Planning permission transforms the value of land and gives you the ability to create development opportunities. It can be a long, painful and risky business fraught with hassle and uncertainty — but the potential gain usually massively outweighs the pain
It is planning permission on a piece of land that makes the difference between a building plot and just another field. As a self-builder, you will have the choice of either buying a plot with planning permission or to speculate yourself and achieve planning permission for exactly what you want. Either way, you need to have an understanding of the planning process because having the right permission is the only way you will be able to build the house of your dreams.
Play the game
Like any game, planning has its own rules but they are particularly unpredictable, open to interpretation and capable of being bent quite dramatically! Unlike building regulations, planning regulations are not hard and fast and they differ from one area of the country to the next. This is because planning involves local politics.
Planning decision making requires the interpretation of national and local planning policies by individual planning officers and by committees of elected councillors. The scope for inconsistencies between planners even in one authority is quite high — between different authorities it is huge. So if you’re going to get involved in building a house or even extending and refurbishing one, a flexible and pragmatic approach to achieving what you want is going to be helpful.
The Planning Process Explained
From the submission of your application to a decision being made should take no longer than eight weeks. The planners are under real pressure to meet that timescale. The Government has come up with a clever wheeze of effectively linking a council’s performance to the financing of planning departments. This means that people’s jobs are at stake if they don’t deal with things quickly.
Speed, of course, does not encourage negotiations during the life of an application; in the past planners may have been happy to look at amended plans to overcome problems but they are much less likely to do so now. Planning officers will unhesitatingly refuse a proposal rather than seek to negotiate. So it is very important that you track your application through the system to avoid any nasty surprises. Don’t allow your application to be refused, withdraw it and resubmit having overcome the problems they identify. The second application will not require a fee.
Buy land subject to planning
The good news is that it is possible to avoid a lot of risk without reducing the potential gain. This is because it is perfectly legal and possible to make a planning application on land you do not own. You don’t even need the permission of the landowner — permission goes with the land, not with the applicant.
This means it is common practice in the development world to make a purchase subject to satisfactory planning permission — this is legally secured by exchanging contracts with completion conditional upon getting the permission you want, or by entering into an Option Agreement, which gives you the legal option to buy if you’re successful or to walk away if you’re not. Although such agreements require legal fees, very little money changes hands compared to the value of the site once it has the permission.
Bend the rules
To take advantage of the best opportunities you need to play the game effectively, which means knowing how to bend the rules and use them to your own advantage. In planning speak, a development should be carried out in accordance with the development plan unless there are material considerations that indicate a different decision should be made. In plain English, planning decisions should be made in accordance with the local plan policies unless there is a good planning reason not to.
The development plan for your area is either comprised of a County Structure Plan and District Local Plan or a combination of both, called a Unitary Development Plan. In any event your local council can guide you, and they will probably have it on their website. It will contain policies that stipulate where new houses are likely to be allowed and where they won’t. It will list the criteria that should be used to assess and judge planning applications. In addition, the council will also probably issue supplementary planning guidance that gives more detailed information about what they expect in terms of design and it should spell out what they deem to be acceptable distances between new and existing houses, in terms of privacy and overshadowing.
A reading of development plan policies will soon tell you which villages to aim for if you’re looking for a building plot and which to avoid. Policies will spell out the council’s approach to replacement dwellings and extensions. They may well have draconian restrictions on the size of new houses and extensions in the open countryside.
You may wonder why some people are obviously allowed to build exactly what they want whilst others get refusals. It’s not because of ‘backhanders’ or an evil conspiracy against you: it is just because successful developers look at the local plan and understand that policies do change all the time, so what was suitable last year may not be suitable today and vice versa.
Who makes the decisions?
So, who’ll make the decisions to approve or refuse your dream home? It could be the chief planning officer (or a less senior member of his staff) using delegated powers on behalf of the planning committee, or it could be the planning committee itself during a daytime or evening meeting. In some circumstances you may wish your application to go to the full committee, but generally it is unlikely to help. In all cases you are faced with the task of trying to get an individual planning officer, and ultimately their boss, and possibly all the members of a planning committee, to support what you want to do. And it can be quite difficult!
The local councillor can be important because if the planning officers are not convinced, it is usually possible for the local member to request that the application is put before the planning committee. This at least gives you a chance to persuade them, rather than face a certain refusal under delegated powers.
Outline or detailed permission?
You will see plots for sale with Outline Planning Permission (OPP): this means that the principle of a development has been granted. But there may be no more detail than a red line around a plan of the site, with no indication at all of the size of the house or even its position. Sometimes even the access may not have been agreed. So if you buy a plot with outline permission there are still a lot of details that need to be formally approved by the local planning authority.
Think carefully before buying a plot with bare outline permission as you really don’t want to find that the only thing they will let you build is a tiny bungalow. As an alternative, you will also see plots for sale with full permission for a particular house or bungalow which you could then build. But be very aware that it is usually perfectly possible to make an alternative application for a different type or design of house. If a plot has three or four different permissions, it is you who decides which one to implement.
There are many builders who made a good living never actually building anything, they just take out options on land, change the planning permission by adding another dwelling or increasing the size of what is approved and then sell it on at a profit. As a self-builder, you can approach every building plot you see as a possible opportunity to add more value and improve the design of what has been permitted.
Get pre-application advice
Your local planning department and its website is a resource of information that is freely available to help you exploit development opportunities. They will also offer you more formal ‘pre-application advice’ (at a fee which varies wildly from authority to authority). What you should aim to do is to tease out of them an understanding of the key issues that you will have to deal with if you’re going to get permission. This should enable you to avoid objections and to anticipate any issues that neighbours or the committee might raise.
