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PGS: A guide to local planning

 

1. Introduction

The Job Description for a Planning Field Officer (PFO) is in the Planning Folder, giving practical guidance. This document gives background information on Legislation and Local Plans, and types of application. It also gives further notes and suggestions on procedures in responding to applications on behalf of the Society. Comments on this Guide are welcomed, and should be sent to the Planning Team secretary.

Planning applications should be assessed for their effect on the quality of life for those who live in the Chilterns. Small scale developments which may affect few people may be ignored at your discretion.

Matters should be discussed with the relevant Society Advisers or Groups, where their interest is indicated.

A Guide to the Planning system for non-professionals is available at planningportal.gov.uk/…/planningsystem/

 

2. Legislation

2.1 Acts of Parliament, Orders and Regulations (All can be found on the Planning Portal)

General control of land use or development was introduced in 1947, creating the modern system of planning. The main principles are now contained in:

  1. Town & Country Planning Act 1990, subsequently amended by the Planning & Compensation Act 1991.
  2. Planning (Listed Buildings & Conservation Areas) Act 1990 consolidation act for buildings and areas of special architectural or historic interest.
  3. Town & Country Planning (Use Classes) Order 1987 – specifies classes of development for which planning permission is required for changes of use eg shop to restaurant or house to flats and for which no permission is required eg bank to shop and industrial unit to office use.
  4. Town & Country Planning (Control of Advertising) Regulations 1992
  5. Planning and Compulsory Purchase Act 2004 – provisions for the reform and speeding up of the plans system.
  6. Town & Country Planning (General Permitted Development) Order 1995 –development for which no planning application is required.
  7. Planning Act 2008 – Established the Infrastructure Planning Commission and introduces the Community Infrastructure Levy.
  8. Local Democracy, Economic Development and Construction Act 2009 –Greater opportunities for community and individual involvement in local decision making.
  9. Localism Act 2011 – planning, CIL and nationally significant infrastructure projects.

The 1990 Act s.55 defines development to include building, change of use, engineering, mining or other operations. Demolition was eventually considered as a form of development by the 1991 Act.

There are, of course, several other Acts which can be relevant to Planning, eg., Highways Act 1980, Wildlife & Countryside Act 1981, Transport & Works Act 1992, Environment Act 1995, and also various Acts in connection with public utilities, eg., Telecommunications, Electricity, Water etc.

2.2 Planning Guidance: National Planning Policy Framework – 2012

gov.uk/…/2116950.pdf
The Framework sets out planning policies for England and how they are expected to be applied. It provides guidance for local planning authorities and decision-takers, both in drawing up plans and making decisions about planning applications. It replaces all the former Planning Policy Guidance Statements.

2.3 Local Plans, Minerals & Waste Plans, Transport Plans

Local Plans are produced by District Councils. They are also known as a Local Development Framework. They need to conform to the National Planning Policy Framework. They include a number of documents called Development Plan Documents or DPDs. These include Core Strategies and Site Specific allocations and policies as well as the Proposal Map. These documents are prepared by planning policy teams and regularly go out to consultation. It is vital that PFO’s respond to consultations on these documents and influence them where necessary to reflect Chiltern Society objectives. You should also familiarise yourself on their current status. Planning applications are determined on the basis of these policies, so if the policy is not right the decision on a development is unlikely to be right either. Supplementary documents are also produced for example The Chilterns Building Design Guide. They are not subject to examination as are DPD’s but are subject to consultation.

The County Council is the local planning authority for Minerals, Waste, and major Transport matters and will produce Plans for Minerals, Waste and Transport to guide development management.

Matters which involve Minerals, Waste or Transport can be discussed with the appropriate Society advisers.

2.4 Development Control/Management

By law, any development requires planning permission from the Local Planning Authority, unless specifically excluded, (see Permitted Development below), for which the developer must make a Planning Application. The applicant does not have to be the owner of the land.

2.5 Types of application

These include:

  1. Full detailed application.
  2. Outline application: to test the principle of a development before detailed design work is started.
  3. 'Reserved matters' applications: made to obtain approval of detailed conditions following outline permission.
  4. Application for change to or removal of conditions.
  5. Application for temporary permission.
  6. Multiple applications ('twin tracking') - you need to make representations on both applications.
  7. Repeat applications: with different application reference numbers. Each application is considered anew.
  8. Enforcement – requires unauthorised development to submit a planning application to regularise development in the form of a retrospective application (development without permission in itself is not a criminal offence except to listed buildings, protected trees, etc., but refusal will entail demolition). Enforcement can also be used to issue a STOP notice and prosecute where necessary.
  9. Change of use eg agricultural to residential use of land, or public to private use of a house.

An application for renewal of an expired permission is usually granted unless circumstances (eg., Local Plan policies) have changed.

A Local Planning Authority may make a planning application to itself where it owns the land, despite the obvious danger of conflict of interest.

