Despite the relaxation in the planning rules to encourage more development, particularly in housing, however, the planning approval process is still complicated. Navigating a development through the planning process is fraught with risks to its approval and any conditions which are applied.
Having foresight into what may become a contentious planning decision before an application is made is essential. It is difficult for a committee to go against a recommendation from the planning officer. It is even more difficult for elected officials to explain to their constituents why an approval is being granted against their wishes.
In this article, we examine some of the key reasons applications fail. I’ve personally helped clients resolve many of these issues by approaching the planning process holistically, looking at the points of failure and mitigating them before you reach the decision process. It is much easier and more cost-effective to mitigate than appeal, resubmit the application or go ahead with conditions which compromise the development’s profitability.
Get the public on your side
The first hurdle when considering an application is to look for the potential risks of public objections. When my clients engage in what could be a difficult application, having the public supportive or even indifferent to the development is critical. What you want to avoid is giving rise to strong opposition. In many cases, opposition is created because the community doesn’t feel consulted or their views considered. A typical lawyer’s approach would be to take the fight based solely on legal grounds, however, when emotions and politics are involved, it is better to bring the community with you.
Having concepts and involving the community can ease that tension before it is ever created, especially if the development is sympathetic to the community and provides some compromise, so the residents and locality can see your efforts to work with them.
Before starting a design project, even holding a community meeting to share your initial ideas can eliminate a lot of difficulty and of course, highlight places where your development can contribute to the life of the community in a positive way.
Know the law early
Whilst it may be unprofessional to say this, there are activist planning officers and agencies. Their recommendations in some cases may extend beyond what is required, it is important to have a strong understanding of the local planning policies and how they interact with national policy. Doing this early can prevent confrontation and sides being drawn on an application. Too often, legal arguments are presented in a planning application at a late stage when positions have been entrenched. Whilst this should not affect a decision, if there are other contentious issues, it can have a bearing on how recommendations, decisions and conditions are applied.
Planning decisions should be consistent. Whilst every development is different, looking through past decisions and the local plan can ensure that the pertinent factors are raised at the right time. Early referencing of prior decisions can help an application travel through the system more smoothly.
Having a friendly but firm grasp of what is mandated by policy. On a small note, when I’m working with clients on a contentious application, I find that when legal counsel is involved early, and carefully handled parties will be more minded that the decision may be scrutinised more closely and no planning officer wants an appeal on their desk.
Manage CILs and S106
Community Interest Levies and Section 106 orders have been used by local authorities to manage the impact of a development. CILs are primarily to limit the impact of the development on the infrastructure, whilst S106 is specifically about the development itself.
Having an understanding of how CILs and S106 have been determined in other developments previously can shed light on how to approach your own development. If you can reduce the impact, this can reduce the need for CILS and S106. Once these discussions have been had at the planning stage, it is often the case that negotiations begin around how these policies are applied. However, in some cases, mitigation can be given early, justifying why these policies should not be applied.
Knowing how they have been applied previously, the justification for them can be powerful in negotiations
Refused, now what?
A refused planning application is certainly not dead. It is worthwhile reviewing the decision to understand if there are grounds for appeal. If the planning decision is not consistent with past decisions or contravenes planning policy, planners have to justify their decisions. Looking through the application process to see if there is a valid reason for appeal is a must. However, you should avoid pursuing an appeal which will likely fail.
Having worked with clients on matters like this for more than a decade, I can advise them on which is the more likely outcome, an appeal or a new application. The last thing you would want to do is appeal and waste more time and money to get the decision upheld.
I always advise clients if there is a risk of an application being contentious it is better to involve legal counsel from the outset. In the long run, it will be quicker and more cost-effective.