Development Control
Encyclopedia
Development control, planning control, or (in Scotland) development management is the element of the United Kingdom
's system of town and country planning
through which local government
regulates land use
and new building. It relies on a "plan-led system" whereby development plan
s are formed and the public is consulted. Subsequent development requires planning permission
, which is granted or refused with reference to the development plan as a material consideration. The term "development control" is often abbreviated to DC.
There are 421 local planning authorities
(LPAs) in the United Kingdom
. Generally they are the local borough or district council or a unitary authority
. Development involving mining
, mineral
s or waste disposal
matters is dealt with by county council
s in non-metropolitan areas
. Within national park
s, it is the national park authority
that determines planning applications (although in Scotland the situation is sightly different, whereby the Cairngorms National Park Authority only has the power to call-in and determine certain applications which it deems to be of importance to its objectives).
was established by the Town and Country Planning Act 1947
, it was generally expected that the great majority of new built development would be undertaken by the public sector
: Local authorities, New Town
Development Corporation
s, and the then-new National Health Service
, for example. In those cases the commissioning body would grant itself planning permission
for the proposals concerned. However, a separate system to grant or withhold planning permission for the small amount of development which would be undertaken by the private sector
was also required. This was the origin of the modern system of planning control. In fact this expectation was entirely mistaken as, by the mid 1950s, the rate of private sector development was vastly exceeding that of the public sector. In modern times all development, including that by government departments
and local authorities requires planning permission, and is subject to the same process of democratic scrutiny as any private developer.
In recent years, planning has become a key means of delivering a number of the government's objectives relating to climate change
, reducing carbon emission
s, access to housing
and improving the supply of housing, enhancing biodiversity
and a number of other emerging priorities. Although these are addressed via the process of formulating local planning policies for the area of each LPA on a local basis, as far as the public are concerned it is development control and the process of determining planning applications which is the most evident part of the planning system as a whole.
Note that within the United Kingdom, any significant development may require a variety of different consents from different agencies before commencement, such as approval of construction materials and methods under the relevant Building Regulations). The term "development control" is usually used only in reference to control under Town and Country Planning legislation.
to their land (a freehold
, leasehold
, or licence from the actual land owner), but also requires planning title
for any buildings on the land, or uses to which the land and buildings are put. Planning title (usually referred to as "planning permission") was granted for all pre-existing buildings and uses in 1948. Since that date planning permission has been required for all new development. A grant of planning permission relates to the land or building(s) concerned. With a few rare exceptions it is not specific to the person, organisation or firm who obtained the permission.
"Development" in UK planning law
is defined as the carrying out of any 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. Certain types of development are specifically excluded from the definition of development, such as routine building maintenance and repair. Many categories of minor development are classified by legislation as "permitted development
" (PD). These are in effect granted an automatic planning permission by law, rather than requiring any specific application for planning permission. Although still defined as "development" these works avoid any need to engage with the planning system and can be undertaken by land owners as a right.
Uses of land and buildings are classified into "use classes" and any change from one use class to another use class is automatically a "material change of use" amounting to development. Some small scale changes between use classes are nevertheless "permitted development" and hence do not require planning permission. Certain types of use or activity do not fall into a specific use class and are termed "sui generis
". Any change of use of "sui generis" land requires planning permission. In practice most uses are a composite of several uses so that, say, a factory might well have an ancillary office and perhaps storage uses, all within the same premises. In such a case however the primary use would be that of a factory (use class B1 or B2).
There is a separate system of control over alterations to buildings which are listed as being of architectural or historic interest ("listed buildings"). Alterations to such a building that affect its character or appearance require "listed building consent" (and may also require planning permission if the scope of the proposed alterations or development is above that classified as permitted development). The owner of a listed building can also be compelled to keep it in a good state of repair to safeguard its architectural or historic significance.
Tree
s and woodland
which are of particular importance to local amenity
or ecology
may be made the subject of a tree preservation order
(TPO). Unless those trees are dead, dying or dangerous, then consent is required for their removal, and generally a replacement tree may well be required.
If development is carried out without planning permission then the LPA may take "enforcement action" to have the building removed, the land reinstated, or at least undertake the minimum measures required to prevent any harm arising. (Generally, a retrospective application for planning permission would be invited first, and action taken if planning permission is then refused.) Almost all planning permissions are granted conditionally and enforcement action can also be taken to secure compliance with the conditions imposed. Unauthorised development can be the subject of a "stop notice" if there is an urgent need to prevent further harm.
From 2006 each area's Development Plan is to be replaced by a Local Development Framework (LDF). These will incorporate a large measure of community and public involvement in preparing the new local planning policies by which applications will be decided in future years.
The planning policies expressed in the LDF deal with a wide range of local issues including promoting more energy efficient transport
facilities, highway
proposals and highway safety, ensuring an adequate supply of land for housing
and other uses, safeguarding areas of countryside, and safeguarding important landscapes or sites of historic, ecological
or scientific importance. More specific policies usually promote best practice in building design
as a reflection of local traditions and priorities. The interests of sustainability
are to be built into all LDFs, not only in terms of energy efficiency
, but also in promoting economic growth
, regeneration, and the fostering of strong and inclusive communities
. Whatever their local priorities, future LDFs will be a key policy document for all local authorities, enabling them and other local agencies to engage in spatial planning for their local area on an inclusive and "joined up" basis.
