the past years than ever before.
Key issues, for example around house building, protection of the green belt have been politically contentious and its become a bit polarised into a house builders vs nimbies debate.
The planning system itself seen as a brake on growth in the country again dividing opinions those pro growth and those who see growth as threatening the environment.
Planning is exciting and interesting and touches everyone.
By planning for and providing houses, infrastructure (roads, rail, power supply and generation etc.), schools, hospitals, factories, leisure facilities, retailing, education, tourism you are helping to shape places, our town centres and suburbs and help to protect our best landscapes, coastlines and buildings. Helping to provide homes, and jobs.
Often it can be very controversial, unpopular and difficult. It raises difficult questions and your role to decide on the answers.
Planning is about big things.
Planning is about sustainable development – balancing the economic, environmental and social impacts of new development. Planning is not just about dealing with planning applications; the plan you have, and the decisions then made on applications, will impact on housing, job creation, climate change, investment, infrastructure and the quality of people’s lives. That is one of the reasons why planning is often controversial. Finding the right balance between different objectives is what makes your job challenging and exciting.
We are striving to plan for and deliver sustainable development. This is about positive growth – making economic, environmental and social progress for this and future generations.
The planning system is about helping to make this happen.
There are two main aspects to planning in local government – writing and implementing a plan, and dealing with planning applications. Underpinning both of these areas is the need for community involvement – something you can take a lead role in.
Sometimes these are very difficult – hard choices to make.
Planning decisions made directly affect the right of people to use their and is a quasi judicial process. Planning processes are established by planning laws and regulations. Responding to a perception that planning is a barrier to growth, the Government has been implementing a series of reforms, aimed at reducing complexity and regulation, and enabling greater local input to planning.
There is a legal framework and a policy framework.
Legislation mainly takes the form of Acts of Parliament and Statutory Instruments. The main Acts of Parliament are:
The Town and Country Planning Act 1990
The Planning and Compulsory Purchase Act 2004
The Planning Act 2008
The Localism Act 2011
But there are many others.
Some examples of Statutory Instruments are:
The Town and Country Planning (Local Planning) (England) Regulations 2012
The Town and Country Planning (Development Management Procedure) (England) Order 2010 (and subsequent Amendments)
The Community Infrastructure Levy Regulations 2010
And again there are many others
The National Planning Policy Framework was published 27 March 2012. It replaced much of the previous national planning policy and guidance in Planning Policy Statements, Planning Policy Guidance Notes and many other documents.
The NPPF is a key part of Government reforms aimed at making the planning system less complex and more accessible, protecting the environment and promoting sustainable growth.
PPG (published March 14) will now replace previous planning practice guidance documents. The guidance will be a key material consideration in making planning decisions set within the overarching National Planning Policy Framework
The 2004 Act provides that the Development Plan for an area was the RSS and the Local Development Framework (LDF).
The Regional Spatial Strategies and Regional planning structures have now been revoked . Strategic planning is now the responsibility of LPAs working in co operation to tackle their larger than local cross boundary issues. At examination LPAs will need to satisfy the Duty to Co operate and demonstrate that they have worked together in positive and constructive way that is on going. Failure to do this means you won’t be able to adopt their plan.
The Local Development Framework (LDF) was a suite of documents – Core Strategy, Site Specific Allocations, Area Action Plans etc.
Whilst the legislation affecting the LDF has not changed, the NPPF makes it clear that the Government now envisages a less complex system. The NPPF refers to ‘Local Plans’ and ‘each local planning authority should produce a Local Plan for its area’…. “Local Plans should set out the opportunities for development and clear policies on what will or will not be permitted and where”. (paragraph 154)
Any additional development plan documents should only be used where clearly justified’ (Paragraph 153)
The Localism Act introduced a new type of plan – Neighbourhood Plans.
Neighbourhood planning gives communities direct power to develop a shared vision for their neighbourhood and shape the development and growth of their local area. They are able to choose where they want new homes, shops and offices to be built, have their say on what those new buildings should look like and what infrastructure should be provided, and grant planning permission for the new buildings they want to see go ahead.
“Neighbourhood plans must be in general conformity with the strategic policies of the Local Plan….Neighbour plans and orders should not promote less development than set out in the Local Plan or undermine its strategic policies. (paragraph 184).