2.6 Conservation Areas, Trees, Hedgerows

Applications for development in Conservation Areas are subject to more stringent conditions. Their Permitted Development rights are restricted, and there are stricter controls on demolition and on extension of dwellings.

ree Preservation Orders (TPO): Cultivated fruit trees in orchards cannot be subject to TPO! TPO trees usually have to provide 'amenity', i.e. benefit to the public from being seen from a public highway (any right-of-way) or other land to which public has access, unless the trees in question are really special specimens.

Hedgerows are not generally protected (unless by Planning Conditions), but proposed removal of one over 30 years old (other than on domestic property) requires prior notification under the 1997 Regulations, in which case the LPA must consult the Parish Council. Removal of hedges having particular historical significance, or which include greater than a certain number of species and/or are adjacent to a right-of-way, may be refused.

2.7 Environmental Impact Statement (ES)

The requirement for an ES derives from an EU Directive.

Schedule 1 (mandatory) projects' include large developments like power stations (above a certain size), large airports, oil refineries, radioactive installations. chemical works, disposal of 'special waste', motorways.

'Schedule 2 projects' are other projects giving rise to 'significant environmental effects'. Here it is the LPA which decides whether an ES is needed: its decision is binding unless overridden by the Secretary of State (SoS). Third parties may bring a proposal to the SoS's attention if they think an ES is needed and the LPA doesn't.

When it is used:

 

3 How the LPA works

3.1 Planning decisions

These are recommended by the Council planning officers for consideration by a Planning or Development Control Committee, who then approve or reject the recommendation. In routine cases the decision may be delegated to the chief planning officers. The decision of the Committee is usually automatically accepted by the full Council.

The LPA's decision (often called determination) can be one of three:

If no decision is given within the time limit then the application is 'non-determined', (see 4.2).

It should be noted that, by law, there is always a presumption in favour of development.

Central Government sets a target for LPA's to determine the majority of planning applications within 8 weeks, or within 16 weeks if an Environmental Statement is required. However, this is not mandatory.

Once granted, permission cannot be revoked except:

  1. if it is out-of-time,
  2. when overridden by another permission which would conflict with the original,
  3. by agreement,
  4. by the LPA paying compensation.

An applicant can appeal against refusal, or against 'non-determination' when a decision has not been made within 8 weeks. This then takes the decision out of the hands of the LPA. Determination is then by the SoS or a Planning Inspector on his behalf, following a Public Inquiry, an Informal Hearing or Written Representations Procedure.

3.2 Material considerations

Section 54a of the Town & Country Planning Act 1990 states that:

In making any determination under the Planning Acts, the determination shall be made in accordance with the Local Plan unless Material Considerations indicate otherwise. These and the Local Plan therefore constitute the 'planning matters'.

Material Considerations may include the NPPF, The Local Plan, Development Briefs or Supplementary Planning Documents that may have been prepared by the LPA for particular sites, areas or topics. The granting or refusal of permission, except in some obvious cases, is always a matter of balance between competing benefits and disadvantages

3.3 Conditions and Obligations

Conditions may be imposed on a planning application by the LPA. They should not restrict a pre-existing right or use. Conditions are imposed on the Permission, and cannot bind a third party; they do, however 'run with the property' and as such do bind successor owners and occupiers. Conditions cannot include financial considerations.

A Condition attached to an outline permission will reserve matters for later approval, commonly including exact siting, design, external appearance, access details, landscaping, external lighting, drainage. In these cases, further 'reserved matters' applications have to be made and will be processed in the normal way. However, a Condition can be imposed which says, in effect, that something is not permitted 'without the written permission of the LPA': this is not strictly a 'reserved matter' and a further formal application is not necessary, only a letter of request.

Conditions are just as important as the application itself. When making representations, you can propose conditions, whether supporting or objecting in principle (this can be done '\without prejudice' to an objection). You can support an application subject to conditions being attached, stating that otherwise you object.

It is most important that conditions are applied to outline permissions, as conditions cannot be introduced later unless they are specific to the 'reserved matters'.

Examples of conditions that may be requested or imposed:

Obligations can be made under Section 106 of the 1990 Act, and are contractual agreements which can extend to third parties. They are a local Land Charge, binding on successors in title. Obligations can be offered unilaterally by the applicant, and this can be taken into account at appeal. They should relate to the development, eg for infrastructure improvements made necessary by the development. Examples can be affordable housing, highway improvements or financial contributions for community benefit i.e. school places, libraries etc

The Community Infrastructure Levy (CIL) is a new charge that will allow Councils to raise funds from new developments for use on infrastructure to support growth. The money collected from the levy will be used to support development by funding infrastructure that the Council, local community and neighbourhoods need. For example:

The levy will apply to most new buildings. Charges will be based on the size, type and location of the new development and will be set out in a charging schedule.

3.4 Permitted Development (PD)

The General Development Order 1995 defined classes of development, which would not require permission (but might need Building Regulation approval). These include:

There are tighter restrictions on some of the above PD rights in National Parks, AONB's, Conservation Areas and within the curtilage of listed buildings.