. This is not just a description of the development, but also explains how the design was arrived at, what local planning policies have been observed, how any public engagement has been reflected in the design, and how relevant principles of good design have contributed to the proposal. Commercial issues may well have been paramount, but this document enables the lay public to understand how the finished proposal was arrived at, and acts as a check upon the quality of the decision making process which led to that proposal by the developer concerned.
-made law
arising out of numerous cases decided by British court
s. Any local planning policy or Government policy is clearly material, as are issues of public safety or amenity. An important point is that planning control is concerned only with the broad public interest, rather than to protect any one or more person’s private interests. Competition between businesses can never be a planning consideration; neither can the developer’s profit motives, or any supposed loss of value to nearby properties. Private covenants
over land or any subject which is regulated by other legislation are also incapable of being a material planning consideration when deciding a planning application.
In deciding a planning application LPAs have a duty to have regard to all of the relevant and material planning considerations. However, while they cannot choose to simply ignore a relevant issue, provided they behave reasonably they are entitled to decide how much weight should be given to competing priorities.
If planning permission is to be refused, or if enforcement action is to be taken against unauthorised development, then the LPA must give reasons in writing, which show "demonstrable harm to interests of acknowledged importance". Unpopularity is not grounds for refusal of planning permission. A proper reason for refusal of planning permission must be based on the tangible harm which would be brought about by the proposal, as reflected in a relevant policy or other matter relating to planning, and in order to protect the public interest. Similarly, if a condition
is to be imposed on the grant of any planning permission, compliance with that condition should be essential to make acceptable a development which would otherwise be unacceptable, (i.e. refused planning permission).
in the event of refusal of planning permission, the taking of enforcement action, imposition of an onerous or improper condition on a granted planning permission, or the failure of the LPA to determine the application within a timely period ("non-determination"). The right of appeal applies only to an applicant or developer who is aggrieved by the decision of an LPA. Third parties such as a member of the public who disagrees with the decision of an LPA to grant planning permission do not have any right of appeal.
Planning appeals in England
and Wales
are administered and decided by the Planning Inspectorate
, which is an executive agency
of the UK Government. In Scotland
appeals are determined by the Scottish Government Directorate for Planning & Environmental Appeals (DfPEA), and in Northern Ireland
appeals are determined by the Planning Appeals Commission. An Inspector (in England and Wales), Reporter (in Scotland), or Commissioner (in Northern Ireland) investigates the question and decides to uphold or overturn the decision of the LPA. The decision is based on a fresh look at the case considering the representations that have been made by each party. A planning inspector (or equivalent) may find fault with the reasoning of the LPA but still dismiss the appeal based on their own reasoning of the issues and planning policies which are relevant to the case. In England around 70% of planning appeals uphold the original decision of the LPA.
Most planning applications are decided by an authorised senior officer of the LPA - under what are known as "delegated powers". Only major or controversial applications are decided by elected councillors meeting as a "Planning Committee" of the authority concerned. The agenda of the committee meeting with a report by planning officers on each planning application is usually published at least five working days before the meeting. The report on any planning application should contain a description of the development, a fair summary of any public comments received, state the relevant planning policies which have a bearing on the decision and a discussion of the issues raised – all leading to a recommendation to either grant or refuse planning permission. The elected Planning Committee may act on the advice of their professional planning officers, or occasionally may take a different view.
Planning Committee members should vote to represent the interests of the whole community they represent, including those who will later live or work in any new development, rather than any narrower local view. The committee may refuse planning permission for development when their own professional planning officers have recommended that planning permission be granted, or allow an application that officers recommend should be refused.
Refusal of an application, whether by committee or under delegated powers, may be challenged by an appeal through the Planning Inspectorate
. If officers had recommended the application, the LPA usually has to rely on the same officers to make the case to the Inspector against it. Objectors to a successful application have no right of appeal, except by a legal challenge to the courts, although for some significant applications (e.g. involving major policy matters) the Secretary of State may "call in" an application for review.
Subject to making arrangements in advance, many LPAs will invite applicants and members of the public to address the Planning Committee before making their decision. However, the Committee is "a meeting conducted in public", rather than "a public meeting"; although given an opportunity to speak at the outset of the meeting, members of the public will not be allowed to join in the committee's debate. There are a number of LPAs that still do not permit the public or the applicant to speak at the committee meeting at all.
There are often different views as to what constitutes “fairness” in deciding planning applications. Many public objections to new development are explicitly based on a perception of unfairness that developers and landowners should be allowed to profit, while near neighbours, the local environment or the community as a whole do not. More specific objections may also be given, but this apparent unfairness is the fundamental of many if not most public objections to new development. The process of development and re-development is seen as an immediate cost or inconvenience to those living nearby, and any benefits are invariably to the community as a whole, over a wider geographical area, and over time. The most obvious beneficiaries of any development are those who will later live or work within it but their views are not heard when a planning application is being decided. Even a well managed LPA, making decisions in light of published planning policies and after extensive public consultation, will still attract accusations of unfairness.
