Planning permission precedents.

[Christian Hillier]

Hi all hope everyone is well. This is likely my first of many posts.

 

I was wondering if anyone knows how much precedent counts towards a planning application.

 

Myself and my partner have put in an application for a large 200 square meter house on some land my mother owns.

 

There is a house just up the road from us that has been accepted for one and now two houses.

 

Ours has all the same merits if not more. Both plots are outside of the village development limits, theirs more. Ours is just on the edge outside the limit. 
 

Neither plots are infill though both are continuation of the line although theirs has less housing around and could be considered more rural.

 

Theirs is within the same plot as a listed building. Theirs is obviously for a money making scheme and ours specifically for a dream home.

 

Both are mostly in character with surrounding except for large dormer windows for ours.

 

I have also found several other similar proposals accepted within a few miles with the one I have mentioned being about 100 meters away.

 

Is there any case law which suggests consistency is legally required?

 

The areas local 5 year plan is currently out of date and has not fulfilled it.

 

Any advice on this and anything else someone is willing to add would be very much appreciated.

 

Kind regards

 

Christian Hillier

[Jeremy Harris]

Welcome.

 

The simple answer is that precedent counts for nothing at all, and is not a valid planning consideration.  Planners will often refuse to accept any argument based on precedent, and will judge each application solely on its own merit.

 

Having said that, fitting in with the local street scene, and making a development in keeping with its surroundings, are valid planning considerations, so it may be that some older developments in the area have changed the local street scene such that any new development might be viewed in a slightly different context.

 

There's no law that requires that planners be consistent, really, and very often they aren't, as circumstances change from year to year.

 

The local plans are very often out of date, I think.  That doesn't mean a lot, as it could be argued that national planning policies should be applied, and they may or may not prove helpful.

 

I'm afraid inconsistency between planning decisions made in the same area, but at different times, is entirely normal, and something that has to be lived with!

[stephen margerison]

why don't you go onto the local planning on line, and find out who the architect is, then contact them and ask the question, maybe they used a planning consultant, also check on their applicaton  to see what conditions have been applied.

[Olly P]

I would submit a pre planning application to the LPA first, then speak to a good proven local Planning consultant. I would say that as approval has been given in a similar case to yours you have a good chance but a planning consultant would advise you better. Outline Planning would involve less financial input at this stage. Good luck 

[Temp]

All applications are meant to be acceptable in their in their own right. I would have a look at the Design & Access statements for these other properties. Ditto the planning officers recommendation report to the committee (if they went to committee). These will give you a good idea what if any objections the planning officer had and possibly how they were overcome.

 

For example one objection to rural development might be a lack of services and public transport. So you should check there are spaces at the nearest schools and a school bus to get there. Ditto access to doctors and ideally shops. Planners call this sustainable development (nothing to do with being green). You need to do this even if you don't have kids - planners have to assume anyone could live there. 

[jamiehamy]

I would say that you need to step back and consider the development in the context of the Local Development Plan first (you've not mentioned this) . If you believe that your proposal accords, or could be in accordance (because often its subjective), then you are off to a good start. 

 

If you can then find other similar developments, then whilst it's not necessarily a material consideration for the planners, it's important to reference. 

 

Precedent is more important in my view if you go to appeal - when the government reporter comes, they are interested in that. 

 

If you try reply on precedent alone, you're on weak ground gas said above, what applied for one may now not be suitable. 

 

Also, consider national policy frameworks too - local authorities are not obligated to follow the LDP - the more justification you can find from a variety of sources, the harder it is to refuse. 

(btw, the LDP being out of date is irrelevant, they still have to use it - and any new plan that is not yet adopted. A local authority near me has two that didn't get adopted (2015 and the current attempt) therefore any applications need to refer to all three for decision! That can be a good thing or a bad) 

 

 

 

[ToughButterCup]

15 hours ago, Christian Hillier said:

[...]

Any advice on this and anything else someone is willing to add would be very much appreciated.

[...]

