Town and Country Planning

© James Morrison 2007

Town and Country Planning

Background

Compared to public health, education and social services, the role of local government in regulating and controlling land development – the area known as town and country planning – has emerged relatively recently. There are three basic principles underpinning the need for such planning:

• To ensure that development is correctly placed in terms of the infrastructure needed to support it
• To ensure its impact on the environment is sustainable
• To ensure it is correctly located on suitable land unlikely to be affected by factors such as flooding

To this end, there is a single Town and Country Planning Code designed to control all development in England and Wales, which arose through six principle Acts:

• The Town and Country Planning Act 1947
• Four separate Acts passed in 1990
• The Planning and Compensation Act 1991

There are two essential forms of town and country planning:

• Forward planning – i.e. each authority draws up a Development Plan designed to map out its overall planning strategy for the future

• Development control – Where authorities respond to individual planning applications and decide whether to approve or reject proposed material changes to existing land or buildings, or to carry out physical development like construction or demolition

In addition, the Government, in the form of the relevant Secretary of State (currently the Deputy Prime Minister, John Prescott) fulfils the following roles in relation to planning regulations:

• Lays down guidance on how local planning authorities should carry out their responsibilities in the form of periodic Planning Policy Guidance Notes (PPGs). These are supplemented by more specific Regional Planning Guidance (RPGs) produced by the relevant Government Office for the Regions
• Sets broad “rules” about what types of land are suitable for development. (While recent Tory governments promoted out-of-town development and were more willing to countenance some building on greenfield or greenbelt sites -  i.e. areas of, as yet undeveloped, land - New Labour has put more emphasis on rejuvenating brownfield sites – i.e. those, often in inner-city areas, that are currently derelict but have previously been built on)
• Acts as arbiter in disputes between individuals and authorities
• “Calls in” controversial planning applications to give judgment

Development Plans

Until recently, there were three types of long-term development plan:

• Structure Plans – produced by county councils (or joint strategic planning authorities – i.e. made up of representatives of both shire borough/district councils and counties) in two-tier areas
• Unitary Plans – cover metropolitan and London boroughs, and are gradually appearing in the new unitary authority areas
• Local Plans – usually prepared by shire borough/district councils in two-tier areas (except for Minerals and Waste Local Plans, which are produced by strategic planning authorities)

Recent changes to the structure of local government in London and the other metropolitan areas has meant similar changes in terms of the precise bodies with responsibility for coordinating planning policy, some of which are transitional:

• In London borough councils, the City of London and metropolitan borough councils (i.e. subsets of the overall Greater London Authority area) Unitary Development Plans combine the features of Structure and Local Plans in a single document
• In counties where there is a mixture of the old-style two-tier (i.e. district/county) and unitary structure, county-wide development planning is dealt with by joint strategic planning authorities
• Metropolitan boroughs have taken over all planning responsibility in their areas following the abolition of the metropolitan counties
• When the GLC was abolished, a Joint Planning Committee for London was set up as a consultative body – it’s role has now been taken over by the GLA’s London-wide strategic planning authority

These three main categories of plan are in the process of being replaced by more overarching 20-year regional spatial strategies (RSSs). The role of regional planning body charged with drawing up these strategies was initially taken by regional assemblies (the, as yet un-elected, successors to regional development agencies set up by Labour to act as precursors to fully elected bodies like that rejected in November 2004 in the North East). These assemblies are in the process of being abolished, though, and as of April 2010 their planning responsibilities will revert to the pre-existing regional development agencies (RDAs), pending further reform.

While individual local authorities are constrained from deviating too far from the RSSs governing their areas, they are still expected to draw up equivalents to the structure, local and unitary plans of old. These are known as local development documents (LDDs). LDDs are part of wider local development schemes: broad statements of intent by authorities about their long-term planning strategies, open to public inspection, which dictate the terms within which specific plans are proposed.

