Winning the planning game

Navigating the quagmire of planning policy can sometimes be a nightmare for everyone involved. Julian Owen explains how to deal with conflicting advice from local authorities

Julian Owen advises on what to do when the planners change their mind about your self build scheme

In theory, the process of obtaining planning approval should be quite simple. The idea is that planners compare an application to the council’s current policy and if it complies, they accept it. If it doesn’t sit in line with their protocols, they refuse. This should be a rational, objective process but in reality it is nothing of the kind. The council often has to mediate between conflicting interests at the same time as checking a myriad of documents that describe official policy and guidelines. Sometimes they will go back to an individual to say it looks their application is going to be refused, suggesting it might be better to withdraw and amend it before it’s formally rejected.

The process

For any but the most simple, uncontentious applications, it is sensible to discuss your project with the relevant department before you make a formal submission. You might have to pay for the privilege of a pre-application enquiry (or pre-app) but it is a good investment, even if they suggest it might be refused. Knowing in advance how your scheme will be received should affect the way it is prepared. If you are rebuffed, you can either amend the design to something more agreeable to get it through, or be ready to appeal straight after the decision is made. But what happens if the planning officer you consult early on gives you a misleadingly optimistic view of your chances?

As a reminder of the risks involved, I’ve kept two letters received from a local council a few years back. One says that the proposed application is consistent with policy and is likely to be approved. The other, written a few weeks later by the same agent for the exact same proposal, says the opposite – that it will be refused and advises that it be withdrawn. In that case it happened because the employee in question had not consulted his boss, who later overruled him. Unfortunately, it is not an isolated incident and sometimes early encouragement can turn into outright condemnation later on.

Sensible next steps

So what can you do if the proposal you thought would be approved suddenly feels unlikely? It might be better to withdraw the application, take some time to analyse the reasons given by the planners and devise a strategy to get it approved when you resubmit. You might decide to alter your design and give them whatever they are asking for in the hope that they’ll reconsider. Or you may feel that the reasons are unfair and want to challenge them. Either way, you need to start thinking tactically.

The first question to consider is whether are they bluffing. One test for this is to examine exactly what they say or write in their explanation. Phrases like “the scheme could be enhanced by...”; or “we would rather see...”; or “consideration should be given to...” do not necessarily mean they will refuse it. They might just prefer it to look different. However, assuming you decide the application is genuinely not going to be approved, the next question

needs to look at why they’ve had a change of heart. This is where the process gets more complicated.

Why has the verdict changed?

A common reason is the one I gave earlier. The status and influence of junior planning officers varies between councils. This means that your experience will depend on where you live. For instance, early discussions with one authority in my region are useful and can generally be reliable, but a neighbouring council has a senior planner who is notorious for overruling his staff at a late stage. This is humiliating for them and frustrating for the applicants. Unfortunately, this means that if you have had positive encouragement in writing from the council you cannot rely on it 100%. However, it is a useful bargaining chip should they change their mind. If necessary, it could be presented to a planning inspector at an appeal, but at the very least it should embarrass them enough to elicit their help to agree what is needed to get an approval. The officer dealing with your case will have a strong incentive to help you get a successful result because it doesn’t reflect well on them that their advice has been proven to be incorrect.

Sometimes it is not the planning department that has put a spanner in the works, but a consultee. These are other council departments or separate organisations that

have been asked to give a comment on a proposal. An experienced planner will anticipate potential objections from consultees at the pre-application stage and liaise with them informally, but sometimes this doesn’t happen. For example, if your scheme is not considered safe for road users or pedestrians, the highways engineer will object. It takes a brave planner to pick a fight with that department.

Archaeologists have increasing influence in these decisions, with some legal authorities employing full time specialists. If it is determined that there could be some interesting remains under your site, you might have to pay for a full blown archaeological dig − it sounds expensive because it is. Previously, such surveys were imposed as a condition when approval was already granted, but they are increasingly required before planning consent will even be considered. Without complying with this stipulation, the application will likely be refused due to ‘lack of information’.

Other consultees who can cause last-minute hitches include conservation officers (regarding the quality of the design and how it integrates), the Environment Agency (due to the risk of potential flooding) and English Nature (concerned about risks to protected species).

A problem with a consultee can be difficult to overcome, especially if you are in a hurry to build but technical issues have been raised. You will need to hire your own expert to show that either the objections raised are wrong or can be easily overcome. Objections to the appearance of the building are the least straightforward to handle because one person’s gem is another’s carbuncle. Providing extra information can help. This can be in the form of three dimensional computer models, additional drawings, or even photographs of examples where similar ideas have been successful in the local area. Your designer should be able to help source and provide these.

Outside influences

Once a planning application is submitted, it becomes a publicly available document for anyone to view on the council’s website. It is not unknown for neighbours, local residents and amenity societies to object and lobby their councillors. If the planners get such pressure from behind the scenes after they have given a positive pre-application response, it puts them in a difficult position.

Ultimately, the chief planning officer’s role is to make a recommendation to the planning committee. The members

are open to influence from their electors. Council officers may attempt to persuade you to change the design or other aspects of the scheme to avoid the humiliation of their boss’s advice being ignored by the politicians, or to pacify a vociferous neighbour.

When you are up against resistance from an obstructive officer, it might help to try to go higher up the chain of command, especially if you have the early encouragement you were given in writing. If this gives you no joy you might choose to approach the local councillors yourself, although be mindful you are dealing with politicians who are keen to keep their seat at the next election. If a decision on a planning application looks to be fairly straightforward, it might be made by delegated powers. In this situation, the chair of the committee is just nodding through whatever the department head has recommended. However, there is a convention that a councillor can request that a specific application is put to the committee for consideration.

Members are supposed to abide by strict rules when it comes to lobbying, and declare when they have an interest

in a decision. So, they may not wish to be seen as actively working with you to get an approval. But, they might be persuaded to get the application in front of the committee and then speak up at the meeting. You or your expert representative should also have the opportunity to address the committee, usually for just a few minutes. During this, highlight the initial advice you received saying that the application was acceptable. It’s no guarantee − just hope you persuade enough members to support your case.

Conclusion

Having a well-considered strategy will increase your chances of getting the planners back on board with the scheme you’ve proposed. They are unlikely to reverse their recommendation a third time unless you can provide them with a good reason so try to make a few concessions, however trivial, and provide them with extra details about the application. If they decide to back down without the scheme being altered, they can save face by citing the new information as the reason they have changed their mind.

The absolute golden rule is not to lose your cool and start berating the bearer of bad news. Occasionally I have asked clients not to attend meetings because we both know that their temper will get the better of them. As soon as this happens, you have lost the argument. It is rare for local government workers to be vindictive and it may not be the planning officer’s fault at all. They are only human and may sympathise with your position, especially if they feel their original recommendation is still correct. Your best chance of success is persuading the case officer to understand your point of view. They’ll help you to get back on track.

Having said that, being polite does not mean giving up. One of the most effective incentives for the council to get your application resolved is an implicit threat that you might go to appeal. If you present your case methodically, relating it back to their own policies, which they clearly felt were satisfied when they first saw your design, you have a good chance of getting an approval.