 

Easy to read = easier to answer, so thanks for that.

 

27 minutes ago, jamiehamy said:

I would say that you need to step back and consider the development in the context of the Local Development Plan first (you've not mentioned this) [...]

 

9 hours ago, Temp said:

All applications are meant to be acceptable in their in their own right. I would have a look at the Design & Access statements for these other properties. Ditto the planning officers recommendation report to the committee (if they went to committee). These will give you a good idea what if any objections the planning officer had and possibly how they were overcome.[...]

 

15 hours ago, Jeremy Harris said:

[...]

The simple answer is that precedent counts for nothing at all, and is not a valid planning consideration.

[...]

 

I have just talked to our architect and joked that everyone says I should put another house on our site:

" Now that Wyre ( our LPA ) has its 5 year  allocation in the Local Plan, unless you are doing a granny flat, you've no chance". ( of getting another house on our site). 

Local context is everything.

Your best chance is to network like mad among your local contacts: planners, estate agents, councillors, builders

 

Not the warmest of messages in response to a first post, but a warm welcome nevertheless.

 

[Big Jimbo]

I would agree with Jeremy above. Although slightly different, i bought a run down bungalow on a large plot, just outside a villiage boundary, in the Green belt. I fought hard with the planner to get permission to extend to 6 times the original size, so 500sq ft to 3000sq ft.

I then thought about if it would be better to build 2 houses at about 1500sq ft instead of 1 large house. You could fit both of the new houses inside the footprint and volume of the 1 large house. It eventually got refused by the council for over devl in the GB. I stuck it in for appeal, with various case law etc, that stated that my extant permission should be taken into account, and that building 2 new houses that would fit inside the 1 big house, to a much higher standard, would be better for everybody. I got a straight refusal from the inspector, that simply said "Extant permission, was no reason to override GB rules"

As you are not going to be paying for the land, i would think that you might be best to have a specialist planning consultant handle the whole thing. Good luck.

[Christian Hillier]

Thank you very much for the responses all. I shall look at the principle more rather than just hope because of precedent. 

[Johnnyt]

This is taken directly from my planning barristers advice to me which was subsequently used at a successful appeal.

 

In planning law, there is a “principle of consistency” in decision-taking: see North
Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR
137. The principle is not that like cases must be determined alike, but a decision-taker
ought, when considering a materially similar proposal, to have regard to the principle of
consistency, to have good reason if deciding to depart from the previous decision, and to
give reasons for any such departure.

[MintSprint]

On 13/01/2020 at 19:14, Johnnyt said:

This is taken directly from my planning barristers advice to me which was subsequently used at a successful appeal.

 

In planning law, there is a “principle of consistency” in decision-taking: see North
Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR
137. The principle is not that like cases must be determined alike, but a decision-taker
ought, when considering a materially similar proposal, to have regard to the principle of
consistency, to have good reason if deciding to depart from the previous decision, and to
give reasons for any such departure.

 

This is very clearly and definitely the correct answer (and is pretty basic knowledge to any Planner).

 

Disregard the first response to your post, which is incorrect in several important respects.

 

It is frequently up to the applicant to make the case in terms of local precedent, however, and to point out relevant decisions - you can't expect each Local Authority Officer to hold in their memory every decision the Authority has ever taken, and they don't do a trawl of similar cases each time they make a new decision.

 

The other mistake most people make is to not appreciate why a particular decision was taken in what appears to them to be an analogous case. There can frequently be differences that are material (and critical) in Planning terms, but which may not be immediately obvious to the layman, and this tends to result in the belief that the system is more random and inconsistent than it really is.

[MintSprint]

 

Because, as I said, it is incorrect in several important respects.

 

The information from Johnnyt's Planning Barrister is, as you might expect, absolutely correct in all regards.

 

I would be interested to see the written statements you have had from Planning Officers, as this is really very basic stuff to any Planner.

 

[MintSprint]

22 minutes ago, MintSprint said:

 

I would be interested to see the written statements you have had from Planning Officers...

