D.I.Y. PLANNING BRIEFINGS FOR LOW IMPACT DEVELOPERS
No 1 - Introduction to the Mysteries of the Planning System
D.I.Y. PLANNING BRIEFINGS FOR LOW IMPACT DEVELOPERS
(reports Leonard Holihan)
I Understanding the Mentality
II Planning Procedure
III Ground Rules for an Easy Life
I Understanding the Mentality
If you want to stake out a low impact home and livelihood on a piece of land in the countryside, you will probably, unless you are lucky, have to confront the planners. The best way to deal with them is to try and understand them and the system they work within (reports Leonard Holihan)
This is no easy matter. Development control planners are a very odd bunch. Within a year or two of graduating from college they get sucked into an institutional value system that is arcanely masonic in the hold it has upon them. They are bound at every step by government guidance and development plan policies, their every action is liable to be vetted by their superiors and they are open to pressures from all sorts of vested interests. Being human, they have their likes and dislikes, but these sympathies can only be expressed through circuitous advice and perverse signals. Like a crab constricted by its carapace, they find it easier to walk sideways.
As for the system, that too is bizarre. The 1947 Town and Country Planning Act was designed to stop ribbon development and unscrupulous capitalist development of the countryside. It is still the only protection we have to stop large areas of Britain becoming like a California suburb, and we should never forget that. Yet at the same time it has created a scarcity of building land that has forced low income people out of the countryside and made rural England, in the words of a recent Cabinet Office report, “the near exclusive preserve of the more affluent sections of society.” (For a detailed discussion of this process, see Low Impact Development, Simon Fairlie, Jon Carpenter publishing, 1996).
It is perfectly OK to see planners as interfering bureaucrats suppressing individual initiative in the interests of the capitalist economy, because that is what they are. But they are also the voice of society saying “Oi, that land doesn’t belong just to you; it also belongs to the rest of us, to the local community, to the flora and fauna, and to the planet as an interconnected ecosystem, and before you use that bit of land to satisfy your every petty need and fancy, we want to know that you’re going to do this in a way that respects all of us who have an interest in that land.”
The planners and the planning system are there to make you think about the way you use your land. Do you really need to live on it or are you just indulging a whim to live in attractive surroundings that if it were pursued by everyone would result in the destruction of the countryside? Are you prepared to take on looking after 30 acres, wouldn’t you be better off living in a village close to the school and the shop and gardening an allotment that won’t be ransacked by deer and badgers? Is living on your land really going to minimize your car use, or are you in fact going to use more petrol going off to part-time jobs, nipping off to a decent pub three villages away, ferrying your kids to extra-curricular activities or inviting your mates round for supper?
The planning system isn’t particularly good at raising these issues (though its surprising how it can home in upon them in a well-conducted public inquiry). But no other social process raises them, and they are matters that should be considered by anyone contemplating a move to the countryside. The real problem is that the rich commuters who buy up all the existing rural dwellings, barns and pony paddocks don’t have to think about such matters at all.
II Guide to Planning Procedure
Plans, Policies and Material Considerations
The planning system works differently from law. Planning applications and appeals are assessed, not against the precise wording of legal prohibitions, but by weighing up all the arguments for and against the proposed development . These pros and cons are called material considerations. Material considerations have to be relevant to planning, but any secure definition of what is or isn’t relevant to planning remains entirely elusive. Matters such as affordability, personal circumstances of the applicant, whether the applicant is local, are not normally regarded as material considerations — but then sometimes they are. The most that one can say is that the planning system is much more flexible than the legal system.
Planning is not centred round laws but around policies. These policies are outlined in Government Planning Policy Guidances (PPGs), and contained in County Structure Plans and in Local District Development Plans. In the case of unitary authorities, in which the the functions of County Council and District council are combined (everywhere in Wales and in England mostly in areas around conurbations), the two are merged in a single Unitary Development Plan. Anything in these plans, but especially the policies are material considerations — very strong ones. Normally any development should conform to these policies. But a development may be permitted even if it doesn’t conform to these policies, as long as there are sufficient material considerations in its favour.
This is confirmed in Section 54A of the Town and Country Planning Act 1990 (as amended) which states~:
Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan, unless material considerations indicate otherwise.
