How the planning system works

For those coming into first contact with the planning system it might seem complicated and confusing but an outline here of the basic principles governing the system should help to overcome those feelings.

The starting point is that any development or change of use in land that falls within the definitions of such under-planning legislation is “plan led”. In other words, prior to the development being permitted the regulatory authorities need to put in place clear policy parameters to identify where the development is to occur and the types of development that can be carried out within those identified areas be it commercial, industrial, residential or otherwise. Having those parameters in place gives a measure of certainty to those who wish to invest in or carry out development and helps to remove political or subjective views from the equation. As a necessary part of this process, consultation with communities living adjacent to or within the areas to be identified is a precondition so that future development is not perceived by those local communities as being imposed from above.

Arising out of the creation of planning policy for an identified area, the legislation requires that for certain specified developments or changes of use the applicants should go through a formal process to obtain permission from the relevant local planning authority (the “LPA”) which will allow an assessment by planning officers of the acceptability of the proposal tested against policy as well as consultation with local residents, other designated authorities and relevant utility undertakers (eg transport, power, waste authorities) prior to that permission being given. It is of course impractical to require that all proposed developments or changes of use go through this formal process. For smaller developments therefore (e.g. adding an extension to a house or minor structural changes or a change of use similar to that currently existing) there is a category known as “Permitted Development”. Essentially this allows the house-owner/developer to go ahead with the construction or change of use under an automatic or deemed permission as long as they do so within specified rules. The default position then is that any activity that does not fall within the “Permitted Development” categories will require a formal application to be made to the LPA for permission to proceed. As part of the current Government’s effort to speed up the planning process and increase the availability of homes, the boundaries of permitted development are being extended in a number of areas an example being easier change of use of office buildings to housing.

Where a planning application to the LPA is needed, completion of a standard application form by the applicant to cover the proposed type of development or change of use commences the process. Before, however, submitting that form there is with most LPAs an opportunity to have pre-application discussions between the applicant and planning officers to allow areas of uncertainty and/or technical matters to be clarified thus improving the prospects of a successful application. Once then the form is submitted, a case officer will be designated to process the application through the various assessment and consultation steps. It may be that if the application falls under certain criteria that it will be referred to the LPA’s Planning Committee for a decision. Otherwise, it will be dealt with by the planning officers under delegated powers. Having gone through all the required steps, there will come a point where a decision on the application for either approval or refusal will be made through issue of a written Decision Notice.

Where the application is approved, specific requirements and restrictions will be attached as a list of conditions to the permission which will contribute towards its orderly implementation. This list of conditions would depend on what is needed specifically for that development and would be agreed between the planning case officer and the applicant before the permission is given. So that these do not unnecessarily obstruct smooth progress of the development work they are required to be very precisely drafted.

Since new developments or changes of use can place increased pressure on existing services/infrastructure or lead to a need for new services/infrastructure there is built into the planning application process methods of mitigating the effect of such impacts and also in providing for Affordable Housing if the development is for example a housing scheme. Historically, these were secured under a legal agreement (a S106 Agreement) entered into between the landowner and the LPA. Negotiating such agreements can, however, take some time and with the aim of speeding up the process, the Community Infrastructure Levy (“CIL”) charging system has recently been put in place under which financial charges are calculated at the time of the planning application according to the type and size of the development these charges to be paid when the development is commenced. Affordable Housing provision and specific infrastructure needs arising out of the development not covered by CIL continue, however, to be secured through S106 Agreements.

The above is a brief overview of how the system works but as with many things to do with the law “the devil is in the detail” so in order to successfully navigate a way through the deeper channels the services of a specialist planning lawyer can be of great help.

Kevin Breslin | Planning & Estates Lawyer