Councillor briefingAn introduction to planning

Date April 2013 www.pas.gov.uk

What is PAS ?• PAS is a DCLG grant-funded programme but

part of the Local Government Association

• Governed by a ‘sector led’ board

• 10 staff – commissioners, generalists, support

“PAS exists to provide support to local planning authorities to provide efficient and effective planning services, to drive improvement in those services and to respond to and deliver changes in the planning system”

Scope of this Presentation

• To provide an introduction planning

• To help councillors understand their role

• To help councillors get the most from the system

Introduction to planning

• What is planning?

• Planning legislation and policy

• Development management

• Decision making

• Appeals and Enforcement

Planning is topical

Planning…

• sets out a long term vision for places• provides a decision making framework to

manage competing uses for space;• balances economic, social and environmental

needs.• provides legitimacy through consultation and

testing of evidence; • delivers change on the ground

Planning involves balancing issues

economic recessionclimate change

environmental issues

meeting housing needs localism

long term strategies today’s pressures

brownfield development town cramming

retail “market forces” viability of town centres

individual interest public interest

Councillors have an important role

• Strategic leadership:– setting the vision and direction

• Plan making: councillors try to reflect local values and priorities in the policies

• Ward level: representing local views

• Neighbourhood planning – link between community and the council, involved in local decisions on spending

Councillors have an important role

• Development Management

– involvement with the community and developers at an early stage

– Raising areas of concern

– Informed debate

– Wide range of issues and material considerations to balance

– Making the right decision (not always the easiest)

Standards in planning are important

• Planning manages the right to develop land• It involves balancing private and public interests• Getting it wrong is costly (time, money, reputation

and long lasting impacts)• Need to demonstrate, at all times:

– Fairness– Openness– impartiality

Legislation and Policy

• The Planning Acts and Statutory Instruments

• The National Planning Policy Framework (NPPF)

• The Development Plan - - Local Plans and other development plan

documents

- Neighbourhood Plans

National Planning Policy Framework (NPPF)• Bringing together all the existing policy into

one policy document

• Pro-growth

• Golden thread - presumption

• Plan-led system

NPPF: purpose of the planning system• the NPPF emphasises the positive, rather than

the controlling or regulatory, side of planning, to contribute to the achievement of sustainable development

• Plans and decisions should be based on the real world e.g. a sound “evidence base”, an understanding of economic viability etc.

• 3 mutually dependent elements:- economic, social, environmental

NPPF and plan-making

• Local plan must show how objectively assessed development needs can be met. Not capacity based.

• In a (locally) sustainable way • Take into account local circumstances and market

signals….to inform judgements about demand• Only where there would be significant and

demonstrable adverse affects which outweigh the benefits when assessed against the framework as a whole – should a development need not be met

Strategic Planning and the Duty to Co-operate• Many planning issues stretch across

boundaries and need a ‘larger than local’ response

• The duty to co-operate was introduced to address these issues via the local plan

• Local Plans will be tested against the duty

• Early days: some plans passing this, others are not.

Local plans

• The key to delivering sustainable development

• Be based on evidence

• Aspirational but realistic (deliverable)

• Reflect a collective vision developed through engagement with local communities

• Set out the strategic priorities for the area

• Positively plan for development and infrastructure required over a 15 year horizon

Neighbourhood plans• Gives communities power to develop a shared

vision for their neighbourhood• Prepared by town/parish councils or

neighbourhood forums• Must be in general conformity with the strategic

policies of the Local Plan• Should not promote less development than set out

in the Local Plan• A few plans are close to being ‘adopted’ by the

local authority

The development plan is crucial“If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise”.

Section 38, Planning & Compulsory Purchase Act 2004

The “primacy” of the Development Plan depends on it being:

– up to date– in accord with national planning policiesThis is not changed by the Localism Act or the NPPF!

In practice

• The NPPF presumption

• Where an adopted (new or old-style) plan is out of date, or doesn’t reflect the NPPF, the NPPF will ‘trump’ the adopted plan

• Particularly relevant for housing

• Around half of councils have an adopted plan in place (July 13)

Development Management

Development Management

• Pre-application discussions, considering and determining actual apps, monitoring and enforcement

• Concentrate on delivery – not control• Puts plans into action• Councillor’s role – understanding the policies,

understanding the applications, getting engaged, liaising with the community, considering, deciding, reviewing

What is development?

Town and Country Planning Act 1990 s55

except where the context otherwise requires-“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”

Development?

• Is there a material change to the external appearance of the building, or a material change of use?

• If yes, then it is development needing planning permission

• But some things are ‘permitted development’ and don’t need planning permission from you

• Granted nationally by General Permitted Development Order or Use Classes Order

Examples of Permitted development

• minor house extensions, walls and fences, garages etc.