This means, for example, that although the local plan may state There will be no residential development in the open countryside apart from that necessary for agriculture or forestry”, if you can give good enough reasons why you should be allowed to build a house in the countryside, you might be allowed to do so. The sort of material considerations that might allow you to build a house in the countryside include:
That it has no harmful impact upon the environment;
That it doesn’t generate any traffic;
That you need to live there because you. . . ( teach courses in a barn? are conducting a nocturnal entomological research project? collect road tolls on a bridge?????)
That there is nowhere else you could afford to live;
That Article 8 of the Human Rights Act entitles you to respect for your home.
Most of the time, however, decisions are made in accordance with the development plans.
Planning permissio n is needed for all forms of development other than those listed as exempt in the General Permitted Development Order (GPDO). Development includes both operational development (the construction of buildings), and change of use of the land. If a piece of land is subject to an Article 4 direction, (under Article 4 of the GPDO) then some of the exemptions listed in the GPDO will be withdrawn. Agriculture and forestry are not regarded as development, even in an urban situation, but the construction of agricultural buildings is.
A conventional application for planning permission is made to the local planning authority (LPA), who are employed officers of the district or metropolitan council. An application is likely to cost £190, but some are cheaper. You will be dealing with one planning officer who is assigned to your case, but other planning officers, particularly more senior ones may get involved The planning officers will consider the application and make a recommendation as to whether planning consent should be given or not. If the application is a trivial one, (such as a kitchen extension) the planning authority will make the decision itself, in which case it is said to be a delegated decision.
More important or controversial decisions are referred to the planning committee of the local council which is made up o f elected councillors.Local authorities have rules as to when a decision can be delegated: frequently a decision has to be considered by the committee if there is an objection from the parish council concerned, or if a member of the planning committee raises an objection to delegation.
In many cases the committee will rubber-stamp the recommendation of the council’s officers, but they can vote against it.
If a planning authority has reservations about a development, but is not fundamentally opposed to it, it may impose certain conditions upon the applicant; or it may suggest that the applicant enters into a Section 106 planning obligation (also known as a planning agreement) with the council, whereby he or she agrees to abide by certain restraints or provide certain community benefits. An applicant may propose a Section 106 agreement.
An applicant for planning permission who is dissatisfied with the local authority’s decision can make a Section 78 Appeal to the Secretary of State for the Environment. Normally this appeal will be judged by one of the Secretary of State’s Inspectors, but in matters of great importance, the decision may be called in and made by the Secretary of State after considering the Inspector’s recommendation. The Appeal can be held as a Wri tten Appeal (all done in writing), an Informal Hearing (all parties around a table) or a Public Inquiry (courtroom style, with witnesses and cross-examination).
An appeal against a successful application cannot be lodged by a third party objector to the scheme.
If an appeal is unsuccessful, then the applicant may apply for a statutory review of the Secretary of State’s decision in the High Court. This is a legal process similar to judicial review, and the decision can only be annulled if it is found to be unlawful, for example because it is “unreasonable”, “perverse” or has failed to take into account all the evidence; it is not sufficient to argue that the Secretary of State or an Inspector in weighing up all the material considerations, came to an unsatisfactory decision. If an applicant is successful in the High Court, this does not mean that planning permission is granted; the matter is sent back to the Secretary of State to make a second decision.
An applicant who is unsuccessful in the High Court, may be able to take the matter further, to the Court of Appeal, the House of Lords or the European Court, but this depends upon the strength of the case. Court cases are very expensive unless you can get legal aid or free representation.
Where d evelopment has taken place without planning permission, or where conditions have been broken, there is said to be a breach of planning control. A planning authority may first serve a planning contravention notice to establish whether the activity is one that requires permission. Once a breach is established, the local authority may initiate enforcement proceedings to put a stop to the activity, while the person committing the breach may put in a retrospective planning application. This is treated the same as an ordinary planning application. It is not an offence to undertake development that requires planning permission, without applying for it, and the applicant will not be penalized.
If the retrospective planning application is refused, or if no application is made, an enforcement notice may be issued requiring the breach to be remedied. An enforcement notice takes effect 28 days after it has been served, though the local authority is not at any time obliged to carry out enforcement. The local authority is at liberty to negotiate a compromise with anyone subject to an enforcement notice, or to grant planning permission for the development in question, in which case the enforcement notice is withdrawn.
