Top Planning Tips for the Unwary: Successful Development Starts With Planning Permission

(First published on EG)

To help aid a smooth process, Bill Bidder shares his tried and tested tricks for navigating the planning minefield.

Applicants for planning permission want their proposals to be dealt with and determined as quickly and as fairly as possible to allow the commencement of development and the generation of profit.

To facilitate this, we set out below some tips for the unwary on how to achieve a successful planning outcome.

Engage with the people who influence the outcome and make the decisions

It is important to understand the development planning policies and other material considerations associated with the development site.

As a starting point, make sure you engage in an early pre‑application meeting with the relevant planning officer at the local authority so you can be clear of its requirements. Some local authorities charge for this service, so it is a good idea to check first.

Having a meeting will help to identify and address any issues and concerns that might arise before a scheme can be recommended for approval by members of the planning committee. These include matters relating to potential site problems such as roads, footpaths, cables, water courses and sewers, discussing the mitigation of the impact of development and identifying the information to be submitted as part of the scheme.

It is important to listen to the planning officer, as he/she will play an important role in influencing matters and making a scheme ultimately successful. However, pre‑application advice provided by the planning officer cannot preempt the democratic decision-making process of the committee who decide on the planning application.

In addition, make sure you engage and consult with other stakeholders, such as statutory consultees and the local community, and take on board their comments. Statutory consultees play an important role in the development process and local authorities are encouraged to ensure that the relevant consultees act in a coordinated manner. Once the application has been submitted, it is reviewed by the local authority to make sure it is valid. This can take a period of days, but it is advisable to check with the local authority on its progress.

Employ the right team

It may seem obvious, but make sure you have the best professional team on board as early as possible. The team should include the development architect, legal advisers and other consultants who will be required to prepare the necessary reports and documents to be submitted in support of the application to address how a number of concerns will be dealt with and mitigated against. This is particularly important if there are rights of light concerns, highway or drainage issues or if the scheme requires an environmental impact assessment to be undertaken.

Get the timing right for surveys

One area that can delay the process is when developers fail to get surveys carried out in time. Some supporting reports can only be undertaken at certain times of the year. For example, many ecological surveys need to be carried out in spring when animals become active again. It may be necessary for a traffic assessment to be undertaken. These often cannot be carried out during the periods when schools are closed because traffic is lighter. It is important to prepare a timetable as soon as possible to facilitate the production of any surveys.

Consider entering into a planning performance agreement with the local authority

A planning performance agreement can be a very useful tool to focus pre-application discussions on the issues that need to be addressed and the timescales that are likely to be required in the development.

The agreement is a voluntary agreement and can be helpful in setting out a process to determine a more complex planning application. The agreement is negotiated between the developer and the local authority and will cover matters arising during the pre-application stage and matters arising after the application has been submitted. It is usual for milestones to be set within the document and for these to be measured and reported against. The agreement will bring together the developer, the local planning authority and key stakeholders to work in partnership throughout the planning process.

The agreement should also cover matters to be contained in a section 106 agreement, in particular, the level and makeup of contributions that may be required, the amount of affordable housing to be 7 April 2018 provided in the development and whether viability testing is required to measure the amount of profit against the affordable housing provided and whether community infrastructure levy (CIL) is payable. Having this agreement will ensure that the appropriate resources and expertise are made available to advise on complex projects.

Be aware that some local authorities charge for entering into a planning performance agreement and the charges are dependent on the scale and complexity of the application.

To help with the process, it’s worth checking out whether your local authority has an agreement template on its website – many of them do.

Have early discussions on the conditions around planning permission and the obligations within the section 106 agreement

It is helpful to have early discussions with the planning officer to understand and consider the proposed conditions to be incorporated in a planning permission and the obligations to be contained in an associated section 106 agreement and how these may be affected by any CIL payable. These discussions need to take place prior to the date the application is going to the planning committee, as the planning officer will seek an approval from members to a recommendation on the terms that are to be set out in the committee agenda.

Terms that should be considered in a section 106 planning agreement include:

• Tying applications to vary or discharge a condition attached to a planning permission under section 73 of the Town and Country Planning Act 1990 to its parent agreement (without the need for a fresh section 106 agreement to be entered into);
• Carve out protective provisions against double counting for CIL in the event of a pre-CIL planning permission;
• Carve out provisions removing liability under the agreement against residential and or commercial occupiers of buildings and statutory consultees;
• Ensure that the mortgagee protection provisions in the affordable housing obligations are acceptable to the proposed affordable housing provider; and
• Seek the return of unspent contributions within a specified timescale and the payment of the planning officer’s monitoring fees.

Particular care should be taken when drafting planning conditions to specify which conditions are to be discharged prior to the commencement of development. In addition, be sure to specify which conditions need to be complied with prior to occupation of a phase or part of the development as well as the need for phasing requirements and implementation time periods.

Dealing with appeals

Once a planning application has been registered, the local planning authority is obliged to make a decision on the application within a statutory time limit unless a longer time period is agreed in writing with the applicant. The statutory time limits are 13 weeks for applications for major development and eight weeks for other types of developments (unless the application is subject to an environmental impact assessment in which case a 16-week time limit applies).

Should you not be successful getting planning permission, you have the right to appeal any time within six months from the date by which the local authority should have determined the application. If an appeal is made, the application is taken away from the local authority for determination and a decision is then made on behalf of the secretary of state.

Prepare thoroughly for the planning committee

If a planning committee is making the decision at appeal, make sure you prepare and do some research as to how long you will have to speak and find out if any objectors will be speaking. Most local authorities allow the applicant and objectors to address the planning committee, allowing the applicant a final opportunity to explain the benefits of the scheme and the ability to deal with any objections.

It is also sensible to make a note of any comments made during this process. If there is an appeal or a legal challenge or a refusal of the application against the recommendation for approval by the case officer these notes may be helpful in any such proceedings. This might also assist in relation to any cost arguments against the council.

Bill Bidder is a specialist in property law and head of real estate at IBB Solicitors.

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