Unless a member of the public raises one or more material planning considerations which were not apparent beforehand, it is unusual for public views to override the relevant planning policies when the decision is made. The importance of public opinion is in adding flavour to the issues from the point of view of the decision maker. They can be especially important in deciding how much "weight" to give to different material considerations. Unpopular proposals often attract well orchestrated public opposition and it is not unusual for an LPA to receive multiple copies of the same pre-written letter of objection from a large number of people, or petitions with numerous signatures. It is not unknown for LPAs to receive letters of objection to a proposal with fake names and addresses in an effort to increase the level of apparent public opposition to a planning application. Some objectors to a development will also write to their Member of Parliament or to other people who are mistakenly believed to have influence over the outcome of a planning application but MPs will scrupulously avoid seeking to influence the proper functioning of a democratically elected LPA. Although members are democratically elected, they should not decide applications on the basis of strength of public opinion, but according to planning law; if there are no substantial planning grounds for refusing an application, a planning inspector at appeal could well order the LPA to pay costs.
The most effective method of influencing the outcome of a planning application is to make representations to one or more of the elected councillor
s who form the LPA, whose contact details are readily available on the LPA's website. Local councillors who are also members of the LPA’s Planning Committee may be reluctant to meet with applicants or members of the public in person in order to prevent subsequent allegations of bias or pre-determination when the Planning Committee comes to make a decision.
Elected Councillors who are Members of the Council's Planning Committee are subject to their Council's general Code of Conduct which requires them to register interests, declare personal interests and withdraw from the meeting if they have a prejudicial interest
. As Members of the Planning Committee, however, they are subject to additional legal restrictions derived from the common law of bias. There have been several recent legal decisions on this and the present position (following the decision of the Court of Appeal in Persimmon Homes Teesside Limited v. Lewis 2008) is that whilst Members may have a predisposition to a view on a particular application, they must not have predetermined it in the sense that they come to the Planning Committee with their mind closed to the arguments of fellow members and the advice of the Officers. This causes difficulty, because members of the public, action groups etc. not only ask Councillors to listen to their views, but also try to persuade them to commit for or against a Planning Application without understanding that if they do so they will be precluded from voting at the Committee.
Most LPAs are receptive to public complaints and seek to learn from them. The great majority of public complaints about planning matters concern an alleged error in procedure, rather than the outcome of a permitted development as later built. A member of the public whose complaint is well founded and who has suffered genuine injury or injustice as a result of maladministration can pursue their complaint through the UK's Local Government Ombudsman
.
The requirement to prepare a Design and Access Statement for most significant developments, places developers and their advisors under a requirement to justify their proposals in those terms. This culture change will take time to become embedded, but the policy intention of the UK Government and most LPAs is that new developments should contribute positively to their surroundings, rather than merely avoid doing unacceptable harm.
LPAs make extensive use of electronic systems for reasons of efficiency and also to encourage transparency. Almost all of them have their own website and electronic document management systems where planning applications can be viewed and commented upon, along with local planning policies and a wide range of other relevant sources. Provided that architectural drawings and other supporting documents are in electronic form then planning applications should ideally be submitted on-line, either via the LPA's website or via the UK-wide "planning portal" website which provides a nationwide clearing house on planning information and facilities.
LPAs are under constant pressure to improve the speed, efficiency and quality of decision making. Applicants are usually advised to engage in discussion with the LPA before finalizing any planning application in order to research the relevant planning policies and other local issues. LPAs vary in their attitude to pre-application discussion but the advantage is to front load the process, and reduce the formal planning application to a “rubber stamp” conducted within the public gaze of work undertaken before submission of the application. In the past developers often submitted a planning application as the start of what was expected to be a lengthy process of negotiation with the LPA. Attitudes have now changed and few LPAs will agree to accept significantly amended proposals after submission of the application since this would require them to re-start public consultations and so delay their decision. Along with the requirement to prepare a well written and well reasoned Design and Access Statement before applying for planning permission, this puts the onus increasingly on the applicant to get their proposal right first time.
About half a million planning applications are submitted throughout the UK each year. Of those around 60% relate to “householder applications” – that is for extensions or alterations to an individual’s house. A much larger number of householder proposals are classed as permitted development and do not require a planning application to be made. Only about 30% of householder planning applications are significantly altered before being granted, or are actually refused permission as unacceptable. This raises the issue of whether the time of LPAs is being well spent when such types of minor development could be codified and either excluded from planning control altogether, or subject to a much simpler regime of control. Among other things this would free resources for more important work in implementing local planning policies which would be of wider public benefit. The UK Government is preparing new legislation along these lines.
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
's system of town and country planning
Town and country planning in the United Kingdom
Town and Country Planning is the land use planning system governments use to balance economic development and environmental quality. Each country of the United Kingdom has its own planning system that is responsible for town and country planning devolved to the Northern Ireland Assembly, the...
through which local government
Local government in the United Kingdom
The pattern of local government in England is complex, with the distribution of functions varying according to the local arrangements. Legislation concerning local government in England is decided by the Parliament and Government of the United Kingdom, because England does not have a devolved...
regulates land use
Land use
Land use is the human use of land. Land use involves the management and modification of natural environment or wilderness into built environment such as fields, pastures, and settlements. It has also been defined as "the arrangements, activities and inputs people undertake in a certain land cover...
and new building. It relies on a "plan-led system" whereby development plan
Development Plan
A development plan is an aspect of town and country planning in the United Kingdom comprising a set of documents that set out the local authority's policies and proposals for the development and use of land in their area...
s are formed and the public is consulted. Subsequent development requires planning permission
Planning permission
Planning permission or planning consent is the permission required in the United Kingdom in order to be allowed to build on land, or change the use of land or buildings. Within the UK the occupier of any land or building will need title to that land or building , but will also need "planning...
, which is granted or refused with reference to the development plan as a material consideration. The term "development control" is often abbreviated to DC.
