Planning and Legal & Regulatory Compliance

Question 1

What is development?

Answer 1

Defined in Section 55 of the Town and Country Planning Act 1990 as the carrying out of building or other operations in, on, over or under land, or the making of any material change of use of any buildings or other land.

Question 2

What is planning?

Answer 2

The control of development by a local authority.

Question 3

What is the key legislation?

Answer 3

Town and Country Planning Act 1990
Planning and Compulsory Purchase Act 2004 – states that proposals should be assessed against adopted strategic plans
Localism Act 2011 - places emphasis on planning at a local level or ‘bottom up’ planning, and gives neighbourhood groups the right to create Neighbourhood Plans

Question 4

What planning policy framework do we work under?

Answer 4

The National Planning Policy Framework was adopted in 2019. This is supported by the NPPG, an online guidance tool.

Question 5

What does the NPPF define sustainable development as?

Answer 5

Positive growth which makes economic, environmental and social progress for this and future generations.

Question 6

Does demolition require planning consent?

Answer 6

No unless its in a conservation area or is a listed building.

Question 7

What are permitted development rights?

Answer 7

Permitted development rights allows certain development to be carried out without the need to acquire formal planning consent, subject to certain conditions and the requirements being met.

Question 8

What are the requirements of office to residential PD rights?

Answer 8

Office to residential PD rights are detailed under Class O of the General Permitted Development Order as amended 2015. These apply only if:
• The building is used as B1(a) offices as of 29th May 2013
• The site is not in a safety hazard area
• Isn’t a listed building

Question 9

What does prior approval mean?

Answer 9

You have to apply to the LA for determination as to whether prior approval from the Local Authority is required in regards to transport and highways impacts, contamination risks and flood risk.

Question 10

How do you apply for prior approval?

Answer 10

For Carnwath Road, I submitted a Prior Notification form, a site location plan, existing plans, proposed plans and a planning statement to H&F with the application fee of £80. I also submitted a transport impact assessment, flood risk assessment and contamination assessment. H&F assessed the application to determine whether prior approval was required, and then whether prior approval was given or refused.

Question 11

If the site is within Flood Risk Zone 2 or 3, will prior approval always be refused?

Answer 11

No but the site would require a flood risk assessment. If the risks were found to be unacceptable than prior approval would be refused.

Question 12

How long does the LA have to determine whether prior approval is required?

Answer 12

8 weeks. 13 weeks for larger application and 16 weeks if there is an EIA

Question 13

What can you do to a listed building without listed building consent?

Answer 13

I would always advise my client to seek specialist advice before undertaking any works to a listed building, however they may be able to undertake minor repair works on a like for like basis without consent

Question 14

What weight would you give to an emerging policy?

Answer 14

Any emerging policy would be a material consideration when considering a development proposal, however the weight I would give to it would depend on the stage of its preparation. For example, if a draft local plan was in the examination stages I would give it more weight than if it was just at the preferred options stage of consultation.

Question 15

What is the importance and relevance of SHLAAs?

Answer 15

SHLAAs identify the borough’s capacity to meet identified housing need. If a borough can not demonstrate that it has a sufficient five year land supply then developer’s have a stronger case for bringing forward sites that would otherwise not be considered for development.

Question 16

How do LA’s produce a SHLAA?

Answer 16

1. Desktop review of existing information
2. Determine which areas and site should be surveyed
3. Carry out a survey of potential sites
4. Estimate the housing potential of each site and when and whether sites are likely to be developed
5. Review the assessment
6. Identify the housing potential of windfall
7. Use this assessment to inform the five year land supply of deliverable sites
8. Should be monitored and updated annually

Question 17

What is the definition of a greenbelt?

Answer 17

Land which is safeguarded in order to prevent urban sprawl by keeping the land permanently open.

Question 18

What could you do if a LA did not determine your application?

Answer 18

I would advise my client to appeal after the statutory period of 8 weeks, but within 6 months.

Question 19

What is a S106 agreement?

Answer 19

A legal agreement setting out the contributions a developer will provide in order to offset the negative impacts caused by their development. Obligations must be necessary, directly related and reasonable.

Question 20

What are Building Regulations?

Answer 20

A minimum set of standards for the design and performance of buildings. These include matters on energy performance, access and health and safety. These are policed by the building control team within local authorities.

Question 21

What are the benefits of obtaining pre app advice?

Answer 21

It will set out the relevant policies that your proposal will be assessed against, and give you guidance as to whether your proposal is consider acceptable in planning terms. This can reduce the likelihood of submitting an application which does not comply with policy.

Question 22

How much reliance can you place on pre app feedback?

Answer 22

It can be relied upon when formulating a proposed scheme, however it is not a guarantee of planning permission.

Question 23

What is PTAL and how is it assessed?

Answer 23

Public transport accessibility level. It rates locations by distance from frequent public transport services.

Question 24

Why would you advise written reps for an appeal?

Answer 24

Where the case was not complex or controversial enough to warrant the expense and time of a hearing or public inquiry.

Question 25

What is an EIA?

Answer 25

Assessment of the potential environmental effect of a development and appropriate mitigation measures.

Question 26

How would you know if an EIA was necessary?

