Planning for property Lawyers in Wales

Introduction to the planning system The purpose of the planning system is to manage the development and use of land in the public interest. It needs to ensure economy, efficiency and amenity in the use of land and reconcile the needs of development and conservation, whilst also protecting natural resources and the historic environment.

Local Planning Authorities are responsible for enforcing the planning system and deciding whether a development1 should go ahead.

Planning involves making decisions about the future of our cities, towns and countryside.

This is vital to balance our desire to develop the areas where we live and work with ensuring the surrounding environment is not negatively affected. It includes considering the sustainable needs of future communities.

The planning system in Wales has involved two main levels of plans setting out what can be built and where. These are: The Wales Spatial Plan Local Development Plans (LDPs) The LDPs, together with the Wales Spatial Plan, determine how the planning system will help shape all communities in Wales.

Each Local Planning Authority in Wales must produce a LDP for its area. LDPs include planning policies and site allocations which, when adopted, are used to determine planning applications.

Planning permission Local planning authorities – the county council – is responsible for deciding whether a proposed development should be allowed to go ahead. This is called planning permission.

Most new buildings, major alterations to existing buildings and significant changes to the use of a building or piece of land need this permission.

However, certain minor building works – known as permitted development – do not need planning permission. This is because the effect of such developments on neighbours or the surrounding environment is likely to be small – e.g. building a boundary wall below a certain height. Similarly, a change of land or building use is classed as permitted development if it is within the same use class. See section on Use Classes.

Anyone can make a planning application for the development of land; the applicant does not need to own the land to which the application relates. However, the applicant must inform 1

Development is defined under the 1990 Town and Country Planning Act as "the carrying out of building, engineering, mining or other operation in, on, over or under land, or the making of any material change in the use of any building or other land." Most forms of development require planning permission

freehold and leasehold owners of the land to which the application relates before submitting the planning application.

Outline, full or hybrid planning applications A decision will have to be made early in the planning process as to whether a full or outline planning permission will be applied for. A hybrid planning application may also be considered. The form of application applied for will influence how the supporting planning application documents will be drafted as different levels of details are required.

Outline planning applications An outline planning permission provides a decision on the general acceptability of how a site can be developed, but it reserves for subsequent approval by the local planning authority (LPA) or the Secretary of State/Welsh Ministers matters not particularised in the application, known as reserved matters. Matters of the development which can be reserved for subsequent approval are: •

Access

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Appearance

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Landscaping

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Layout

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Scale

Outline planning applications tend to be used on larger developments which are intended to be built out over longer periods of time and usually in phases, where specific details, such as the layout and scale of the development, will not be fixed until later in the programme. In such cases, the outline planning permission will confirm the acceptability of the principle of development, but details will be subject to further submissions of reserved matters applications.

Once outline planning permission has been granted, 'reserved matters’ applications must be made within the period specified before the outline planning permission can be implemented. Unless the outline planning permission specifies other timeframes, applications for any reserved matter must be made within three years of the grant of outline planning permission, and development must be commenced within a further two years of the final approval of the last reserved matter.

Full planning applications An application for full planning permission results in a decision on the full, detailed proposals of how a site can be developed.

If planning permission is granted, and subject to compliance with any planning conditions that are imposed (which may require further details to be submitted to and approved by the LPA, e.g discharging planning conditions), no further engagement with the LPA is required to

proceed with the development granted permission, although other non-planning consents may be required.

Hybrid planning application A hybrid planning application seeks outline planning permission for one part of the application site, and full planning permission for another part of the application site. Hybrid planning applications tend to also be used on larger developments which are intended to be built out over longer periods of time and usually in phases, but where the specific details of the first phase are known at the time the application is submitted, so that details for that phase can be fully particularised, while the detail for the later phases is left subject to reserved matters approvals.

