13. Planning and consents

Disclaimer: The information and opinions contained in this Design Guide are for general information purposes only. This Design Guide is not intended to constitute legal advice. It should not be relied on or treated as a substitute for specific advice from your solicitor.

Key principles

• The development of a new traffic-free route is likely to be considered as ‘development’ and require planning permission. This needs to be factored in as part of the project management of a traffic-free route, particularly in terms of timescale, resources and budget.
• A number of other consents or permissions may also be required to construct a traffic-free route, such as ecological consents.
• Appropriate local and expert advice should always be sought as early as possible, particularly where it is not clear whether applications for planning permission or other consents are required.

13.1 Planning permission

13.1.1

When a party wishes to make a change to the environment, planners often call it ‘development’, for which planning permission is required in England and Wales under the Town and Country Planning Act 1990 (as amended) (TCPA 1990). ‘Development’ includes both physical changes to land (building, engineering operations etc.) and material changes of use of that land.

There are some limited exceptions to the meaning of ‘development’ set out in section 55 of the TCPA 1990, including some works within the boundaries of a road in certain circumstances.

Some works fall within the scope of ‘permitted’ development as set out in statutory General Permitted Development Orders which also do not require a planning application. This includes some road/highway works in certain circumstances.

13.1.2

Planning decisions are made by the Local Planning Authority (LPA) based on adopted planning policies. Whilst the principles and procedures are similar across the UK, these are based on different legislation in England, Wales, Scotland and Northern Ireland. Each nation has its own Planning Portal, listed in the table below. 

Planning portal websites

• England: https://www.planningportal.co.uk
• Wales: https://www.planningportal.co.uk/wales_en
• Scotland: https://www.eplanning.scot
• Northern Ireland: https://www.planningni.gov.uk

13.1.3

LPAs can form a view on whether the express grant of planning permission is required. In general, minor works such as resurfacing within the boundaries of an existing path, would not require a planning application, whereas the creation of an entirely new traffic-free route would.

The majority of minor maintenance tasks, as well as some fencing works, would not require the express grant of permission if the works fell within the scope of ‘permitted development’ rights referred to above.

It is not always clear as to what is, or is not, permitted development, however, so if in doubt advice should be sought from a qualified planning lawyer or planning consultant, or the LPA.

13.1.4 

There are certain restrictions on permitted development rights, such as in the case of Environmental Impact Assessment (EIA) development. If there is uncertainty, a certificate of lawful development (LDC) application could be made using the online planning portal.

The process of applying for a LDC is usually quicker than making an application for planning permission. This is because what amounts to ‘lawful’ development is a legal question, requiring a legal rationale, without consideration of the planning merits.

The grant of a LDC applies only to the lawfulness of development in accordance with planning legislation. It does not remove the need to comply with any other legal requirements, covering relevant heritage, ecology or other environmental issues under, for example, the Planning (Listed Buildings and Conservation Areas) Act 1990 (as amended), the Habitats Regulations or other licensing or permitting regimes.

13.1.5

A planning application may be the only opportunity that the local community has to comment on a proposed development, particularly if a prior exhibition or public meeting has not been held.

Therefore, where necessary, it can be an important process to enable people to air their views for and against a prospective development.

13.1.6

Where a scheme spans the administrative areas of two or more LPAs in England and Wales, the applicant must submit identical applications to those LPAs and the online planning portal can be used to do this. A greater planning fee is payable solely to the authority of whichever area contains the larger, or largest part, of the whole application site.

One of the authorities will normally act as the lead planning authority. Legislation in Scotland is different, so it is advisable to ensure appropriate regulations are followed where two or more LPAs are involved.

13.2 Making a planning application

13.2.1

Anyone can make a planning application in England and Wales on another person’s land, so long as the appropriate notices are served on the landowners. Obtaining planning approval for a scheme is a different matter from its implementation, making it possible to obtain planning permission before formal agreement with landowners.

However, submitting a planning application without the agreement of a landowner is not recommended as they may object and even if planning consent is granted, it does not override the need to secure landowner consent for access to the land to carry out the development once permitted.

13.2.2

Planning policy guidance, which is available online, encourages meaningful pre-application discussions with stakeholders, including the local community, statutory bodies such as statutory consultees and local councils/councillors.

It is useful to invite local people to a forum where initial proposals can be discussed and their views recorded. It may be appropriate to enter into (for major development proposals) a Planning Performance Agreement with the LPA and seek advice from the LPA through a formal pre-application submission.

In other circumstances, it may be appropriate to seek advice from the LPA through pre-planning application discussions with, and advice from, planning officers.

This approach would enable the LPA to provide written advice on what documents to submit as part of the planning submission (see further below); any specific issues/areas; and the identification of relevant adopted planning policies that need to be considered or addressed as part of the application.

Whilst this process may incur a fee, it is likely to save time in the end, particularly where there has been little or no prior engagement with the LPA.

In England and Wales, if insufficient information has been submitted as part of the planning application, the LPA will not validate the application until it has been provided. This will lead to delay because a LPA is not required to start determining a planning application until it has been validated.

13.2.3
Information required for a planning submission is listed on the LPA’s website as ‘validation requirements’. The list is generic however and not all of this information will be relevant to a particular development proposal. In addition to drawings showing the proposal at specified scales, the planning authority will require other information such as:

• Detailed reasons behind and justification of the application (usually in a design and access statement (DAS) incorporating a planning statement).
• An assessment of any impacts on the existing environment (often including a flood risk assessment if the site is within a flood plain or near a river or watercourse, landscape & visual impact assessment report, archaeology report, tree inspection report etc. depending on the details of the particular route proposal). 
• Details of existing site conditions and potential impacts relating to vegetation, wildlife and designated sites (usually including a Preliminary Ecological Assessment (PEA) written by a qualified ecologist and any subsequent survey reports for protected species and habitats, such as SSSIs, SPAs, SACs, ancient woodland and wetlands).
• A plan showing the boundary of the application site and any other information relevant to the application.

This list is not exhaustive. What information needs to be submitted depends on the particular circumstances of each individual case and should be clarified with the LPA in advance of the planning application submission.

13.2.4

The formal planning application should be submitted via the relevant online planning portal, which requires the user to be registered.

It should be noted that the application forms are generic and cover a wide range of developments. Some sections of the standard forms are not therefore relevant and do not need to be completed. The application forms include the necessary certificates to demonstrate that the relevant landowners have been notified, which is mandatory.

13.2.5

Part of the determination of the planning application will involve the LPA consulting with the relevant statutory bodies and giving members of the public opportunity to raise objections or register support.

13.3 Planning conditions

13.3.1
Planning approval is always granted with conditions attached. As a minimum, the conditions will specify the period within which the development needs to start (e.g. commence within 3 years) and adherence to a set of drawings and/or specifications.

In addition, other conditions can be applied requiring samples of materials to be approved, further surveys of wildlife, green travel plans or numerous other aspects relating to the site and impact of the development.

To minimise the number of planning conditions requiring further information attached to a grant of planning permission, it is advisable to submit as much detail as possible as part of the planning application submission itself. This can also be discussed with the LPA in advance.

13.4 Consents

13.4.1

In addition to planning permission, schemes will often require other consents, depending on the sensitivity of the site, the location of the proposals and the work required.

The need for any necessary additional consents should be ascertained by investigation and local enquiries at the earliest possible opportunity. Further advice can be found on the relevant national planning portal websites. Details of typical consents are set out below: