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Administration of Planning Law

Document Cited authorities 35 Cited in Related
AuthorWilliam Webster
Pages1-19

Chapter 1


Administration of Planning Law

INTRODUCTION

1.1 Responsibility for the administration of town and country planning falls under two heads, namely central government and local planning authorities (LPAs). Since 2006 the Department for Communities and Local Government (DCLG) (renamed in January 2018 as the Department of Housing, Communities and Local Government (DHCLG)) has been primarily responsible for planning in England.1In Wales, since 1999 planning has been the responsibility of the Welsh Assembly.2The Department for Digital, Culture, Media & Sport (DCMS) is responsible for the listing of historic buildings and the scheduling of ancient monuments.3

THE SECRETARY OF STATE

1.2 The Secretary of State has a number of powers and duties under town planning legislation.4

Delegated legislation in the form of orders and regulations made by the Secretary of State

1.3 Under the Use Classes Order 1987,5certain uses of land are deemed not to constitute development at all and will not require planning permission. Further,

1At the time of writing, the Secretary of State is the Rt Hon James Brokenshire MP.

2The functions of the Secretary of State are vested in the National Assembly for Wales (SI 1999/

672).

3At the time of writing, the Secretary of State is the Rt Hon Matt Hancock MP.

4Clearly, most decisions are made on behalf of the Secretary of State by senior civil servants and, in the case of planning appeals, the decision will have been delegated to a planning inspector.

5The Town and Country Planning (Use Classes) Order 1987 (SI 1987/764) (as amended) (Use

Classes Order 1987).

2 Planning Law: A Practitioner’s Handbook

the Town and Country Planning Act 1990 (TCPA 1990) provides a means whereby the Secretary of State can grant planning permission for various classes of development by means of a General Permitted Development Order.6Such development is known as a ‘permitted development right’ and there have been a number of such orders over the years. The various permissions granted are subject to limitations, conditions and exceptions. Permitted development rights may also be withdrawn under a condition imposed on a grant of planning permission or as a result of what is termed an ‘article 4 direction’.7Also relevant to development is the power of the Secretary of State (or the Welsh Assembly) to make building regulations.8

Confirmation of orders made by a local planning authority

1.4 These range from orders for the revocation or modification of a planning permission9to orders requiring that any use of land should be discontinued,10and to compulsory purchase and various highways orders.11Further, orders which make provision for the designation of areas of special control (in which only certain classes of outdoor advertisements may be displayed) only become effective after confirmation by the Secretary of State.12

Supervisory (including quasi-judicial) functions

1.5 The Secretary of State may call in unitary development plans, structure plans and local plans for approval.13There is also a right of appeal against planning decisions and a failure to take such decisions.14Appeals against

6TCPA 1990, ss 58(1)(a) and 59. See the Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015/596) (GPDO). The GPDO grants planning permission in art 3 for the classes of development mentioned in Sch 2.

7This is a direction made by the Secretary of State or by the LPA under the GPDO, art 4. An art 4 direction operates to restrict permitted development granted by art 3 in which event the relevant development may not be carried out without planning permission.

8Building Act 1984, Pt 1.

9TCPA 1990, ss 97, 98.

10TCPA 1990, s 103.

11TCPA 1990, s 226; Acquisition of Land Act 1981, s 13; TCPA 1990, Pt X.

12The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (SI 2007/783) make provision for the designation of areas of special control. For instance, a conservation area or an Area of Outstanding Natural Beauty (AONB) may be designated as an area of special control.

13TCPA 1990, ss 18, 35A and 44.

14TCPA 1990, s 78. It should be noted that although decisions of the Secretary of State are not precedents in the formal sense (in contrast to decisions of a court of law), they nonetheless remain indicative of the policy of the Secretary of State in future cases.

enforcement notices are also determined by the Secretary of State.15In the case

of appeals against a refusal by an LPA to grant a certificate of lawful use or of proposed use,16the Secretary of State is being asked to certify the lawfulness of the use or proposed use or operations on land, which is a purely judicial decision in which questions of planning policy and the public interest do not arise. Similarly, on appeals against enforcement notices,17the Secretary of State may have to decide whether, as a matter of law, the activity of which complaint is made gives rise to a breach of planning control.