• temporary buildings and use• agricultural buildings and operations• some “acceptable” material changes of use• minor works by statutory undertakers

Change of use

• a few specific changes are defined in the Act as always “material”, eg the subdivision of a single dwelling house

• otherwise there is no statutory definition; extensive decisions of the courts have established various tests and principles

• secondary legislation has established broad “use classes”; changes of use within these classes are not development and so do not need planning permission

NB: a change between classes does not automatically mean there will be a material change of use

Consultation and notification on applications

• Statutory consultation

• Town & Parish Councils

• Non-statutory consultation

• Neighbour notification

• Community engagement

Development Management - taking decisions

Delegated and committee decisions

• Delegation procedures aim to ensure that the Planning Committee only considers the most significant or contentious applications

• Aim for at least 90% of decisions delegated

• Referral to committee

• Time and resources

• Costs of committee decisions

• Local democracy

NPPF and decision making

• Local planning authorities should:– approve development proposals that accord

with statutory plans without delay; and– grant permission where the plan is absent, silent,

indeterminate or where relevant policies are out of date…………………..unless

– ….adverse impacts of allowing development would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole

Making a decision

• Start with the development plan policies

• Take into account other material considerations, including:

• National policy

• Other council strategies

• Context and merits of the particular application

• Technical consideration

• Consultees views on planning aspects

• Other material planning matters

• Come to a view

Material considerations include…

• Financial considerations• Overlooking/loss of privacy• Loss of light or

overshadowing• Parking, highway safety and

traffic• Noise

• Effect on listed building and conservation area

• Layout and density of building

• Design, appearance and materials

• Disabled person’s access• Nature conservation• Previous planning decisions

Non material considerations

Matters that should not be taken into account in

deciding planning applications include:• Loss of view• Negative effect on the value of properties• Land ownership or restrictive covenants• Applicant’s personal circumstances (unless exceptional such

as relating to a physical disability)• Business competition• Matters controlled under building regulations or other non-

planning legislation

The Development Plan

Section 38 of the Planning & Compulsory Purchase Act 2004:

‘If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts, the determination is to be made in accordance with the plan unless material considerations indicate otherwise’

The Development Plan again

• Policies can be interpreted differently• Some policies conflict with each other• And decisions can seem to conflict the with

plan• You can make these decisions provided that it

is based on the merits of the case, in the light of all other material considerations

The decision

• Grant planning permission

- subject to conditions

- subject to planning obligations

• Special types of approval or consent e.g. prior approval, listed building consent, conservation area consent

• Refuse planning permission (or prior approval, LBC, CAC etc)

Refusals

• must be lawful • must be justified by reasons, based on the

Development Plan and any other material considerations in the case

• may be subject to appeal, so reasons should at least be defensible and based on credible evidence

• unreasonable or invalid refusals may result in cost awards against the council; but considered decisions properly defended will not, even if lost at appeal

Approvals

• must be lawful

• justification should be clearly minuted if different from officer report/recommendation

• should include a statement relating to development plan policies

• usually subject to conditions - with reasons which pass the tests in Circular 11/95 (this will be the issue if there is an appeal against any of them)

• Be prepared• Be focused:

• focus on the precise points where you agree or disagree with officer assessment

• Know your policies• Stick to policies and material considerations• Ensure your points are valid in planning law (take advice

in advance if necessary)• be aware of the need for probity and the public

perception of your actions

Being effective at Committee

Appeals

• against a refusal

• against a condition on permission

• against an enforcement notice

• against failure to determine within the statutory period

Assessing an appeal

• written representations• public hearings• public inquiries• much-simplified process for householder cases

• Councillors can be involved, but take guidance from officers

Award of costs

• one of the parties must seek an award – it’s not automatic

• rights apply to authorities, appellants and the Inspectorate (or Secretary of State)

• it can be for full or partial costs (you can actually “win” the appeal and still have costs against you)

• the other party must have behaved unreasonably, causing unnecessary expense or delay

Developer contributions: S106 and Community Infrastructure Levy• S106 obligations – site specific, includes affordable housing,

negotiated and agreed• CIL is set out, and fixed, in a charging schedule• The aim of CIL is to help pay for infrastructure needed to

support new development but not to remedy existing deficiencies unless the new scheme will make it worse.

• Councils must spend the income on infrastructure – but you can decide what (and that can change over time).

• Rates can vary by geographic area, use, and size• CIL applies to all permitted development above 100 sqm from

April this year.

CIL and Neighbourhood Planning

Enforcement 1

• Discretionary• Act proportionately in responding to suspected

breaches of planning control• Publish an Enforcement Plan• Works without permission not an offence• Legal notices• Other action

Enforcement 2

Options available:

•Submit a retrospective application

•Submit a Certificate of Lawfulness application

•Negotiations between the alleged offender and Council officers

•Enforcement appeal

Behaviour - Rules and Codes

• Nolan Report (Standards in public life) 1997

• Local Government Act 2000

• Local Authorities (Model Code of Conduct) (England) Order 2007

• Local codes for planning

• Killian & Pretty – role of councillors

• Localism Act 2011

• Probity in Planning 2013

Councillor conduct and role• As a Ward Councillor…

…you can support or oppose an application and represent the views of your constituents

• As a Planning Committee Member… …you still can, but you must still retain an open minded disposition; if not it could compromise your (impartial) role on the committee.

‘Avoid favouring a person, company, group or locality or putting yourself in a position where you appear to do so’

• Applies to policy making as well

What’s changed?

Localism Act – section 25

• Makes it clear that councillors are entitled to campaign on issues, express views etc. without disqualifying themselves from decision-making PROVIDED you can demonstrate absence of "bias" or "predetermination”.

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Contact PAS

email pas@local.gov.ukweb www.pas.gov.ukphone 020 7664 3000