If you are facing planning issues relating to your business you need practical legal advice that will allow you to move forward. We will listen to your needs and advise you how the law can help you to achieve them.
Nicholas Kingsley-Smith manages our Property Law and Environment department and has a wealth of experience. He is a member of the Solicitors Regulation Authority's Planning Law Accreditation Scheme, and a Legal Associate of the Royal Town Planning Institute. For immediate advice on any planning matter you can call Nicholas on 01634 811 118 or email Nicholas .
We have experience of the following areas - please click on one for more information:
- Access and highway issues
- Development potential and site appraisals
- Planning advice and applications
- Planning objections
- Change of Use
- Permitted Development: General Development Order
- Environmental matters
- Planning obligations (106 agreements and undertakings)
- Option Agreements
- Listed buildings and conservation areas
- Trees and tree preservation
- Planning appeals and enforcement notice appeals including listed buildings
- Judicial Review
- Stop Notices
- Planning Contravention Notices
- Breach of Condition Notices
- Prosecutions arising from planning or environmental issues
- Certificates of Lawfulness
- Development plan representations
- Section 106 obligations (see also Planning Obligations)
- Compulsory Purchase Orders
- Objections to Orders
- Blight Notices
- Compensation
- Purchase Notices
- Highways Act
- Public Rights of Way
- Wildlife and Countryside Act
The inherent conflicts between those wanting to utilise land for commercial or residential purposes and those seeking to protect and maintain the existing natural environment has never been higher on the political agenda. The law and local authority procedures that try to balance these competing interests have become more and more complicated. Our solicitors have specialist expertise in planning and can best help those involved in the planning process when this specialist help is obtained early on in the planning process.
Dealing with the Town and Country Planning departments often means advising on complex issues as well as difficult questions of law. Professional teamwork is crucial if a project is to be successful.
Our solicitors are able to manage all aspects of a planning project effectively and can help put together and co-ordinate a team of experts from other professions if needed, to meet your particular requirements.
From the start of the development process you may have questions such as:
- How long will it take?
- How much will it cost me?
- What are my chances of success?
- What options are available?
- What is/are the most appropriate procedure(s) to use?
This means you need a firm of solicitors who are:
- Familiar with all aspects of planning law, practice and policy
- Expert in analysis and presentation on the your behalf
- Have a full understanding of all aspects of land deals
Access and highway issues
Access is a perennial planning problem. Sometimes it has not even been realised that a legal or planning problem concerning access exists. The risks involved are such that there is no substitute for detailed legal and planning advice, both of which we can provide. Issues that arise include:
- a new access may require planning permission
- sightlines are also critical for new development, although there are sometimes ways of circumventing this on which we can give advice
- damage to a hedgerow is not unusual during development but can bring enforcement consequences
- failure to own or control the entire access to the nearest publicly adopted highway may prevent completion of any legal agreement on the proposed development
- planning permission may have been granted, but not be capable of implementation because of legal constraints
- sometimes access issues only come to light after a development is constructed and access acquires a ransom value
We have virtually unique experience in dealing with highway access, particularly in relation to compulsory purchase. Our firm has also been involved in court cases in respect of highway constraints and legal agreements. Our involvement in the evolution of the law is quoted in all the major planning textbooks and case citations, as well as in government planning policy statements.
You are welcome to contact us by e-mail with an access query.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Development potential and site appraisals
We are highly experienced in evaluating the prospects for development and redevelopment. The matrix of issues that surround development, including tendering on sites, auction lots and private treaty, taking or granting options, all involved appraisals. Without an appraisal which highlights the issues important to your financial strategy, you do not have a full understanding of the risks, or benefits. Commercial risks lawyers are used to examining, but on planning that is rather different. Commonly they suggest you seek advice of a planning consultant. But that consultant is not legally trained, so unless you have them working side by side, there might be a gap between them to which you will be blind. Often neither professional is held liable, as they worked within their respective disciplines, leaving you without remedy. Why take that risk when we provide practical planning law advice, being not only Solicitors, but a legal associate of the Royal Town Planning Institute?