If the local authority fears that irreparable damage may be caused in the period between the serving of an enforcem ent notice and its taking effect, it may serve a stop notice, which prevents any further operations on site (including change of use) from being carried out. A stop notice cannot be used to evict people from their main dwelling house, though it can be used to evict people living in caravans.
An enforcement notice may only be served within four years from the date of completion of breaches connected with operational development or change of use of a building to a single dwelling house, and within ten years in other cases of change of use. If the enforcement proceedings are started after this period, the occupant or person committing the breach may apply for a Certificate of Lawful Use.
A person subject to an enforcement notice may lodge a Section 174 Appeal against it, using the same process as an appeal against planning decision. The enforcement notice is then suspended pending the final determination or the withdrawal of the appeal. By going through this appeal process someone allegedly in breach of planning control is deemed to have applied for planning permission (provided they pay the requisite fee). Section 78 Appeals(against refusal of planning permission`) and Section 174 Appeals(against enforcement) are heard together, and in practice there is very often a ha’pporth of difference between the two.
If an enforcement notice is not complied with, the person responsible is committing a criminal offence. The local authority can prosecute the person through the courts, where he or she may be fined, and it can also demolish or otherwise rectify the offending development and charge the costs to the owner or occupier of the land. If the authority fears that the offence may be committed again, it can apply to the High Court for an injunction against the offender.
III Some Ground Rules for an Easy Life:
You are well advised, before you move onto land or lodge a planning application, to read a little about the planning system. Probably the best way to get a feel for planner’s concerns is to read appeal decision letters, both favourable and unfavourable, for developments that are similar to your own. In these letters the Inspector will mull over the pros and cons of various issues and weigh them up, often in some detail. Decision letters on a number of low impact proposals can be obtained, on enquiry, from Chapter 7.
Other important reading matter includes:
Planning Policy Guidance 7: the Countryside — Environmental Quality and Economic and Social Development, Annex I. This explains when an agricultural or forestry dwelling is a cceptable (available from Chapter 7).
The Town and Country Planning (General Permitted Development Order 1995, known as the GPDO, which explains what you are allowed to do without applying for planning permission. (normally available through public libraries or at your local planning department)
Your local plan, mainly the policies on housing, agriculture, rural development etc. (available at public libraries and council offices.) The new emerging local plan will often be more relevant than the existing adopted version.
Ask the Planners for Help
Don’t be afraid to ask the planners for help. If you don’t understand what they mean, or you want to know why they object to something, or you want to know by what authority something is or isn’t allowed, ask them — they are supposed to tell you. They should also let you see all relevant policy and plans, and the planning files of any nearby or similar applications in the district.
What they aren’t obliged to do is suggest to you ways in which your application could be improved, or loopholes that you could use. This is because such advice could be construed as favouritism or even corruption. They do sometimes informally offer such advice (and of course some are corrupt) but it is basically up to you to approach the planners and ask “Would my application be more acceptable if I applied for a temporary structure rather than a permanent one?” (or whatever)
Get Everything Down in Writing
If a planning officer says anything important to you, particularly if it is helpful or encouraging. you should ask that this be sent to you in writing. It is very important to keep all the letters that you send the planners and all the letters that they send you. They may well prove useful at appeal, especially if the planners can be shown to have misled you.
While there is a lot to be said for remaining discreet, we do not advocate that you should be dishonest or exaggerate. Any attempt to dissemble what you are doing is likely to lead to more difficulties and prevent constructive dialogue with the planners. Moreover, if you go to appeal, you may have to stand up to some intensive cross-examination by the council’s lawyer, and it is much much easier to do this if all you have to do is stand there and tell the truth.
Don’t Get Angry
However honest you are, you may find that your planning officer appears to be less than honest. Probably the majority of people approaching Chapter 7 for advice complain that planning officers are unhelpful, and we are frequently told that they are devious, corrupt or just plain liars. It is not just low impact applicants who experience this; the same complaint is voiced in How to Get Planning Permission a Dent Home Builder book describing how to make a conventional planning application.
