Chapter 6 Planning Property Development (6 th Edition) Publisher: Routledge Authors: Professor R.G. Reed and Dr S. Sims

6.1 INTRODUCTION The role of planning in property and real estate markets is designed to co-ordinate the efficient use of resources, being the limited supply of land either vacant or improved. Another critical objective is to restrict conflicting land uses from being located directly next to each other, such as building a new oil refinery next to an existing residential area. The process of planning involves many stakeholders who are both directly and indirectly associated with the proposed development. A developer should understand all aspects of planning law which have the potential to affect land use and development potential of a particular site. The planning process and the associated legislation will ultimately determine the type of development allowed on any site and thus influence the value of the completed development.

6.2 PLANNING AND THE ENVIRONMENT Many international governments have been committed to the concept of ‘sustainable development’ i.e. ‘meeting the needs of the present without compromising the ability of future generations to meet their own needs’ (WCED 1987). Over time there has been increased linkages between town planning and environmental law and regulations and these close ties have continued in many aspects of land use planning and property development. The details of the planning legislation and its interpretation vary between regions, even adjoining towns, and are heavily influenced by the political party in governance. The advent of social media has repeatedly demonstrated the groundswell which can occur when a property development may affect environmentally sensitive land. The developer must be fully aware of the needs of the community and corporate social responsibility (CSR) is often undertaken by the developer as well.

6.3 WHAT IS DEVELOPMENT? The concept of ‘development’ has varying perceptions for different stakeholders in the real estate market and also in wider society. Some sectors of society are anti-development at one extreme (e.g. based on the ‘sustainability’ argument), regardless of the need to redevelop and reinvent to increase the level of efficiency in the urban market. Development is an essential part of our society and can also be described as ‘renewal’, ‘renovation’, ‘reusing’ or ‘updating’, however there are many different types of development; it is difficult to encapsulate development with a single definition. In relation to planning legislation the following activities are generally classified as development: - carrying out building, engineering, mining or other operations in, on, over or under land; or - undertaking any material change of use in any buildings or other land.

6.4 THE PLANNING APPLICATION Making an application If a property developer is carrying out a development for which planning consent is required then usually they must apply to the local planning authority for consent. Examples of the main types of property development applications are as follows: 1.Outline planning permission application. An outline application is generally used early on in the development stage to establish whether or not the proposed development is likely to be approved. 2.Full or detailed application. A detailed application will seek not only to establish a land use principle but approval for all the ‘reserved matters’. 3.Changes of use. Legally an application for the change of use of land or, more commonly, buildings is regarded as a full application rather than an outline. 4.Applications for heritage listed building consent or conservation area consent to demolish. All proposals to demolish buildings in conservation areas requires specific permission and thus proposals for development in a conservation area must also, if demolition is envisaged, be accompanied by a separate application for conservation area consent to demolish.

Discussion points: Under what circumstances might it be prudent for a developer to make an application for outline planning permission? What other local authority departments consider the impact of the planning application, and why is this?

6.5 ENVIRONMENTAL IMPACT ASSESSMENT In many regions legislation has introduced the compulsory requirement for an environmental impact assessment (EIA) or an environmental impact study (EIS), where a developer is often required to produce an environmental statement (ES) as part of a planning application. This statement examines the impact of a development proposal on the environment and there is a comprehensive list of factors which can be assessed including: impact on the landscape, visual impact, ecology, geology, archaeology, air and water pollution, contamination of land, noise pollution, wildlife conservation and agriculture. The relevant government body may make a direction that an environmental impact assessment is required. The developer can save time and a great deal of energy by consulting the relevant planning officer of the district council or appropriate authority at the outset. With environmental issues now very high on the political agenda, it is becoming increasingly important for developers to consult with the relevant pressure groups at an early stage.

6.7 PLANNING APPLICATION APPROVAL In certain regions some types of planning applications, although often relatively minor in nature, might be decided by the planning officers of a planning authority using powers delegated to them by the planning committee. Normally a planning committee will seek and listen to the advice of their professional officers and will also take note of any representations made by members of the public. Public interest in planning is often strong when the existing status quo might be disturbed. This statement is particularly true for a high profile site which may not be protected by historical legislation but has broader perceived value to the local residents. The planning committee is a committee of elected councillors who, as part of the democratic political machinery, recognise the impact that the decisions they may make has on their political standing.

