Chapter 6 Planning
Property Development (6th Edition)
Publisher: Routledge www.routledge.com
Authors: Professor R.G. Reed and Dr S. Sims
6.1 INTRODUCTION
• The role of planning in property and real estate markets is designed to
co-ordinate the efficient use of resources, being the limited supply of land
either vacant or improved.
• Another critical objective is to restrict conflicting land uses from being located
directly next to each other, such as building a new oil refinery next to an
existing residential area.
• The process of planning involves many stakeholders who are both directly and
indirectly associated with the proposed development.
• A developer should understand all aspects of planning law which have the
potential to affect land use and development potential of a particular site.
• The planning process and the associated legislation will ultimately determine
the type of development allowed on any site and thus influence the value of
the completed development.
6.2 PLANNING AND THE ENVIRONMENT
• Many international governments have been committed to the concept of
‘sustainable development’ i.e. ‘meeting the needs of the present without
compromising the ability of future generations to meet their own needs’
(WCED 1987).
• Over time there has been increased linkages between town planning and
environmental law and regulations and these close ties have continued in
many aspects of land use planning and property development.
• The details of the planning legislation and its interpretation vary between
regions, even adjoining towns, and are heavily influenced by the political
party in governance.
• The advent of social media has repeatedly demonstrated the groundswell
which can occur when a property development may affect environmentally
sensitive land.
• The developer must be fully aware of the needs of the community and
corporate social responsibility (CSR) is often undertaken by the developer as
well.
6.3 WHAT IS DEVELOPMENT?
• The concept of ‘development’ has varying perceptions for different
stakeholders in the real estate market and also in wider society.
• Some sectors of society are anti-development at one extreme (e.g. based on
the ‘sustainability’ argument), regardless of the need to redevelop and
reinvent to increase the level of efficiency in the urban market.
• Development is an essential part of our society and can also be described as
‘renewal’, ‘renovation’, ‘reusing’ or ‘updating’, however there are many
different types of development; it is difficult to encapsulate development with
a single definition.
• In relation to planning legislation the following activities are generally
classified as development:
- carrying out building, engineering, mining or other operations in, on,
over or under land; or
- undertaking any material change of use in any buildings or other land.
6.4 THE PLANNING APPLICATION
Making an application
• If a property developer is carrying out a development for which planning
consent is required then usually they must apply to the local planning
authority for consent.
• Examples of the main types of property development applications are as
follows:
1. Outline planning permission application. An outline application is generally
used early on in the development stage to establish whether or not the
proposed development is likely to be approved.
2. Full or detailed application. A detailed application will seek not only to
establish a land use principle but approval for all the ‘reserved matters’.
3. Changes of use. Legally an application for the change of use of land or, more
commonly, buildings is regarded as a full application rather than an outline.
4. Applications for heritage listed building consent or conservation area
consent to demolish. All proposals to demolish buildings in conservation
areas requires specific permission and thus proposals for development in a
conservation area must also, if demolition is envisaged, be accompanied by a
separate application for conservation area consent to demolish.
Discussion points:
Under what circumstances might it be prudent
for a developer to make an application for
outline planning permission?
What other local authority departments
consider the impact of the planning application,
and why is this?
6.5 ENVIRONMENTAL IMPACT ASSESSMENT
• In many regions legislation has introduced the compulsory requirement for an
environmental impact assessment (EIA) or an environmental impact study
(EIS), where a developer is often required to produce an environmental
statement (ES) as part of a planning application.
• This statement examines the impact of a development proposal on the
environment and there is a comprehensive list of factors which can be
assessed including: impact on the landscape, visual impact, ecology, geology,
archaeology, air and water pollution, contamination of land, noise pollution,
wildlife conservation and agriculture.
• The relevant government body may make a direction that an environmental
impact assessment is required.
• The developer can save time and a great deal of energy by consulting the
relevant planning officer of the district council or appropriate authority at the
outset.
• With environmental issues now very high on the political agenda, it is
becoming increasingly important for developers to consult with the relevant
pressure groups at an early stage.
6.7 PLANNING APPLICATION APPROVAL
• In certain regions some types of planning applications, although often
relatively minor in nature, might be decided by the planning officers of a
planning authority using powers delegated to them by the planning
committee.
• Normally a planning committee will seek and listen to the advice of their
professional officers and will also take note of any representations made by
members of the public.