'Article 4 Directions', initiated by the LPA, can withdraw PD rights, eg in conservation areas or other special cases, and the LPA has the right to prior approval of siting and design for some things that would otherwise be PD:

  1. Agricultural buildings and operations (PD up to 465 sq m every 2 years in most cases, depending on size of holding). Consult with the HWB Group.
  2. Telecom masts (PD up to 15m high + aerials) by 'code system operators'; mast sharing is encouraged. Refer to the Society Policy on this.

Otherwise, the LPA cannot intervene in PD, except by placing a condition on a planning permission.

Statutory Undertakers, such as Gas, Electricity, Water Utilities, have many PD rights, but in certain cases (eg a telecom mast or a replacement electricity line) the LPA has the right to consider whether there would be a significant environmental effect: if not agreed, the Utility must apply to the SoS.

Some things are not classed as development, including:

3.5 Public Notification

Within 3 working days of receiving a valid application, the LPA must make the details available in the Part 1 Register. These include the application form, drawings and any supporting information made as part of the application. When a decision is made it must be placed on the Part 2 Register. Both registers must be kept at the principal office of the LPA if possible, and be available for inspection at reasonable hours by the public.

The LPA must publish a weekly list of applications received, and notify Parish Councils in their areas. These lists may be seen on the councils website or in the local newspapers. Some PFO's receive the lists directly from the LPA. Major developments, (10 or more dwellings, or more than 1000 sq m floor space or with a site area more than 1 hectare) necessitate a newspaper notice, and a site notice or neighbour notification.

3.6 Evasion by Developers

Development may be started but not completed. This can be quite common, since to avoid the lapse of a permission has to be started (but not completed) within 5 years. A Completion Notice is available to the LPA but is rarely used.

Unauthorised development: the LPA has powers of enforcement. but will first usually try and persuade the offender to submit a retrospective application. Note that development without planning permission or in breach of condition becomes legal after 4 years for any building or engineering operation or for change-of-use to a dwelling, and after 10 years in any, other case. Unless the evasion is deliberate eg a recent case of an unauthorised house being hidden by straw bales.

 

4 Commenting on Planning Applications

4.1 Representing the Society

Planning Field Officers have delegated authority to comment on planning applications on behalf of the Society. Whether comments are made by letter, e-mail attachment, or submitted online, a phrase “These comments are submitted on behalf of the Chiltern Society” or suchlike should be included to make this clear. Names and addresses of respondents are made public, so using the Society’s office address rather than your home address is an option.

In order to represent the Society in this way, it follows that comments should be in line with Society policies. Under no circumstances should personal views be submitted in a way that might suggest they are those of the Society (for example on Society notepaper).

4.2 Reasons underlying an Objection or Expression of Support

To be effective, comments must be made on the basis of land-use policies, such as:

The following are not legitimate grounds for objection or support:

Note that the Local Development Framework is a material consideration. Be prepared to argue against a proposed development which is contrary to existing policy but not contrary to any emerging policy. In this case it can be argued that the proposal is 'premature', i.e. that the outcome of the planning policy process and a Public Examination should be awaited.

4.3 Periods for Objection and Decision

Comments on applications must be received by the LPA within 21 days of the site notice being posted, and within 14 days of the newspaper notice being published. Applications involving an Environmental Statement may have a longer response period.

The LPA should make a decision on the application after the notification period and within 8 weeks. If the LPA fails to do this, the applicant may appeal to the SoS against 'non-determination'.

4.4 Public Speaking at Committee

There is usually some system of hearing verbal objections at the relevant Committee meeting. Specific procedures vary between Local Authorities; but you may need to request this in the letter of objection or at a subsequent stage. There is seldom scope for communicating anything other than key messages – for example Dacorum Borough allow 3 minutes in total, to be shared by all the objectors!

 

5 Appeals and Public Inquiries

A Public Inquiry, Informal Hearing or Written Procedure can be triggered by:

A Public Inquiry can be triggered by:

There is a right of 'duly made' objectors to be heard. Objectors are given the opportunity to make their cases in greater detail than in the original objection. but 'you cannot introduce new issues not already referred to there -thus it is important to ensure that all relevant points are made in the first place. This written evidence has to be submitted at least 3 weeks before the Inquiry. Inquiry participants are entitled to receive a copy of all other parties' submissions (and they yours) but you may have to ask for them.

Make sure you have Authority for the representations you submit. (This can be questioned eg., at Public Inquiry).

Participants or their witnesses will be cross-examined and can themselves cross-examine. Objectors and supporters can, of course, send in written representations, which will be fully considered without their attending the Inquiry, but then there is no opportunity for cross-examination or to refute the other side's arguments.
There is usually a site visit, which, if 'accompanied', you should attend (you can be sure that the Applicant will!). This is not an opportunity to lobby, or to bring out new issues, but can be used to point things out to the Inspector.

Revised May 2013

 

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The Chiltern Society Planning Group monitors all parishes in the Chilterns.