Original jurisdiction

1.6 The Secretary of State is authorised to call in planning applications for determination by him.18He also has a reserve power to serve a completion notice,19or to make a revocation or modification order,20or to make a Tree Preservation Order (TPO),21or to acquire land compulsorily,22or to require the acquisition or development of land.23It should also be noted that whilst the majority of planning appeals are dealt with by the Planning Inspectorate (PINS), the Secretary of State retains powers to ‘recover’ a planning appeal which has been submitted to PINS. A ‘recovered inquiry’ is basically a planning appeal (against an LPA’s decision) which the Secretary of State can decide for himself, rather than allowing one of his inspectors to take the final decision, as is the normal process.24

15TCPA 1990, s 174.

16TCPA 1990, ss 191,192.

17TCPA 1990, s 174.

18TCPA 1990, s 77 (he may make a direction to this effect so that he may make a decision on the application instead of the LPA – such directions may relate either to a particular application or to applications of a class specified in the direction).

19TCPA 1990, s 96. A completion notice may be served by an LPA under s 94 but s 96 is a default power enabling the Secretary of State to serve a completion notice himself to the same effect. A completion notice arises in circumstances where a planning permission lapses if development is not begun within a period specified in a condition, or if approval of reserved matters is not applied for within a specified period. A completion notice authorises the termination of permission in the case of the relevant permission which has not yet been completed. The notice provides (and if served by an LPA will be subject to confirmation by the Secretary of State) that the permission ceases to have effect by a specified date other than in relation to operations carried out by then.

20TCPA 1990, s 100.

21TCPA 1990, s 202.

22TCPA 1990, s 228.

23TCPA 1990, s 231.

24The law stems from TCPA 1990, s 79. As with called-in planning applications, an inspector will write a report to the Secretary of State which will make a recommendation on how the appeal should be determined. The Secretary of State will then take the final decision on the appeal. Recovery of an appeal can occur at any stage of the appeal process, even following an inquiry

4 Planning Law: A Practitioner’s Handbook

Framing of national policy

1.7 In addition to his other functions, the Secretary of State is in pole position to shape planning policy through the provision of advice and information from the DHCLG setting out the Government’s planning policies for England and how these are expected to be applied.

1.8 In addition to planning circulars sent to LPAs (which were usually available to the public as well and which provide non-statutory advice and guidance on particular issues to expand on subjects referred to in legislation), prior to 2012, policy, information and advice were conveyed through Planning Policy Guidance Notes (PPGs). The tendency was for advice on law and procedure to be contained within circulars, with PPGs being the main source of guidance on policy. However, PPGs were progressively replaced by Planning Policy Statements (PPSs). The Secretary of State also issued Minerals Policy Guidance Notes (MPGs) and Minerals Policy Statements (MPSs). It should be added that the Secretary of State is also responsible for national policy statements under the quite separate development consent system for Nationally Significant Infrastructure Projects (NSIPs) introduced in the Planning Act 2008.

1.9 In 2010 the Government decided to set out its national policy objectives in a single document which became known as the National Planning Policy Framework (NPPF) which came into effect on 27/3/2012 and which replaced over a thousand pages of pre-existing national policy.25Planning law requires that applications for planning permission must be determined in accordance with the development plan which includes the local plan and neighbourhood plans that have been made in relation to the area unless material considerations indicate otherwise.26The NPPF must now be taken into account in the preparation of local and neighbourhood plans, and is also a material consideration in planning


being held, but it cannot be done after the inspector has issued his/her decision. The Secretary of State has a wide discretion about when to recover an appeal. It is usually because the development is of strategic importance or has significant implications for national policy or raises novel issues.

25NPPF, Annex 3 sets out a total of 44 PPGs, PPSs and MPGs, one Circular and a number of letters to Chief Planning Officers...

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