A more recent version of these Planning Permission notes – written by Cambridge And Oxilp And College Of Law students – is available here.
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Planning Permission - Application and Procedure The Role of the Property and Planning Lawyers: Property Lawyer
A typical property lawyer deals with all aspects of a property transaction and covers many areas of property law o May specialize in a single area of property law A typical planning lawyer is someone who deals solely with planning law and procedure In smaller developments the property and planning lawyer may be the same person and planning law is not as complex In larger developments a separate planning lawyer is often required o A close working relationship will remain with property lawyer
Planning Organisation and Control Planning Control in England and Wales has 2 Main Tiers Central Government
* Comes under the Department for Communities and Local Government (DCLG) ("DCLG")
* Performs 3 main functions: o Legislative
* Making orders, rules and regulations usually be Statutory Instruments o Administrative
* Issuing policy through circulars and guidance notes o Quasi-judicial
* Hearing appeals of local planning authority decisions to the Secretary of State Local Government
* Town and Country Planning Act (TCPA) 1990 (as amended by other acts p.27) - all references to the act should be construed as a reference to both the County Planning Authority (CPA) and District Planning Authority (DPA)
* Deals with the implementation of Central Government planning controls at a local level
* County Planning Authority: o Exclusive jurisdiction over preparing the Structure Plan, mineral planning and development control and enforcement which relate to 'county matters' - Sch.1 Para.1 TCPA
* District Planning Authority: o Exclusive jurisdiction over preparing the Local Plan, development control and enforcement which does not concern a 'county matter' or hazardous substances. The Development Plan
When applying for planning permission it is the Development Plan that is the main document 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 in a given area. Developers MUST LOOK AT THIS - if the plan contains a policy and the development is not in accordance with the plan then any planning application is unlikely to succeed. Historically this was made up of the Structure Plan and Local Plan (see below).
Structure Plan (ss.3135C TCPA)
The Development Plan means basically the policies which have been adopted by and local development framework.
* Broad statement of the County Planning Authority's strategic planning policies for the area. 1
The Local Plan (ss.36-45 TCPA)
Greater London and Metropolitan areas
Deals with conservation of beauty and amenity, improvement of physical environment, management of traffic and social and economic conditions. It must also take account of regional planning guidance from the DCLG, national policies, resources and other matters prescribed by the DCLG. Prepared in conformity to the Structure Plan Due to be prepared by 10 February 1997 - But many haven't been completed Deal with the same matters as the Structure Plan but in much greater depth. In addition, they must contain a reasoned justification of the policies formulated by the plan. Unitary development plan Responsibility of making/altering the Development Plan is that of London borough of metropolitan district council
2 The Need For Planning Permission: Need for planning Permission: Definition of "Development"
Any "development" of land needs planning permission - s57(1) Town and Country Planning Act (TCPA) 1990 s55 TCPA 1990 - "the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land"
Therefore there are 2 strands of development: 1) Operations: o Operational development
? 'BEMO'- building, engineering, mining or other operations
? All about physical changes to a building or land
? Does not include Works for the maintenance, improvement or other alteration of a building which affect only the interior of the building OR which do not materially affect its external appearance and which do not provide additional space underground (s.55(2)(a))
? NB: increasing retail floor space by internal works (e.g. the construction of a mezzanine floor) will require planning permission in England if the increase is more than 200 metres squared. o
? Falls within the definition of operational development (s55(1A)) but, under s55 (2)(g) the SOS has the power to identify works of demolition to which this will not apply
? The demolition of these building is no longer exempt but in practice, where the demolition does not form part of a sider environmental impact assessment (EIA) development such permission is usually granted by the General Permitted Development Order (GPDO) 1995 (subject to the need to obtain prior approval for forms of demolition etc)
2) Material Change of Use In order to constitute development a change of use must be material. Case law makes it clear that the question of whether a change of use is material is usually one of fact and degree in each case. o Material change of use
? Change of use from a planning perspective
? Section 55(3) and (5) of the TCPA 1990 declare the following to be Material Change of Use: (a) The use as two or more separate dwelling houses of any building previously used a single dwelling house: and (b) Generally the deposit of refuse or waste materials?However not all changes of use constitutes "development", requiring planning permission. S55(2) - those uses expressly excluded from amounting to development. Changes within the same class are permitted (s.55(2)) 3
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