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Planning Permission

Document Cited authorities 77 Cited in Related
Vincent
AuthorWilliam Webster/Robert Weatherley
Pages413-441
Chapter 42Planning Permission

INTRODUCTION

42.1 This chapter is concerned with the procedure relating to applications for planning permission and their consideration by the LPA.1It deals with the law associated with grants of planning permission, not least in relation to scope, meaning and duration of grants. It also includes discussion of the application of the development plan and considers the importance of housing land supply and its impact on decision-taking under the National Planning Policy Framework (NPPF) issued by the Department for Communities and Local Government on 27 March 2012.2Planning conditions, planning obligations, the revocation or modification of planning permissions and EIAs are considered in the following chapters.

APPLICATIONS FOR EXPRESS PERMISSION – PROCEDURE

42.2 Applications for planning permission and their handling are governed by a combination of Part III of the TCPA 1990 (see section 62) and subordinate legislation consisting of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (DMPO)3(which came into force on 15 April 2015) and the Town and Country Planning (Development Management Procedure) (Wales) Order 2015.4There is also a wealth of guidance to be found in the Planning Practice Guidance (PPG) which was issued on

1In England the application will usually be made: (a) in the case of land in Greater London, to the relevant borough council; (b) in metropolitan county areas, to the metropolitan district council;
(c) in the case of unitary councils in non-metropolitan county areas, to the relevant unitary council; (d) in National Parks, to the National Park authority for the area of the Park; and (e) in other cases, to the relevant district council as district planning authority. The Broads Authority are the sole district planning authority for their area. See DMPO, art 11, regarding general provisions relating to applications and to which bodies they must be made. In Wales, it will be:
(f) the relevant National Park authority; or (g) the county council or county borough council. County matters in England are now confined to applications in relation to minerals, waste disposal and in respect of operational development of land partly within and partly outside National Parks – for a list of county matters, see TCPA 1990, Sch 1, para 1, and Town and Country Planning (Prescription of County Matters) (England) Regulations 2003 (SI 2003/1033), reg 2.

2Available at http://planningguidance.communities.gov.uk.

3SI 2015/595.

4SI 2012/801.

414 Restrictions on the Use of Land

6 March 2014,5and in the revised versions of the four procedural guides on: (a) planning appeals; (b) called-in planning applications; (c) enforcement notice appeals; and (d) lawful development certificate appeals, published by the Planning Inspectorate on 23 March 2016.

PRE-APPLICATION CONSULTATION

42.3 The NPPF6and the PPG encourage pre-application engagement between applicants and the LPA, statutory and non-statutory consultees, elected members and the local community. Where the application is going to be large and/or complex, applicants and LPAs may sometimes enter into a planning performance agreement with a view to agreeing timescales, actions and resources for handling the application. Such agreements can be a useful focus for pre-application discussions about the issues which will need to be addressed.

42.4 Pre-application consultation is compulsory in the case of a development involving the installation of more than two wind turbines or where the hub height of any turbine exceeds 15 metres.7

APPLICATIONS

42.5 Any person may apply for planning permission8whether he owns the land or not, although the owner must be notified of any application affecting his land (and this includes any tenants of agricultural holdings on such land9). Applications are made on a standard application form and must contain the prescribed information.10The application must be accompanied11by: (a) a certificate of ownership in which the applicant certifies that he has satisfied the requirement in relation to the notification of owners;12(b) a design and access

5Available at http://planningguidance.communities.gov.uk.

6NPPF, paras 188–195.

7DMPO, arts 3 and 4.

8Applications may be made for: (a) full planning permission; (b) outline planning permission; (c) reserved matters application – see DMPO, arts 5–7; (d) for the discharge or modification of a planning condition – see TCPA 1990, s 73 (whereby application may be made for planning permission for the development of land without complying with the conditions subject to which a previous planning permission was granted); (e) for non-material changes to an existing planning permission – see TCPA 1990, s 96A and DMPO, art 10; (f) for a CLOPUD – see TCPA 1990, s 192; and (g) for a CLEUD – see TCPA 1991, s 191 and (in both cases) DMPO, art 39. (Listed building consent is dealt with elsewhere – see LBA 1990, s 9.)

