LADBROKE ASSOCIATION

The conservation society for the Ladbroke Conservation Area in  the

Royal Borough of Kensington and Chelsea

 

 

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HOW TO INFLUENCE OR OPPOSE A PLANNING APPLICATION

 

    This page deals with standard applications from householders and commercial establishments. There are slightly different procedures and requirements for major developments.

    The Council has published a guide on the various opportunities during the planning process for third parties to intervene in the development and consideration of planning applications, called Involving People in Planning or IPIP (which they are  - as of early 2019 - in the process of updating). What follows is supplementary and more informal guidance.

 

Prior consultation

 

    A good neighbour, if they are planning any works that are likely to affect adjoining or nearby properties will inform the occupants of the plans and allow them a chance to comment on them, well before seeking planning permission. The Council encourages such consultation (albeit not as strongly as we would like). If you hear about plans for works on a neighbouring property before planning permission has been applied for, it is worth asking for a meeting - either with the neighbour or with their architect to discuss them.

 

   All the evidence points to the whole operation going much more smoothly if advance consultation with neighbours has taken place. Even if the neighbour does not change his main plans, he may be able to adjust them in minor ways that help the occupants of the adjoining properties. Unfortunately, however, only too often there is no serious attempt at such consultation.

 

Pre-application advice

 

    For anything at all complicated, the Council encourages anybody wanting planning permission to make use of their paid “Pre-application advice service”. This involves would-be applicants describing what they want to do to a Council planning officer. The latter then gives them advice on whether it is likely to be acceptable and if necessary what they can do to make their plans more likely to be accepted. Not everybody is happy with this system. There is concern that, if Council officers have given certain advice, this is bound to colour how they subsequently advise Councillors on the application. The Council are adamant, however, that nothing said in the pre-application advice will pre-judge the decision on any subsequent planning application.

 

    There is no obligation on the planning officer giving the advice to consult neighbours. But here again, in cases where the planned development is likely to affect neighbours significantly, we hope that applicants will show the officer any comments from neighbours and allow neighbours to express their views to the officer.

 

    The Council now makes available on its website any pre-application advice given as soon as the relevant application has been formally submitted. Beware: it is sometimes counter-intuitively put on the website under "Decisions" rather than "Applications". Pre-application advice has its own case number preffixed "AR".

 

 

After submission of a planning application

 

    Once the Council receives a planning application, it sends letters to the occupiers of the immediately neighbouring properties, notifying them of the application and telling them how to comment. It also puts up “site notices” on or near the property – these are the plastic covered sheets that one sees attached to front gates or lamp-posts or some other handy feature. These letters and notices invite comments and say where comments should be sent and by what deadline.

 

    It should be borne in mind that Councils normally allow only a very brief period – usually three weeks in Kensington and Chelsea – for comments. A trick by some less scrupulous developers is to apply for permission in holiday periods when residents of neighbouring buildings may be away. So if you have had a whiff of any plans for a potentially worrying development – e.g. a basement excavation – make arrangements (for instance with a neighbour who is not going on holiday) for someone to notify you if a Council letter about a planning application arrives, or any notices go up on nearby fences, lamp-posts or trees. In Kensington and Chelsea, it is also possible to subscribe to the Council's MyRBKC email alert facility, which enables you to be kept informed by email of planning applications in a particular area (which could be a single street). See www.rbkc.gov.uk/myrbkc.

 

    Even if you only hear about the proposed works after the neighbour has applied for planning permission, if you see problems it is well worth making contact with them or their architects, to discuss with them whether there are any minor adjustments to the plans that might help avoid the problems. Reasonable developers are often prepared to make at least minor changes to accommodate their neighbours, even after the application has been put in, not least as it may help speed up the granting of planning permission as it reduces the likelihood of objections.

 

    Many major developments are done by companies or people based off-shore, and there is no obvious interlocutor. In that case often the best thing will be to approach the architects responsible for the project (their details will be on the planning application). Most good architects will be happy to talk at least once to worried neighbours and to explain the plans to them. They will also be able to discuss alterations that might lessen any problems for the neighbours.

 

 

Looking at the planning application

 

     The site notices and letters give only the briefest details of what is planned, but the full application can be viewed on the planning pages of the Council website at www.rbkc.gov.uk/planning/searches/default.aspx. The most useful document to start with is usually the "Design and Access" or Planning Statement, which gives an outline of the proposal.

