Recently the outgoing communities minister Eric Pickles decided not to contest legal challenges against decisions he made about significant developments proposing 450 homes to be built across two towns. These developments were both recommended for approval by a planning inspector, and both were in areas that needed homes. The legal challenge was not built on this, though, but on the argument that the reasoning behind Pickles' decision was "unclear, factually misconceived, inadequate and unlawful".
The communities secretary consented to judgment, conceding that he acted unlawfully in his decision. The cases highlight just how far a planning application appeal can go, although they should not be taken as typical - success in the High Court when challenging a decision made by the Secretary of State is rare.
Here's a quick summary of the possible stages of an application for planning permission, and a reminder that a failure at one stage of the planning application process doesn't always have to be the end of the story.
Do You Even Need Planning Permission?
Many significant changes to a building, including changes of use, require planning permission - but equally many do not require planning permission. You can use the government site for personal projects, and their changes of use guide to establish whether your proposed use is allowable.
Once you've established whether or not you need planning permission, it's on to the next step.
Making A Planning Permission Application
You can make either a full application or an outline application. It's important to get your planning permission application right, but minor things such as administrative errors should not damage your application. The local planning authority will simply validate your application and request any missing documents - once the planning application is valid, they will acknowledge that it's valid, publicise the application, and consult.
There are many things that you will need to consider when making a planning application, but one of the most important is the local development framework.
The application will then be granted, granted with conditions, or refused. If the application is granted, it's important to carry out all work strictly within the limitations of the application, but you are essentially safe as there are very few grounds on which objectors can legally prevent your development from going ahead. If your application for planning permission is refused, or if the conditions imposed seem unacceptable or impossible to you, you have more options available.
Dealing With A Refused Planning Permission Application
When planning permission is refused, you have two main options; change the proposal and submit a different application, or appeal to the Secretary of State. This is what happened with the developments mentioned at the start of this article.
If you have not already taken on planning experts to help you negotiate the previous stages, you will almost certainly need help at this stage.
If your planning permission application was just subjected to conditions, you can either press ahead with the development and comply in full with those conditions, or if they are unacceptable to you, appeal to the Secretary of State.
What If The Secretary Of State Refuses Planning Permission?
As these cases show, you can mount a legal challenge in the High Court, and it may be successful. However, these cases are the exception and not the rule.
In most cases, you will need to take the objections on board and rework your planning application, possibly substantially. This might involve significant scaling back of your ambitions, or it might involve a simple minor tweak that you overlooked when making the initial application. It's not necessarily the end of your planning permission application, but it does mean that your plans in their current form can't go ahead.
If you choose to mount a legal challenge in the High Court, it will be a difficult process. The challenge must be mounted quickly (within six weeks) and there must be an arguable case that there was an error of law or the Court will not give permission for the application for judicial review to proceed. Even if you get to the appeal itself, and prove that there was a legal error, this may not be enough to quash the decision. If the decision is quashed, it will go back to the deciding body who will look at the case again and make another decision, sending you back to that step of the process.
This is a risky route to go down in the majority of cases, and is not guaranteed to succeed. Mostly, you will want to work to avoid such a case. In the cases currently under discussion, the Secretary of State is unable to make a decision as they are leaving the position, but the decision will still be remade by his replacement, Greg Clark.
What About Enforcement Notice Appeals And Retrospective Planning Permission?
Although we've discussed the standard route to ensure your development is lawful and allowable, there are other routes that can complicate matters. We have sections on enforcement notice appeals and retrospective planning permission, but for advice on your specific situation you should get in touch with us using the form above.
Every Case Is Different
While these legal challenges in the High Court resulted in a success, the usual result for cases that go all the way to a legal challenge in the High Court is more ambiguous or negative. For help resolving issues around planning permission and planning permission applications before they get this far, get in touch with KSLaw today to see how we can help with any or all of these stages.
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