How does the planning system work?

If someone is planning to build something that needs planning permission, they have to send an application to their Local Planning Authority.

Cardiff Council is the Local Planning Authority for Cardiff. It is responsible for deciding whether planning permission should be granted for a variety of developments, from loft extensions to tall buildings, housing estates to football stadiums.

Like all Local Planning Authorities, Cardiff Council has to work within planning laws, policies and frameworks when looking at planning applications. If it didn’t, its decisions can be overturned on appeal to the Planning Inspectorate (a function of Welsh Government) and ultimately the High Court.

Ok, under the law, what is the Local Planning Authority able to take into consideration when looking at an application?

The Local Planning Authority takes a wide range of topics into consideration, these vary depending on the proposal, but include things like:

·       the extent and significance of the proposal.

·       the site itself, including its history and the current context.

·       the policy framework and guidance (each of which will be given differing ‘weight’ dependent on the site.

·       consultation responses from the public and local Councillors.

Planning Officers carefully assess these matters, including the issues raised through consultation responses received and prepare a decision report.

This report captures how a proposal was assessed and normally contains a description of the development, the site and its context, a site history, information on the policy framework, consultation responses. The report will end with an analysis, conclusion, and recommendation(s), alongside references to any other legal processes which may impact upon the development.

Applications can then be considered by Cardiff Council’s Planning Department, or they can be brought in front of its Planning Committee.

So, I can see that there are a few different parts to the Local Planning Authority, who makes the decision, the Planning Department or the Planning Committee?

Smaller decisions like home extensions do not require Planning Committee approval, they can be decided by the council’s planning department, but major developments do.

A Planning Committee is a function of the council, but it stands apart from the council, so it can deal with major planning applications independently, taking all the evidence presented to it into account fairly and objectively.

It sounds like the Planning Committee has to almost operate like a court then?

Yes, you can think of the Planning Committee being like a law court, sometimes called ‘quasi-judicial’. This means that the Planning Committee is required to gather and look at all the evidence before taking a decision on that development. It does not have the powers to stop a development on the basis of it not being popular, the committee needs to have the law on its side.

The committee looks at all the evidence and the legal requirements for a development. If those legal requirements are met, the committee cannot turn down a planning application without risking serious consequences.

What do you mean by serious consequences?

If a planning committee turns down an application because of public objections alone and while everything else about the application is legally sound, then the developer could appeal to the Planning Inspectorate, and ultimately seek a Judicial Review. If successful, depending on the scheme the council could be responsible for costs which could run into the hundreds of thousands, or potentially even millions.

Doesn’t that just put all the power into the hands of the developers then?

Developers generally want to build in successful towns and cities where they can turn a profit. A successful city like Cardiff will always attract developers, but this is not a bad thing of itself. Successful cities are growing cities and growing cities need new developments to service its residents and visitors. New homes will always be required, schools, hospitals, cultural venues, places to work, transport hubs, parks and open spaces etc. So it’s not correct to think development equals bad. Once a city stops growing it generally starts a retreat back from its heyday with less money being spent on it.

Ok I see that but we are talking about good development versus bad development and if residents don’t want it surely it is bad development?

A good point, but it brings us back to the quasi-judical role of planning committees whose job it is to gather and look at all the evidence in an objective way. Planning committees must put to one side opinions, which can be subjective and which are not appraised of all relevant matters relating to a development.

So the opinions of the public don’t matter then? That doesn’t feel right.

The opinions of the public do matter, but they must relate to matters that are relevant to the planning application.  Things like, “I don’t want more housing near me” or “It will have a negative impact on my house value” are not matters which planning officers can consider.

The determining factors have to be what we call ‘material considerations.’ This isn’t an exhaustive list, but a ‘material consideration’ could be something like:

·       the proposal being contrary to an approved planning policy;

·       the proposal’s potential to cause traffic congestion; or

·       a lack of provision for active travel in the proposal; or

·       the proposals impact on a listed building or heritage site; or

·       the potential impact of the proposal on green space.

Planning officers, looking at all the evidence, will make a recommendation based on that evidence having evaluated all the material considerations. The Planning Committee will then take a decision.  All Officer Reports on planning applications are published and available on the Council website

So who sits on the planning committee then and how does it work?

The planning committee is a function of the council but it operates outside the politics of the council. Therefore planning decisions are not within the remit of the council leader or any of the administration’s political Cabinet.

The planning committee is made up from elected councillors from across the political divide. These councillors are advised by trained and qualified planning officers who understand planning law and requirements for developments.

The planning committee is politically free to determine, based on objective evidence, whether a development should go ahead or not.

It is also able to place conditions on developments. These include but are not limited to: some design changes, types of materials used, greening of surrounding area, the building of necessary transport infrastructure, new schools, medical centres and the raising of Section 106 funds (monies paid for by the developer to improve local communities which may be affected by the development.

This separation from the council’s political structure means the planning committee is free from political pressure which might otherwise be felt because a lot of potential voters are against a development.

But that’s just wrong. If enough people don’t want a development in their city, why can’t their councillors or the Council’s political leaders do something to stop it?

All councillors can have their say at Planning Committee meetings, as can objectors who lodge a petition. If we were to refuse planning permission solely on the strength of opposition, rather than for legitimate Planning reasons we would leave the Council open to challenge, and potentially an expensive law suit.

Planning decisions have to be made on the evidence brought before the committee. While people’s dislike of a development is a consideration in a planning decision, unless that dislike is due to a ‘material consideration,’ which can be shown to carry enough weight to stop a development, it can’t be a deciding factor. Evidence has to be the key factor in any decision.

What happens at a Planning appeal?