It is probably best not to try and get pre-application advice in writing as it could just be a knee-jerk reaction to a sketch scheme. If it’s a negative reaction it could be quite difficult to get them to change their mind even once you have amended your proposal with a better design. Conversely a letter that is supportive will not actually tie their hands as they will feel quite free to change their minds once an application has been out for consultation.
It’s important you realise that no planning officer ever got into trouble for saying ‘no’ — they lay their neck on the block if ever they say ‘yes’, or even ‘maybe’. So you’ll probably encounter a natural caution amongst the planners you come into contact with.
If you can achieve a good rapport with the planner this is extremely desirable; it is perhaps best to approach them as one of the various professionals helping you build the house rather than as an adversary. In that way they feel more important and probably less defensive. However, always remember that regardless of the positive advice you may receive before the application is submitted and despite their support during its consideration, it is always quite possible that the chief planner, or more likely the politicians on the planning committee, can overturn the case officer’s recommendation.
So there is an innate unpredictability and risk within the planning process. This said, this flexibility in the system can also work to your benefit. It is certainly not unknown for applications to be recommended for refusal by the planners only to be approved by a planning committee whose sympathies lie with the applicant and/or because they disagree with the advice of the officers.
The reason it is so important to avoid a refusal is that it can be a black mark on the planning history of the plot and establish very clearly what isn’t acceptable. It is also a fact of life that planning authorities will often throw every reason for refusal they can think of in an attempt to ensure they win any appeal. Thereafter, anything you apply for will be compared to the refused scheme.
If you decide to appeal to the independent planning inspectorate, they will take at least a year to come to a decision. If you have had a refusal on the basis of a basic principle of planning policy do stop and think very carefully about how realistic you’re being. If you get a refusal on an issue of detail and you can wait a year it might be worth appealing if you have an arguable case. Otherwise, avoid going to appeal if at all possible, as it is very risky and the comments of an appeal inspector will be given great importance by the local authority.
When you submit a planning application you fill in forms, provide drawings and supply a fee —?currently £319-380 for a single dwelling depending on which part of the UK you’re in. The local authority then registers the application and consults a list of organisations both internal and external. A decision will not be made until that consultation period has expired.
They will consult neighbours by letter or by putting up a site notice. The local parish or town council will be consulted, highway engineers will be consulted to make sure the access is safe, if there is any flood risk the Environment Agency will be consulted, the council’s professional archaeologist may become involved if it is a historic site, environmental health officers will be consulted about contaminated land issues, and the conservation officer will be consulted if the site is within a Conservation Area. The council’s tree officer will be consulted to think about protecting trees.
Any one of these numerous professionals could stick a spanner in the works and delay your application or cause it to be refused. So my advice is to talk to the people who are going to be consulted before they get the letter from the council. Talk to the neighbours, discuss the access with a highway authority, establish that the land is not liable to flood etc. This could make a real difference to the outcome. Controversial applications normally end up in front of the planning committee and then you’re in the game of local politics.
If the neighbours object, don’t panic. Objections do not necessarily mean refusal. Most objections result from fear of property devaluation, fear of change, envy and sour grapes. The good news is that politicians have the ability to see things differently, depending upon the degree of public disquiet. But there is nothing to stop you from lobbying the politicians as well and putting your side of the argument forward.
Perhaps the best way to avoid objections, and the related risks, is to make friends with the enemy. Talk to the parish council, talk to neighbours and try and accommodate in your design any specific concerns they have. Think about how you would feel in their position. If the house you want to build will overlook neighbouring windows and overshadow their gardens and stick out in the street scene like a sore thumb then don’t be surprised if people object to it.
If you can accommodate what might be fairly trivial issues it could make the difference between a delegated approval and a committee refusal. If you do talk to the local members or parish council think about what their real priority is — it’s normally to be seen to be doing the right thing by local people. So if you design your proposal to include something you can give up, it might just tip the balance.
Understand the conditions
When you get permission it will be subject to planning conditions. This will include a time limit during which the application has to be started — the Government has now reduced this to three years. Conditions are extremely important and failure to comply with them can result in what is called a breach of condition notice (BCN) to which there is no right of appeal and which can be enforced through the courts by prosecution.
Conditions might be as simple as requiring that materials must match existing ones, or that all boundary treatments must be agreed. Some conditions have very expensive consequences. You need to be aware of the impact of conditions if you’re buying a plot because they might affect its value. For example, it would be usual for planning conditions to require the access to the plot to have clear lines of sight up and down the road so that it is safe. If these vision splays cross someone else’s land, even by as little as a foot, then the permission cannot be implemented and the condition cannot be fulfiled without the neighbouring landowner’s permission.
This situation is called a ransom as the landowner simply holds you to ransom until you pay money in exchange for the right to fulfil the requirements of the condition. All ransom payments are settled by negotiation but the industry standard seems to be about a third of the development value of the site. Other conditions that can cause problems may include drainage, archaeology and contaminated land. As always, the rule of ‘caveat emptor’ applies — buyer beware.
You might not even need planning…
Don’t forget that there is actually a lot you can do without planning permission. The planning jargon is ‘Permitted Development’ (PD). This refers to the range of alterations and extensions that you can carry out once a property is built. PD includes outbuildings, limited extensions, new windows, rooflights, all internal changes, walls, fences and a host of things. So the building plot you thought didn’t suit you might well do — if you use your PD rights to the full.
The freedom to build outbuildings includes garages, playrooms and workshops — in fact any building that is genuinely used in an ancillary capacity to the main house. You can usually cover half the garden area with outbuildings, provided they are no closer than five metres to the house. Permitted Development – which can be taken away as a condition of approval – can transform the desirability of a plot without needing to bother the planners or politicians, which of course pleases everybody!
Ken Dijksman is a private planning consultant and can be employed on a professional basis.