Answer 26

Check the EIA Regulations 2011 to see if the proposed development was included within schedule 2 and surpassed thresholds e.g.150 unit threshold for urban development. Submit a screening request to LPA, who would then respond with a screening opinion.

Question 27

When is CIL liable?

Answer 27

Developments which creates net additional floor space of 100 sqm or more, or creates a new dwelling. Certain types of development is exempt such as affordable housing floorspace. CIL can also be offset against existing floorspace that has been occupied for 6 of the last 36 months.

Question 28

How is CIL indexed?

Answer 28

In line with inflation. The index used is the national all-in tender price index of construction costs published by BCIS. This is applied from the date at which the CIL rate was adopted.

Question 29

What can CIL be spent on?

Answer 29

Funds a wide range of infrastructure e.g. transport, schools, hospitals.

Question 30

What do you submit with a planning application in regards to CIL?

Answer 30

I would submit a CIL form with all full applications and lawful development certificates to determine whether the development was liable for CIL, detailing the existing and proposed accommodation and any exemptions I believed were appropriate.

Question 31

What are the differences between CIL and S106?

Answer 31

CIL is non-negotiable whereas S106 is negotiable; S106 is for site specific mitigation only whereas CIL is for an infrastructure project as defined in the councils 123 list; S106 can be used for affordable housing

Question 32

What are the three tests for S106 obligations?

Answer 32

1. Necessary
2. Directly related to the development
3. Fair and reasonably related in scale and kind

Question 33

What is Daylight/Sunlight measured against?

Answer 33

Based on Building Research Establishment (BRE) guidelines

Question 34

What is A2 use?

Answer 34

Professional and financial services.

Question 35

What are appeal deadlines?

Answer 35

Again, no statutory requirements, but for written reps and hearings most are decided within 14 weeks, for inquiries most are within 22 weeks.

Question 36

Can you commence on site as soon as you have consent?

Answer 36

You first must discharge any pre-commencement conditions. I would also advise my client to wait until the six week JR period is up before commencing development, particularly on controversial applications.

Question 37

What must a planning application include in order to be valid?

Answer 37

National core list: application form, location plan, site plan, ownership certificate, d&a statement and application fee.

Question 38

What are ownership certificates?

Answer 38

A – applicant is the only owner
B – if you know the names and addresses of the other owners
C – if you don’t know all the names and addresses
D – if you don’t know any
For B&C you have to serve written notice on the other owners. For C&D you must also advertise in the local press.

Question 39

What is outline consent and what would your client have to do to obtain full consent?

Answer 39

Outline consents are used to establish the principle of development, with up to 5 matters reserved:
1. Appearance
2. Access
3. Landscaping
4. Layout
5. Scale
Reserved matters applications must be made within 3 years of the outline permission being granted. After the last reserved matter is approved the development must commence within 2 years.

Question 40

How would you go about getting an advertisement consent for a sale board?

Answer 40

Town & Country Planning Act 2007 governs size of sale boards. Don’t need a consent if less than 2 sqm in size on a commercial property or 0.5 sqm in size on a residential property. Do need express consent if in a conservation area as deemed consent is removed – must apply for advertisement consent. This will be determined in 8 weeks.

Question 41

What are the timescales for applications?

Answer 41

Minor applications should be decided within 8 weeks. Major applications 13 weeks. Applications which include an EIA 16 weeks

Question 42

What restrictions are there on PD schemes in terms of design?

Answer 42

No planning regulations to comply with however need to comply with building regs which has certain design standards including access and circulation space

Question 43

What is the case law about rights of light?

Answer 43

• Right to light arises after twenty years of uninterrupted enjoyment of light
• Case Law is Highcross v Heaney 2011 which required Highcross to undertake remedial works to reduce the scale of their building

Question 44

Talk me through the application process

Answer 44

Step 1 - Validation. ...
Step 2 - Consultation and publicity. ...
Step 3 - Consideration. ...
Step 4 - Negotiation. ...
Step 5 - Recommendation. ...
Step 6 - Decision.

Question 45

How the consultation process work?

Answer 45

After a local planning authority has received a planning application, it will undertake a period of consultation where views on the proposed development can be expressed. The formal consultation period will normally last for 21 days, and the local planning authority will identify and consult a number of different groups.

Question 46

What is required for a pre-app?

Answer 46

A description of the proposed development and schedule of proposed uses
A site location plan (scale 1:1250)
Photographs and sketch drawings showing the site, buildings and trees as existing, together with the schedule of uses.
Outline of proposal (on plans scale 1:200).

Question 47

What does a conservation area restrict?

Answer 47

Being in a conservation area might mean that your house is affected by special controls (called ‘Article 4 Directions’). These restrict work you can normally do without planning permission such as replacing a door or window or altering gutters and downpipes.

Question 48

What constitutes a heritage asset?

Answer 48

A heritage asset is an item that has value because of its contribution to a nation’s society, knowledge and/or culture. They are usually physical assets

Question 49

What is the difference between the NPPF and NPPG

Answer 49

The NPPF is the centrepiece of reforms that aim to streamline the planning system, and introduce a “presumption in favour of sustainable development” for applications as long as they have “no over- riding conflict with the NPPF as a whole

The National Planning Practice Guidance (NPPG) is a web-based resource which brings together planning guidance on various topics into one place.