It is not likely that the planning system specializes in recruiting the nastiest, most two-faced individuals it can find, so it is safer to assume that there is something in the culture of the planning system that leads planning officers to behave like this. One factor is that your planning officer is probably fairly junior and after having been initially encouraging towards you, he or she may well be leaned on by superiors; and these superiors may well be influenced by councillors or other local political interests. One former planning officer states: “There is a hierarchy of planning officers that the application has to filter through and there can be a lot of conflict of view and pressurized disagreement. Certainly, if one officer is considered too sympathetic to certain applicants or developments (‘gone native’), then a more hostile (‘objective’) senior takes over.”
It is also worth remembering that most experienced planners have had to deal with countless scam-merchants pretending to be mushroom farmers or some such, so as to obtain permission for a house in the countryside that they can then sell on at considerable profit. They have no guarantee that you are not playing the same game.
When you are dealing with an unhelpful planning officer it does not pay to get angry. A little ongoing war between the officer and you may satisfy any neurotic need you might have to feel oppressed by bureaucracy, but it will not help you get planning permission. There are not that many cases of people physically being fined or injuncted off their land, and in most cases where it has happened (in our experience) initial stroppiness seems to have led to a feud between the planning officers and the applicants.
The best reaction is to take everything calmly and politely; to ask the planning officer to spell out his or her objections as clearly as possible (“Can you please list clearly all the ways in which my proposed development causes harm so that I can address them?”); and most important of all, ask him or her to confirm anything important in writing.
It is noticeable how many low impact proposals prejudice their chances by allowing vast quantities of tat to accumulate on their land: broken down vehicles, rotting machinery, unerected greenhouses, dead bicycles, plastic sacks full of unidentifiable material etc.
This tat, when it is not the result of sheer laziness, is usually justified on the grounds that it is “recycled” material and will one day come in useful. To an extent this is true; but it has to be balanced against the view that a considerable number of the people who have rejected consumerism have never got beyond the subsequent stage of sublimating their repressed consumerist urges through the obsessive accumulation of what ultimately proves to be worthless crap. It is also noteworthy that most of these crap-accumulators are male (or is it just that males go for larger-scale crap?)
Unfortunately, rural locations are not good places for recycling yards for three reasons. Firstly, storage of reusable materials requires hard standing — otherwise within a year they get covered in brambles and stingers and then rot. Secondly their redistribution requires transport and a rural location is likely to generate more traffic than an urban one. And thirdly, the majority of the public do not want to see the countryside littered with the detritus of civilization. This may be a dishonest viewpoint, since it is they who buy and discard this detritus in the first place. But this is hardly a good argument for strewing it around the countryside, least of all in the name of sustainable or low impact development.
A messy site is the best possible ammunition you could give to your enemies and it will alienate potential supporters. If you must keep excessive quantities of tat, then spend an hour a week stacking it neatly. Tat strewn all over the place looks like rubbish; tat stacked in an orderly fashion looks as though it is there for a purpose.
The advice contained in this briefing is given in good faith and every care has been taken to ensure that it is as accurate as possible. However, Chapter 7 cannot be held liable for any claims arising and it is recommended that professional planning advice is obtained in matters of doubt.
No 2 - Should I move on or Apply First?
D.I.Y. PLANNING BRIEFINGS
FOR LOW IMPACT DEVELOPERS
Published by Chapter 7 Feb 2001
This is probably the most frequent question asked by people intending to live on land in low impact dwellings or caravans. The answer we give is usually this:
If your project is quite ambitious, if it requires a respectable image, if it relies on a high amount of capital investment, and particularly if you are aiming to attract funding from bodies that might be put off by a “direct action” approach, then you might be better advised to apply for residential permission before moving on;
but if your project is relatively small and discreet and is not dependent upon high capital investment, you will almost always be in a stronger position if you move onto the land first; however you are well advised to prepare your case beforehand so that you are ready for the planners if and when they arrive.
Is it illegal for me to live on land without applying for permission?
No. “It is not an offence to carry out development without first obtaining any planning permission required for it” ( PPG18 Para 6). It will normally* only become illegal for you to be living on the land when an enforcement notice against you comes into effect. If you appeal against enforcement, the enforcement order does not come into effect until you have lost the Appeal. The same applies if you take the matter to High Court. An enforcement notice, once it come into effect, will normally give you a period such as three or six months to comply. If you do not comply within this period, the planning authority can (but is not obliged to) bring you before the magistrates for a criminal offence, and you can be fined or injuncted against, or an order made for the removal of your dwelling.
