Development management in the United Kingdom

Applications for planning permission must by law be decided in accordance with relevant policies within the Development Plan prepared and published by the LPA, "unless other material considerations indicate otherwise". Development management is therefore "policy led".

From 2006, in England, each area's Development Plan is to be replaced by a Local Development Framework (LDF). These involve a large measure of community and public involvement in preparing the new local planning policies by which applications will be decided in future years. Therefore, while the process for local plan preparation maybe appear to be distant from making day-to-day decisions it is vital in making sure the 'rulebook' says the right things.

The planning policies expressed in the LDF deal with a wide range of local issues including promoting more energy efficient transport facilities, highway proposals and highway safety, ensuring an adequate supply of land for housing and other uses, safeguarding areas of countryside, and safeguarding important landscapes or sites of historic, ecological or scientific importance. More specific policies usually promote best practice in building design as a reflection of local traditions and priorities. The interests of sustainability are built into LDFs, not only in terms of energy efficiency, but also in promoting economic growth, regeneration, and the fostering of strong and inclusive communities. Whatever their local priorities, LDFs are a key policy document for all local authorities, enabling them and other local agencies to engage in spatial planning for their local area on an inclusive and "joined up" basis.

Planning applications for most major developments must be accompanied by a Design and Access Statement. This is not just a description of the development, but also explains how the design was arrived at, what local planning policies have been observed, how any public engagement has been reflected in the design, and how relevant principles of good design have contributed to the proposal. Commercial issues may well have been paramount, but this document enables the lay public to understand how the proposal evolved, and acts as a check upon the quality of the decision making process which led to that proposal by the developer concerned. Most are written at the end of the process and are of limited value. Isochrone maps may be included.[5][6][7][8]

The issue of what might be a material planning consideration in deciding any given case can be complex. This issue has never been legislated upon by Parliament and consists entirely of judge-made law arising out of numerous cases decided by British courts. In short, they are planning issues relevant to the specific case. What is material to one application may not be material to another. The decision maker needs to choose, subject to challenge in the courts. A local or Government planning policy is most likely to be material and issues of public safety or amenity can be in any given case. An important point is that planning control is concerned only with the broad public interest, rather than protecting any person's private interests. Competition between businesses is not a planning consideration; neither is the developer's profit motives, or any supposed loss of value to nearby properties or loss of view. Private covenants over land or anything regulated by other legislation are also incapable of being a material consideration in deciding a planning application.

In deciding on a planning application LPAs have a duty to start with the development plan and then have regard to all of the material planning considerations. However, while they cannot choose to simply ignore a relevant issue, provided they behave reasonably they are entitled to decide how much weight should be given to competing priorities.

If planning permission is to be refused, or if enforcement action is to be taken against unauthorised development, then the LPA must give reasons in writing which show "demonstrable harm to interests of acknowledged importance". Unpopularity is not grounds for refusal of planning permission. A proper reason for refusal of planning permission must be based on the tangible harm which would be brought about by the proposal, as reflected in a relevant policy or other matter relating to planning, and in order to protect the public interest. Similarly, if a condition is to be imposed on the grant of any planning permission, compliance with that condition should be essential to make acceptable a development which would otherwise be unacceptable (i.e. refused planning permission).

A decision made by an LPA is subject to a right of appeal in the event of refusal of planning permission, the taking of enforcement action, imposition of an onerous or improper condition on a granted planning permission, or the failure of the LPA to determine the application within a timely period ("non-determination"). The right of appeal applies only to the applicant/developer who is aggrieved by the decision of an LPA. Third parties such as a member of the public who disagrees with the decision of an LPA to grant planning permission do not have any right of appeal.

Planning appeals in England and Wales are administered and decided by the Planning Inspectorate PINS, which is an executive agency of the UK Government. In Scotland appeals are determined by the Scottish Government Directorate for Planning & Environmental Appeals (DfPEA), and in Northern Ireland appeals are determined by the Planning Appeals Commission. An Inspector (in England and Wales), Reporter (in Scotland), or Commissioner (in Northern Ireland) investigates the question and decides to uphold or overturn the decision of the LPA. The decision is based on a fresh look at the case considering the representations that have been made by each party. A planning inspector (or equivalent) may find fault with the reasoning of the LPA but still dismiss the appeal based on their own reasoning of the issues and planning policies which are relevant to the case. In England around 65% of planning appeals uphold the original decision of the LPA.[9][10]

Most planning applications are decided by an authorised senior officer of the LPA - under what are known as "delegated powers". Only major or controversial applications are decided by elected councillors meeting as a Planning Committee of the authority concerned. The agenda of the committee meeting with a report by planning officers on each planning application is usually published at least five working days before the meeting. The report on any planning application should contain a description of the development, a fair summary of any public comments received, state the relevant planning policies which have a bearing on the decision and a discussion of the issues raised – all leading to a recommendation to either grant or refuse planning permission. The elected Planning Committee may act on the advice of their professional planning officers, or occasionally may take a different view.