(see also Landowners and Developers + Change of Use)
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Planning advice and applications
Development is both an art and a science. Intentions at local government level are often diametrically opposed to those of central government. We do not act for any planning authority and never will. Councillors views often clash with officers. We have strong experience in helping applicants, but also objectors. We take an objective view regardless. All too often mistakes are made, whether it be the Council, applicant or objector. The rights of applicants and objectors are very different and commonly misunderstood. We can help guide you through the planning maze.
Unfortunately the 1990 and 2004 planning acts still give the local authority the upper hand, leaving limited scope even on appeal to allow certain proposals to proceed, even less for objectors. It is all the more important to get good advice. Judicial Review is dealt with elsewhere on this website.
Whichever party we represent in a planning application, our policy is to support our clients with a full professional service provided there is a reasonable prospect of success. Acting for farmers, residential developers, and commercial agents for office or industrial developments needs a clarity of mind which can ultimately save the client considerable financial risk, and reduce the time and stress that is involved in planning.
Developers
We are able to advise on developments from modest schemes up to those that have national significance, whether in the South East or not. In this highly complex, technical field and we are also happy to help those who in turn are advising developers, working in the background to boost their presentation to clients.
Objectors
Our knowledge and experience can turn a local authority away from what it might otherwise have approved. We regularly act for objectors to development proposals and we have a high success rate. Presenting objections to a planning committee is a skill. We make that skill available to you.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Planning objections
Do you object to your neighbour’s application for planning permission, and are you unsure how best to make your case? Is there a planning proposal in your area that will affect you, and against which you want to make a protest that will have real impact? Do you want to become an important third party in a planning appeal? These are all areas in which we specialize.
We can help you make a case for challenging the proposed development, including where mistakes or mal-administration have occurred, and advise you on the best way to succeed. We can also advise what can be done when you have been unable to get your point across to your planning authority, and in situations where you seek compensation from the Council.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Change of Use
Planning permission is often required for change of use regardless of any change in ownership, or even a different trade if the use intensifies. Whilst there is an Order for Use Classes where the change might not require permission, the trap is not being certain about that and later finding money has been spent which is wasted. If you want discrete reassurance, do contact us.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Permitted Development: General Development Order
The Order which governs what does not require your Council’s consent, can be either overlooked or not understood. If you do not know if your proposal might need planning permission and you do not want to ask your Council, or you have and they want to see your plans/tell you their permission is required and you do not accept it, why not let us help you? Councils in our experience tend to seek either an application for permission or lawful certificate of development unless it is a certainty, but you may need nothing at all. They might threaten enforcement action if you proceed, but they may be powerless. We can guide you on all these arguments.
If you wish to carry out development and have looked at the Order, you might find it difficult to follow. Whatever the problem, we can help you.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Environmental matters
When it comes to planning problems and environmental matters, these can take a wide variety of forms. The law in this area is complex and frequently misunderstood. Sometimes the issues involve past cases as well as legislation. We have considerable experience of drawing on all sources of law in order to help produce a desired outcome.
Landowners and developers
We advise landowners and developers in respect of proposals that involve emissions. These include noise, light, dust etc. Right to light is a common claim that is not always well argued. Contamination of land is a particularly troublesome area for landowners where the cost of remediation is financially catastrophic. We are happy to advise farmers, developers and landowners on how to minimise their exposure to this risk. Ideally we would advise before the land is even acquired, but we are happy to advise where the problem has already been uncovered on your land or you are worried about a potential problem.
Objectors
Acting for objectors to a development that is proposed, or taking place, frequently enables us to change a local planning authority's approach - although it is by no means an easy task, whether it be officers or councillors. Experience enables us to provide a high level of swift help for objectors and developers alike.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Planning obligations (106 agreements and undertakings)
Planning Obligation agreements are a fertile area for review. Whilst it is commonly perceived that such agreements follow a tried and tested formula (and there are a number of precedents which are used by local authorities and developers) our extensive knowledge and experience of these agreements proves this to be a false belief.
Covenants in such agreements can lead to litigation. We specialise in this field.
Not only are such documents, particularly for larger schemes, often given insufficient thought in their preparation, but also problems that were not carefully considered prior to execution of the agreement frequently transpire to be a disaster. The results for developers and landowners can lead to catastrophic financial implications.
If you have a development in progress, or wish to challenge an agreement either as a resident or neighbour to land that is subject to such an agreement, we are happy to lend our knowledge and experience.