Structure Plans

As some councils continue to produce structure, local and unitary plans as a transitional arrangement, it is worth being aware of the process by which these are drawn up and agreed on. The main features of structure plans are as follows:

• They are 15-year plans outlining how the county council/joint strategic authority thinks its whole area should be allowed to develop over that period
• They wrestle with tensions over the balance between development on greenfield and brownfield sites – developers normally argue for the former, while residents’ groups favour the latter
• Outline possible related employment initiatives and strategies to overcome potential transport and communication problems
• Set out policies for the conservation of the natural beauty and amenity of land, traffic management and the preservation of the physical environment
• Consult on the preparation of a new Structure Plan or any amendments to an existing one, in the following way:

(a)   Initiate a consultation draft stage (i.e. informally consult the public and the local shire borough/district councils)

(b)   Hold a deposit draft stage (i.e. formally publishing the draft proposals and putting them up for public inspection in public libraries and council offices. Copies will also be for sale)

(c)   Following comments and objections, appoint an inspector nominated by the Secretary of State from the Planning Inspectorate to hold an Examination in Public (EIP)

(d)   Following an informal local inquiry, during which objectors and supporters may be represented, a report is produced by the inspector and passed to the county – suggesting potential modifications

(e)   County decides whether to accept these conclusions and publishes its own report – if it refuses to heed his advice, it may face a further EIP

(f)    Final draft of Structure Plan is formally adopted by the county

(g)   The Secretary of State can “call in” plans at any time, but failing that the only way it can be altered following its final publication is if it is taken to the High Court on a point of law

Local Plans

Since the passage of the 1991 Act – which formally required local authorities to produce a single Local Plan - these have been the means by which “flesh is put on the bones of the Structure Plan”. Despite this, we have yet to reach a situation where the whole of the country has a Local Plan in place – a DTLR survey in December 1999 showed a fifth of councils still hadn’t adopted one.

            One of the main reasons for the sluggishness with which authorities have adopted the Local Plan is the complexity of the process – something New Labour undertook to speed up in a 2001 Green Paper. Though Local Plans used to come after Structure Plans, it is now commonplace for them to be prepared in advance, on the basis that certain areas are broadly designated as being suitable for development. The consultation and preparation stages for a Local Plan are broadly the same as for a Structure Plan, but it is, if anything, even more detailed:

(a)   Informal consultation with local societies, interest groups and residents through the media and/or specially produced newsletters

(b)  Authority must advertise details of the draft Local Plan and deliver a special leaflet outlining these details to every local household

(c)   Hold a series of local meetings and exhibitions at which officers and councillors make presentations on the draft plan

(d)  The authority preparing the plan must also consult formally with the county council and other interested bodies at that level

(e)   At the more formal stage of the process, a period is set aside for objection/support/comment, followed by a Local Plan Inquiry where there is any cause for dispute. (Should this dispute continue after this stage, the county council can invite the Secretary of State to act as “referee”)

(f)   Following the inquiry inspector’s conclusions, proposed modifications to the original plan are published

(g)   Another inquiry may then be necessary to consider objections to any proposed modifications

(h)  Publication of the final draft of the plan, and objectors are among the first to be informed of its detail

(i)    The final stage of the process is the deposit stage – i.e. the publication of the final version of the plan. Since the introduction of new regulations in 2000 designed to speed the process up, this has been split into two stages:

• Any objections made to the original finalised draft of the plan leads the council to negotiate on these concerns and publish a second draft
• Following this, the only objections that can now be heard by the inquiry inspector must relate to the revisions (i.e. not the original draft version of the document). The inspector only returns to any original objections if the council has not already dealt with those

Unitary Development Plans

These have replaced Structure Plans in London and the metropolitan county areas and will soon do so in the new Welsh unitary authority areas and, potentially, all other unitary authority areas. At a level above this, the Government plans in the long run to introduce a new tier of planning authority to oversee these issues on a regional basis.

Development Control

Occasionally, the Secretary of State will grant sweeping permitted development rights, which, in effect, allow local authorities to “fast-track” applications for planning consent for specified changes of use or physical development without having to individually “pass” them all at a planning meeting. This can happen in the following ways:

• Under the Town and Country Planning (Use Classes) Order 1987, various kinds of land and property are split into “classes”, and a material change of use within the same class will normally not need planning consent (an exception is when a change of use is proposed between one “subclass” and another in the context of types of shop – all of which are subsets of class A). Change in use from one class to another usually does require planning consent

• Under the Town and Country Planning (General Permitted Development) Order 1995, a number of different kinds of development are outlined that do not require formal consent. An extension of house can go ahead without needing planning consent, for example - provided it complies with conditions in the Order. However, some local authorities have been known to pass an Article 4 Direction removing some of these permitted development rights (this has often happened in the cases of garden sheds!)