 

    When looking at the plans, bear in mind that architects can draw plans in a way that is difficult for the lay person to interpret, and their drawings (which may now include wonderful computer-generated photograph-style colour images) often show the new structure from an angle that disguises objectionable features.

 

    Each application has a "case officer" who is responsible for overseeing the progress of that particular application and whose name is on the Council website. The case officers always visit the site and can look at particular problems drawn to their attention. If you have serious concerns about an application, it may be worth making an appointment to talk them through with the case officer, or at any rate talking to the officer on the telephone.

 

 

Putting in an objection

 

    There is a pro-forma on the Council website that can be used for putting in comments on or objections to an application, and that is what the Council prefer. It also ensures that your comment is put immediately on the planning website. But letters or emails commenting on an application are also accepted and do not have to take any particular form, so long as they contain the name and address of the person making them, as well as the address of the site and the planning reference number.

    As a result of the General Data Protection Regulation, the Council no longer automatically publish the names and addresses of objectors on the website. This is a nuisance, as it makes it more difficult to judge how much weight to give to an objection (most people would give more weight to an objection from a nextdoor neighbour, for instance, than when it comes from someone living further away). Objectors are asked on the online form whether they agree to their address being published and we would urge people to give their agreement. If you are happy for your name to be published as well, you can say so as part of your objection.

    If you use the online form, you will be asked to say whether your comment constitutes a general comment, an objection or a statement of support. If people are objecting to only a part of an application, they are often reluctant to classify it as an objection, not least because of wanting to maintain good relations with their neighbour. Please bear in mind, however, that only comments classified as objections will count towards the three objection rule (see next paragraph) and be dealt with in the officers' report.

   The Council asks for objections to be submitted by a certain deadline (they normally allow 21 working days). It will still accept objections and comments after the deadline, but they will not count towards the three objection rule.

 

    In Kensington and Chelsea, if the application is obviously unacceptable or the Council receives fewer than three objections, the matter does not normally go to the Planning Applications Committee but is decided by the Council staff under "delegated authority". If an application is contentious, therefore, it is well worth encouraging neighbours similarly affected to send in their own objections, so that there are the necessary three objections to ensure that the matter is considered by the Committee. Note that a letter signed by several people counts as a single objection, so it is always best for each person to send in a separate objection. An objection will only count as such if it is based on “material planning considerations” – see below.

 

    If not enough people have objected, it is also possible for one of the local Councillors to request that a case be dealt with by the Planning Applications Committee rather than a decision being taken by the Council officers.

 

    Councils do not have a free hand in deciding on planning applications, as they are only entitled to take into account "material planning considerations". These are matters that are directly to do with either national or local planning policies. In other words, if you can show that a development would be contrary to one of these policies, that would be a strong objection. Councils are unfortunately not entitled to refuse planning permission on grounds of the inconvenience caused to neighbours during the construction, or because the development would affect property values, or on account of a problem that can be dealt with under other legislation, like the Building Regulations. More on material planning considerations and central and local planning policies..

 

    So it is well worth looking at the Council's planning policies, and making sure that your objections relate to these policies or to another material planning consideration.

 

    It is best to keep objections as short and to the point as possible. The busy Councillors on the planning committee will read all the objections, but they are more likely to retain and be influenced by a few short, sharp points than by a long rambling screed which makes every conceivable point. And if there are things that you support about the application, say that too. It can show that you are a reasonable person who has thought about the issues and that you are not just being generally negative. Objections cast in angry or impolite language are less likely to be effective.

 

    It is also worth remembering that it is not always necessary to get a planning application turned down; sometimes the required objective can be achieved by the imposition of conditions by the Council, and this may be easier to achieve. For instance, if there are concerns about privacy, a condition may be imposed requiring windows to have frosted glass; or if a potentially noisy air conditioning unit is being installed, a condition might require noise from the unit to be below existing background noise so that it does not disturb.

 

    In some cases, especially if there have been a lot of strong objections, the applicant will withdraw his application and submit an amended one that he thinks is more likely to get through. It is important to note that, if you still object to what is proposed, you will need to put in a new objection to the amended application. The Council does not take account of the objections that were put in against the previous application, given the possibility that the earlier objectors may have moved or changed their views.

 

    Normally, applications are decided on the basis on which they are submitted, although the Council may accept insubstantial (non-material) amendments or minor corrections during the application process – unfortunately, there is always a slight risk that what the Council officer regards as insubstantial may not appear in that light to a neighbour who is more familiar with the situation. If more substantial changes are proposed for good reasons, the Council may accept them, but will reconsult those who have commented.

