It’s difficult sometimes to understand how things, systems work and importantly why they work the way the do (or don’t!).
Planning and development is one of those things, particularly if you find yourself trying to achieve a particular outcome or if you are the person or community affected by poor planning and development, or poor and inadequate monitoring and enforcement of planning conditions. Or for that matter, a community trying to write your Neighbourhood Plan.
I thought it might be useful to write down, in the simplest way possible, what I’ve been trying to understand so that it might help others get their heads round it too. I’ve only just begun to crack the surface of the ‘how’; I’m nowhere near understanding the ‘why’. I also have to keep reminding myself that this isn’t my field, my career or how I want to spend my life. I do it because I recognise when things are not right, when things are harmful, and I can’t sit idly by in such circumstances.
To start I thought it would be good to understand the meaning and purpose of ‘Development’.
The meaning of ‘Development’ can be found in The Town & Country Planning Act 1990. Not asleep yet? Good! If you didn’t click on the link, here’s the definition:
Development’ means the carrying out of 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.
Uses of land and buildings are classified into Use Classes and any change from one Use Class to another is a ‘material change of use’ amounting to development. 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. (Some changes between use classes are ‘permitted development’ and do not require planning permission.)
Trees and woodland that are of particular importance to local amenity or ecology may be made the subject of a tree preservation order. 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 Local Planning Authority 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 with conditions attached 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.
Design and Access Statement
Planning applications for most major developments must be accompanied by a Design and Access Statement.
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.
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 applicant or developer concerned.
But what is the purpose of development?
The purpose is much harder to find in legal terms. The closest I could get was the ‘goal of development’ – “sustainable economic development and a better environment”. I find this wanting. But for the purposes of this post it will have to do until I or someone else finds something better.
So then what is taken into account when development is being judged as appropriate and suitable to achieve ‘sustainable economic development and a better environment’? How do those who decide know whether a planning application will achieve this goal?
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 judge-made law arising out of numerous cases decided by British courts. Any local planning policy or Government policy is clearly material, as are issues of public safety or amenity. An important point is that planning is concerned only with the broad public interest, rather than to protect any one or more person’s private (including commercial) 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.
In deciding a planning application Local Planning Authorities have a duty to have regard to ALL of the relevant and material planning considerations. They cannot choose to simply ignore a relevant issue. However 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 Local Planning Authority 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).
Simples, yes? Err, no.