De-Misting the Planning System

Planning is a land-use issue. When considering a planning application, the question that should be asked is “Is this proposal an acceptable use for this land?” A planning consent goes with the land; it does not matter who owns it or who applies for the consent.

To answer the question “is this proposal acceptable”, planning law requires some tests to be applied. The most important is whether the proposal conforms to the “development plan”. If it does, there is a presumption in favour of the proposal and planning permission should be granted; if not, it should be refused.

There is, of course, a catch. What planning law actually says is that planning applications are to be determined having regard to the development plan and other material planning considerations. This begs two questions, namely, what is the “development plan”? And what are “material planning considerations”.

The “development plan” currently (though this is about to change ) comprises three elements: government policy, county structure plans and district-wide local plans. As a rough guide, because “local plans” have to conform to “structure plans”, which have in turn to conform to government policy, you can usually rely on the local plan document of your district council as a pretty good guide to what is likely to be an acceptable proposal. Government policy provides broad guidance (eg residential building densities should be between 30 and 50 dwellings per hectare), structure plans fill in some of the detail, allocating, for example, the numbers of new houses that should be planned for between the districts within the county and each district then prepares a local plan document that incorporates these requirements.

Local plans specify areas allocated for development. Within these “development boundaries”, there is a presumption in favour of new building; outside them, there is a presumption against. It would be that simple, were it not for “other material planning considerations”.

I am not going to try to give exhaustive lists of what are and are not “material” in planning terms. Most people are familiar with the dictum that “a man is entitled to light, but not to a view”, and this leads quite often to planning objections on grounds of “loss of light” that do not stand up to scrutiny.

In fact, almost anything can become “material” if it can be shown that some public interest would be harmed by a particular land use, but there are some fairly clear guidelines. The first is that the planning system exists to protect public interests, not private ones. So the perception that a new development may devalue existing properties cannot be used as a reason for refusing a planning application. Similarly, planning may not be used to protect vested interests by, for example, preventing a new business from setting up alongside an existing one of a similar kind: the planning system may not be used to restrict competition. Nor may the planning process be used to control activities that are subject to control by other legislation. This can lead to some confusion and “grey areas”. For example, the fact that a proposed process is thought to generate noise or smells may not result in a refusal of planning consent, because environmental health (EH) legislation exists to deal with noises and smells; so, unless EH officers advise that the proposal is such that the risk cannot be contained or otherwise overcome, planning consent should probably be given, subject to conditions that try to overcome those risks.

Quite often, legitimate objections to a planning proposal can be overcome by a “planning condition”. The basic presumption of English Law is that one is entitled to do anything that is not expressly forbidden by law. That applies to the planning system, too. Thus, unless some harm to a public interest is likely to result from a development proposal, there is a presumption in favour of allowing it. Even when some obvious harm is likely, the next step is to ask whether the risk of harm can be overcome by a condition. A simple example: if a window in a proposed development overlooks a neighbouring property but is needed to allow light into the development, it could be required to be fixed closed and glazed with obscure glass.

This has been a very short gallop through what the planning system tries to do. If in doubt about whether something that you want to do requires planning consent, ask your local planning department.

17 Apr 05
Updated Sep 06