Conditions on planning permissions are also a frequent area of concern, either because of enforcement [see elsewhere on this website] or because a permission is possibly lapsed or about to expire. This issue we advise upon extensively.
We are also happy to advise developers of adjoining land that is part of a land assembly scheme for development and subject to an over-arching legal agreement. In addition, we are pleased to advise agents, architects and consultants who would appreciate a review. It could be a very worthwhile investment.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Option Agreements
Option agreements are a commercial tool used by developers who identify sites that will potentially be capable of development in the future. The agreements require considerable experience in planning administration, applications, policy and appeals, as well as planning law. As we are experienced in both planning and the law, we can ensure you do not overlook details in the agreement that may later prove to be significant.
Option agreements often involve a huge investment of time and expense – sometimes over many years. Do you want to take the risk that this investment might have been wasted? That could be the outcome if the option agreement is defective.
Even if there is no written agreement on a particular point, we may be able to provide advice on a remedy. Talk to us to find out. What do you have to lose?
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Listed buildings and conservation areas
What is permitted, and not permitted (usually the latter) in the development of listed buildings, and buildings within conservation areas, is a specialist subject requiring the most careful analysis of the facts and circumstances in each and every case.
Enforcement Notices are not uncommon and present appeals for clients.
The Listed Building Act 1990, Listed Building curtilage, and Conservation Area designations are all issues that may have vital importance for you.
Our experience throughout the south east of England in respect of all manner of development proposals involving either one or all of these issues is available to you. Failure to take advice is an unnecessary risk.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Trees and tree preservation
This subject is covered by cases and legislation that regularly cause significant problems in planning terms for development proposals, and provide a useful tool for objectors. We work with the leading experts in respect of trees throughout the south east of England. If you have any doubts, it is wise to secure good advice.
Even basic principles are commonly misunderstood in respect of tree preservation and can lead to unnecessary and extraordinary expense and delays.
We have regular experience of planning authorities who fail to appreciate the law applicable in respect of trees and tree preservation and we are happy to advise developers on a pro-active basis to ensure their proposals are presented in the manner most likely to succeed from the start, or during the process of confirmation, or on appeal.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Planning appeals and enforcement notice appeals including listed buildings
We have a high success rate in planning appeals ranging from the smallest householder proposal, to large industrial and residential schemes. We deal with local planning authorities throughout the south east and achieve regular success in having their enforcement notices quashed. We wish to expand our area of geographic coverage and welcome enquiries throughout England & Wales.
Those that seek our advice, already struggling with the appeal process, have found the knowledge and experience that we can provide dramatically reduces the stress upon them, and enables them to recover their previous determination to succeed.
Our experience may well help you to transform your prospects because:
- we never encourage clients to pursue an appeal where it is highly unlikely to succeed, but there are usually opportunities to improve your case, often dramatically so
- we have been able to reformulate cases on appeal, transforming them from something that was likely to fail, to something that has a reasonable chance of success
- our extensive experience provides you with the safest method of presenting your case
- our well presented planning appeals before hard-working inspectors, who have many cases to determine on a daily basis, can make all the difference
- if the Council claim the current planning permission has lapsed, we can help you in this commonly misunderstood specialist area of planning
It is true that planning appeals can be an expensive process, but by no means as costly as one might imagine. Can you afford not to ask us?
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Judicial Review
The power of the court to review decisions made by public bodies is of paramount importance in planning matters. Judicial review has to be applied for promptly, and in any event within three months after the grounds to make the claim first arose. However, the trigger point for a claim is often misunderstood so we are regularly asked to advise in cases where the client is simply too late to apply for judicial review. There can be cases where even three months is too late, so act with extreme urgency because there is no time to be lost.
There are many situations where judicial review is appropriate to achieving a solution, but the merits of the claim and prospects for success are always dependent on the particular case. We can advise you on your chances and ensure you have explored all your options to challenge a Council’s grant of planning permission or an Inspector’s decision.
The nature of judicial review as a remedy is too extensive to set out adequately here, so contact us and find out if you have a case and, if so, whether it is worth the expense of pursuing an application?