There are 421 local planning authorities
Local Planning Authority
A local planning authority is the local authority or council that is empowered by law to exercise planning functions for a particular area of the United Kingdom. Although, in Scotland, where all of the local authorities are unitary, the term 'planning authority' is used without the 'local'...
(LPAs) in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
. Generally they are the local borough or district council or a unitary authority
Unitary authority
A unitary authority is a type of local authority that has a single tier and is responsible for all local government functions within its area or performs additional functions which elsewhere in the relevant country are usually performed by national government or a higher level of sub-national...
. Development involving mining
Mining
Mining is the extraction of valuable minerals or other geological materials from the earth, from an ore body, vein or seam. The term also includes the removal of soil. Materials recovered by mining include base metals, precious metals, iron, uranium, coal, diamonds, limestone, oil shale, rock...
, mineral
Mineral
A mineral is a naturally occurring solid chemical substance formed through biogeochemical processes, having characteristic chemical composition, highly ordered atomic structure, and specific physical properties. By comparison, a rock is an aggregate of minerals and/or mineraloids and does not...
s or waste disposal
Waste management
Waste management is the collection, transport, processing or disposal,managing and monitoring of waste materials. The term usually relates to materials produced by human activity, and the process is generally undertaken to reduce their effect on health, the environment or aesthetics...
matters is dealt with by county council
County council
A county council is the elected administrative body governing an area known as a county. This term has slightly different meanings in different countries.-United Kingdom:...
s in non-metropolitan areas
Shire county
A non-metropolitan county, or shire county, is a county-level entity in England that is not a metropolitan county. The counties typically have populations of 300,000 to 1.4 million. The term shire county is, however, an unofficial usage. Many of the non-metropolitan counties bear historic names...
. Within national park
National parks of the United Kingdom
National parks of the United Kingdom are a devolved matter with each of the countries of the United Kingdom having its own policies and arrangements. There are 15 of these managed areas of outstanding landscape where habitation and commercial activities are restricted, with 10 in England, 3 in...
s, it is the national park authority
National Park Authority
A national park authority is a special term used in the United Kingdom for the legal body in charge of a national park. The powers and duties of the authorities are all similar, but do vary somewhat depending on the country in which they are situated....
that determines planning applications (although in Scotland the situation is sightly different, whereby the Cairngorms National Park Authority only has the power to call-in and determine certain applications which it deems to be of importance to its objectives).
History
When the UK's system of town and country planningTown and country planning in the United Kingdom
Town and Country Planning is the land use planning system governments use to balance economic development and environmental quality. Each country of the United Kingdom has its own planning system that is responsible for town and country planning devolved to the Northern Ireland Assembly, the...
was established by the Town and Country Planning Act 1947
Town and Country Planning Act 1947
The Town and Country Planning Act 1947 was an Act of Parliament in the United Kingdom passed by the post-war Labour government...
, it was generally expected that the great majority of new built development would be undertaken by the public sector
Public sector
The public sector, sometimes referred to as the state sector, is a part of the state that deals with either the production, delivery and allocation of goods and services by and for the government or its citizens, whether national, regional or local/municipal.Examples of public sector activity range...
: Local authorities, New Town
New towns in the United Kingdom
Below is a list of some of the new towns in the United Kingdom created under the various New Town Acts of the 20th century. Some earlier towns were developed as Garden Cities or overspill estates early in the twentieth century. The New Towns proper were planned to disperse population following the...
Development Corporation
Development Corporation
In England and Wales, Development Corporations are bodies set up by the UK government and charged with the urban development of an area, outside the usual system of Town and Country Planning in the United Kingdom...
s, and the then-new National Health Service
National Health Service
The National Health Service is the shared name of three of the four publicly funded healthcare systems in the United Kingdom. They provide a comprehensive range of health services, the vast majority of which are free at the point of use to residents of the United Kingdom...
, for example. In those cases the commissioning body would grant itself planning permission
Planning permission
Planning permission or planning consent is the permission required in the United Kingdom in order to be allowed to build on land, or change the use of land or buildings. Within the UK the occupier of any land or building will need title to that land or building , but will also need "planning...
for the proposals concerned. However, a separate system to grant or withhold planning permission for the small amount of development which would be undertaken by the private sector
Private sector
In economics, the private sector is that part of the economy, sometimes referred to as the citizen sector, which is run by private individuals or groups, usually as a means of enterprise for profit, and is not controlled by the state...
was also required. This was the origin of the modern system of planning control. In fact this expectation was entirely mistaken as, by the mid 1950s, the rate of private sector development was vastly exceeding that of the public sector. In modern times all development, including that by government departments
Departments of the United Kingdom Government
Her Majesty's Government of the United Kingdom contains a number of Cabinet ministers who are usually called secretaries of state when they are in charge of Government departments called ministerial departments...
and local authorities requires planning permission, and is subject to the same process of democratic scrutiny as any private developer.
In recent years, planning has become a key means of delivering a number of the government's objectives relating to climate change
Climate change
Climate change is a significant and lasting change in the statistical distribution of weather patterns over periods ranging from decades to millions of years. It may be a change in average weather conditions or the distribution of events around that average...