* Technically, living on the land can become illegal immediately if the local planning authority issues a what is known as a stop notice. However they are not allowed to issue a stop notice on dwelling houses, though they can on caravans. Nobody seems to know whether they can be applied to temporary dwellings. South Somerset District Council tried to issue one on the benders at Tinkers Bubble and then withdrew it.
Will the planners be biased against me if I move on before applying?
Unlikely. They are used to people doing things without applying for permission and recognize that it is not illegal. They are perhaps more likely to be biased against you if you approach them first, get a thumbs down, and then move on to the land anyway against their advice. However Committee members may well be biased against you on this account (“I applied for permission before putting up my bungalow; why didn’t you?”)
Will the fact that I have moved onto the land prejudice my chance of gaining planning permission?
No. If anything, planning authorities find it easier and more socially acceptable to refuse residential planning permission to someone who has a home elsewhere, than to refuse planning permission for someone who may be made homeless by that refusal.
Will the fact that I have moved onto my agricultural/forestry holding affect the way in which that holding is assessed?
Yes. Residence on agricultural holdings is assessed by a functional test (do you really need to live there?) and a financial test (is the operation economically viable?) — see briefing XXX. Applicants who are applying for residence on site whilst living elsewhere may find themselves in a “catch 22” situation. If the operation is already viable, they may be told that they clearly do not need to live there; if it is not a going concern because of the difficulty and expense of operating it from elsewhere, they may be refused on the grounds that it is not viable. One way to bypass this catch 22 is to move on to the site before applying.
What are the chances of being kicked off the land by the planners if I move on without permission?
Fairly low. Planners are not keen on evicting people from their homes. They get a bad enough press anyway, without being pictured in the local rag as heartless bureaucratic thugs.
Chapter 7 only knows of three cases where enforcement officers have physically come in and removed people or dwellings. In all three of these cases there appeared to be some kind of feud going on, and in one of them the occupant (Albert Dryden) shot the planning officer dead. We know of one case of a mobile homeowner being jailed for two weeks. We know of two cases where mobile home owners have been fined two to three hundred pounds, (bu t one was subsequently given planning permission on a human rights grounds); and one case of a chap who was fined for living in his workshop. We have heard of cases of gypsies being forced off land as a result of enforcement proceedings.
On the other hand we know of a great many more cases where people have managed to stay on their land, muddling through a series of applications and appeals, and have eventually acquired some kind of permission
Of course there are some people who can’t face the hassle and move off before it gets to the court. This is something you can choose to do at any point prior to going to a magistrates court, without risking a fine or imprisonment.
Planners are not obliged to carry out enforcement: it remains “at their discretion” (PPG18 para 4). They may at any time “withdraw . . . waive or relax any requirement of such a notice”. (Section 173A Town and Country Planning Act 1990 as amended in the Planning and Compensation Act 1991 section 5); and they are advised of the need to negotiate even after an enforcement notice has taken effect (PPG18 para 16).
We know of several cases where an enforcement notice has come into effect, yet no action has been carried out. Two years after the initial application has been refused, another identical application can be made , and the application process starts all over again (though the enforcement notice still stands.)
What are the chances of the planners simply ignoring me?
That depends where you are and how discreet you are. There are cases of people remaining undiscovered for 10 years and acquiring a certificate of lawful use (see briefing XXX). Underground houses, dwellings in woods and low car use are all helpful in remaining undiscovered, but the key factor is probably a good relationship with neighbours.
Another factor is the number of low impact sites in the area. Somerset County Council claims that there are 30 unofficial bender sites in the county, and most of these are apparently being ignored by planners. It seems that after a number of extremely long and expensive planning appeals (eg Tinkers Bubble, Kings Hill) the planners now prefer, wherever possible, to let sleeping dogs lie.
If I don’t apply for permission first, what should I do before moving on?
Prepare your case thoroughly beforehand so that when the planners come you can show them that you understand their concerns and can give them a well presented planning application that addresses these concerns. For information on doing this, See Briefing XXX
Does living on the land affect my eligibility for legal aid?
Yes. There is no legal aid for planning applications or planning appeals, but you may be able to get legal aid for the High Court or the Court of Appeal, though this is getting increasingly difficult. You are more likely to get legal aid if you are living on your land and in danger of eviction, than if you are living somewhere else.