“Once a neighbourhood plan has demonstrated its general conformity with the strategic policies of the Local Plan and is brought into force, the policies it contains take precedence over existing non-strategic policies in the Local Plan for that neighbourhood, where they are in conflict. (paragraph 185) Neighbourhood plans can be prepared by town/parish councils or community forums and do not take effect unless there is a majority of support in a referendum in the area.
The plans are prepared by the community with the support of the council who also manage required statutory stages.
Over 1000 neighbourhood planning areas have been designated and to date, 54 plans have been through examination and 37 adopted
Planning legislation and national policy make it clear that planning is policy led
Decisions made on planning applications must be made on the most up to date planning policy for that area
The NPPF does firmly set out that the planning system is still plan led.
It requires local needs to be met and local plans to be ‘ deliverable’ ‘viable’, ‘realistic’, and ‘flexible’.
The need for new housing and employment development must be calculated based on objectively assessed need. This calculation is then translated into a housing/employment target for your area taking into account constraints to development. The phrase ‘no stone unturned’ has been used to describe the approach to assessing potential development opportunities to accommodate the target number in your plan. Both the process of determining your target figure and meeting that need will come under close scrutiny at examination
If you can’t deliver you forecast development need in our area you must work with neighbouring authoritiess to see if they can if they and take up the short fall … and visa a versa.
NPPF Para 39 places increased emphasis on the viability of development – which should not be threatened by ‘obligations and policy burdens’. So the cumulative impact of your policies should not risk the implementation of the plan via developments and should not jeopardise ‘acceptable returns to a willing land owner and willing developer’.
Plans must ‘facilitate’ development ‘throughout the economic cycle’.
How local authorities deal with the tension between delivering growth, ensuring sustainability and competitive returns for owners – is still being worked through.
After the abolition of regional planning, the Duty to Co-operate was introduced to ensure that strategic planning takes place.
For your local plan to be found sound at examination it will need to satisfy both a legal and soundness Duty to Cooperate tests. Local planning authorities must clearly set out the strategic priorities in their Local Plan and demonstrate how they have worked to achieve the desired outcomes ie how they have worked with relevant partners to address their strategic issues and how they will be resolved. In practice this means cooperation needs to start early in the plan preparation process and be ongoing.
The NPPF specifies certain topics as being appropriate strategic matters, which cross authority boundaries and which you will probably need to co-operate with your neighbours on. They are:
Provision of homes and jobs; Retail, leisure and commercial development; Infrastructure for transport, telecoms, waste, water, flood-risk, coastal change, minerals & energy; Health, security, community & cultural infrastructure; Climate change mitigation and adaptation; Conservation & enhancement of the natural & historic environment, including landscape. Its unlikely these will be relevant in all cases.
After its introduction a number of plans failed at examination as they had not demonstrated compliance with the Duty, the response was to focus on the process and technical requirements of the Duty. Understanding is now growing that the focus of the Duty is strategic planning, both officers and councillors need to effectively engaging in strategic planning from the outset
The NPPF sets out the role of Local Plans, a summary of which is provided in the bullet points in the slide.
This is where you set out your priorities. It is a key document and should be one of the main strategies for the council, linking up other strategies and investment programmes.
Over 1000 areas across England are involved in neighbourhood planning ( April 2015)
Neighbourhood plans are prepared by the community – not the council.
The council has responsibility to manage the statutory requirements of the plan making process. They are also required to ‘support’ their communities in the preparation of their plans but this is not defined.
Neighbourhood plans must be deliverable, sustainable and credible to be part of the local development plan and councils and communities will need to enter into a positive dialogue to achieve this. As a statutory document the plan must be prepared following a statutory process and will be examined to check if it meet the basic conditions followed by a community referendum
If the plan pass the referendum (simple majority of those voting) the authority has to adopt it; it then becomes part of the Dev Plan and will be used for decision making.
Upper Eden Valley in Cumbria was the first plan to go through referendum in March 2013, since then another 54 plans have been through examination and 37 have been ‘made’ (or adopted)
CIL regulations require a ‘meaningful proportion’ of revenue raised to be given to communities to fund infrastructure in their areas to deliver their plans
Neighbourhood Development Orders can grant planning permission for specified developments in a neighbourhood area. Once established there will be no need for anyone to apply to the council for planning permission if it is for the type of development covered by the order.