, reducing carbon emission
Greenhouse gas
A greenhouse gas is a gas in an atmosphere that absorbs and emits radiation within the thermal infrared range. This process is the fundamental cause of the greenhouse effect. The primary greenhouse gases in the Earth's atmosphere are water vapor, carbon dioxide, methane, nitrous oxide, and ozone...
s, access to housing
House
A house is a building or structure that has the ability to be occupied for dwelling by human beings or other creatures. The term house includes many kinds of different dwellings ranging from rudimentary huts of nomadic tribes to free standing individual structures...
and improving the supply of housing, enhancing biodiversity
Biodiversity
Biodiversity is the degree of variation of life forms within a given ecosystem, biome, or an entire planet. Biodiversity is a measure of the health of ecosystems. Biodiversity is in part a function of climate. In terrestrial habitats, tropical regions are typically rich whereas polar regions...
and a number of other emerging priorities. Although these are addressed via the process of formulating local planning policies for the area of each LPA on a local basis, as far as the public are concerned it is development control and the process of determining planning applications which is the most evident part of the planning system as a whole.
Note that within the United Kingdom, any significant development may require a variety of different consents from different agencies before commencement, such as approval of construction materials and methods under the relevant Building Regulations). The term "development control" is usually used only in reference to control under Town and Country Planning legislation.
Scope of development control
The UK is distinguished from most countries in that the lawful occupier of any land or buildings will not only have titleTitle (property)
Title is a legal term for a bundle of rights in a piece of property in which a party may own either a legal interest or an equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document that serves as evidence of ownership...
to their land (a freehold
Fee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
, leasehold
Leasehold estate
A leasehold estate is an ownership of a temporary right to land or property in which a lessee or a tenant holds rights of real property by some form of title from a lessor or landlord....
, or licence from the actual land owner), but also requires planning title
Planning permission
Planning permission or planning consent is the permission required in the United Kingdom in order to be allowed to build on land, or change the use of land or buildings. Within the UK the occupier of any land or building will need title to that land or building , but will also need "planning...
for any buildings on the land, or uses to which the land and buildings are put. Planning title (usually referred to as "planning permission") was granted for all pre-existing buildings and uses in 1948. Since that date planning permission has been required for all new development. A grant of planning permission relates to the land or building(s) concerned. With a few rare exceptions it is not specific to the person, organisation or firm who obtained the permission.
"Development" in UK planning law
Town and Country Planning Act 1990
The Town and Country Planning Act 1990 is an act of the British Parliament regulating the development of land in England and Wales-Section 1:...
is defined as the carrying out of any 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. Certain types of development are specifically excluded from the definition of development, such as routine building maintenance and repair. Many categories of minor development are classified by legislation as "permitted development
Permitted development
Permitted development is an aspect of town and country planning in the United Kingdom which allows people to undertake minor development under a deemed grant of planning permission, therefore removing the need to submit a planning application...
" (PD). These are in effect granted an automatic planning permission by law, rather than requiring any specific application for planning permission. Although still defined as "development" these works avoid any need to engage with the planning system and can be undertaken by land owners as a right.
Uses of land and buildings are classified into "use classes" and any change from one use class to another use class is automatically a "material change of use" amounting to development. Some small scale changes between use classes are nevertheless "permitted development" and hence do not require planning permission. Certain types of use or activity do not fall into a specific use class and are termed "sui generis
Sui generis
Sui generis is a Latin expression, literally meaning of its own kind/genus or unique in its characteristics. The expression is often used in analytic philosophy to indicate an idea, an entity, or a reality which cannot be included in a wider concept....
". Any change of use of "sui generis" land requires planning permission. In practice most uses are a composite of several uses so that, say, a factory might well have an ancillary office and perhaps storage uses, all within the same premises. In such a case however the primary use would be that of a factory (use class B1 or B2).
There is a separate system of control over alterations to buildings which are listed as being of architectural or historic interest ("listed buildings"). Alterations to such a building that affect its character or appearance require "listed building consent" (and may also require planning permission if the scope of the proposed alterations or development is above that classified as permitted development). The owner of a listed building can also be compelled to keep it in a good state of repair to safeguard its architectural or historic significance.
Tree
Tree
A tree is a perennial woody plant. It is most often defined as a woody plant that has many secondary branches supported clear of the ground on a single main stem or trunk with clear apical dominance. A minimum height specification at maturity is cited by some authors, varying from 3 m to...
s and woodland
Woodland
Ecologically, a woodland is a low-density forest forming open habitats with plenty of sunlight and limited shade. Woodlands may support an understory of shrubs and herbaceous plants including grasses. Woodland may form a transition to shrubland under drier conditions or during early stages of...
which are of particular importance to local amenity
Amenity
In real property and lodging, amenities are any tangible or untangible benefits of a property, especially those that increase its attractiveness or value or that contribute to its comfort or convenience...
or ecology
Ecology
Ecology is the scientific study of the relations that living organisms have with respect to each other and their natural environment. Variables of interest to ecologists include the composition, distribution, amount , number, and changing states of organisms within and among ecosystems...
may be made the subject of a tree preservation order
Tree preservation order
A Tree Preservation Order or TPO is a part of town and country planning in the United Kingdom. A TPO is made by a Local Planning Authority to protect specific trees or a particular area, group or woodland from deliberate damage and destruction...
(TPO). Unless those trees are dead, dying or dangerous, then consent is required for their removal, and generally a replacement tree may well be required.
If development is carried out without planning permission then the LPA may take "enforcement action" to have the building removed, the land reinstated, or at least undertake the minimum measures required to prevent any harm arising. (Generally, a retrospective application for planning permission would be invited first, and action taken if planning permission is then refused.) Almost all planning permissions are granted conditionally and enforcement action can also be taken to secure compliance with the conditions imposed. Unauthorised development can be the subject of a "stop notice" if there is an urgent need to prevent further harm.