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Stop Notices
Stop notices are used in conjunction with enforcement notices and are more alarming than any other notice you might receive. They call for urgent advice and action because their purpose is to bring an immediate cessation to a breach of planning control. The implications for your property are therefore urgent and serious. You must take a series of steps to protect your position, otherwise you may deeply regret it later on. We are here to guide you if you fall into this major trap in planning enforcement.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Planning Contravention Notices
Planning Contravention Notices enable the local authority to require detailed information about suspected breaches of planning control. They often indicate the beginning of trouble and should be responded to with great care.
The notice is likely to require details of all uses of the land and buildings that might be a breach of planning control. It will also raise matters relating to the conditions attached to any planning permission already granted, and request names and addresses of persons using the land as well as those with a legal interest in it.
Planning Contravention Notices often present difficulties for landowners and, in cases of residential property, might put the owner’s security at risk as well as the security of the lender.
However, if Planning Contravention Notices are handled well, it may be possible to avert enforcement action.
We can help you to avoid the potential financial penalties of non-compliance with a Planning Contravention Notice, and the possibility of a formal action for breach of planning control.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Breach of Condition Notices
If you fail to comply with a condition in a planning permission, you may receive a breach of condition notice from your local planning authority. It will need careful attention and prompt action.
It will be essential to consider urgently the means of complying with the notice. Unless you are experienced, there are many pitfalls for you to avoid but it may be possible to vary or omit the condition from the planning permission in order to resolve the problem. We can provide you with immediate advice. Let us guide you.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Prosecutions arising from planning or environmental issues
Prosecutions arising from planning contraventions are relatively common. Sometimes compelling matters, principally of a financial nature, make defending a prosecution either a necessity or the better option. Magistrates Courts are usually reluctant to see hardship caused to an unsuccessful appellant who appeals against an enforcement notice.
We are familiar with negotiation ploys that can result in a good outcome for the client. We would be happy to advise on what steps you might take, and the prospects for either a successful defence or mitigation.
Defending environmental prosecutions are a specialist area. We undertake defence work against prosecutions that are principally brought by the Environment Agency, although there are other bodies with prosecution powers. Magistrates Court work, in which we are highly experienced, enables us sometimes to obtain highly satisfactory outcomes.
We would be pleased to examine and appraise your circumstances and advise accordingly.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Certificates of Lawfulness
Do you have immunity from enforcement? Certificates of Lawfulness for an existing use, operation or activity in breach of a planning condition can be extremely valuable - either in their own right or as a method of obtaining development of another kind that is more beneficial.
It is vital for landowners to explore the powerful rules of immunity to enforcement action. They are of particular value in respect of non-agricultural uses by farmers and industrial or non-conforming uses. They can effectively upgrade the existing planning permission provided the rules established in the Burdle case about planning units allow.
All too often Councils claim they know the legal position on immunity but regularly this proves untrue.
We are experienced in a wide variety of immunity and certification cases. Every case is unique and we always aim to find the most beneficial route for a client. In some instances we even create development opportunities that did not previously exist. We welcome the chance to help you.
Planning Unit
The term “planning unit” is often misunderstood and is regularly the subject of inspector and judicial rulings that cause serious upset. Failure to understand your planning unit might ruin the basis for any particular development you seek. It can also lead to high and abortive costs and wasted time. We aim to prevent this or if it has arisen, help you in a jam.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Development plan representations
The current Local Development Framework (LDF) approach, introduced by the Planning and Compulsory Purchase Act 2004, is an area in which we are able to provide extensive experience. We have been instrumental in finding one LDF “unsound”, and we are involved in a wide variety of Local Plan Reviews, LDF submissions, and public inquiries.
Whether we act for parish councils, residents’ associations, or particular pressure groups, we are experienced in making representations and submissions in respect of Local Plan Reviews and influencing frameworks. It is our task to enlighten whoever retains our services. We do not act for any planning authority, nor would we ever do so.
Landowners and developers
In a development plan led system, it is critical for any landowner and developer to ensure opportunities to influence the development plan are fully explored and seized upon.
We would be delighted to appraise potential development opportunities. The work that we undertake for clients can result in very substantial improvements to their asset base.