The development plan is a crucial tool in planning – this is made clear in legislation and the NPPF – and they need to be up to date
A number of local plans ( even those adopted post NPPF - 2011) are being challenged by developers through S78 appeals. This is usually for large development sites that have been turned down by the council as being not in conformity with the local plan.
The grounds for the appeal is the plan is not up to date as it either does not allocate enough land for it objectively assessed need or it does not have a 5 year land supply, both of which are requirements of the NPPF. In some cases these appeals are successful and development is going ahead in areas not allocated by the plan meaning the council and community are not able to direct development as intended.
This is the implementation side of planning. Deals with getting the right development on the ground. It is more than just processing planning applications - at least it should be.
It is planning officers, councillors, communities and developers engaging to ‘plan positively’ and get the best development possible. It involves working with developers on stalled sites, monitoring and where necessary enforcement, and generally managing development to achieve the spatial objectives set out in the plan.
This is the bit that is most often in the public eye. Many people only pay attention to planning (and maybe only get in touch with you) when there is a planning application that affects them. It might be their own, their neighbour’s, or one down the road.
Councillor engagement in Pre application discussions can be hugely beneficial.
is it “development” in terms of the statute?
physical change (usually of some permanence), other than some categories excluded from the definition in the Act
a “material” change of use
If the answer to this question is NO, then planning permission is not required: the use or physical change are not “development” and are not subject to planning control
NB: if the change is not a “material” change of use it is not even development
if it is “development”, is this a form of development which is “permitted” [“PD”]?
If YES, an application is not required – unless the authority has removed permitted development rights (“Article 4 Direction”)
In some areas of the country, known generally as 'designated areas', permitted development rights are more restricted. If you live in a Conservation Area, a National Park, an Area of Outstanding Natural Beauty or the Norfolk or Suffolk Broads, you will need to apply for planning permission for certain types of work which do not need an application in other areas.
Where a relevant permitted development right is in place, there is no need to apply to the local planning authority for permission to carry out the work.
Recent changes have considerably increased the amount of PD, and extended the prior approval process.
PD rights can be further expanded via a Local Development Order or Neighbourhood Development Order, or, they can be withdrawn via an article 4 direction.
A1 Shops
A2 Financial and Professional Services
A3 Restaurants & Cafes
A4 Drinking Establishments
A5 Hot Food Takeaways
B1 Business
B2 General Industrial
B8 Storage and Distribution
C1 Hotels
C2 Residential Institutions
C2A Secure residential institutions
C3 Dwellinghouses
C4 Houses in Multiple Occupation (HMO)
D1 Non-residential Institutions
D2 Assembly and Leisure
Changes between some classes are permitted. Again as part of the governments programme to streamline and speed up the planning process new class orders have been created and greater flexibility to move between the classes introduced
Good and ethical - planning decisions affect us all, affect land and property values, they can affect livelihoods, quality of life, our health, social and economic well being. Planning decisions carry great responsibility on the part of those making them.
Balance between committee and delegated decisions. - not possible to report all applications to committee.
Councillors and officers must develop mutual trust and understanding.
Every Council should have a delegation scheme and criteria for referring applications to committee e.g. contrary to Development Plan or where the number of objections exceeds a certain number.
Published protocol – open and everyone can see. Sets out how everything from how the public can get involved (e.g. speaking at committee), to site visits. It should be visible to the public and be the cornerstone of all communications and interaction.
Duty to whole community – not just that applicant or that objector. We must be aware of our role as community leaders serving the whole community/public through the system.
If you have a plan in place:
- If the proposal accords with local plan, pass it quickly
- If it doesn’t, refuse it quickly
No plan in place (or its silent, out of date or indeterminate):
- Proposal assessed against sustainable development principles of whole NPPF
- Subject to test of ‘significant and demonstrable harm’
Where a valid application has not been determined within the relevant statutory period (or any other period agreed in writing between the local planning authority and the applicant), the applicant has a right to appeal to the Secretary of State against non-determination.
If the applicant has not exercised this right of appeal, and the application remains undetermined after 26 weeks, then the fee paid by the applicant will be refunded to them (unless a longer period for the decision has been agreed).
Accept that policies can be interpreted differently
And that the weight to be given to material considerations is for the decision maker
Officers will make recommendations on an application – you will either agree with that recommendation or if you disagree, you must have clear and well evidenced reasons
The list is not exhaustive.