Development Plan and Local Development Framework
All applications for planning permission must by law be decided in accordance with relevant policies within the Development Plan prepared and published by the LPA, "unless other material considerations indicate otherwise". Planning Control is therefore "policy led" rather than "influence led".From 2006 each area's Development Plan is to be replaced by a Local Development Framework (LDF). These will incorporate a large measure of community and public involvement in preparing the new local planning policies by which applications will be decided in future years.
The planning policies expressed in the LDF deal with a wide range of local issues including promoting more energy efficient transport
Sustainable transport
Sustainable transport refers to any means of transport with low impact on the environment, and includes walking and cycling, transit oriented development, green vehicles, CarSharing, and building or protecting urban transport systems that are fuel-efficient, space-saving and promote healthy...
facilities, highway
Highway
A highway is any public road. In American English, the term is common and almost always designates major roads. In British English, the term designates any road open to the public. Any interconnected set of highways can be variously referred to as a "highway system", a "highway network", or a...
proposals and highway safety, ensuring an adequate supply of land for housing
House
A house is a building or structure that has the ability to be occupied for dwelling by human beings or other creatures. The term house includes many kinds of different dwellings ranging from rudimentary huts of nomadic tribes to free standing individual structures...
and other uses, safeguarding areas of countryside, and safeguarding important landscapes or sites of historic, ecological
Ecology
Ecology is the scientific study of the relations that living organisms have with respect to each other and their natural environment. Variables of interest to ecologists include the composition, distribution, amount , number, and changing states of organisms within and among ecosystems...
or scientific importance. More specific policies usually promote best practice in building design
Architecture
Architecture is both the process and product of planning, designing and construction. Architectural works, in the material form of buildings, are often perceived as cultural and political symbols and as works of art...
as a reflection of local traditions and priorities. The interests of sustainability
Sustainable development
Sustainable development is a pattern of resource use, that aims to meet human needs while preserving the environment so that these needs can be met not only in the present, but also for generations to come...
are to be built into all LDFs, not only in terms of energy efficiency
Efficient energy use
Efficient energy use, sometimes simply called energy efficiency, is the goal of efforts to reduce the amount of energy required to provide products and services. For example, insulating a home allows a building to use less heating and cooling energy to achieve and maintain a comfortable temperature...
, but also in promoting economic growth
Economic growth
In economics, economic growth is defined as the increasing capacity of the economy to satisfy the wants of goods and services of the members of society. Economic growth is enabled by increases in productivity, which lowers the inputs for a given amount of output. Lowered costs increase demand...
, regeneration, and the fostering of strong and inclusive communities
Community
The term community has two distinct meanings:*a group of interacting people, possibly living in close proximity, and often refers to a group that shares some common values, and is attributed with social cohesion within a shared geographical location, generally in social units larger than a household...
. Whatever their local priorities, future LDFs will be a key policy document for all local authorities, enabling them and other local agencies to engage in spatial planning for their local area on an inclusive and "joined up" basis.
Design and Access Statement
Planning applications for most major developments must be accompanied by a Design and Access StatementDesign statement
A design statement is a report required under English and Welsh planning law that sets out, illustrates and justifies the process that has led to the development proposals...
. This is not just a description of the development, but also explains how the design was arrived at, what local planning policies have been observed, how any public engagement has been reflected in the design, and how relevant principles of good design have contributed to the proposal. Commercial issues may well have been paramount, but this document enables the lay public to understand how the finished proposal was arrived at, and acts as a check upon the quality of the decision making process which led to that proposal by the developer concerned.
Material considerations
The issue of what might be a material planning consideration in deciding any given case can be complex. This issue has never been legislated upon by Parliament and consists entirely of judgeJudge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
-made law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
arising out of numerous cases decided by British court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
s. Any local planning policy or Government policy is clearly material, as are issues of public safety or amenity. An important point is that planning control is concerned only with the broad public interest, rather than to protect any one or more person’s private interests. Competition between businesses can never be a planning consideration; neither can the developer’s profit motives, or any supposed loss of value to nearby properties. Private covenants
Covenant running with the land
A covenant, in its most general sense, is a solemn promise to engage in or refrain from a specified action.A covenant is a type of contract in which the covenantor makes a promise to a covenantee to do or not do some action. In real property law, the term real covenants is used for conditions tied...
over land or any subject which is regulated by other legislation are also incapable of being a material planning consideration when deciding a planning application.
In deciding a planning application LPAs have a duty to have regard to all of the relevant and material planning considerations. However, while they cannot choose to simply ignore a relevant issue, provided they behave reasonably they are entitled to decide how much weight should be given to competing priorities.
If planning permission is to be refused, or if enforcement action is to be taken against unauthorised development, then the LPA must give reasons in writing, which show "demonstrable harm to interests of acknowledged importance". Unpopularity is not grounds for refusal of planning permission. A proper reason for refusal of planning permission must be based on the tangible harm which would be brought about by the proposal, as reflected in a relevant policy or other matter relating to planning, and in order to protect the public interest. Similarly, if a condition
Planning condition
In the United Kingdom a planning condition is a condition placed on grants of planning permission by local planning authorities. Such conditions permit development to go ahead only if certain conditions are satisfied. Conditions include time limits on development, undertakings regarding...
is to be imposed on the grant of any planning permission, compliance with that condition should be essential to make acceptable a development which would otherwise be unacceptable, (i.e. refused planning permission).