If a developer has brought forward plans which fulfil all planning requirements and those plans are turned down, they can appeal the decision. During an appeal a Planning Inspector will consider the case, for and against, and make a decision on the application. Appeals are either allowed or dismissed. If the Inspector, or sometimes Welsh Government Minsters, decide there is no legal reason for the development to have been turned down (remember people’s opinions don’t count unless they are linked to a material consideration with enough weight to stop a development) then the council could be liable for costs which could potentially run into millions.

This is why planning committees must be very sure about the decisions they take, after reviewing all of the evidence, with due regard to planning law and guidance.

What is a Judicial Review then, is it the same as an appeal?

Unlike Planning Appeals, which are when developers disagree with a decision of the Council, Judicial Reviews are a Court of Law where anyone can challenge a decision of the Council.

These must be lodged within six weeks of making a decision, and often involve Barristers and Legal representatives.

Judicial reviews do not consider the merits of a development or the decision, only whether the Council has followed the appropriate legal process.

What protection is there then to ensure developers build better buildings – the type of building people want to see in their city? 

 The council sets out local planning policies to help guide developers through something called a Local Development Plan (LDP). This plan, which should be revised every four years, is also the best opportunity for residents to get involved in the future of their city and how it will look and feel.

All LDPs go out for consultation and when that happens residents can take part helping to shape the plan. When it is complete it will contain guidance and information for developers on areas of the city suitable for future development and the types of development the city hopes to see built in the future. These LDPs are then supported by supplementary planning guidance (SPG) on various different subjects.

So what exactly is Supplementary Planning Guidance?

Supplementary Planning Guidance is guidance produced by the Planning Authority (Cardiff Council), in addition to the nationwide planning laws and policies set out by the Planning Inspectorate (Welsh Government). SPG provides additional technical detail on the policies in the LDP – it cannot introduce new policies which are not in the plan.

This planning guidance usually looks at topics that are specific to a local area, rather than the whole of Wales and is designed to provide developers with an indication of what is (and what isn’t) acceptable to the Planning Authority.

For example, the Council has SPG covering things like Houses of Multiple Occupation, Tall Buildings, Green Infrastructure, and more. You’ll find a full list of SPG for Cardiff here, if you’re interested: https://www.cardiff.gov.uk/ENG/resident/Planning/Planning-Policy/Supplementary-Planning-Guidance/Pages/Consultations.aspx

The SPG’s are not legally binding on a developer, but they are used by the case officer to guide the developer as discussions take place on a planning application.

Can’t the case officer guide them to a point where they’re not chopping down healthy mature trees in the middle of the climate emergency then? How on earth can you allow that?

This is never something that’s done lightly and without careful consideration, but like most things with planning, it’s a balancing act. The decisions to allow this to happen would only be taken after looking at things like whether the tree is protected or not, the condition and health of the tree, plans for alternative replacement planting and importantly, whether there are any changes to the plans that could be made in order to protect existing trees.

Okay but what about this Section 106 money I keep hearing about? Can’t we at least get developers to give us more of that?

Well with more than £100,000,000 of Section 106 contributions negotiated since 2016/17 Cardiff actually does pretty well on that front already, but we’ll come back to the money, first we want to explain what a Section 106 agreement is.

Basically they’re agreements used to reduce the potential impact of a development and overcome obstacles which might prevent planning permission from being granted.

The payments agreed under Section 106 then go towards paying for the things all communities need, like affordable housing, parks, highway infrastructure, schools and other community facilities.

How big a contribution developers are expected to make is set by the planning authority, and is based on the amount of profit the developer is expected to make. And it’s all legally agreed before the committee decide whether or not to grant planning permission.

Now that doesn’t mean developers will get planning permission for anything, as long as they pay enough in 106 contributions. In fact Section 106 agreements can only be used as a reason for granting planning permission if they are:

·       Necessary to make the development acceptable in planning terms;

·       Directly related to the development; and

·       Fairly and reasonably related in scale and kind to the development.

How those contributions are calculated (and when developers will be asked for them) is all set out in planning policy and detailed guidance, so that developers can think about it when they’re making decisions on things like how much they should purchase land for - and more importantly from our point of view, so that the Council is in a stronger position to get the contributions it asks for.

Sounds good. So how come they don’t always end up paying what was agreed?

Sometimes a developer will produce evidence that if they were to make the financial contributions they’ve been asked for, the scheme would not be economically viable, and would not be able to go ahead. That evidence isn’t just taken at face value, it’s checked and questioned, but often it’s correct.

The Council has a process where we seek independent verification of any information submitted by the developer through the District Valuation Service (DVS).

The DVS is a Government department who can only work for the Public Sector, so they remain impartial and independent. We also expect the developer to pay the costs of this work.

If a developer can’t afford all our requirements or contributions, that doesn’t mean we will just approve the development without them being fulfilled. If the absence of these obligations generates an objection, for example if we need money for a safe pedestrian crossing outside the development, or replacement tree planting, then we would refuse the application as it failed to meet the essential requirements of the development.

In other cases, we may still think the application is acceptable without the full level of contributions, but this is carefully considered as each application will have different impacts and needs.

There are lots of reasons why developers may struggle to make all the financial contributions expected of them.  Land values have consistently increased, particularly in town centres; the cost of building materials increases, as does the cost of securing labour. Also, we expect developments to meet, or go beyond, minimum standards in terms of design and energy performance, which all adds to costs. Factors like interest rates and the willingness of banks to lend money to developers in uncertain times are often critical factors in whether a development can go ahead.

Okay, back to this Local Development Plan. How often does that come round so residents can make their views heard?

The plan is usually updated on a four-year cycle. 

How do I comment on a planning application?

There is some really useful advice and information on how to comment on any planning application here https://planningaidwales.org.uk/about-planning/guidance-publications/