Not all will apply in every case.
The weight to be given to the different considerations will vary according to the circumstances of the case.
Financial considerations – recently introduced, and includes income to the council generated by S106 obligations, CiL, and New Homes Bonus
It is helpful if the Council has a system to explain to third parties what are material considerations and what are or unlikely to be material considerations (e.g. information provided with public speaking or neighbour notification guidance) . This will help objectors to understand the process who otherwise may feel that their comments are being disregarded.
When matters are addressed by other legislation (eg licensing regimes, health & safety, fire safety) they should not be taken into account in the planning decision.
The history or character of the applicant is unlikely to be a material consideration other than in certain exceptional circumstances such as a mineral operator’s experience in managing and restoring a site.
Commercial competition (eg Tesco v Sainsburys) is not a material consideration BUT whether the development proposal is out of town or in town (i.e. relative impact on the vitality and viability of the town centre) MAY be material.
Issues related to decency or belief (e.g. sex shops, places of worship) are not likely to be relevant material considerations.
The starting point
Development plan (and reference to NPPF and any other relevant national advice) is the starting point – and will always be referred to in officers’ reports.
How the NPPF applies to decisions. First through the plan, but if the plan is silent on an issue (or out of date, or not prepared, as in some authorities), councils must still have regard to national policy. The lack of a plan or policy does not give Councillors a “get out of jail free” card on difficult issues. In the absence of an up-to-date Local Plan it is the NPPF that now carries the most weight.
This is relevant whoever (officers or committee) makes the decision.
Decisions not in line with local plan policy can be made if
- a policy is out of date compared with national policy
- the monitoring information shows that the situation “on the ground” has changed
exceptional local circumstances
The Committee can decide to grant planning permission and therefore allow the development to proceed or refuse permission.
Otherwise unacceptable development, can be made acceptable through the use of conditions or planning obligations.
Most decisions to grant planning permission will be subject to various planning conditions being satisfied.
Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all respects. (NPPF paragraph 206)
Planning obligations should only be used where it is not possible to address unacceptable impacts through a planning condition and are required to meet the following tests
Necessary to make the development acceptable in planning terms
Directly related to the development; and
Fairly and reasonably related in scale and kind to the development. (NPPF paragraph 204)
Other special types of consent exist such as Listed Building Consent – to demolish, alter or extend a listed building in a way that affects its character or appearance as a building of special architectural or historic interest – or Conservation Area Consent – for the total or substantial demolition of any unlisted building in a Conservation Area.
Trees can be protected by the designation of Tree Preservation Orders or if they are located within a Conservation Area. For such protected trees consent is required for works to prune or fell them.
Planning applications can only be refused for genuine planning reasons.
This applies to decisions made by delegated powers or at committee
Clarity of reason for refusing an application is particularly important for overturned recommendations. You can’t refuse something just because you don’t like it, or your constituents don’t like it. It has to be based on planning grounds and agreed at committee. You can’t send officers away to work it out. That kind of behaviour is seen to be unreasonable.
It’s also just not fair, and doesn’t give a good impression of the way the council operates.
Planning conditions must be seen to be fair, reasonable and practicable.
The LPA must “state clearly and precisely their full reasons for each condition imposed, specifying all policies and proposals in the development plan which are relevant to the decision”.
must be as specific as possible – what does “to safeguard the interests of residential amenity” or “to enable the local planning authority to control the development” actually mean?
There is a right of appeal against conditions – so must be able to explain and justify
It is important to ensure that conditions are tailored to tackle specific problems, rather than standardised or used to impose broad unnecessary controls.
written representations
an exchange of written statements by the council and the applicant
Inspector visits site only to see
public hearings
exchange of written submissions
informal discussion lead by the Inspector
discussion may continue at site visit
public inquiries
written statements and proofs of evidence of witnesses
advocates present the case and may cross examine witnesses
Inspector visits site only to see
much-simplified process for householder cases
Details (including examples of unreasonable behaviour) are in Circular 03/2009
EXAMPLES (for the LPA)
failure to produce credible evidence to substantiate each reason for refusal
refusing only because of local objection
ignoring policy, in the absence of other compelling material planning considerations
relying on non-planning reasons
refusing to renew, where no changed circumstances
refusing details as a way of re-visiting the principle
There is a separate PAS presentation on viability and developer contributions.
