Seeking planning permission can be fraught with uncertainty. The law is deceptively simple. Where a proposed development complies with the development plan, permission should be granted unless material considerations indicate otherwise.
However, other legal tests must also be applied – including the “special regard” paid to the preservation of heritage assets.
An uneasy balance
Looking at the development plan, policies can be site-specific or general. They may pull in different directions – and a determination must be made as to the most important. Some require subjective judgment as to whether adverse impacts arise.
Determining whether an application complies with the development plan as a whole often involves a balancing act, weighing up the benefits and the harm of the particular proposals judged against the policies.
On the other side of the equation, material considerations include the government’s National Planning Policy Framework which again pulls and pushes in different directions. The presumption of sustainable development may require the so-called “tilted balance” to be applied, potentially tilting decision-makers towards granting permission where there are no relevant policies or the most important policies are out of date. A body of case law grows on how what is relevant, important and out of date should be assessed. The requirement for “very special circumstances” for inappropriate development in the green belt effectively tilts the decision-maker in the opposite direction.
The requirement to apply great, substantial or significant weight to other aspects of decision making can help make the see-saw wobble precariously.
Discretion of the decision-maker
The complexity of the system and its inherent subjectivity means the scope for differing yet perfectly lawful decisions is vast. There is potential for better alignment of language. As a result, it is said that planning is highly fact-sensitive – but that makes it highly sensitive to the decision maker.
Who is the decision-maker? Depending on the authority’s constitution, certain decisions are delegated to planning officers. Usually, more complex schemes are determined by members at committee who may or may not agree with the recommendations of their officers.
The applicant may appeal, in which case an inspector will reach his own conclusions and either make the decision, or make a recommendation for the secretary of state for housing, communities and local government, who ultimately exercises his own judgment.
In London, the mayor has power to call in applications for his own determination and to direct boroughs to refuse permission. This may provide an alternative route to a positive result. However, it can add a further layer of risk and potential for delay if, despite a carefully negotiated position with officers accepted by members, the mayor decides that his own priorities trump those of the borough.
There can be protracted uncertainty – and considerable cost – as applications grind through these levels of the system. The (yet to be determined) fate of the Tulip is an interesting case (see below).
On what do decisions turn? Senior officers become experienced in finding a pragmatic way through the system’s complexities and reaching a balanced judgment rooted in policy, often after pre-application discussions on what might be judged acceptable in particular circumstances. The need to invest and retain talent in planning departments is paramount.
At committee, levels of true engagement with policies by members vary and disagreement with the careful judgment of officers can lack specificity. Are training requirements stringent enough? Politics can play a part. Decisions can run along party lines. Independent councillors elected following opposition to an adopted plan may find it difficult to support schemes despite policy backing.
Perhaps it is right that elected politicians should take major decisions on controversial schemes. Nuances in the decision making of the secretary of state must be affected by the national politics of the day, however, and it is an oddity that the decision-maker does not himself attend inquiry or hear the evidence.
Personal preference must also come into play, whether on a conscious or subconscious basis. In that regard, what of the opinions and preferences of the wider public? It is reported that in a poll of 1,011 Londoners, two-thirds thought the Tulip to be an attractive addition to the skyline. If the secretary of state simply disagrees, will that alone be determinative?
Possibilities for the future
Post-Covid-19, better online consultation facilities engaging a wider sector of the population must become commonplace. But what influence should the results have? Could representational panels play a bigger role?
The Planning Inspectorate’s statistics on the success of appeals can make a sobering read. Is the chance of success materially influenced by the inspector appointed? Is there a tendency to tilt refusals too much in one direction? Perhaps technology could be better used to identify and help question patterns in decision making.
Wholesale review of the system is unwelcome given the difficult times ahead. Questions should be asked, however, about whether decision making is as effective as it could be. Planning is important, it should be testing and it cannot be entirely certain. But it can be better.
Case study: The Tulip
The application for the controversial 305m observation tower, including a restaurant, bar and education facilities in the City of London, was submitted in November 2018 and faced objection, including by Historic England.
The City of London Corporation’s planning and transportation committee backed the plan by majority vote. The mayor called in the application, and refused permission in July 2019.
An appeal has been lodged, and an inspector will hold a public inquiry (currently delayed due to Covid-19). The secretary of state will make a decision, possibly in 2021.
Claire Fallows is a partner at Charles Russell Speechlys LLP
