Q & A 3.1/10
How much weight does PPG3 hold in Wales?
PPG3 guidance only relates to England and therefore carries no weight in Wales. However, the thrust of English guidance, such as the search sequence for identifying sites and the presumption in favour of previously developed land, is contained in chapter 14 of the consultation draft of Plannning Policy:Wales issued earlier this year.
Is there any difference in status between ministerial guidance issued in the form of Planning Policy Guidance (PPG) and that contained in a Circular?
I do not think that there has ever been any legal distinction made between the two types of guidance, but it is evident that past ministerial thinking has been that legal and procedural advice should be separated from planning policy advice. This is clear from Circular 1/88, dating from the time when PPGs and MPGs were first introduced. It stated that the new forms of advice were "intended to provide concise and practical guidance on planning policies in a clearer and more accessible form than in Departmental circulars". The Circular went on to state that "For the future, advice on legislation and procedures will be given in Departmental circulars, while PPGs and MPGs will be the main source of guidance on planning matters."
In reality such a distinction has been difficult to sustain and readers will be able to point to examples of legal and procedural matters which are contained in PPGs. This muddle is only one aspect of a general problem with the whole raft of ministerial advice which is that it is not consistent, structured, comprehensive or up to date. Someday it may be realised that the development control system would be radically improved if all extant guidance notes and circulars were scrapped and rewritten as an all inclusive one volume bible of national planning guidance.
We have asked the SOS to call in an application for a major mixed use development and another for an associated waste water treatment works, as we consider that they raise issues of more than local significance. Both are in the green belt and conflict with national, regional and development plan policy. However, the Government Office has decided not to intervene. Is there any recourse to the ombudsman or other right of appeal?
The power to call-in is discretionary and is rarely exercised. It is normally used when a local authority is not proposing to refuse an application but where the SOS considers that the proposed development requires closer examination before permission is granted. PPG1: General Policy and Principles (1997) explains that the SOS will generally intervene only if planning issues of more than local importance are involved, and the courts have ruled that he does not need to give reasons for not calling in an application. While there is nothing in current planning legislation that provides for any appeal as such, the matter may be challenged through the courts by judicial review. However, the courts appear generally reluctant to interfere with the wide discretion that the SOS has with such decisions unless, having applied the Wednesbury principles of reasonableness, it was clearly perverse and the only reasonable course of action would have been to call in the application. While the Parliamentary Ombudsman will investigate complaints about Government departments, discretionary decisions can only be questioned if there is evidence that there has been maladministration in the way they were taken, but I am not aware of any relevant cases.
My authority is about to go on deposit with its Local Plan Review. What advice should we give our development control colleagues on the weight they should attach to the emerging policies, as opposed to the policies of the adopted Local Plan? We are mindful of the advice in PPG1 but is there any further relevant guidance or case law on this matter?
PPG1: General Policy and Principles (1997) is the primary source of advice on this matter. As you know, this says that the weight attached to such policies depends upon the stage of plan preparation or review, increasing as successive stages are reached. For example, where a plan has been placed on deposit but no objections have been lodged to relevant policies, then considerable weight may be attached to those policies. However, your authority’s emerging plan has yet to reach that stage and thus it would be premature to afford it ‘considerable’ weight. Nevertheless, draft policies are capable of being a material planning consideration, although planning applications should continue to be considered in the light of current policies whenever possible. Whether emerging policies will outweigh those in an adopted local plan will depend largely on the age and relevance of the latter and whether there has been any material change in circumstances since their adoption, such as some change in Government policy. Each policy should therefore be assessed accordingly and this is confirmed generally by case law and relevant appeal decisions. The topic is covered in 4.21 of the Development Control Practice manual.
Under the new planning regime, the inspector's report on an emerging local development framework (LDF) will be binding on the local authority. However, if an authority subsequently ignores this by granting permission for housing on land directed by the inspector to be protected from development during the life of the LDF, how can an individual or a community group overturn such a move? Is the only recourse through the courts and, if so, what would be the procedure, costs and potential liabilities?
If an authority fails to change an emerging development plan document in accordance with the inspector’s report, the Secretary of State may use his default powers and intervene in order to revise the document. Where an authority is minded to permit a proposal that departs significantly from an adopted development plan, the authority must notify the Secretary of State so that he can consider whether to call-in the application for his own decision. Regardless of any such notification, however, any person may request that an application be called in. But applications are called in rarely and generally only where issues of more than local importance are involved, such as conflict with national policies on important matters.
As there is no third party right of appeal as such, any permission by the authority must be challenged by judicial review through the High Court. This must be made promptly and only on a "point of law". A simple guide to the procedure may be downloaded from the CPRE’s website. The unsuccessful party is likely to be held liable for the legal costs of the local authority and other interested parties, including the developer, and these could be considerable. You should seek advice from a planning barrister.
Would the Secretary of State be entitled to regard an application for the approval of reserved matters that followed a called-in outline application as one that he could deal with or would it need to be the subject of a separate call-in?
In line with the model conditions set out at Annex A of Circular 11/95, when granting outline permission for a development following a call-in inquiry, the Secretary of State will impose a condition requiring that "application for the approval of reserved matters shall be made to the local planning authority". It would be impracticable for the Secretary of State to assume day-to-day responsibility for approving such matters. I can find no instance where the minister has called in a reserved matters application.
Whilst not a direct parallel, my practice dealt with a call-in case in Scotland for a restaurant in the Green Belt. In granting outline planning permission the Scottish Ministers were of the view that the standard of design was of paramount importance and issued a Notification Direction requiring the planning authority to submit the reserved matters to the Ministers for consideration. The stated purpose was to allow the Ministers to "scrutinise the design quality of the development".
We are a local amenity society extremely concerned that our local authority seems to be set on approving a mixed use redevelopment on the fringes of a historic town centre. The 0.95 hectare site mostly comprises a former factory now occupied by a mail order firm. A small part lies within a designated conservation area. It is considered that the scheme would be seriously damaging to existing market town character. We are aware that it is possible to get an application ‘called-in’ for government reconsideration, but how do we go about it and what are our chances? DW.
The discretionary power to ‘call-in’ a planning application before it is formally determined by a local authority is given by section 77 of the Town and Country Planning Act 1990. The criteria used at present were set out in a 1999 Commons Answer where it was stated that government would only intervene in the jurisdiction of local planning authorities if the planning issues were of more than local importance. The criteria given at the time were that there would have to be
• conflict with national policies on important matters;
• significant effects beyond the immediate locality;
• substantial regional or national controversy;
• significant architectural and urban design issues; or
• involvement with the interests of national security or of foreign Governments.
The normal procedure is to put your case in writing to the Planning Director of the Government Office for your region. Speed is of the essence if your authority is likely to come to a formal decision shortly. However, as the Government is extremely selective in applying the above criteria I cannot offer much hope that this particular application will be called-in as only about 50 cases are determined annually. There is a useful database of past called-in cases on the DCLG web site. GH