Appeals against decisions
Almost any decision made by an LPA is subject to a right of appealAppeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
in the event of refusal of planning permission, the taking of enforcement action, imposition of an onerous or improper condition on a granted planning permission, or the failure of the LPA to determine the application within a timely period ("non-determination"). The right of appeal applies only to an applicant or developer who is aggrieved by the decision of an LPA. Third parties such as a member of the public who disagrees with the decision of an LPA to grant planning permission do not have any right of appeal.
Planning appeals in England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
and Wales
Wales
Wales is a country that is part of the United Kingdom and the island of Great Britain, bordered by England to its east and the Atlantic Ocean and Irish Sea to its west. It has a population of three million, and a total area of 20,779 km²...
are administered and decided by the Planning Inspectorate
Planning Inspectorate
The Planning Inspectorate for England and Wales is an executive agency of the Department for Communities and Local Government of the United Kingdom Government. It is responsible for determining final outcomes of planning and enforcement appeals and public examination of local development plans...
, which is an executive agency
Executive agency
An executive agency, also known as a next-step agency, is a part of a government department that is treated as managerially and budgetarily separate in order to carry out some part of the executive functions of the United Kingdom government, Scottish Government, Welsh Assembly or Northern Ireland...
of the UK Government. In Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
appeals are determined by the Scottish Government Directorate for Planning & Environmental Appeals (DfPEA), and in Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
appeals are determined by the Planning Appeals Commission. An Inspector (in England and Wales), Reporter (in Scotland), or Commissioner (in Northern Ireland) investigates the question and decides to uphold or overturn the decision of the LPA. The decision is based on a fresh look at the case considering the representations that have been made by each party. A planning inspector (or equivalent) may find fault with the reasoning of the LPA but still dismiss the appeal based on their own reasoning of the issues and planning policies which are relevant to the case. In England around 70% of planning appeals uphold the original decision of the LPA.
Public involvement in development control
The public have a right to be consulted before any planning application is decided by the LPA. Land owners immediately adjoining the application site are usually notified, a public notice may be posted in nearby streets, and sometimes a notice is published in the local press. Planning applications must be decided in a timely manner and only 21 days is normally allowed by law for the public to express their views. Planning applications can be viewed on the LPA’s website and comments can be submitted by email.Most planning applications are decided by an authorised senior officer of the LPA - under what are known as "delegated powers". Only major or controversial applications are decided by elected councillors meeting as a "Planning Committee" of the authority concerned. The agenda of the committee meeting with a report by planning officers on each planning application is usually published at least five working days before the meeting. The report on any planning application should contain a description of the development, a fair summary of any public comments received, state the relevant planning policies which have a bearing on the decision and a discussion of the issues raised – all leading to a recommendation to either grant or refuse planning permission. The elected Planning Committee may act on the advice of their professional planning officers, or occasionally may take a different view.
Planning Committee members should vote to represent the interests of the whole community they represent, including those who will later live or work in any new development, rather than any narrower local view. The committee may refuse planning permission for development when their own professional planning officers have recommended that planning permission be granted, or allow an application that officers recommend should be refused.
Refusal of an application, whether by committee or under delegated powers, may be challenged by an appeal through the Planning Inspectorate
Planning Inspectorate
The Planning Inspectorate for England and Wales is an executive agency of the Department for Communities and Local Government of the United Kingdom Government. It is responsible for determining final outcomes of planning and enforcement appeals and public examination of local development plans...
. If officers had recommended the application, the LPA usually has to rely on the same officers to make the case to the Inspector against it. Objectors to a successful application have no right of appeal, except by a legal challenge to the courts, although for some significant applications (e.g. involving major policy matters) the Secretary of State may "call in" an application for review.
Subject to making arrangements in advance, many LPAs will invite applicants and members of the public to address the Planning Committee before making their decision. However, the Committee is "a meeting conducted in public", rather than "a public meeting"; although given an opportunity to speak at the outset of the meeting, members of the public will not be allowed to join in the committee's debate. There are a number of LPAs that still do not permit the public or the applicant to speak at the committee meeting at all.
There are often different views as to what constitutes “fairness” in deciding planning applications. Many public objections to new development are explicitly based on a perception of unfairness that developers and landowners should be allowed to profit, while near neighbours, the local environment or the community as a whole do not. More specific objections may also be given, but this apparent unfairness is the fundamental of many if not most public objections to new development. The process of development and re-development is seen as an immediate cost or inconvenience to those living nearby, and any benefits are invariably to the community as a whole, over a wider geographical area, and over time. The most obvious beneficiaries of any development are those who will later live or work within it but their views are not heard when a planning application is being decided. Even a well managed LPA, making decisions in light of published planning policies and after extensive public consultation, will still attract accusations of unfairness.
Unless a member of the public raises one or more material planning considerations which were not apparent beforehand, it is unusual for public views to override the relevant planning policies when the decision is made. The importance of public opinion is in adding flavour to the issues from the point of view of the decision maker. They can be especially important in deciding how much "weight" to give to different material considerations. Unpopular proposals often attract well orchestrated public opposition and it is not unusual for an LPA to receive multiple copies of the same pre-written letter of objection from a large number of people, or petitions with numerous signatures. It is not unknown for LPAs to receive letters of objection to a proposal with fake names and addresses in an effort to increase the level of apparent public opposition to a planning application. Some objectors to a development will also write to their Member of Parliament or to other people who are mistakenly believed to have influence over the outcome of a planning application but MPs will scrupulously avoid seeking to influence the proper functioning of a democratically elected LPA. Although members are democratically elected, they should not decide applications on the basis of strength of public opinion, but according to planning law; if there are no substantial planning grounds for refusing an application, a planning inspector at appeal could well order the LPA to pay costs.
