Planning, legal and land

Planning
Town Planning Decisions frequently affect sustainable transport. The planning section provides guidance on the following topics:

  • Planning Applications and Planning Conditions
  • Non-Planning Consents
  • Local Development Framework
  • Planning and Health

Legal
Cycle Schemes and Legal Procedures (Cycling England 2009, pdf) provides guidance on the legal procedures employed in England to create cycle tracks either from scratch or by the conversion of footpaths and footways, including use of the following legislation:

  • Cycle Tracks Act 1984
  • Highways Act 1980
  • Town and Country Planning Act 1990

It includes a useful list of acts of parliament and other statutory instruments which govern cycling.

In addition, Sustrans will shortly be producing a Technical Information Note on Bridleway Creation Orders.

Land
The Connect2 and Greenway Design Guide includes a useful chapter summarising ownership, land agreements, status and designation.

More detailed guidance is contained in Sustrans' Negotiator's Guide to acquiring land rights for cycle path construction. This draws on over 30 years of negotiation to support Sustrans' route development work and covers devising routes and all aspects of negotiating agreements.

Permissive rights
Permissive rights are useful where a landowner is willing to allow public use but does not want a permanent right of way to be created; if the landowner is willing to allow a permanent right of way, he can dedicate the land as public highway and this is a useful alternative in some cases.

A permissive agreement, more often used in practice, is where the Local Authority or another party purchases an interest in the land, constructs a path and then allows the public to use it. The land interest can be;

  • Freehold, which gives a permanent interest, or
  • Leasehold, which gives an interest for the period of the lease e.g. 125 years, or
  • a Licence, which is a permission to construct and for the public to use, but this has the disadvantage it can be withdrawn at any time at short notice

Sustrans has created numerous permissive paths which have worked satisfactorily; these are largely Freehold or Leasehold. Licences are generally avoided due to their poor security. Sustrans is happy to advise on the implementation of permissive agreements.

Introduction to town planning

Town Planning Decisions frequently affect sustainable transport. These pages are to help provide guidance on this subject. There is also plenty of other information available on the web including government, charities and campaigning organisations.

The Planning Portal - this is the one stop shop for planning guidance and via this site one can view policy documents and make applications.

Advice in this section of the website covers the following topics:

Links to some other environmental organisations who campaign on planning matters:

Other websites which may be of interest:

Cycle-space

Planning permission

Principle of "Development"

All planning decisions are based on adopted planning policy. The principles and procedures are the same but the policies differ between England, Wales, Scotland and Northern Ireland. When someone makes changes to the environment, planners call it "Development". Some things like repainting your house are "Permitted Development" and these operations are detailed in the legislation. For England, advice on this is included in the Planning Portal.

So some fencing and maintenance of existing paths does not require permission.

Planning permissions

If what is proposed goes beyond the limits of permitted development then planning permission is required and the local authority can take enforcement action if a planning application is not made and approved. Planning permission is required not only for physical changes such as a new building or path but also for changes of use – if for instance you wanted to open up an old factory as a café or cycle hire shop then you would require a change of use planning permission even if no building work was required.

If a planning application is refused by the local authority then the applicant may make an appeal which is dealt with by the Planning Inspectorate. Note that their website was integrated into the planning portal in September 2011.

Information from local authorities

If you are not sure which local authority applies to a site then insert a town name or post code to this part of the portal website.

Use of this link should lead you to the local authority's website pages for both local plan information and registers of applications.

Making a planning application

Anyone can make a planning application (you don't have to own the premises or land) and you don't have to employ an Architect or Planning Consultant to do it. There are various requirements on the scale and type of drawings and other information needed. These are generally listed on your local authority website. Where you don't have a unitary authority it's the District Council that decides applications (except for minerals and waste).

In addition to drawings showing your proposal the planning authority will generally require other information such as:

- A design and access statement (which explains the reasoning behind the proposal).

Flood Risk Assessments or surveys of existing conditions relating to Vegetation and Wildlife. The purpose of this is to enable the decision maker to assess the impact of the development on the existing environment. Sustrans has produced a Technical Information Note on Flooding and on Ecology in the Planning Process.

- A planning fee (in England this is £335 for any size change of use, £170 per 0.1 H for engineering works). Where the application involves both a change of use (turning part of an agricultural field into a path and engineering works (making new ramps or bridges) then the fee required is the higher of the two fees – so if it's less than 0.2 Hectares of engineering works then the change of use fee applies. Fees in Wales and Scotland are similar but dealt with under different statute.

An application can be made via the Planning Portal once you are a registered user.

