Planning Agreements; Planning Obligations; and the Community Infrastructure Levy

Planning obligations are a development from the power first given to local planning authorities by s 34 of the Town and Country Planning Act 1932 to enter into planning agreements with landowners for regulating the development or use of their land. From that Act, the power found its way into the Town and Country Planning Act 1947; and thence into the Town and Country Planning Act 1971 as s 52. On the consolidation of planning legislation in 1990, s 52 of the 1971 Act was replaced by s 106 of the Town and Country Planning Act 1990 as the new statutory authority for the power to enter into planning agreements. Now, following the passing of the Planning and Compensation Act 1991, the original s 106 of the 1990 Act has been replaced in its entirety by new ss 106, 106A, and 106B which have been inserted into the 1990 Act in its place. The replacement sections also introduced new arrangements and new terminology. From 25 October 1991, the power to enter into a ‘planning agreement’ under the 1990 Act was repealed and replaced by the power to enter into a ‘planning obligation’.

Applications for Planning Permission 1: Pre-Submission Requirements

Until fairly recently there was no standard form prescribed for the making of an application for planning permission. Each local planning authority could provide its own form for doing so. This led to a variation in the amount of information required by each authority, and was a concern for large-scale developers, such as volume house builders, where development projects could involve applications being made to many different local planning authorities.

Applications for Planning Permission 2: Procedure on Receipt of Applications by the Local Planning Authority

An application for planning permission is made to the authority with responsibility for determining the application. In the case of a non-metropolitan area with a two-tier division of planning responsibility, most applications fall to be determined by the district planning authority for the area in which the land is situated. If the application relates to a county matter, application must be made to the county planning authority for the area. In those areas where the local planning authority is a unitary authority, all applications are made to the unitary authority for the area. Section 1 of the Growth and Infrastructure Act 2013 has also provided applicants with the option of applying to the Secretary of State if a council has been designated as not performing adequately in determining applications.

The Need for Planning Permission 2: Cases of Doubt

Given the complexities of the definition of development and the difficulties which may arise in deciding whether in any particular case proposed development is permitted development, landowners may be in doubt about whether they need to make an express application for planning permission to the local planning authority before carrying out some activity. In most circumstances there is an opportunity to put the matter beyond doubt.

Town and Village Greens

Land which has been registered as a village green under the Commons Registration Act 1965 or Commons Act 2006, is protected from any development or use, which would interfere with the recreational use of the land by the local inhabitants. Section 12 of the Inclosure Act 1857 provides that it is a public nuisance to do a number of things to a green, including ‘interrupting the use or enjoyment of a green as a place of exercise or recreation’. Further, s 29 of the Commons Act 1876 provides that any ‘encroachment or inclosure’ of a village green is a public nuisance as well as a civil tort. As such, to have land registered as a village green represents a tremendous blight on the commercial value of the land.

The Need for Planning Permission 1: General Permitted Development Order; Local Development Orders

Section 57(1) of the 1990 Act provides that, subject to the provisions of the section, planning permission is required for the carrying out of any development of land. Planning permission may be granted in three main ways, namely by development order without the need for any application to be made, by a deemed grant of planning permission, or as the result of an express application for planning permission made to the local planning authority.

Determinations of Applications for Planning Permission

Under s 101 of the Local Government Act 1972, a local authority may arrange for the discharge of any of its functions by a committee, a subcommittee, an officer of the authority, or by any other local authority.

Minerals

Because of the particular nature and effect of mineral working, special provisions have been considered necessary to control its environmental effects. Following the report of the Stevens Committee on Planning Control over Mineral Working in 1976, the Government decided to implement many of the report’s recommendations, which it did in the Town and Country Planning (Minerals) Act 1981. The main features of that Act, which have now been incorporated in the 1990 Act, were as follows:

Definition of Development 2: Material Change of Use

The term ‘material change of use’ is not defined in the 1990 Act. Its meaning has to be ascertained, therefore, by reference to the many cases in which the courts have had to consider its significance. In Parkes v Secretary of State for the Environment [1978] 1 WLR 1308 (CA), Lord Denning MR said that ‘operations’ comprised activities which resulted in some physical alteration to the land, which had some degree of permanence to the land itself; whereas ‘use’ comprised activities which are done in, alongside, or on the land but which did not interfere with the actual physical characteristics of the land. Accordingly, he held that, for the purposes of serving a discontinuance order under what is now s 102 of the 1990 Act, the sorting, processing, and disposal of scrap materials was a ‘use’ of land.

Historical Introduction

Before there existed any public control over the use and development of land, landowners were free to use land in any way they wished, subject only to any limitations in the grant under which they held the land and to obligations placed upon them at common law. In essence, therefore, provided an owner acted within the limitation of his estate or interest and committed no nuisance or trespass against his neighbour’s property, he was free to use his land for the purpose for which it was economically best suited. Today, most societies require not only that this freedom be restricted for the public good, but also that the use to which land is put should be determined by the long-term interests of the community as a whole rather than as a consequence of the incidence and spread of individual land ownership.