Planning Committee are under the same requirement as officers to determine applications development plan first and also considering material considerations. Members may need to temper the views of their constituents with a clear judgement of the planning merits of the case. Applications should not be determined on the basis of their popularity of unpopularity. The committee may refuse planning permission for development even if their own professional planning officers have recommended that planning permission be granted, or allow an application that officers recommend should be refused. However this must be based on a planning judgement of relevant matters.

Refusal of an application, whether by committee or under delegated powers, may be challenged by an appeal through the Planning Inspectorate. Objectors to a successful application have no right of appeal, except by a legal challenge to the courts, although for some significant applications (e.g. involving major policy matters) the Secretary of State may be asked to "call in" an application for review.

Subject to making arrangements in advance, many LPAs will invite applicants and members of the public to address the Planning Committee before making their decision. However, the Committee is "a meeting conducted in public", rather than "a public meeting"; although given an opportunity to speak at the outset of the meeting, members of the public will not be allowed to join in the committee's debate. There are a number of LPAs that still do not permit the public or the applicant to speak at the committee meeting at all.

There are often different views as to what constitutes “fairness” in deciding planning applications. Many public objections to new development are explicitly based on a perception of unfairness that developers and landowners should be allowed to profit, while near neighbours, the local environment or the community as a whole do not. More specific objections may also be given, but this apparent unfairness is the fundamental of many if not most public objections to new development. The process of development and re-development is seen as an immediate cost or inconvenience to those living nearby, and any benefits are invariably to the community as a whole, over a wider geographical area, and over time. The most obvious beneficiaries of any development are those who will later live or work within it but their views are not heard when a planning application is being decided. Even a well managed LPA, making decisions in light of published planning policies and after extensive public consultation, will still attract accusations of unfairness.

Unless a member of the public raises one or more material planning considerations which were not apparent beforehand, it is unusual for public views to override the relevant planning policies when the decision is made. The importance of public opinion is in adding flavour to the issues from the point of view of the decision maker. Applications cannot be determined on the basis of s popularity contest. They can be influential in deciding how much "weight" to give to different material considerations. Unpopular proposals often attract well orchestrated public opposition and it is not unusual for an LPA to receive multiple copies of the same pre-written letter of objection from a large number of people, or petitions with numerous signatures. It is not unknown for LPAs to receive letters of objection to a proposal with fake names and addresses in an effort to increase the level of apparent public opposition to a planning application. Some objectors to a development will also write to their Member of Parliament or to other people who are mistakenly believed to have influence over the outcome of a planning application but MPs will scrupulously avoid seeking to influence the proper functioning of a democratically elected LPA. Although members are democratically elected, they should not decide applications on the basis of strength of public opinion, but according to planning law. If there are no substantial planning grounds for refusing an application, a planning inspector at appeal could well order the LPA to pay costs if its actions are shown to be both unreasonable and put the other side to unnecessary costs. The conduct of an appellant is similarly liable.

The most effective methods of influencing the outcome of a planning application is to make written representations to the LOA and to one or more of the elected councillors who form the LPA, whose contact details are readily available on the LPA's website. Local councillors who are also members of the LPA's Planning Committee may be reluctant to meet with applicants or members of the public in person in order to prevent subsequent allegations of bias or pre-determination when the Planning Committee comes to make a decision.

Councillors who are members of a Council's Planning Committee are subject to different restrictions regarding conflicts of interest, depending on the country of the United Kingdom, and to a Code of Conduct which may be statutory or locally decided.

In England, councillors are required to register Disclosable Pecuniary Interests and to declare them when they are engaged. They cannot speak or vote when they have such a conflict of interest.[11]

In Scotland, the relevant standards are decided by the Scottish Parliament and patrolled by the Standards Commission for Scotland.

In Wales, councillors are required to register certain interests, to declare them when they are relevant to a decision, and to withdraw from the meeting if they have a prejudicial interest.

Most LPAs are receptive to public complaints and seek to learn from them. The great majority of public complaints about planning matters concern an alleged error in procedure, rather than the outcome of a permitted development as later built.

A member of the public whose complaint is well founded and who has suffered genuine injury or injustice as a result of maladministration can also pursue their complaint at the national level through the Local Government Ombudsman.[12]

Both in Planning Committees and when taking other decisions, councillors are also required to avoid bias in the form of predetermination.[11] There is much case law on this, and the present position (following the decision of the Court of Appeal in Persimmon Homes Teesside Limited v. Lewis 2008) is that whilst Members may have a predisposition to a view on a particular application, they must not have predetermined it in the sense that they come to the decision with their mind closed to the arguments of fellow members and the advice of the Officers.[13] This causes difficulty, because members of the public, action groups etc. not only ask Councillors to listen to their views, but also try to persuade them to commit for or against a Planning Application in advance, without understanding that if they do so there will be a risk of a legal challenge to the decision if those taking it have predetermined their position.