• Planning consent is not usually required to lop or cut down a tree – provided it isn’t the subject of a tree preservation order or in a conservation order. If the former is violated, the local authority has the power to instigate criminal proceedings against the culprit

Planning Permission

The general process by which individuals or organisations apply for planning permission to construct or alter buildings is as follows:

• Official forms must be obtained from the authority responsible for development control (i.e. district councils in two-tier areas, unitary authorities or metropolitan/London borough councils)
• The application appears in the register of applicants and immediate neighbours should be immediately notified
• Certain kinds of application must be advertised in the local press to enable people who may be affected by it to make representations
• The Secretary of State may “call in” controversial planning applications for a decision – normally when a bid raises issues of national or regional importance; arouses more than local opposition or raises “unusual issues”; or it is felt that it is “unreasonable” to expect the local planning authority to adjudicate on it
• All applications must be dealt with within two months, unless an extension is granted (which often happens in the case of complex applications, like those for shopping centres). Applicants who haven’t heard definitively by the end of that period may appeal to the Secretary of State on the grounds of “non-determination”
• Complex applications are normally dealt with by the council’s planning committee – and only major ones go to the full council
• Parish and/or community councils will also be fully consulted

Planning authorities have three options when making their decisions on a planning bid:

• To give unconditional permission – i.e. to simply approve it
• To give conditional permission – approval subject to provisos
• To refuse consent – to turn an application down outright

In addition, there are two broad levels at which planning consent may be granted:

• Outline planning permission– i.e. permission granted in principle for developing a derelict site (enables developers to test the water)
• Detailed planning permission (often for reserved matters – i.e. issues not originally decided upon when the outline permission was given) – approval of the specific detail of an application (i.e. how many houses, what size, etc)

Other strictures govern the planning process as follows:

• Whenever consent is granted, it is normally on the proviso that actual development commences within five years of the decision
• If consent is refused, or if only conditional consent is granted, the applicant has six months to lodge an appeal – free of charge – with the Secretary of State (appeals dealt with by an inspector, or with ultimate decision taken by SoS on basis of his written report)
• The Secretary of State’s decision may be challenged in the High Court by judicial review on the basis of the Human Rights Act. In such cases, both the appellant or local authority can apply to the inspector for the other side to pay its costs

Authorities now have the power to decline to consider planning applications on the grounds that the Secretary of State has refused a similar one, on appeal, within the preceding two years. 

             In addition, there are various ways of enforcing planning controls, and the terms of any consent given, as well as monitoring to ensure that developments granted are actually lawful:

• Any person who wants to find out whether an existing or proposed use of land is lawful may apply to the local planning authority for a Certificate of Lawfulness of Existing Use or Development (CLEUD) or a Certificate of Lawfulness of Proposed Use of Development (CLEPUD)
• If no planning application has been made for a development or the terms of a consent or refusal have been breached, an enforcement notice will usually be served on those responsible. This will describe the nature of the breach and spell out the steps needed to be taken within a specified period of time to remedy it
• If the contravention is in the process of being committed the planning authority can serve a stop notice on those responsible
• The individual or company concerned may appeal to the Secretary of State against an enforcement or stop notice – this will normally prompt a local inquiry. If the notice served is ultimately quashed, the authority may be liable for compensating the appellant
• However, if the appeal fails, the authority may then take further action – including prosecuting the individual for a criminal offence (the maximum fine in a magistrates court is £20,000). An alternative is for the authority to physically move in an remove the contravening development. If obstructed, it can again prosecute

Public Inquiries

In addition to the types of inquiry mentioned above, public inquiries are often held to determine controversies surrounding road building. The procedure surrounding them is as follows:

• They must be publicised in advance – and invitations must be made to any formal objectors to the plan; anyone with a legal interest in the site; and the local parish/community council
• At their discretion, the independent inspectors appointed by the Secretary of State to chair inquiries may allow individuals other than those with a right to be heard to speak at their hearings
• Inspectors will listen to evidence for and against and make site visits to the proposed development area in question
• Inquiries that are likely to last a long time can be shortened through the appointment of more than one inspector
• In many cases, the final judgment is made by the inspector him or herself. However, more complex cases – like that of the current application by the British Airports Authority to develop Stansted Airport and the controversy over the proposed new Brighton and Hove Albion football stadium at Falmer – the final decision will rest with the Secretary of State

“Planning Gain”

The concept of planning gain is one which emerged in the 1980s and Nineties in response to the emergence of new market conditions that have provided an added inducement to developers to invest in improving the infrastructure of the areas in which they are building. The 1960s approach to development led to a convention that, while developers would undertake to provide the necessary infrastructure (e.g. roads and community areas) within the bounds of their development site, related off-site infrastructure - i.e. the roads and access points into the development from outside it - would be paid for by the local planning authority.