Making an application involves filling in an online form and then either uploading drawings and reports (generally in PDF format) or posting paper/digital copies. The application can be saved so you don't have to do it all in one sitting. Although the form (now a national standard form) looks complicated much of it (such as opening hours and employment) is irrelevant to cycle paths and one can get onto the next screen by typing N/ A in each irrelevant section.

The local planning authority is required to determine any valid application within the constraints of the relevant planning policies and guidance (national and local).

Making observations on other peoples planning applications

Planning applications have a statutory 21 day consultation period. This is advertised sometimes by notices on lampposts or in a local paper. Many local authorities allow you to search for current applications on their website via post code or by use of an interactive map. These days you don't have to call into the council offices as you can view the application documents online. It is also not absolutely necessary to get all your comments in before the "expiry date" but it is recommended to send a holding letter before that date and to check the likely timetable for the local authority decision process. Those commenting should also be aware of the history of an application. Application forms (there's now a national standard one) ask if the development has been the subject of any "pre-application consultation". If so that will indicate whether it's likely to be a "done deal" or more readily up for discussion. It will also indicate who at the council they've been talking to.

Also look to see if a fee has been paid by the applicant. If not then it is a "free go" repeat application resulting from a previous refusal or withdrawal. If a fee has been paid then a possible scenario is for that application to be withdrawn or refused and a new improved one sorted out.

How to make effective representation

When making comments on an application do look at all the application material and try and relate your comments to any perceived failing to comply with policy. In addition whilst objecting outright to a proposal it is normal process to also cite what conditions or additional work may make the development more acceptable to you.

Planning conditions

A planning approval is always written with conditions attached. As a minimum they will specify the time period (ie commence within 3 years) and adherence to a set of drawings. In addition other conditions can be applied requiring samples of materials, further surveys of wildlife , green travel plans or numerous other things relating to the site and impact of the development.

Guidance on conditions are outlined in government circular 11/95:

The 6 tests to be considered when applying conditions are:

  1. Necessary;
  2. Relevant to planning;
  3. Relevant to the development to be permitted;
  4. Enforceable;
  5. Precise; and
  6. Reasonable in all other respects.

Section 106 agreements and unilateral obligations

Planning obligations (or 's106 agreements') are private agreements negotiated, usually in the context of planning applications, between local planning authorities and persons with an interest in a piece of land, and intended to make acceptable development which would otherwise be unacceptable in planning terms. Obligations can also be secured through unilateral undertakings by developers.

Guidance on these are outlined in government circular 5/2005:

So any requests for additional works need to be considered to meet the five test of Circular 05/2005:

These are that an obligation must be:

  1. Relevant to planning;
  2. Necessary to make the proposed development acceptable in planning terms;
  3. Directly related to the proposed development;
  4. Fairly and reasonably related in scale and kind to the proposed development;
  5. Reasonable in all other respects.

The term planning gain is commonly used in town planning. Adopted Local Plans should specify what is required generally in Supplementary Planning Guidance Documents (SPGs) – these sometimes have an annually updated tariff. The key point is that the proposed gain must relate to the development.

Section 278 works

Where a development requires works to be carried out within the existing adopted highway, an agreement will need to be completed between the developer and the Council under Section 278 of the Highways Act 1980. Examples of such works could be the construction of junction improvement or safety related works such as traffic calming or improved facilities for pedestrians and cyclists.

Under the Section 278 Agreement, the Council may provide the works at the developers' expense, or may allow the developer to provide the works directly, subject to an approval and inspection process.

These works need to link into existing cycling and walking infrastructure and they can therefore be very important in promoting sustainable transport. DfT guidance.

Non-Planning consents

In addition to planning permission schemes will often require other consents such as Environment Agency Consents for works within flood plain or for moving / storing soil. Sustrans has produced a technical information note on flooding.

Getting your voice heard in the Local Development Framework (Local Development Plan in Wales) process.

Nationally policies such as PPS 13 (or TAN 18 in Wales) give guidance on Transport Planning and then locally there is the Local Development Framework (LDF) which is the new name for the local plan process which Unitary Authorities and District/Borough Councils are preparing. There are opportunities for public consultation at various stages.

Without good policies and standards for encouraging cycling and walking local authority planners are limited in their capacity to control development.

The Local Development Framework process is very slow and requires a long term approach. It does however provide opportunities to safeguard future routes from development.

Planning and health

How our environment is laid out - national and regional land use strategies, local planning and development control - affect how we can choose to travel, and that in turn affects our health and that of our neighbours. As the Toronto Charter for Physical Activity puts it, we need "Urban and rural planning policies and design guidelines that support walking, cycling [and] public transport". For more information see Creating the environment for active travel, various Sustrans policy submissions, or the documents below: