REALWorld Law

Does public law control whether a landowner may construct a new building or refurbish an existing building on its land?

At its simplest the process involves the submission of a planning application form together with supporting information describing the proposals and the relevant fee to the relevant local planning authority. It will publish and refer the application and the information accompanying it to a range of consultees, including the public, and seek comments from them. Note also that major developments (as defined) in Wales and some onshore wind projects in England required pre-application consultation.

Taking account of the consultation responses, any site visit, planning policies and all material considerations, a report will be prepared by a planning officer (the individual within the local planning authority with responsibility for dealing with the planning application) which will recommend whether planning permission should be granted or refused.

Depending on the nature of the proposal, the final decision on the application will either be made by planning officers under powers delegated to them by the local planning authority or will be referred to a committee or executive board for determination.

The basis upon which the planning system works is that proposed development which is in accordance with policy and an up-to-date development plan should be granted permission, unless material considerations indicate otherwise. If planning permission is refused, an appeal may be submitted.

Large projects over certain thresholds which are Nationally Significant Infrastructure Projects in England are subject to a development consent process with decisions made by the appropriate Secretary of State (ie a senior member of the government, a politician appointed by the Prime Minister).  Similarly, Developments of National Significance in Wales are also subject to a specific consenting process.

In England planning permission for residential-led development can also be obtained by securing permission in principle (PIP) (either through designation in a brownfield land register or through application to the local planning authority) and technical details consent. 

Last modified 22 Mar 2024

Does public law control whether a landowner may construct a new building or refurbish an existing building on its land?

Third parties may object to a proposal during the application stage and their comments should be fairly considered by the decision maker. Third parties cannot appeal against the grant of planning permission but can submit comments to be taken into account by the decision maker for the appeal. They can also challenge a decision on an application or appeal by way of judicial or statutory review in the High Court if they can show that the decision may have been made unlawfully.

Last modified 22 Mar 2024

Does public law control whether a landowner may construct a new building or refurbish an existing building on its land?

The Mayor of London (where the land is in London) or Secretary of State (ie a senior member of the government, a politician appointed by the Prime Minister) or the Welsh Ministers can 'call in' an application for planning permission for their own determination if it meets certain criteria or raises issues of more than local importance.

A decision can also be the subject of review by the High Court if they can show that the decision may have been made unlawfully.

Last modified 22 Mar 2024

Does public law control whether a landowner may construct a new building or refurbish an existing building on its land?

This depends on the subject matter of the application for planning permission. The minimum period is 21 days after details of the application have been published but it is usually significantly longer than this. An appeal for non-determination may be submitted if a decision has not been taken within a certain period of time after the application was made.

For:

• Straightforward applications in England and Wales, an appeal for non-determination may be submitted after eight weeks
• Major applications in England, an appeal for non-determination may be submitted after 13 weeks
• Applications in Wales which are amended prior to determination, an appeal for non-determination may be submitted after 12 weeks from the receipt of the original application or four weeks from receipt of the amendment, whichever is the later
• Development that requires an environmental impact assessment in England and Wales, an appeal for non-determination may be submitted after 16 weeks.

These time periods may be extended with the written agreement of the local planning authority.

Applications for Nationally Significant Infrastructure Projects (NSIPs) in England and Developments of National Significance in Wales follow different timetables as dictated by those processes.  For example, the process for NSIPs from application, through public examination to decision by the Secretary of State (ie a senior member of the Government, a politician appointed by the Prime Minister) should take one year.  However, there are extensive consultation requirements that must be undertaken prior to submission of the application which may take significantly longer than this.

Last modified 22 Mar 2024

Does public law control whether a landowner may construct a new building or refurbish an existing building on its land?

The applicant has a right of appeal against a relevant authority's decision to refuse planning permission, or the failure of the authority to reach a decision within the relevant timescales. The appeal is made to an independent inspector (from a body called the Planning Inspectorate in England and Planning and Environment Decisions Wales in Wales) appointed by the Secretary of State (ie a senior member of the Government, a politician appointed by the Prime Minister) or the Welsh Ministers.

There is no third party right of appeal against the grant of planning permission but third parties may bring judicial review proceedings in the High Court if they can show that the decision of the relevant authority may have been made unlawfully.

Last modified 22 Mar 2024

Does public law control whether a landowner may construct a new building or refurbish an existing building on its land?

Yes, some forms of development will require the entering into of a planning obligation (also known as a 'section 106 agreement') under which the developer agrees to do certain things or make specified payments to mitigate the effects of the development.

Other agreements that may be required include:

• section 38/278 Highways Act 1980 agreements relating to the provision of new highways or works to existing highways, and
• section 104 Water Industry Act 1991 agreements relating to the delivery of new drainage infrastructure.

There is also a system of financial levy available to local planning authorities to obtain funds from developers upon implementation of planning permission to be applied towards local infrastructure improvements. This system ("the Community Infrastructure Levy") is being adopted by a number of planning authorities and replaces some payments made under a section 106 agreement.

Last modified 22 Mar 2024

Does public law control whether a landowner may construct a new building or refurbish an existing building on its land?

In England, the standard duration of a full planning permission before it must be implemented is three years. A longer or shorter period may be allowed at the discretion of the local planning authority. In Wales the standard duration of a full planning permission is five years. Once a planning permission has been lawfully implemented, it will normally endure forever (although it is possible to grant a temporary planning permission) and the benefit of it will attach to and transfer with the land.

Last modified 22 Mar 2024

Does public law control whether a landowner may construct a new building or refurbish an existing building on its land?

Local planning authorities have power to serve enforcement notices requiring the cessation (and removal) of development or changes of use carried out without planning permission, or without compliance with conditions attached to a permission. There are fines for non-compliance, which can be prosecuted as a criminal offence, and an injunction may be obtained from the High Court against the owner of the subject land to enforce compliance. In addition, any benefit received from a breach of planning law may be subject to a confiscation order as proceeds of crime.

Last modified 22 Mar 2024