How to determine a planning application

There are a lot of untruths and myths about what can and cannot be used to approve -or refuse – a planning application and I hope to clear up some of those misunderstandings.

The planning system is plan-led, and guided by the National Planning Policy Framework [NPPF],  published on 27 March 2012,  and sets out the Government’s planning policies for England and how these are expected to be applied.

Planning law requires that applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise [NPPF para 196]

At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking. [NPPF para 14]

For decision-taking this means:
– approving development proposals that accord with the development plan without delay; and
– where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:
any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assesses against the policies in this Framework taken as a whole; or specific policies in this Framework indicate development should be restricted.

The development plan will rarely involve a single policy, and for Exeter, the development plan is contained in a series of documents:
Exeter Local Plan First Review 2005 (saved and extended) [ELPFR] – adopted on 31 March 2005

ELRFR cover

Core Strategy 2012 [CS] – adopted  on 21 February 2012

CS cover

Strategic Housing Market Assessment [SHMA] – which identifies housing need across all housing tenures.

Strategic Housing Land Availability Assessment [SHLAA] – which identifies potential land for development. Typically councils issue an open ‘call for land’ and carry out their own searches to identify potential land.

Five Year Land Supply – a calculation of supply of deliverable sites sufficient to provide 5-years’ worth of housing towards their housing requirements.

Appendix 4 – Assessment of Sites and Broad Locations (part 1) [3Mb]
Appendix 4 – Assessment of Sites and Broad Locations (part 2) [3Mb]
Appendix 4 – Assessment of Sites and Broad Locations (part 3) [2Mb]
Appendix 5 – Schedules and Trajectory [418kb]

 

scan0002

Development Delivery Development Plan Document Publication Version 2015 [DDDPD] – although not formally adopted, this document can be seen to carry some weight in planning terms

Depending on where the actual development is taking place, other policy documents may come into play, such as:

  • City Centre Vision
  • Sidwell Street Environs Urban Analysis 2007
  • Bus and Coach Station Development Principles A-J

The development plan will rarely involve a single policy and indeed a number of different policies may apply that may not all point in the same direction. The decision maker will need to decide on their relative weight.

Neighbourhood Plans
Neighbourhood forums and parish councils can use new neighbourhood planning powers to establish general planning policies for the development and use of land in a neighbourhood.

There is only one Neighbourhood Plan in Exeter:
St James Neighbour Plan [StJNP]- adopted on 16 July 2013

StJNP cover

Exeter St James Neighbourhood Plan is part of the statutory development plan.

Supplementary Planning Documents [SPD]
Exeter City Council have prepared Supplementary Planning Documents where necessary to amplify policies in the Local Plan.Supplementary Planning Documents (SPDs) are supporting documents for the Local Plan which add to or expand upon policies, but do not include site allocations. They are subject to public consultation but are not formally examined. The following SPDs have been adopted and are a material consideration in determining planning applications.

Views of Techical Consultees
ECC may seek the views of other specialist such as:
– the Highway Authority [in the case of Exeter this is Devon County Council];
– the Local Transport Authority [again in the case of Exeter this is Devon County Council];
– Environment Agency
– Natural England
– Historic England
– Devon & Cornwall Police;
– Devon & Somerset Fire and Rescue Service;
– South West Ambulance Trust; and
– other such consultees

Other material considerations
Other material considerations could include:
– design, appearance and layout of area;
– traffic, access, parking, traffic, road safety;
– use;
– overlooking/loss of privacy;
– being overlooked
– nuisance caused by noise, disturbance and smell;
– trees;
– noise/disturbance;
– flooding; and
– policy/economic benefits;

What are NOT material considerations
There are many things [mainly contained within objections] that are not considered material considerations when determining a planning application.

These may include such things as:
– competition between businesses;
– the cost of the development;
– how the proposal is financed;
– issues covered by other legislation;
– loss of value to your property;
– loss of view;
– loss of light;
– boundary and neighbour disputes;
– impact on private drainage systems;
– inappropriate or personal comments;
– developers’s morals or motives;
– political or ideological opinions;
– breach of covenant; and
– whether or not the applicant owns the site

What is and is not a material consideration is ultimately a matter for the courts. If a council takes into account a matter that is not a material consideration the decision could be challenged as unlawful and set aside.

What happens at a Planning Meeting
The members of the Planning Committee will come to the meeting having received the agenda and reports at least 5 clear working days before the meeting.