Section 106 TCPA 1990 allows councils to seek developer contributions to make an otherwise unacceptable planning proposal acceptable in planning terms.
Introduced in Planning Act 2008, CIL is now promoted as the preferred method securing developer contributions.
Section 106 agreements, should only be used where it is not possible to address unacceptable impacts through a planning condition and are required to meet the following tests
- Necessary to make the development acceptable in planning terms
- Directly related to the development; and
- Fairly and reasonably related in scale and kind to the development. (NPPF paragraph 204)
Changes to CIL and S106 place limits on the pooling of S106 developer contributions an will impact on councils and how they seek to fund infrastructure and those councils who have not adopted CIL will possibly be in the position that they cannot levy a developer contribution nor mitigate a proposed scheme.
Explain that whilst discretionary enforcement is central to credibility of Planning.
Formerly PPS 18 provided clear guidance – such as when not expedient to take action. NPPF deals with enforcement in a single paragraph (paragraph 207).
A breach of planning control is ‘ the carrying out of development without the required planning permission or failing to comply with any condition or limitation subject to which planning permission has been granted’ -1990 Act.
Need a policy – time consuming and complex.
Various notices – Planning Contravention Notice, Enforcement Notice, Breach of Condition Notice, Stop Notice
Injunctions.
Essential to have knowledgeable legal support/advice.
The person(s) served with the Enforcement Notice or other types of notice has a number of options open to them.
They can submit a retrospective application which must be dealt with by the Local Planning Authority in exactly the same way as a normal planning application i.e. without prejudice.
They can submit a Certificate of Lawfulness application.
Whatever course of action is decided it should be preceded by negotiations with the Enforcement Officer.
Submitting an enforcement appeal is very much the last resort. The appeal will be decided by an independent planning inspector.
Councillors need to know that there are rules and a framework within which they operate. All designed to ensure proper, fair and transparent decision making.
Lord Nolan was the first chairman of a commission that highlighted that planning is probably the most contentious matter with which local government deals. While his report created, as mentioned earlier, an unhelpful atmosphere where councillors shied away from any involvement with applicants, it contained many positive recommendations such as that members of planning committees should be trained and there should be greater openness in the planning process.
The Localism Act intended to provide additional protection to Councillors who have expressed views on proposals before a planning committee and paved the way for the abolition of the Standards Board for England (currently postponed to July). In its place, the Act introduced a criminal offence introduce a new criminal offence of failing to disclose or register members’ interests.
The LGA first issued its Probity in Planning guidance in 1997 after the Nolan Report. It was subsequently revised in 2009 and has now (2013) unsdergone a further revision to take into account the Localism Act.
Point out to audience that there is a separate PAS presentation which deals in detail with the probity issues which surround the role of Councillors on Planning Committees but there is a need to highlight some of the key issues to complete today’s presentation.
The basis of the planning system is the consideration of private proposals against wider public interests. Much is often at stake in this process, and opposing views are often strongly held by those involved. Whilst planning committee councillors should take account of these views, the general role and conduct of councillors and officers is they should not favour any person, company, group or locality, nor put themselves in a position where they appear to do so. Councillors who do not feel that they can act in this way should consider whether they are best suited to serve on a planning committee.
Also remember any other roles you have – as a cabinet member, or within your political group.
This is different from before. After Nolan in 1997 lobbying and openly expressing opinions was seen as too risky.
The Localism Act 2011, especially section 25, has changed what is allowed. Before then Councillors on Planning Committees were strongly discouraged from expressing any view on the merits of an application before they had seen the officer’s report setting out all the policy and other material considerations. The Localism Act changed that because the Coalition Government felt that a Councillor was not able to deliver on his role of championing an area if he was not able to express a view on a proposal which might have a significant influence on the area. So now it is allowed to express a view though that needs to be qualified by retaining an open mind as new facts and information becomes available. At the same time it is important not to give the appearance of having a closed mind.
Section 25 makes it clear that the normal activities of a councillor, representing constituents and raising questions, are acceptable and will not represent pre-determination. You will still be able to vote on the application (unless, of course, you have already made up your mind).
A lot more detail on this issue is available in the Committees and Probity PAS presentation for councillors.