THE PLANNING SYSTEM

The town and country planning system is designed to ensure that land is used in a planned and appropriate manner.

The following abbreviations have been used:

DCLG:

Department for Communities and Local Government

DMPO:

Town and Country Planning (Development Management Procedure) (England) Order 2010

GPDO:

Town and Country Planning (General Permitted Development) Order 1995

UCO:

Town and Country Planning (Use Classes) Order 1987

Legislation

The principal Act is the Town and Country Planning Act 1990 (TCPA 1990). This has been substantially amended by the Planning and Compensation Act 1991(PCA 1991), the Planning and Compulsory Purchase Act 2004 (PCPA 2004), the Planning Act 2008 (PA 2008) and the Localism Act 2011 (LA 2011).

“The development plan”

The importance of the development plan

The development plan sits at the heart of the town and country planning system. When applying for planning permission (and in other instances, such as the service of an enforcement notice), it is the development plan that is the main document for determining the outcome of the decision. The development plan aims to ensure that land is used in a planned and appropriate fashion by setting out policies to govern development control in a given area. By s.38(6) of the PCPA 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 must be made in accordance with the plan unless material considerations indicate otherwise.

Policy guidance on the importance of the development plan can be found at para. 2 of the NPPF, where DCLG advises that:

This National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision making. Proposed development that accords with an up-to-date Local Plan should be approved, and proposed development that conflicts should be refused unless other material considerations indicate otherwise. It is highly desirable that local planning authorities should have an up-to-date plan in place.

Developers therefore will need to look very carefully at the development plan as a starting point to see if it contains any policy on the development proposed; if it does so and the proposal is not in accordance with the plan, any planning application is unlikely to succeed in most cases. The development plan is not the sole factor, however (despite its pre-eminent position): any local finance considerations, so far as material to “the application, and any other material considerations must also be taken into account including, crucially now, the NPPF.

Although the NPPF does not form part of the development plan, it nevertheless has a significant role in planning decisions.

At the heart of the NPPF is a presumption in favour of sustainable development, which is intended to foster growth in a challenging economic climate. Paragraph 14 of the NPPF states that the presumption should be “seen as a golden thread running through plan-making and decision-taking”. For plan-making, it means that LPAs should positively seek opportunities to meet the development needs of their area and that local plans should meet those needs, with sufficient flexibility to adapt to rapid change, unless the adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in the NPPF taken as a whole, or if specific policies (e.g., those protecting designated areas) in the NPPF indicate that development should be restricted. For decision-taking, it means, unless material considerations indicate otherwise, approving development proposals that accord with the development plan without delay and, where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless the adverse impacts of doing so or specific policies indicate development should be restricted (as described above).

The NPPF was published on 27 March 2012 and came into effect on the same day. Its content does not affect the statutory requirement in s.38(6) for LPAs to determine planning applications in accordance with the development plan unless material considerations indicate otherwise. However, the NPPF does provide guidance on the weight to be given to its policies in the decision-taking process from that date.

Meaning of “development plan”

Historically, the development plan was made up of two documents: the “structure plan” (normally prepared by the county planning authority, which detailed the broad, strategic development policy for the regional area); and the “local plan” (prepared by the district planning authority, which contained more detailed policies for the specific area of that district). In the case of unitary authorities, the development plan was a single document, the unified development plan, which covered both issues in one document.

The structure plan and local plan system was, until recently, gradually being replaced by a system of regional spatial strategies (prepared by Regional Development Agencies) and local development frameworks (LDFs) (prepared by the LPAs). The LDF is a portfolio of documents, including a core strategy and proposals map (essentially the replacement of the old “local plan”) but also documents covering ongoing monitoring of the implementation of the core strategy and other matters. There are detailed transitional provisions, but in essence, pending adoption of the LDF, former local plans were allowed to continue in operation and are referred to as “saved” plans. Regional strategies remain in effect for the time being. However, they are set to be abolished by the SOS pursuant to a power granted to him in the LA 2011. At the time of writing, secondary legislation to bring about the abolition of regional strategies is pending. In the meantime, the case of R (on the application of Gala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2011] EWCA Civ 39 has confirmed that the relevant regional strategy remains a material consideration in planning decisions.

Neighbourhood development plans

The LA 2011 introduced new rights and powers for local communities to establish general planning policies for the development and use of land in a neighbourhood. These policies are called “neighbourhood development plans”, which must focus on enabling, not restricting, development.

The creation of neighbourhood development plans can be led by town and parish councils or “neighbourhood forums”, which are community groups designated to take forward neighbourhood planning in areas without parishes. Town and parish councils and neighbourhood forums are required to apply to the LPA to be designated a “qualifying body” to produce a neighbourhood development plan. A neighbourhood development plan must also be approved, and adopted as soon as reasonably practicable, by an LPA if more than half those voting have voted in favour of adopting the plan at a referendum held for that purpose. Neighbourhood development plans must have regard to national policy, be in general conformity with an LPA's development plan policies and be compatible with EU obligations