What about the Human Rights Act?
Another argument for moving onto your land before making an application is that this is normally the only way of taking advantage of the Human Rights Act. Article 8 of this Act states that local authorities should not, without good reason interfere with a citizen’s rights for respect for his home. It does not defend the right of a homeless person to have a home, or the right of somebody living in one place to have a future home elsewhere. It normally only applies to the home in which you are living at the time (There may be an exception when you are facing eviction from this other home). (see Briefing xxx on the Human Rights Act).
Unfortunately, in the European court case, Chapman v the UK, the court made great play of the fact that “the applicant moved onto the land in her caravans without obtaining the prior planning permission which she knew was necessary to render that occupation lawful”. This argument (championed in the court by the UK judge, Lord Justice Schiemann, a former planning barrister) was quite out of order, given that PPG18 states that it is not an offence to carry out development without planning permission (see above), but it seems to have been influential in Mrs Chapman losing her case. However, the fact remains that if Mrs Chapman had not moved on, then it is unlikely that she would have been able to bring the case to the human rights court — Catch 22. again.
Despite Chapman, there have been several appeals where people who have moved onto land without permission have won on a human rights ticket, and appeals inspectors are unlikely to regard a retrospective application as unlawful, because they deal with them all the time. At the moment, as far as the human rights act is concerned, you have a better chance if you move on, than if you don’t.
When is it more advantageous to negotiate with the planners or apply for permission before moving on?
Circumstances will vary in every case, but in general it is fairly large scale projects dependent upon high capital investment, outside funding and/or a respectable public image that are more likely benefit from approaching the planners first. To benefit, a proposal will need to have a fairly good chance of attracting the support of planners and com mittee members, for example by showing that it conforms to development plan policies and national guidance, and that it offers economic, social and environmental benefits to the community. Support from people with letters after their name, and the ability to afford planning advice and expert witnesses are also highly advisable for this kind of application.
Applicants should be aware that it is not uncommon to receive warm encouragement from planners when a proposal for a sustainable development is initially proposed, only to find that the same planners oppose it when it actually comes to committee. The reasons for this are not always clear, but it may involve a junior planner being over-ruled by a senior one, or the result of pressure from influential local objectors. It is advisable to get as much as you can out of the planners at this initial “warm” stage in writing, otherwise it is valueless.
What about moving on by degrees?
There is another scenario that may work quite well for certain people. This is to begin by working on the land, pulling it into shape and building, say, a barn or other building which benefits from permitted agricultural development rights (see briefing xxx); or alternatively applying for permission for a building such as an educational centre for courses. Once the proj ect is established and accepted by local neighbours and planners, then an application for residence may be less controversial. The spectre of residence may also be gradually introduced by the siting of “caravans” for seasonal agricultural/forestry use (see briefing X).
For some groups, building a barn or educational centre before allowing residence may also be a useful winnowing process. It can be a good way of establishing who in the group is in tune with the aims of the project before the greater commitment of establishing a dwelling on site is made.
Are there any ethical questions raised by the act of moving on before applying for planning permission?
Yes. You should bear in mind that the tactic of carrying out a fait accompli which planners have difficulty in undoing is used by moneygrubbing cowboy developers all the time. House demolishers and tree-fellers are particularly keen on this tactic; the appalling Trago Mills factory outlet, plonked in the middle of beautiful Cornish countryside, utterly dependent upon car transport, was established in this manner.
By moving on first, and applying for permission later, you are taking advantage of the flexibility of the English planning system and undermining its authority. Insofar as the planning system discriminates against low income people and so distorts the rural economy, this may be a good thing; but insofar as the planning system is the only defence we have against the rape of the countryside by the legions of capitalist speculators that are out there looking for every opportunity to make a quick million, this is not such a good idea.
For that reason, we at Chapter 7 wish to make it clear that while we are advising low impact dwellers seeking a sustainable rural livelihood to move on first and ask questions later, we are also lobbying the Government urgently to introduce policies that will render this approach unnecessary. We are telling the Department of the Environment that if they don’t introduce policies that distinguish between low impact and high impact development, and if they don’t provide anywhere for low income people to live sustainably in the countryside, then the system is going to break down.