            In more recent years, however, increase in house prices have acted as an incentive for developers (particularly those planning to build homes, rather than business developments) to help provide money for the cost of off-site as well as on-site infrastructure. A “promise” of this kind of investment is seen by critics of the system as being tantamount to a means by which developers can “blackmail” councils into approving their developments.

            The use of a planning gain incentive was legitimised formally with the passage of the Planning and Compensation Act 1991, which gave developers a unilateral right to volunteer to enter into “planning obligations” (usually referred to as Section 106 Agreements). One reason why this process remains controversial is that it is often used as leverage in situations when there is likely to be a planning appeal.

Building Regulations

Even when formal planning consent is not required for a new-build or an adaptation to an existing building, building regulations invariably will be. The reason for such regulations is primarily to ensure that the buildings concerned are structurally sound from a point of view of safety, health and design – and an inspector (which can now be a private one, provided by the NHBC, rather than one from the council itself) will visit the property during work to ensure it meets the necessary regulations.

            Other than in inner London, which has its own system, the standard of regulations is the same across the country. They derive from The Public Health Act 1961 – which stopped local authorities being able to make their own building by-laws and returned that power to Ministers - and The Health and Safety at Work Act 1974.  

            The basic process for applying for regulations is as follows:

• Plans for the building work must be submitted to the development control authority (i.e. the district or unitary authority)
• If they comply with the basic regulations and are not in any other way defective, prima facie, they must be approved
• However, if they do not conform they must be rejected
• Building regulations are almost universally overseen by trained inspectors, rather than councillors, as they are too technical
• Local authorities can order buildings without regulation consent to be demolished, or remedial work to be undertaken – or they can carry out the work themselves, but at the owners’ cost

Buildings of Historic or Architectural Interest

Though buildings of historic or architectural interest are not immune to being demolished if they are in too bad a state of repair, their owners can obtain a substantial level of help with their upkeep by getting them listed.

            Buildings are normally listed for one of the following reasons:

• They are deemed to be of architectural interest (i.e. their features are in some way unique or sufficiently unusual)
• They are of historical interest (i.e. reflective of a particular period or movement)
• They are linked to nationally important people or events
• They have group value as an architectural or historical unit or a fine example of planning (e.g. squares, terraces or model villages)

A decision to list a building ultimately has to be approved by the Secretary of State for Culture, Media and Sport, under The Listed Buildings Act 1990. Though traditionally there has been a reluctance to list post-war buildings, in 1988 a rolling “30-year rule” was introduced stipulating that any building deemed to be of sufficient interest for one of the above reasons which is at least 30 years old may now be listed.

            When buildings are listed, the lists themselves must be published and notified to local planning authorities, and owners and occupiers of the buildings concerned. Once listing has taken place, any alteration or addition to a given building entails the owner obtaining listed building consent, in addition to the other forms of consent. Among the new constraints will be limitations on the types of materials they are permitted to use – English Heritage may monitor this as well as the council.

There are various grades of listing, which are dependent on the relative merits or importance of individual buildings:

• Grade I – Buildings judged “exceptional” (e.g. the townhouses of Brunswick Square, Hove). Only two per cent of buildings qualify
• Grade II* - Fractionally lower down the pecking order than Grade I (these include The Shakespeare Memorial Theatre in Stratford)
• Grade II – Buildings judged “particularly important”

If local authorities wish to protect non-listed buildings that are threatened with demolition or serious alteration, they may place building protection notices on them – a process commonly referred to as spot listing. This covers the building for six months, during which time the Secretary of State must decide whether or not to formally list the building.

            Unauthorised work carried out on a listed building will see the planning authority issue a listed building enforcement notice requiring it to be returned to its former condition.

            As maintaining listed buildings can see greater costs being incurred by owners, some grants are available from local and central government.