Pressure groups
We are experienced in acting for pressure groups. Local Plan Reviews and influencing LDFs are certainly under-exploited areas for pressure groups to consider carefully. We would be pleased to appraise the circumstances and prospects for a pressure group to influence any given case.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Section 106 obligations
(see also Planning Obligations)
There is no such thing as a straightforward Section 106 agreement because they uniquely draw on land law and land use planning in a manner that is a trap for the inexperienced and can lead to immense financial losses if there is a mistake.
We have been involved with Section 106 agreements from their outset, when they were usually known as Section 52 Agreements. Judicial decisions in this area where we have been instructed, routinely appear in all the main planning bulletins, encyclopaedias, and indeed some of the cases are referred to in government circulars and statements.
Their importance is frequently under-estimated in delivery of planning permission on appeal and we are happy to explore the possibilities for your project.
Primary advisors
We are very happy to act as subordinate advisors to architects and planning consultants who are at the stage where the principle of development is approved subject to an agreement. We can provide discreet advice to such primary advisors.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Compulsory Purchase Orders
We like to think our breadth of experience in Compulsory Purchase Orders (CPOs) is exceptional. Over the decades we have advised in cases of national importance in the High Court and Court of Appeal. We have been instrumental in cases that have altered the law.
We continue to support landowners served with notices. We represent clients in the Lands Tribunal upon the level of compensation, and in the courts when the client wishes to quash a CPO.
Seeking to quash compulsory purchase orders requires not only considerable knowledge and skill, but also perseverance and attention to detail. We would be pleased to advise any landowners affected by a CPO.
Having been involved in the leading cases over such a long period, we feel confident in being able to advise even in the most complex case. In some people’s opinion, we are seen as the last haven for those cases that have been considered a lost cause by everyone else.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Objections to Orders
There are a wide variety of planning orders, although the most common is the Compulsory Purchase Order. Planning legislation provides such a wide spectrum of potential orders that it is impossible to summarise them here, but we are experienced in most, if not all of them.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Blight Notices
Such notices are relatively uncommon but as such are a useful planning tool that is often overlooked. Over decades we have built up expertise in this particular area that we would be delighted to apply to your case.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Compensation
Compensation is not limited to merely compulsory purchase and blight notices and purchase notices, it may also be obtained for mal-administration by local planning authorities and third parties who have infringed legal rights, including Human Rights and Common Law.
There are a wide variety of levels of compensation and instances where it may be appropriate to seek it. Rights to light, loss of easement rights, potential development prospects, lost chance, diminution in property values - the list is almost endless.
There are often areas of potential compensation that are overlooked even by the most experienced in the field. We will be happy to advise you.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Purchase Notices
In the same way that Blight Notices and Certificates of Lawful Development are often overlooked, this area is often passed over by landowners and developers.
We would be pleased to apply our experience to your problems to see what can be done to help.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Highways Act
The law in respect of highways is both ancient and modern. The principles involved are regularly misunderstood both by highways authorities and the public. We advise regularly upon the issues surrounding Section 53 of the Wildlife and Countryside Act, and Section 31 of the Highways Act 1980.
In relation to the Highways Act, public rights of way, and the Wildlife and Countryside Act, we invite you to let us appraise the circumstances of your case. We will assess if you have a good case, or one that might be better presented. We can help you fulfil your ultimate objectives.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Public Rights of Way
The common law as well as statutory provisions in respect of public rights of way is an area upon which we have been advising clients for decades. We would be pleased to help you.
For further information, please see our experience under Highways Act and Wildlife and Countryside Act.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
Wildlife and Countryside Act
Our experience covers footpaths, bridleways, Roads used as Public Paths (RUPPs), Byways Open to all Traffic (BOATs), and the Countryside and Rights of Way Act (CROW).
Rights of Way are a relatively topical subject because the obligation to monitor and modify the Definitive Map held by the highway authority is bringing about a very large number of cases where objections are raised, and public inquiries are held.
We are pleased to advise in any situation that you would like to raise with us. We are very happy to appraise the particular circumstances, and advise whether they merit further action and, if so, at what expense.
We represent clients at public inquiries, putting forward objections to proposals to modify the Definitive Map, and presenting arguments in respect of existing or alleged abandonment of such rights.
We predict that this area of legal concern will expand significantly. It is unlikely that successive governments will do other than encourage applications for footpaths etc. based upon the statutory provisions as well as the common law.
Contact Nicholas Kingsley Smith - Telephone 01634 811 118