6.8 PLANNING CONSENT Permission may be granted subject to a variety of conditions, for a limited duration of time or for the personal benefit of certain people or organisations. Detailed planning permission will normally lapse unless the development is commenced within a set time period (e.g. 5 years) from the date the original permission is granted or such other time as the planning authority stipulate. Decisions in the court systems at times have decided that in order to show that a planning permission has been implemented, there must be a genuine intention to carry out the development concerned when a commencement is made on the site. At the end of the planning permission period any buildings or works which have been erected must be removed and any use authorised by the permission must cease. On the expiry of limited period planning permission, it is open to the applicant to make a new application. The powers of planning authorities to impose conditions on a planning permission is an accepted part of property development and planning authorities will provide guidance.

Discussion points: What are the various qualifications that may be attached to planning permissions? How can these qualifications affect a developer’s proposals?

6.9 PLANNING AGREEMENTS OR OBLIGATIONS Having prepared the planning framework, the local planning authority normally waits for developers/landowners to produce specific planning proposals and to make planning applications. Planning agreements (referred to as planning obligations) between a developer and a planning authority may be made under the provisions of the current legislation in the region. If developers feel that a local planning authority is attempting to exert undue pressure on them to enter into an agreement which will impose unduly onerous burdens, their remedy is to make a formal planning application and take the matter to appeal if planning consent is not granted. In many cases it will be to the advantage of developers to offer a planning obligation themselves. The extent to which a planning authority should, when considering a planning application, negotiate with a developer in order to obtain some material benefit for the community (referred to as ‘planning obligation’) has been a matter of controversy. Some feel that it is wrong for a planning authority to bargain to obtain a material benefit in return for a planning permission.

6.10 BREACHES OF PLANNING CONTROL Local planning authorities often have wide powers to ensure that no development which requires planning permission takes place without permission being granted. Where development has allegedly occurred without permission the authorities are empowered to require information concerning the development, the identity of the owner of the land involved and other pertinent matters to be divulged to them. They can serve an enforcement notice on the landowner/developer that identifies the breach of planning control, the action required to remedy the breach and a time limit to carry out the necessary action. There is often an appeal where commonly used grounds are that planning permission should be granted for the development concerned and the lodging of an appeal on that ground is regarded by the higher government body, which considers the appeal, as often being a deemed planning application.

6.11 PLANNING APPEALS In the event of the local authority refusing planning permission for a proposed development, or the authority either taking a longer period to determine the planning application or granting permission subject to a condition which aggrieves the applicant, there is usually a right of appeal. To be valid, an appeal against a refusal of planning permission must be lodged within a designated time period from the date of refusal. Once a planning appeal has been lodged, jurisdiction of the case passes to the relevant higher government body. Often there are three alternative methods of appeal: - Written representations is an exchange of written statements. - Informal inquiry usually takes the form of a meeting between the appellants and the local planning authority. - Formal public inquiry is a quasi-judicial inquiry where the appellant is represented by a barrister, solicitor or qualified person who presents the case for the appellant, calling expert witnesses to give evidence in support of the appeal.

6.12 FUTURE PERSPECTIVE The development industry is often dissatisfied with the delays and uncertainty which it experiences and sometimes the ad hoc nature of the decisions made, particularly where local politics holds sway over professional logic. Various proposals have been put forward to improve the planning system and developers must ensure they understand the process thoroughly. With a strong political involvement there has been an acceptance that planning plays a key role in delivering sustainability and economic growth. The planning system is required to have increased flexibility and responsiveness in the system, increased efficiency in the planning process and a more efficient use of land. As far as developers are concerned it appears that some of the historic problems remain in the system, those of delay for example, whilst newer and complex issues, like sustainability, have arisen and need to be addressed in property development.

Chapter 6 Planning Property Development (6 th Edition) Publisher: Routledge Authors: Professor R.G. Reed and Dr S. Sims