However, a hybrid planning application is not recognised in statute: the Town and Country Planning (Development Management) Procedure) (Wales) Order 2012 (DMPO 2012), SI 2012/801 (together the DMPOs) contain no express reference to hybrid applications. While there is clear precedent for hybrid planning applications, ultimately it will be at the discretion of the relevant LPA whether to accept a hybrid planning application. When seeking to submit a hybrid planning application, it is therefore particularly important for the applicant to discuss its proposals with the LPA to minimise the risk of the LPA refusing to validate a hybrid application.

Pre-application advice from the LPA The Planning Portal and guidance in Wales and England encourage applicants to seek preapplication engagement to improve the efficiency and effectiveness of the planning system.

Benefits of seeking pre-application advice of the LPA include: •

Verifying the list of local planning application requirements required by the LPA Reducing the likelihood of submitting invalid applications, thereby saving time and money

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Providing an understanding of the relevant planning policies and other material considerations which will form the basis of the decision on the planning application

o Getting a better idea as to whether the application is likely to be successful, again saving time and money

LPAs can charge a fee for the giving of pre-application advice. See Practice Note: Planning fees. Each LPA will run its pre-application advice differently, and the level of information necessary for effective pre-application engagement will vary depending on the scale and nature of the proposed development. While the applicant would not necessarily be required

to provide all the information that would accompany a formal planning application, the applicant should come to any meeting fully prepared to describe the proposed development, its impacts and benefits, and to show plans and drawings, sufficient to allow the LPA to take an informed view.

Status of pre-application advice The courts have been reluctant to impose duties of care upon LPAs for conduct connected with pre-application advice. Even if a claim in contract could be framed, the problem is that identifying any loss would be difficult: while pre-application advice is usually paid for, it is almost always given on the basis that it is non-binding, merely indicative and will not determine how a future decision may be taken.

In an unreported judicial review permission hearing, the court has confirmed that an indication given in any advice from officers is not the same as a previous decision (which might be relevant as a material consideration if it could not be distinguished).

The court has stated several times that officers’ opinions are not to be taken as binding representations. For example, in Flattery, Lindblom J stated: ‘Informal expressions of view as to the lawfulness of a particular use of land, such as are provided from time to time by officers of local planning authorities when requested to do so, do not represent a definitive and conclusive assessment of the status of such use. Only a formal decision made by the local planning authority in the proper exercise of the statutory powers it has available to it will have that effect.’

Ultimately those engaged in development must rely upon their own endeavours and their own advisers for advice on the merits of an application for planning permission. As was set out in Reprotech, ‘planning officers are generally helpful in offering opinions on such matters but everyone knows that if a binding determination is required, a formal application must be made under what is now sections 191 or 192 [of TCPA 1990]’.

Circumstances where pre-application consultation is required A statutory duty on an applicant applying for planning permission under the TCPA 1990 to conduct pre-application consultation currently only applies in the following circumstances: o For developments of national significance in Wales. o For major developments in Wales Pre-application consultation for major development in Wales As noted above, major developments in Wales are subject to a requirement to carry out pre–application consultation. Major development is defined in the DMPO 2012, SI 2012/801 as involving any or more of the following: o The winning and working of minerals or the use of land for mineral-working deposits o Waste development

o Housing developments of ten or more dwellings or where the site area is of 0.5 hectares or more o Development involved more than 1,000 sq m of new floorspace o Development carried out on a site having an area of 1 hectare or more Note that the requirement to undertake this pre-application consultation does not apply to applications under TCPA 1990, ss 73 or 73A. Any subsequent planning application which follows the pre-application consultation must then be accompanied by a pre-application consultation report which must contain specific details and evidence, including how the applicant has complied with the duty in TCPA 1990, s 61Z to carry out pre-application consultation, any responses received to the consultation and what account has been taken of those responses.

For further information, advice or to instruct for opinions, advice or full representation, contact:

Aspinalls Planning & Legal (Wales) Gray’s Inn London WC1X 8UE www.aspinalls-uk.weebly.com 0845 8339152