Guide to the Planning System (England and Wales)
Background
“Planning” grew up in this country from the building of roads and houses, as well as the provision of sanitation.
The system in the UK has been described as “the mother of planning”, and in 1947, with the passing of the Town and Country Planning Act, “planning became of age”.
The planning system effectively controls the use of land and operations “in the public interest”. It does this by first defining what “development” actually is, by then having directional and aspirational policies in place for that development, and finally by controlling development through a system involving the making of planning applications.
There are therefore 2 arms to the planning system: (1) plan-making, and (2) development control.
What is development?
Development is defined in the Act of 1990 as either the carrying out of operations (in, on, under or over the land) or making a material change of use.
Both categories of development will require a planning application to be made to a Local Planning Authority (normally the Council), unless it is a form of development “permitted” by a separate Statutory Instrument, namely the Town and Country Planning (General Permitted Development) Order. Hence the term “PD” or “permitted development” and why householders generally don’t need to apply for planning permission for porches, small extensions and new windows.
Whether or not you are causing development by changing use will depend on whether you are going from one class of use to another, as set out in the current Use Classes Order. Some uses are “sui generis” (e.g. petrol stations) others are mixed. The question of what or how many separate “planning units” exist may, therefore, often be important.
The process of making an application for a “lawful development certificate” (“LDC”) exists where someone wants a formal answer to the question: “Do I need planning permission?”, or: “Is what I have done lawful in the sense that it cannot be enforced against?”.
There is a “4 year rule” as regards operations and a change of use to a dwelling, and a “10 year rule” for all other changes of use. After these periods enforcement is precluded.
Where works or changes of use are carried out without planning permission or a lawful development certificate, the local planning authority may issue an “enforcement notice” (“EN”) where it considers that it is expedient to do so. It is possible to appeal both an enforcement notice and a lawful development certificate refusal.
The determination of planning applications
Planning applications fall to be considered in accordance with the relevant policies of the development plan for the area, and all other material considerations. This is set out in s38(6) of the 2004 Act which gives a priority to the development plan.
Other material considerations have been interpreted by the courts widely, and include not only national policy guidance, but also emerging plans and policies, non-statutory policies (e.g. supplementary planning guidance), and also relevant planning history and personal circumstances.
Decision making is all about attaching weight to considerations, but the decision maker is bound to start with the relevant policies of the development plan and to give reasons for his/her conclusions/weight.
The definition of what constitutes the development plan for the purposes of s38(6) is still the adopted local plan/UDP (saved policies) and the approved structure plan (saved policies), as well as (in London) the Mayor’s London Plan.
However, a new system is currently being rolled out and we should begin to see it featuring in the planning system in October 2008. At that stage the development plan will consist of the Development Plan Documents (“DPD”) prepared by the local planning authorities, and Regional Spatial Strategies (“RSS”).
Planning appeals have to be made within 6 months of the local planning authority’s decision.
Such an appeal can be made against the whole decision or against a planning condition imposed by the Council on the grant of permission.
Appeals can be made by the common “written representations” method and also by the “hearing” or the “public inquiry” methods.
Statistically there is a national chance of success (to the appellant) of about 1 in 3, although odds are usually better in respect of the hearing or inquiry methods.
Most decisions are “delegated” by the Secretary of State/DCLG to the Inspector who will determine the appeal “de novo” on the facts and the merits of the case raised by the parties, and in accordance with s38(6).
If one side behaves “unreasonably” then they can apply for a costs order against their opponent. Such an application is only available in cases run using either the hearing or inquiry methods.
An Inspector’s decision can only be challenged in the High Court on a matter of law, and the court only has the power to quash the decision and return it to another Planning Inspector for re-determination.