The most effective method of influencing the outcome of a planning application is to make representations to one or more of the elected councillor
Councillor
A councillor or councilor is a member of a local government council, such as a city council.Often in the United States, the title is councilman or councilwoman.-United Kingdom:...
s who form the LPA, whose contact details are readily available on the LPA's website. Local councillors who are also members of the LPA’s Planning Committee may be reluctant to meet with applicants or members of the public in person in order to prevent subsequent allegations of bias or pre-determination when the Planning Committee comes to make a decision.
Elected Councillors who are Members of the Council's Planning Committee are subject to their Council's general Code of Conduct which requires them to register interests, declare personal interests and withdraw from the meeting if they have a prejudicial interest
Prejudicial interest
In UK local authority politics, the term prejudicial interest is used to describe a particular type of conflict of interest involving councillors. When a councillor has an interest in a topic under debate that may affect their ability to fairly and objectively consider the subject, he or she is...
. As Members of the Planning Committee, however, they are subject to additional legal restrictions derived from the common law of bias. There have been several recent legal decisions on this and the present position (following the decision of the Court of Appeal in Persimmon Homes Teesside Limited v. Lewis 2008) is that whilst Members may have a predisposition to a view on a particular application, they must not have predetermined it in the sense that they come to the Planning Committee with their mind closed to the arguments of fellow members and the advice of the Officers. This causes difficulty, because members of the public, action groups etc. not only ask Councillors to listen to their views, but also try to persuade them to commit for or against a Planning Application without understanding that if they do so they will be precluded from voting at the Committee.
Most LPAs are receptive to public complaints and seek to learn from them. The great majority of public complaints about planning matters concern an alleged error in procedure, rather than the outcome of a permitted development as later built. A member of the public whose complaint is well founded and who has suffered genuine injury or injustice as a result of maladministration can pursue their complaint through the UK's Local Government Ombudsman
Local Government Ombudsman
A Local Government Ombudsman is an official employed by the Commission for Local Administration in England , a body of commissioners established under the Local Government Act 1974 to investigate complaints about councils and certain other bodies in England. Each of three Local Government Ombudsmen...
.
Proposed reforms to system
Historically most decisions on planning applications have been framed around the question of whether the proposed development is “bad enough to warrant being refused planning permission”. The thrust of recent reforms to the planning system as a whole has been to raise the game of both developers and their advisors, along with LPAs, so that the question becomes “is the proposed development good enough to deserve planning permission”.The requirement to prepare a Design and Access Statement for most significant developments, places developers and their advisors under a requirement to justify their proposals in those terms. This culture change will take time to become embedded, but the policy intention of the UK Government and most LPAs is that new developments should contribute positively to their surroundings, rather than merely avoid doing unacceptable harm.
LPAs make extensive use of electronic systems for reasons of efficiency and also to encourage transparency. Almost all of them have their own website and electronic document management systems where planning applications can be viewed and commented upon, along with local planning policies and a wide range of other relevant sources. Provided that architectural drawings and other supporting documents are in electronic form then planning applications should ideally be submitted on-line, either via the LPA's website or via the UK-wide "planning portal" website which provides a nationwide clearing house on planning information and facilities.
LPAs are under constant pressure to improve the speed, efficiency and quality of decision making. Applicants are usually advised to engage in discussion with the LPA before finalizing any planning application in order to research the relevant planning policies and other local issues. LPAs vary in their attitude to pre-application discussion but the advantage is to front load the process, and reduce the formal planning application to a “rubber stamp” conducted within the public gaze of work undertaken before submission of the application. In the past developers often submitted a planning application as the start of what was expected to be a lengthy process of negotiation with the LPA. Attitudes have now changed and few LPAs will agree to accept significantly amended proposals after submission of the application since this would require them to re-start public consultations and so delay their decision. Along with the requirement to prepare a well written and well reasoned Design and Access Statement before applying for planning permission, this puts the onus increasingly on the applicant to get their proposal right first time.
About half a million planning applications are submitted throughout the UK each year. Of those around 60% relate to “householder applications” – that is for extensions or alterations to an individual’s house. A much larger number of householder proposals are classed as permitted development and do not require a planning application to be made. Only about 30% of householder planning applications are significantly altered before being granted, or are actually refused permission as unacceptable. This raises the issue of whether the time of LPAs is being well spent when such types of minor development could be codified and either excluded from planning control altogether, or subject to a much simpler regime of control. Among other things this would free resources for more important work in implementing local planning policies which would be of wider public benefit. The UK Government is preparing new legislation along these lines.
See also
- Town and country planning in the United KingdomTown and country planning in the United KingdomTown and Country Planning is the land use planning system governments use to balance economic development and environmental quality. Each country of the United Kingdom has its own planning system that is responsible for town and country planning devolved to the Northern Ireland Assembly, the...
- Development Management (Planning)Development Management (Planning)Development Management is the name given to the element of Scotland's system of Town and Country Planning, through which national government, local government and national park authorities regulate land-use and development....