9DMPO, art 13 deals with the giving of notice to an owner or tenant of the land (additional steps need to be taken in the case of minerals’ applications).

10See PPG and DMPO, art 7.

11DMPO, art 11(2) which sets out what has to be lodged with an LPA in the case of applications:
(a) for outline planning permission (art 5); (b) for approval of reserved matters (art 6); and (c) those applications mentioned in art 7 (i.e. mining operations).

12DMPO, art 14.

statement (if required);13(c) a statement as to pre-application consultation (if required);14(d) any particulars or evidence required by the LPA;15and (e) the appropriate fee.16Slightly different requirements apply in the case of certain applications (i.e. for listed building consent, mining operations, minerals development or for hazardous substances consent).

42.6 Decisions on an application can sometimes be made by the Secretary of State who may decide to ‘call-in’ an application, in which case the applicant or the LPA has a right to be heard at a public inquiry or other hearing. The discretion will only usually be exercised in circumstances where the application involves issues of more than local significance.17

MULTIPLE APPLICATIONS

42.7 It should be noted that more than one application may be made for planning permission in relation to the same land. However, where two planning permissions exist, both cannot be implemented if they are mutually inconsistent.18

13DMPO, art 9, which sets out the requirements for a design and access statement where it is needed, namely in cases of major development or development in a conservation area or within a World Heritage Site, although a design and access statement will not be required in those cases mentioned in art 9(4) (as where an application involves a material change in the use of land or buildings).

14DMPO, art 4.

15DMPO, art 11(2)(e) (3).

16DMPO, art 11(2)(f).

17TCPA 1990, s 77(1). See R (Persimmon Homes Ltd) v Secretary of State [2008] JPL 323;

R (Hadfield) v Secretary of State [2002] EWHC 1266 (Admin); Lakin v Secretary of State for Scotland 1998 SLT 780. Where the Town and Country Planning (Consultation) (England) Direction in Circular 02/09 applies (and where the LPA is minded to grant planning permission), the authority is required to send details of the application to the Secretary of State and may not itself determine the application for 21 days in order that the Secretary of State may decide whether to call-in the application for his own determination (or issue a holding direction under DMPO, art 31). The cases falling within the direction involve: (a) inappropriate development in the green belt where the floor space to be created is 1,000 square metres or more or any other development which would have a significant impact on the openness of the green belt; (b) development outside town centres (involving floor space exceeding 5,000 square metres) which is not in accordance with the development plan; (c) development affecting a World Heritage Site, including any buffer zone, to which English Heritage has objected; (d) development on publicly owned playing fields to which the English Sports Council has objected; and (e) major development in a flood risk area to which the Environment Agency has also objected (major development is defined as development involving ten or more dwellings or where the site area is 0.5 hectare or more or, in the case of non-residential development, where the new floor space to be provided is 1,000 square metres or more or where the site area is 1 hectare or more). See also the position in Wales under the Notification Direction (Welsh Government Circular 07/12) where LPAs are required to refer applications to the Welsh Ministers where they are considering the grant of planning permission in the case of certain types of development.

18Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527. Here, an owner of land obtained and implemented a planning permission for the erection of a bungalow on site B on condition that no other dwelling would be erected on the land. However, the owner subsequently discovered an earlier planning permission for the erection of a bungalow on another part of land,
i.e. on site A, which permission contemplated the use of the remaining land as a smallholding.

416 Restrictions on the Use of Land

There are, however, limits to this latitude. A planning authority may decline to determine an application where, in the previous 2 years, either the Secretary of State has dismissed an appeal against a refusal in the case of a similar application (meaning for these purposes where the development and the land to which the applications relate are the same or substantially the same), or where the authority has refused more than one application and there has been no appeal to the Secretary...

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