 

Finding out about other people’s objections and comments

 

    The Council routinely been puts all comments and objections on the planning website so that everybody can see them. At the Committee meeting, the paper agenda for Councillors will include a full set of objections (except in the few cases where there are large numbers of objections all saying the same thing, when there will be a summary).

 

The case officer’s report

 

    The next step is the preparation of a report by the planning case officer. This describes the application and any previous planning applications relating to the property; sets out how (in the opinion of the case officer) the proposed development does or does not fit in with Council planning policies; and summarises the objections received. It then addresses each objection, explaining – too often far too briefly and inadequately – why the officer believes particular objectives are unfounded, or have been addressed by changes in the proposals or by planning conditions. The report then makes a recommendation on whether the application should be accepted or not, and on any conditions to which it should be subject.

 

    If there have been fewer that three valid objections, or if the officer recommends that the application should be refused,, the report then normally goes to the Executive Director of Planning. If he agrees with the recommendation, he will then take a decision on it under his delegated powers. Otherwise the report will go to the Planning Applications Committee for decision.

 

    In cases of “delegated decisions”, the case officer’s report is not published until after the decision has been taken. For cases going to the Planning Applications Committee, the report is put on the Council website alongside the other documents relating to that application five working days before the Committee meeting at which it is to be considered.

 

    In the latter case, if when you see the planning officer’s report you spot a genuine factual inaccuracy (i.e. as opposed to something you just disagree with), we recommend that you email the case officer as soon as possible to point it out, with a copy to the Chairman of the Planning Applications Committee.

 

 

Finding out about the date of the Planning Applications Committee and the documents that it will have before it

 

    The Planning Applications Committee normally meets every two or three weeks on a Tuesday evening. The dates of the meetings are set well in advance. But when a particular application will be taken may not be known until shortly before the relevant meeting. The planning website gives a target date for decisions on individual applications, but these are no more than targets and often slip.

     The Council notifies the applicant and objectors by letter of when an application is being taken by Committee (so if you are away on holiday, make sure somebody picks up your post). For other people, the only way of discovering when an item is to be taken, short of ringing the case officer at intervals, is to check the agenda of each forthcoming Planning Committee, which is put online about a week beforehand. To look at Planning Committee dates and agendas, go to the RBKC Home page and click on “Council and Coucillors”; then on “Councillors and Committees", then on Committees, agendas, reports and papers”; then on “Planning Applications Committee” (the "Planning Committee" deals only with major developments and ploicy matters).

 

  

 

Speaking at the Planning Applications Committee

 

    If the matter goes to the Royal Borough’s Planning Applications Committee, objectors will be notified and can attend the meeting (as can any member of the public). The Chairman of the committee also normally allows both the applicant and the objectors to address the meeting for a maximum of three minutes each, to put their respective cases. Since all objectors must share the same three minutes, it is worth the objectors getting together and choosing a spokesperson. In really difficult cases it may be worth employing a planning consultant to put the objectors’ case. It is in any case worth attending a previous planning meeting to get a flavour of the proceedings.

 

    Applications to speak must be made by telephone two working days beforehand (by noon on the Friday before a Tuesday Committee meeting).  The Chairman is extremely strict about this deadline. The Committee does not allow speakers to raise new points or to circulate new documents. So if there is a new point that you want to raise (e.g. an inaccuracy in one of the documents), you should email the case officer and/or Chairman about it in advance. You can assume that the Councillors on the Committee will have read your written objection, so there is not an awful lot of point going through it again. Generally, it is most useful to use the three minutes to challenge anything that you feel that the case officer or the developer has misrepresented or got wrong, and to briefly restate your main concern. It may be useful, however, to email the Committee members in advance with a very brief account of your objection, although the Council does not encourage this.

 

    Until recently, the objectors are invited to the table to speak first, following which the councillors on the committee could ask questions, and then the objectors were asked to go back to their seats and the applicants (often represented by their architect) were invited to the table to say their piece.  The Committee is now experimenting with a much improved system whereby both parties are invited to the table together, saying their pieces in turn, following which the Councillors ask questions of both parties.

 

    In RBKC, Councillors in the ward in which the development is planned also have a right to address the planning committee, and if a sufficient number of residents approach their Councillor, or the application concerns something near to the Councillor’s heart, he or she may be prepared to speak on behalf of the objectors. So it is worth approaching your ward Councillors about a problematic application, to see if they would be prepared to speak. Councillors who are actually members of the Planning Applications Committee are required to keep an open mind before the meeting so that they can look at each application with suitable objectivity. So although objectors can approach them, they will not be able to take a view in advance of the meeting, and obviously cannot speak on behalf of one side or the other. The Chairman of the Committee often himself visits the sites of applications being dealt with by the Committee, as do some of the more conscientious members.