At the meeting, the Chair will:

  • introduce the planning application
  • invite the planning office to report on the planning application – which might include additional details from an update sheet and other new material received since their report was compiled and publichse
  • invite questions of clarification of the planning officer
  • invite the objector [who has given formal notice of a wish to speak] to speak for a maximum of 3 minutes
  • invite questions of clarification of the objector
  • invite the applicant/agent/supporter to respond for a maximum of 3 minutes
  • invite questions of clarification of the applicant/agent/supporter
  • invite any Councillor not on the Committee [but who has given formal notice of a wish to speak under Standing Order 44] to speak for an unlimited time, however members are asked to be brief
  • invite the Committee to debate the application and will not hear any additional representations from members of the public
  • during the debate, members way ask for additional clarification from the planning office
  • having debated the application, the Planning  Committee will take a decision and the Char will announce that decision at the meeting

Deciding on a planning application
Members of a Planning Committee are allowed to have a predisposition of an outcome but should not have predetermined their position, so they should avoid a closed mind and give fair consideration to points raised

A member of a Planning Committee is NOT required to be an expected to be an expert, but each decision-maker is expected to listen to the experts and apply their own individual judgement.

The weight members of the Planning Committee apply to development plan policies and material considerations is a matter for the individual decision-maker and they are quite entitled to take a different view to officers on the relative weight.

Each decision-maker may reach a different view on the significance of factors but the  decision they take needs to be reasonable, based on the evidence.

If  they disagree, the decision-maker should be able to explain why the different weight to considerations -this is known as the overall ‘Planning Balance’.

Following a decision only the appellant [the person making the planning application] has the right of appeal to the Planning Inspectorate, although there is recourse to  a Judicial Review and/or the Ombudsman process if there has been an error in law or maladministration.

Decisions taken by the Planning Committee
The more common types of decision taken by the Planning Committee include:

Grant permission as recommended: Where a proposal complies with the Council’s (or national) policies, or guidance and the proposal is considered acceptable, the Committee may grant planning permission. Conditions are normally imposed on the grant of permission

Grant permission subject to a Legal Agreement: Sometimes requirements need to be attached to a planning permission which cannot be dealt with satisfactorily by conditions. The Committee may therefore grant permission subject to a legal agreement being entered into by the Council and the applicant (or landowner, agent, etc) to ensure these requirements are met. An example of this would be where the Council is seeking to secure affordable housing or improvements to the highways for safer access.

Refuse permission: Where a proposal does not comply with the Council’s (or national) policies, or guidance and the proposal is considered unacceptable, the Committee may refuse planning permission. Where permission is refused contrary to the officer’s recommendation, clear planning reasons will be specified by the Committee at the meeting. The applicant can appeal to the Secretary of State against such a decision.

Deferring an application: The Planning Committee may sometimes decide to put off making a decision on an application.

Minutes of the Planning Committee meeting
Minutes of the Planing Meeting will be published on the Council’s website, normally within 5 clear working days of the meeting.

The minutes of the meeting are not a verbatim record of the Committee’s deliberations, but note the key points arising from the meeting and record the decisions.

The minutes will note how the members of the Committee voted on each application and will include the reasons for refusal of permission and any conditions imposed on grants of permission

Further Reading:
Local Government Association/Planning Advisory ServiceHow planning works an introductory guide for councillors [LGA/PAS. UPDATED May 2012 – post Localism Act and the NPPF]

Local Government Association/Planning Advisory ServiceProbity in planning for councillors and officers [LGA/PAS, April 2013]

Authorities will usually have a cabinet/executive member responsible fordevelopment and planning. This councillor is able to be a member of the planningcommittee. Leading members of a local authority, who have participated in the development of planning policies and proposals, need not and should not, onthat ground and in the interests of the good conduct of business, normally excludethemselves from decision making committees.

The courts have sought to distinguish between situations which involve predetermination or bias on the one hand and predisposition on the other. The former is indicative of a ‘closed mind’ approach and likely to leave the committee’s decision susceptible to challenge by Judicial Review. Clearly expressing an intention to vote in a particular way before a meeting (predetermination) is different from where a councillor makes it clear they are willing to listen to all the considerations presented at the committee before deciding on how to vote (predisposition). The latter is alright, the former is not and may result in a Court quashing such planning decisions.

A councillor should not be regarded as having a closed mind simply because they previously did or said something that, directly or indirectly, indicated what view they might take in relation to any particular matter.

Exeter City CouncilHow decisions are made

How can I register to speak?

Planning Committee is usually held on a Monday at 5.30pm at the Civic Centre. Anyone wishing to speak for or against an application must contact the Democratic Services(Committees) office by 5pm on the Thursday before the meeting.

If the meeting is one not being held on a Monday, then the office must be contacted by 5pm two working days before the committee.

Democratic Services (Committees) can be contacted on 01392 265107 or email: committee.services@exeter.gov.uk

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s