Conservation Areas

Introduced by the Civic Amenities Act 1967, they allow local planning authorities to designate whole areas as ones of special architectural or historic interest – arguing that the character and appearance of the area should be preserved or enhanced.

            Special attention is paid to conservation areas whenever a planning application of any kind comes up within them. To this end, some of the permitted development rights under the General Permitted Development Order do not apply to buildings in conservation areas, and councils can make Article 4 Directives to increase their degree of control in that area over issues such as the insertion of replacement doors and windows.

            Authorities must advertise in a local paper notice of any planning application in a conservation area they think might affect the character or appearance of the area – and the public has 21 days to object. It is a criminal offence to lop or cut down any tree in a conservation area.

Development in the Countryside

County councils and unitary authorities have environmental services departments, which are supposed to balance the demands of planning departments with the sensitivities of building on greenfield sites – and, more specifically, in “greenbelts” (i.e. rural areas intended to be kept free of too much development). As with other issues dealt with by local authorities which require the rural community to be given a “voice”, views can be aired through Natural England (previously called the Countryside Agency), an executive agency set up to advise the Government on development in England. It is staffed by “experts” on rural affairs.

Compulsory Purchase Orders

CPOs are extremely sensitive, and often controversial, means by which local authorities can force individuals and/or organisations to “sell” them their land and buildings to enable them to fulfil their statutory duties (e.g. to enable room to be cleared for the building of a new motorway or A-road). The process by which this happens is as follows:

• A proposed CPO must be advertised in two successive issues of a local paper
• A copy of the order must be sent to every owner and tenant affected
• The CPO and a map must be deposited with the local authority for public inspection
• Anyone affected by the CPO has the right to object to the government department whose job it is to “confirm” the CPO’s validity (e.g. the Department of Transport, Local Government and the Regions in the case of CPOs related to road-building)
• Any formal objections received will lead the Secretary of State to appoint an inspector to hold a public inquiry
• The inquiry must be advertised and be open to anyone affected by the CPO – each of whom must be given the chance to speak up
• The inspector makes a report to the Secretary of State, who then decides whether or not to confirm the CPO
• Confirmed CPOs may be referred to the High Court for a judicial review
• If CPOs go ahead, compensation is paid to the owners of affected properties equivalent to the market value of the property (determined by the Inland Revenue Valuation Agency) – but, crucially, disregarding any adverse effects on the value of the property caused by the existence of the CPO or the proposals which gave rise to it. Owners are also entitled to reimbursement for expenses incurred in fighting their appeals (e.g. legal costs)
• Additional compensation is sometimes paid where land that has been compulsorily purchased later increases in value as a result of a later planning decision

Planning Blight

When the value of a property drops because of a planning decision by a local authority it can be regarded as having been “blighted” – i.e. made more difficult to sell. In such cases, owners of properties can effectively force the local authority to buy their blighted homes from them – in effect, carrying out “a CPO in reverse”. Cases can include:

• Property threatened by CPO for public schemes like road-building – councils can be forced to buy affected properties, at full market price, earlier than they might otherwise have done
• Land where planning consent has been refused

People owning property whose value has been cut by a minimum threshold amount due to fumes from public works which began after 1971 can also see homeowners claim compensation – if not CPOs. The process for obtaining a “CPO in reverse” is as follows:

• Affected individuals serve a blight notice on the authority, giving details of their claim
• If the authority contests this, it must serve a counter-notice objecting to the claim
• The owner then has two months to refer the case to the Lands Tribunal – if they fail to do so, the original blight notice is void

The 2001 Green Paper – An End to Red Tape?

In December 2001, a Green Paper entitled Planning: Delivering a Fundamental Change, was published, outlining ways in which the Government argued the planning process could be speeded up:

• It proposed abolishing County Structure Plans and replacing them with new statutory Regional Spatial Strategies
• Local Plans and Unitary Development Plans would be replaced by Local Development Frameworks (LDFs), which would take the form of “statements of core policies” supplemented by more specific “action plans” for local areas of change
• The statements of core policies would be published annually and reviewed every three years
• Action plans for more local areas could include wide area master plans, more localised neighbourhood or village plans, or even more specific design statements and site development briefs
• The speed of applications themselves would be speeded up through the publication of checklists (specifying what makes for a good planning application), tighter time targets, improved community involvement, and new “business zones” in which no planning permission is even needed for certain kinds of development

© James Morrison 2007