An introduction to planning law

The UK has one of the most complex planning systems in the world. This has evolved through the need to balance the competing interests of enabling development, innovation and growth, whilst protecting the UK’s unique heritage and different community identities within limited appropriate space.

To make the system work, a legal framework controls all aspects of planning. The need for permission to carry out development, the regulation of the process for securing consents, and the powers in place to enforce against unlawful works or uses are all set out within planning legislation, guidance and case law.

We explore below some of the key aspects of the planning system for England and Wales and demonstrate how planning experts can assist your development journey.

The need for planning permission

At the heart of the planning system within England and Wales is the Town and Country Planning Act 1990 (TCPA). This sets out the key principles of planning law on which the entire system is based.

Fundamental to planning is the TCPA’s requirement to have planning permission for ‘development’. Development has a wide definition, and covers the carrying out of building, engineering, mining or other operations in, on, over or under land. It also includes the making of any material change in the use of any buildings or other land.

So, even if you own the relevant land or have rights over it, you will need planning permission if you want to carry out these types of works or carry out a material change of use.

Applying for planning permission

The local planning authority (LPA) is primarily responsible for deciding whether to grant planning permission. The LPA is usually part of the local council for the areas where the proposed development site is located.

Anyone can submit a planning application to the LPA asking for permission for their proposed works. On receipt of an application, the LPA must consult local residents and statutory consultees (for example, organisations responsible for highways, heritage or environmental matters) on the proposed works. The LPA will then make a decision on whether to grant planning permission based on local and national planning policies and ‘other material considerations’.

Planning policies govern the way development is planned for, managed and controlled. National planning policies are set by the UK Government. They cover the economic, social and environmental aspects of development. Those national policies must then also be taken into account when LPAs prepare their own local planning policies.

‘Other material considerations’ are not fixed and include all matters the LPA considers relevant. Such considerations can include impacts on neighbours (such as noise, overlooking or loss of light), traffic or transport impacts and design, appearance and materials proposed.

The information and documentation submitted with the planning application is essential to explain the development proposals and justify why planning permission should be granted. The required application documents depend on the size and nature of the proposals and are usually prepared by specialist planning consultants and other experts.

As there are strict requirements for what should be included with a planning application, it is best practice for lawyers to review the application materials to ensure these are legally compliant, particularly for large-scale or complex development proposals.

Permitted development rights

For certain types of smaller/less controversial type works, development can be carried out pursuant to a form of automatically granted planning permission called ‘permitted development rights’.

There are, however, several additional requirements that must be followed before carrying out development pursuant to certain types of permitted development rights.

Planning agreements

The LPA may consider that a proposed development would only be acceptable if its potential impacts are mitigated. For example, highway works may be needed to increase capacity or configuration of local roads due to increased traffic volumes caused by the development, or more residential development may only be acceptable if a contribution is made towards the delivery of affordable housing.

Landowners can enter into planning agreements under section 106 of the TCPA (known as S106 agreements) to agree to comply with planning obligations which mitigate those potential impacts. These can be obligations to do or not do certain actions, or to make financial contributions for specific purposes.

Planning agreements bind the relevant land, rather than the specific party that enters into it. This means that successors in title are automatically bound to comply with the agreement’s obligations.

Local planning policies can set out when obligations are expected from particular types of development, but they are otherwise negotiable and flexible to address the specific site and scheme considerations. Planning agreements accordingly vary in their size and complexity and are commonly negotiated by planning lawyers.

Community Infrastructure Levy (CIL)

CIL is a form of charge which LPAs can impose on new development in their area. If the LPA has put in place a CIL charging schedule, new development of 100 square metres or more, or which creates new dwellings, is potentially liable to a CIL charge.

The charging schedule will set out the specific charge which applies for different types of development. The payment is usually required to be paid when the development begins, and formal processes and notification requirements need to be complied with before starting the development to avoid penalties or fines.

Exemptions and reliefs can apply, for example charitable and social housing relief. There are also opportunities to reduce CIL liability by taking into account the position before development begins.

For example, the total amount of CIL liability can be reduced by taking into account the floorspace within existing buildings which is to be demolished or retained which has been in lawful continuous use for six months in the past three years.

Planning appeals

If the LPA refuse a planning application, or do not determine it within the statutory determination period, applicants can appeal to the Secretary of State (via the Planning Inspectorate). The appeal will usually be determined by a Planning Inspector, although the Secretary of State has the power to make the decision themselves.

Appeals can be in the form of written representations, or can require a hearing or public inquiry, depending on the size and nature of the proposed scheme.

Appeals are determined on the same basis as the original application, and the Inspector or Secretary of State will form their own view on the merits of the application regardless of the LPA’s reasons for refusing permission. Planning consultants and planning lawyers can help make your development scheme ‘appeal-ready’ from the outset and assist in navigating through the planning appeal process.

Judicial review

If planning permission is granted by the LPA, it is subject to a six-week period within which third parties can ask the courts to consider whether the grant of permission was unlawful. In broad terms, if the LPA acted unlawfully in granting the permission, the process was not procedurally fair, or the correct procedure was not followed, the courts have the power to quash the planning permission.

Planning lawyers can explore whether there are potential grounds for judicial review against a scheme to which you object and help navigate the court process for seeking permission for judicial review or defending against such action.

A legal review of planning applications before submission can also minimise the extent of issues with a scheme or the application documents which might give rise to grounds for judicial review.

Enforcement

LPAs have the power to take enforcement action against breaches of planning control. These breaches include carrying out development without the required planning permission or failing to comply with controls or limitations within a planning permission.

LPAs have discretion as to whether to take enforcement action, but it is an important tool to prevent unacceptable impacts on the amenity of areas, to protect the decision-making regime and maintain public confidence in the planning process.

If the LPA enforces against a breach of planning control, there are a range of actions available for them to take. These include:

• Issuing an enforcement notice requiring steps to be taken to rectify the breach within a specified timeframe.
• Issuing a stop notice or temporary stop notice prohibiting specified activities from taking place.
• Issuing a breach of condition notice.
• Confiscation orders.

There are time limits for the LPA to take enforcement action, after which the breach will be immune from such enforcement action. There are also various defences available in response to enforcement action.

Comment

The areas explored in this article are only a summary of the most basic aspects of planning law. Due to the inter-relationship between planning and local and national politics, planning law is constantly under review and subject to significant change.

Whilst the underlying principle behind changes to the system is often to seek to make the overall process faster and more efficient, such changes can lead to more complexity and uncertainty (with CIL being a particularly pertinent example).

Further, planning issues arise in various other legal areas, from property transactions and contracts conditional on planning, to securing financing for development projects, to insurance matters such as property disputes, local authority liability and professional negligence.

Despite its complexity, if the system is navigated correctly, securing planning permission can add significant value to your land or unlock development opportunities. Carrying out and operating development lawfully can also protect against potential enforcement action or make purchasing and selling land or securing financing for development projects more straightforward.

Related item: This is not just a planning refusal, this is an M&S planning refusal