Dealing with a local planning authority

Progress through the planning system

Each LPA is different from every other. Policies differ and are applied differently too. Mostly, the officers are in charge and not the members. The level of operational efficiency is not high. Leadership is sometimes missing and at other times disastrous. Where leadership is good, everything else tends to drop into place. Plans are sensible. The right people are working in the right jobs.

Of course, there is a legal framework within which your local planning authority operates. Sometimes it is more elastic than you imagine. Occasionally it is broken. Until somebody cares, nothing is done. The wrong people continue to work in the wrong jobs.

Most local authority employees are civilised. Some are extraordinarily efficient. As “News of the World” said “All human life is there”. For all the problems, it is where we are today. How do we deal with that?

As with every area of life, there is really no alternative than to inveigle our way in and take best advantage of the people who are most helpful. My background is as a solicitor. Maybe it is therefore inevitable that I view the activity of a local planning authority through a prism of how they should react. As a company, our policy is to stay objective, explain carefully, try to find the right person to be talking to, use the Informality of email to help the other person to understand where you are coming from.

There is no shortcut to understanding the planning background. Many officers in the planning department probably reckon they spend half their lives explaining basic law and procedures to ignorant ratepayers – and ignorant developers too. So, a good start is to make clear that you do know what you are talking about. Read the local plan. Read every one of the supplementary planning documents. Refer to them in conversation so that the officer takes you seriously. At whatever level of seniority you are dealing, treat the other person as an equal. Do not patronise a junior member of staff. Do not beg of a senior officer. Both are public employees and specifically paid to talk to people like you and me.

NIMBYism is a big problem for every planning authority – most particularly for those in largely rural areas. When almost everyone lives near the edge of a village, the number and strength of objections to a planning application is great. In a district where the LPA has taken the easy way out by permitting a small number of large developments rather than the low-level steady expansion of the past 300 years, local people have voted for members who support their “shoot from the hip” attitude to all development, great and small.

To many councillors the smallest suspicion of development turns a scruffy paddock into a desirable local amenity teeming with wildlife, hiding Celtic treasures, and essential as a casual children’s playground or to allow their dogs to . . .er . . . take exercise.

Planning staff are stuck in the middle. As a result, LPA headquarters has no alternative than to accept what members want. However, today, Central Government is placing increasing pressure on all LPAs to permit housebuilding. Officers are therefore caught between a rock and a hard place.

That is our understanding and recipe. Now let’s apply that to our planning application.

Pre-application Guidance

The Government intended that the “pre-app” process would lead to faster processing of planning applications by:

  • allowing an LPA to charge for all those pesky questions they get asked.
  • allowing an LPA to say no to the same pesky questioners when no fee has been paid.
  • identify areas of dispute so that potential applicants would not waste time and money on hopeless applications.
  • identify areas where an applicant must “improve” an application which could succeed.

The reality may be different however, because:

  • LPAs are under such pressure that planning officers do not have time properly to assess an application.
  • The response to your pre-app is an edited template, where some of the contents will be irrelevant and thereby confusing. We once received a pre-app letter with reference to 34 different policies each of which required our compliance. The NPPF requires discussion but the LPA prefers by far to limit that to a one hour meeting and a letter listing 199 reasons why an application will fail, and thereby persuade many pre-applicants not to make a full application.
  • With a little pressure, most LPAs are prepared to engage at some level but it is up to us to specify what we see as possible problems and to make sure that we insist on talking to the right person. That person has other work too. We expect to pay extra to speak to a specialist – even on something so basic as housing density.
  • It is a good idea to provide to the LPA all of the information they might need. It’s not fair to expect that they will assimilate all of it, but at least it is there for reference.
  • The intended saving in time does not materialise – it simply adds three months to the submission of your application.

Making your application

Whole books have been written on this subject. This is merely a short article. Your application is all about ticking the boxes where policy is concerned, providing expert reports to confirm your compliance and explaining the gigantic benefits of your proposal.

There are only two categories of application for most LPAs. 10 units is usually the cut off point, but some LPAs separate out householder applications, maybe limited to a single new house, from small developments, above that number.

Before the LPA will accept your application, they will “validate” it. That is the process whereby they check the information you have provided against their list of what they want. It seems to us that these lists are longer every year. Each item on the list entails several hours of management time at least, and at most, a £10,000 report by a specialist expert. There is no obligation on an LPA to produce comparable expert reports. Occasionally they will, on an issue where they feel they might otherwise be weak.

That is why an application for development on half acre site will cost between £80,000 and £120,000 simply to get it off the ground. All the while, LPA staff grumble about the volume of work, Central Government keeps pushing more obligations down the line to the LPA while local members assume that officers have a magic wand to turn their dreams into reality.

What if our application is refused?

In most LPAs, planning applications are decided by the case officer. Usually, only really large applications go to the planning committee. There are many exceptions for various reasons. Theoretically, a decision should be made within eight weeks for “small” and 13 weeks for “large” developments. However, there are umpteen reasons for delays so those timescales are rarely met.

We do not make an application unless we are reasonably confident that it will succeed. If our application is refused, our first action is to talk to the planning officer to identify what changes could save our proposal. If that fails, we will appeal. Our experience of litigation management is likely to be at least as deep as the LPA solicitor and we can probably afford to invest more time in fine tuning our case.

The appeal is to a government appointed inspector. She will have no loyalty to a particular LPA. She will not press the Government agenda. Theoretically, she will take a ruthlessly objective view according to the law. However, it is extremely important to bear in mind that it is not part of an Inspector’s job to make a fresh assessment of the entire process which has just been completed by the LPA. The assessment of a planning application is a matter of judgement – of balancing the benefits of the proposal against the “harm” which it causes. That is a subjective judgement. The Inspector will not interfere unless the judgement is so unreasonable that a sensible person, armed with all of the data, would not have made that decision

The Inspector will take account of new documents only if they support the position that has already been made. At the end of the day however the Inspector is just another human being and her/his judgement is ultimately just as subjective as that of the case officer. Accordingly, it is not a good idea to expect a legalistic approach or even a logical approach By an inspector.

We would unquestionably go to the High Court to appeal a blatantly unreasonable decision by the Ministry Inspector. We would hand the case to a solicitor and a specialist barrister. Legal proceedings at this level depend on the law, interpretation of documents, understanding of facts, and almost no subjective judgement. All litigation is something of a lottery but, for sure, there is far less uncertainty in a court of law and then in an LPA planning application, or even an appeal to the Minister. All that would prevent us from taking this step is the loss of time and energy involved in litigation.

I hope you will agree that all of that is sensible stuff. It’s a combination of excellent preparation, sharp thinking, empathy and determination. Here are more reasons why you should use our service.

If you would like a useful summary of our services, here it is.