Legal Report: Advice on design access points to potential traps

Since August last year, most planning applications have required a supporting design and access statement (DAS).

The only exceptions are proposals that seek permission solely for change of use, engineering or mining operations, or householder development outside conservation and other designated areas.

The General Development Procedure Order (GDPO) 1995 now requires a DAS to explain the design principles and concepts applied to defined aspects of the development - amount, layout, scale, landscaping and appearance. It must "demonstrate the steps taken to appraise the context of the development and how the design of the development takes that context into account".

The statement should explain the policy adopted on access, how legislation relating to access has been considered and what consultation on access has been taken on board. Circular 01/2006 goes into further detail as to what is required, while stressing that a DAS need not be a long document. Unfortunately, complications have already arisen.

Inspectorate offers guidance

Last month, the Planning Inspectorate issued further guidance "to tackle what is evidently a significant problem". If a DAS is not submitted with an application, that application should not be validated. However, many proposals have been lodged where the inspectorate considers that a DAS should have been submitted yet the local authority has nevertheless registered the application and proceeded to determine it.

On decisions taken by local planning authorities, the inspectorate will accept appeals until the end of this year. This is dependent on the submission of the DAS within an agreed timescale and an indication from the council on whether it is adequate. But what happens in those cases in which a statement is regarded as inadequate?

The inspectorate is concerned that some councils are refusing to validate applications or are requiring substantial detail and explanation "disproportionate to the nature or scale of the proposal". This approach is not justified, it makes clear. If the key requirements of the GDPO and the circular have been met and the DAS together with other documentation adequately describes the scheme, then inspectors will usually register an appeal as valid.

The role of the DAS as a material consideration in the determination of applications or appeals was highlighted in June in the secretary of state's decision letter on a major mixed-use scheme at Filton, near Bristol. The application had pre-dated the statutory requirement, but a DAS had been submitted on a voluntary basis.

The secretary of state dismissed the appeal, partly on design grounds. She identified a number of inadequacies with the DAS:

- The statement failed to show with necessary clarity and consistency how the strategy would inform the detailed design of the proposal and ensure a high-quality development, especially in terms of layout, scale and appearance.

- The illustrative design lacked the necessary clarity and coherence to ensure a high-quality development.

- The layout was too complex and in places was poorly legible.

- The masterplan gave insufficient detail on the approximate location and scale of buildings.

- The sketches of architectural style were indistinct and not always consistent with the design code submitted.

Statements' vital role proved

Any lingering doubts as to the importance of DASs should be dispelled by the attention paid to this document by the secretary of state. She concluded that the proposal did not ensure a high-quality design that would respect and enhance local character and was thus contrary to the local plan and the circular.

In cases where design is a key issue, it is vital that a DAS should provide clear guidance on how a high-quality development can be achieved though the reserved matters process. Developers should be aware of the requirement and challenge local authorities' attempts to use any issues they have with the DAS as a way to hold up validation.

To secure planning permission, applicants should ensure that the statement deals with the requirements of the GDPO and the circular to assist decision-makers in understanding the proposal's design and access elements. Used sensibly, the DAS is a tool to improve the quality of development. Used badly, it could be a costly regulatory booby trap.

Simon Ricketts, head of planning and environment at SJ Berwin LLP.

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