• Public interest in planning is often strong when the existing status quo might
be disturbed. This statement is particularly true for a high profile site which
may not be protected by historical legislation but has broader perceived value
to the local residents.
• The planning committee is a committee of elected councillors who, as part of
the democratic political machinery, recognise the impact that the decisions
they may make has on their political standing.
6.8 PLANNING CONSENT
• Permission may be granted subject to a variety of conditions, for a limited
duration of time or for the personal benefit of certain people or organisations.
• Detailed planning permission will normally lapse unless the development is
commenced within a set time period (e.g. 5 years) from the date the original
permission is granted or such other time as the planning authority stipulate.
• Decisions in the court systems at times have decided that in order to show
that a planning permission has been implemented, there must be a genuine
intention to carry out the development concerned when a commencement is
made on the site.
• At the end of the planning permission period any buildings or works which
have been erected must be removed and any use authorised by the
permission must cease. On the expiry of limited period planning permission, it
is open to the applicant to make a new application.
• The powers of planning authorities to impose conditions on a planning
permission is an accepted part of property development and planning
authorities will provide guidance.
Discussion points:
What are the various qualifications that may be
attached to planning permissions?
How can these qualifications affect a
developer’s proposals?
6.9 PLANNING AGREEMENTS OR OBLIGATIONS
• Having prepared the planning framework, the local planning authority
normally waits for developers/landowners to produce specific planning
proposals and to make planning applications.
• Planning agreements (referred to as planning obligations) between a
developer and a planning authority may be made under the provisions of the
current legislation in the region.
• If developers feel that a local planning authority is attempting to exert undue
pressure on them to enter into an agreement which will impose unduly
onerous burdens, their remedy is to make a formal planning application and
take the matter to appeal if planning consent is not granted.
• In many cases it will be to the advantage of developers to offer a planning
obligation themselves.
• The extent to which a planning authority should, when considering a planning
application, negotiate with a developer in order to obtain some material
benefit for the community (referred to as ‘planning obligation’) has been a
matter of controversy. Some feel that it is wrong for a planning authority to
bargain to obtain a material benefit in return for a planning permission.
6.10 BREACHES OF PLANNING CONTROL
• Local planning authorities often have wide powers to ensure that no
development which requires planning permission takes place without
permission being granted.
• Where development has allegedly occurred without permission the
authorities are empowered to require information concerning the
development, the identity of the owner of the land involved and other
pertinent matters to be divulged to them.
• They can serve an enforcement notice on the landowner/developer that
identifies the breach of planning control, the action required to remedy the
breach and a time limit to carry out the necessary action.
• There is often an appeal where commonly used grounds are that planning
permission should be granted for the development concerned and the lodging
of an appeal on that ground is regarded by the higher government body,
which considers the appeal, as often being a deemed planning application.
6.11 PLANNING APPEALS
• In the event of the local authority refusing planning permission for a proposed
development, or the authority either taking a longer period to determine the
planning application or granting permission subject to a condition which
aggrieves the applicant, there is usually a right of appeal.
• To be valid, an appeal against a refusal of planning permission must be lodged
within a designated time period from the date of refusal.
• Once a planning appeal has been lodged, jurisdiction of the case passes to the
relevant higher government body.
• Often there are three alternative methods of appeal:
- Written representations is an exchange of written statements.
- Informal inquiry usually takes the form of a meeting between the
appellants and the local planning authority.
- Formal public inquiry is a quasi-judicial inquiry where the appellant is
represented by a barrister, solicitor or qualified person who presents the
case for the appellant, calling expert witnesses to give evidence in support of
the appeal.
6.12 FUTURE PERSPECTIVE
• The development industry is often dissatisfied with the delays and uncertainty
which it experiences and sometimes the ad hoc nature of the decisions made,
particularly where local politics holds sway over professional logic.
• Various proposals have been put forward to improve the planning system and
developers must ensure they understand the process thoroughly.
• With a strong political involvement there has been an acceptance that
planning plays a key role in delivering sustainability and economic growth.
• The planning system is required to have increased flexibility and
responsiveness in the system, increased efficiency in the planning process and
a more efficient use of land.
• As far as developers are concerned it appears that some of the historic
problems remain in the system, those of delay for example, whilst newer and
complex issues, like sustainability, have arisen and need to be addressed in
property development.
Chapter 6 Planning
Property Development (6th Edition)
Publisher: Routledge www.routledge.com
Authors: Professor R.G. Reed and Dr S. Sims