    There is more useful advice from a planning QC on the Kensington Society's website - see http://www.kensingtonsociety.org/planning-process/.

 

 

Membership and procedure of the Planning Applications Committee

 

     The Planning Applications Committee has some 14 members, including a Chairman (currently Councillor Quentin Marshall) and three Vice-Chairmen. Normally, however, no more than four members plus the Chairman or one of the Vice-Chairmen sit at any one time. The names of those sitting are normally put on the website a few days before the Committee meets. The meetings take place in one of the Committee Rooms in the Town Hall and are open to the public. There are no copies of the agenda or any of the papers available to the public at the meeting, so you should print out from the website any papers you may need.

 

    If the Committee takes a decision different to that recommended in the case officer’s report, the Chairman will normally spell out the reasons for doing so. If the Committee takes the decision recommended by the report, then the Chairman does not normally spell out the reasons in any detail, on the basis that these are already fully set out in the report.

 

 

Refusals and appeals

 

    There is no appeal against a decision by the Committee (or a delegated decision) to approve an application (short of full-blown judicial review, which will only succeed if the judge is persuaded that the decision is legally wrong or one that no reasonable planning committee could have taken). However, if an application is refused, either by delegated decision or at the Committee stage, the applicant has a right of appeal to the Government’s Planning Inspectorate. Applicants are particularly likely to appeal in cases where Councillors have gone against planning officers’ advice. Appeals must be made within six months of the refusal of planning permission.

 

    Once the Inspectorate has received an appeal, it will send the Council an “Appeal Start Letter” setting out the timetable for dealing with the appeal. The Council will then put this on the RBKC website alongside the other documents relating to the case; and notify all those involved, including objectors. It will also send the Inspectorate all the documents, including the objections, so the Inspector dealing with the appeal will have full access to what the objectors have said.

    If the application was made by a homeowner, no further comments can be submitted to the Inspector. For applications made by developers or investors, it is usually possible to put further written submissions and to speak at any hearing that is held by the Inspector..

 

    If an application has been refused, the applicant may well put in an amended application which takes account of the Council's objections. Sometimes, applicants will do this in parallel to appealing against the refusal of their original application, in order not to lose time should their appeal not be successful. If their new application is accepted and they are also successful at appeal, they will then have the choice of which application to implement.

 

Planning conditions and non-material amendments.

    Many planning applications are granted subject to conditions, for instance that before they go ahead the applicant must submit a detailed design for some aspect of their proposal, or a full construction traffic management plan. When the applicant puts in the relevant documentaion, the Council decides if it is satisfactory, and if it is, "discharges" the condition, after which the applicant can start the work. Applications for the discharge of conditions are added to the website entry for that property, so they can be viewed by the public, and the Council will take account of any comments on them received from third parties. However, no notification is sent out to interested parties, so the only way of finding out about them is to constantly scan the planning website or to sign up to the "myRBKC" notification system.

Applicants can also  apply, after planning permission has been granted, to make "non-material amendments" to their planning permission. Again, these are put on the website and the Council will accept comments, but no notice is given to interested parties. There is no statutory definition of a non-material amendment, but it basically means some change so minor that it is unlikely to affect anybody or thing. It is up to the Council to decide whether or not the proposed amendment is non-material. Unfortunately, a change that appears non-material to a planning officer may be all too material to an unfortunate neighbour. So it is worth keeping an eye open for such amendments and this is a good reason for signing up to myRBKC.

 

 

After planning permission has been granted

 

    Once planning permission has been granted, the neighbour who made the application is free to start at any time, subject to the requirements of the Party Wall Act. He must, however, start the works within three years or the planning permission will lapse. He must also abide by any conditions that the Council has imposed as part of the grant of planning permission, and he is subject to Building Regulations and various other legislation e.g. on noise, pollution and traffic, including the Council's excellent 2016 Code of Construction Practice on minimising noise, vibration and dust.

    If, after the applicant starts work, you believe that they are doing something beyond what was agreed when planning permission was granted, you should report it to the Council's enforcement department. See

www.rbkc.gov.uk/planning-and-building-control/planning-applications/guidance-and-advice/planning-enforcement

for further details.

 

 

Page last updated 3.4.2019.