 

 

[ToughButterCup]

On 10/01/2020 at 17:42, Christian Hillier said:

[...]

Is there any case law which suggests consistency is legally required?

[...]

 

Not sure there is, but IF there is then Martin Goodhall's blog is the place to look.

 

25 meters away from our build, our neighbour was refused permission , appealed, refuse and is now contesting an Enforcement order to leave the site. 

I can see no good reason for permission to be refused. The reasons given are here. Not pretty.

[MintSprint]

 

Well, I can tell you that, contrary to your first post, precedent absolutely and categorically is a material consideration for Planning (that's not to say that it requires an identical decision, but rather, as Johhnyt's Barrister has said, the decision-taker must have regard to it), and while there is no statute law that specifically enshrines the principle of consistency, it is well established at a very basic, very fundamental level in case law.

[MintSprint]

 

I am a professional

[MintSprint]

7 minutes ago, AnonymousBosch said:

Not sure there is...

 

There is plenty, starting with the case quoted by Johnnyt's Barrister.

 

If you Google that, you'll come up with plenty of others, up to and including approvals that have been quashed (which is an extremely rare event, in Planning terms) because precedent and principles of consistency had not been taken into account.

[MintSprint]

 

Yes, absolutely. I am registered as a private individual.

 

Would you rather that incorrect statements and advice are left unchallenged, for the sake of your ego?

 

[MintSprint]

 

I reviewed a number of posts that were close to the top of the listing on the 'Planning' forum, which is a topic of interest for me.

 

There were some topics where I thought I could add helpful information and/or correct glaringly obvious misconceptions that might be of benefit for the future reference of members searching in response to similar problems.

 

Do you have a problem with that?

[ToughButterCup]

29 minutes ago, MintSprint said:

[...]

precedent absolutely and categorically is a material consideration for Planning (that's not to say that it requires an identical decision, but rather, as Johhnyt's Barrister has said, the decision-taker must have regard to it), and while there is no statute law that specifically enshrines the principle of consistency, it is well established at a very basic, very fundamental level in case law.

 

Hmmm, interesting. Thanks.

If only I weren't building a house, I'd get stuck into that - thats the trouble with only a little learning.

But I am reasonably good at speed reading. Does this cover the issue well enough ?

[MintSprint]

8 minutes ago, AnonymousBosch said:

 Does this cover the issue well enough ?

 

Yes, it's a fair summary.

 

Particularly note the closing paragraph (but for the purposes of this forum, substitute the word 'applicants' for 'developers').

 

"For developers, the decisions highlight the need to be aware of relevant earlier decisions when applying for permission. Where a different decision is being sought this time round, adequate evidence must be provided to enable a decision-maker to depart from their previous decision and be able to back this up with reasons."

 

Conversely, of course, where you're wanting them to take the same decision, you need to draw the earlier decisions to their attention and provide arguments as to why you believe they are materially similar.

 

As I said earlier:

 

1 hour ago, MintSprint said:

It is frequently up to the applicant to make the case in terms of local precedent, however, and to point out relevant decisions - you can't expect each Local Authority Officer to hold in their memory every decision the Authority has ever taken, and they don't do a trawl of similar cases each time they make a new decision.

 

The other mistake most people make is to not appreciate why a particular decision was taken in what appears to them to be an analogous case. There can frequently be differences that are material (and critical) in Planning terms, but which may not be immediately obvious to the layman, and this tends to result in the belief that the system is more random and inconsistent than it really is.

 

Edited March 19, 2020 by MintSprint

[MintSprint]

 

No, They are based on Planning law.

 

Perhaps you might wish to read the article that @AnonymousBosch has kindly linked above.

 

Certainly, the system is not perfect and there are good and bad Planners even within the same Authorities. If you have experienced genuine inconsistency, then it's because of poor Planning and the LPA needs to be taken to task over it. Had you employed a Planning Consultant, I am absolutely certain they would have done so - as I have said, this is really basic stuff.

