In most cases, planning applications are handled by architects, surveyors or planning consultants. However, the planning process can often become complex: when it does, specialist legal advice may then be needed. Here are some of the aspects of planning in which planning lawyers can apply their expertise for the benefit of the client.
S106 Planning Agreements and Unilateral Undertakings
These obligations in many cases are required under S106 of the Town and Planning Act 1990 to be entered into with the Local Planning Authority (LPA) in conjunction with a planning permission. The objective here is to lessen the impact of the development when there is a need for improved or new infrastructure/services.
- Highway and public transport improvements
- Education/recreation/leisure/health provision
- Nature conservation and protection
- Landscaping and reclamation
Affordable Housing provision as required by local and national policy is also secured through entering into S106 Agreements. The way these legally binding instruments are worded can have a crucial effect on the profitability and viability of a project which is where a planning lawyer can be of assistance in negotiations with the LPA.
As a parallel or alternative to S106 Obligations, there may be liability for the Community Infrastructure Levy (CIL) the amount of which can vary from one LPA area to another. As setting the rates has not been finalised in some areas, there may be opportunities to make representations to influence the preparation and approval of the schedules on which the levy will be based. Advice can be provided on this aspect as well as CIL generally.
Infrastructure, rights and obstructions
Development of any area of land may involve a number of issues not just purely planning ones. The site will probably need to have access to public roads and serviced by the various utility undertakers. Services within the site once constructed will be required to be adopted by the relevant utility companies and roads by the local highway authority. It might also be necessary to negotiate rights over land belonging to others.
There may also be rights, both actual and potential, public and private, which could restrict or prevent development. For example, there might be rights of way which run through the site. Issues might also arise if a site is found to contain contamination, protected or endangered wildlife/vegetation, or items of historical/archaeological importance.
Planning lawyers can advise clients through all of these issues, making the appropriate applications and pursuing appeals/challenges if necessary.
Objections and alternative proposals
Landowners can be significantly affected by development carried out by neighbours and developers, in which case there are opportunities to object to such proposals early in the planning process i.e. before or immediately after the planning application has been submitted. It is important, therefore, that options are explored at that point and if it is decided that representations should be made to the LPA that they are persuasively made.
Planning lawyers can advise on the most effective way to object and formulate representations where appropriate.
Any system of control needs to have enforcement provisions if it is to be effective, and the planning system is no exception. It may be that landowners find themselves subject to such enforcement action for a variety of reasons.
Should this occur, planning lawyers can assist by examining the actions of LPAs, negotiating with them where appropriate and formally challenging them when there are cost effective grounds to do so.
Appeals and Challenges
Landowners/developers, and those who may be adversely affected by development, have various legal rights to challenge the actions of LPAs. Refusals of applications can normally be appealed, as can most enforcement actions. In the cases where the direct appeal process is not available, the actions of LPAs may be challenged via the Judicial Review process if their decisions can be argued to be defective, or if they are suspected to have acted unfairly or abused their powers.
Planning lawyers can advise on these appeals and challenges, on success prospects or, where technical issues are involved, on experts to prepare appropriate reports.
Lawful Development Certificates
Some forms of development do not need planning permission.
The most common is where landowners benefit from an automatic consent granted by law via permitted development rights. In other cases, through the passage of time developments which may originally have been in breach of planning control may become not so. In both of these cases an application can be made to the LPA to certify the lawfulness of the development.
This is particularly relevant where a property is being sold and a possible breach of the planning rules emerges (e.g. an extension having been built without Planning Permission if that had been required at the time of building). The lawful development certificate once issued provides comfort for the buyer that any such possible breach of the planning rules will not lead to enforcement action in the future. .
Planning lawyers can assist on the collection of evidence in support of the application, prepare statements and advise on the legal complexities that often arise. If then the LPA refuses the application, advice can be provided on the possibilities of appealing the refusal and if so, the appeal itself.