 

As I have also said, however, a problem that we encounter with monotonous regularity is that laypersons think they are encountering inconsistency because they don't properly appreciate the material differences that have led to differing decisions. I'm not saying that this is always the case - frequently the LPA also gets it 'wrong', either because they aren't familiar with their own Authority's previous decisions, or because they attach different weight to a material consideration (which isn't necessarily 'wrong', since no two sites or proposals are absolutely identical) - but it's certainly more often the case than not.

[ToughButterCup]

4 minutes ago, MintSprint said:

[...]

Conversely, of course, where you're wanting them to take the same decision, you need to draw the earlier decisions to their attention and provide arguments as to why you believe they are materially similar.

[...]

 

That is really very interesting indeed. Thanks very much.

 

This application was refused.  (My neighbour less than 25 meters away from us)  On these grounds. Briefly

Quote

The application site is located in a detached rural location approximately 1.5 miles north of the
rural settlement of Forton, which itself has limited facilities and services. Furthermore, whilst the
application site is in close proximity to a bus service, the bus stops are not easily accessible due to the
character of unlit rural roads with no footpaths. Consequently the development is considered to be sited
in an unsustainable, detached and isolated location due to the lack of immediate, direct and safe access
to key community services and infrastructure which realistically can only be accessible by using a private
motor car. 

 

Every single word of that logic could have been applied to our site.

 

hence the vital importance of your quotation above: 

Quote

....  to take the same decision, you need to draw the earlier decisions to their attention and provide arguments as to why you believe they are materially similar.

 

I suspect a good deal will hang on the meaning of '... materially... ' above. 

 

This is what the Appeal Inspector had to say .....

 

Briefly;

Quote

My attention has also been drawn to a recent planning permission that was
granted for a dwelling on land to the north (ref 14/00550/OUT) (our house) . However, the

full details of that case are not before me. In addition, the Council states that
it has subsequently gained a clearer understanding of the Framework’s
intentions regarding sustainable development in rural areas. In any case, I
have come to my own view on the appeal proposal, rather than relying on the
approach the Council may have adopted previously

 

In other words, the Inspector appears to be saying - yes, the applicant pointed the issue out, but because I haven't got the bits of paper in front of me, I'm not going to consider the matter in the light of consistency.

 

Thanks @MintSprint very much for moving my thinking on a step or two. Very valuable.

Ian

[ToughButterCup]

3 minutes ago, MintSprint said:

[...]

a problem that we encounter with monotonous regularity is that laypersons think they are encountering inconsistency because they don't properly appreciate the material differences that have led to differing decisions. 

[...]

 

Ah, that good old term material. I must say, I struggle with it.

So, I'm late back from the pub. Any material difference to the quality  of the supper which is now destined for the dogs if I make just one further false move?

 

Supper's now cold: material?

I went back on a promise to be back at 7:00: material?

 

Dogs eyeing my supper. Yep, thats material. 

 

 

[MintSprint]

Without reading through the full case documentation, the bit that's leaping out at me there is the Inspector's words:

 

9 minutes ago, AnonymousBosch said:

However, the full details of that case are not before me.

 

When you submit an appeal, it's up to each side to make their arguments in the appeal statement. Unsurprisingly, if you don't give the Inspector the information s/he needs to assess, s/he won't assess them!

 

The other bit that's jumping out is the words:

 

9 minutes ago, AnonymousBosch said:

...the Council states that it has subsequently gained a clearer understanding of the Framework’s intentions regarding sustainable development in rural areas.

 

In other words, the LPA is saying: "we acknowlege that we f***ed up the previous decision 'cos we'd misinterpreted the NPPF, and we didn't want to compound the error".

 

... Which is fair enough, and perfectly consistent with the principle quoted by @Johnnyt's brief, that decision takers should have regard  to consistency, and to give reasons for any departure.

 

Fortunately for you (if the earlier decision related to your application), they can't easily take your approval away from you, once granted.