by Stephen Hawkins
There are a multiplicity of professionals commonly involved in planning matters — the planning consultant, the barrister, the architect and the solicitor, to name but a few. In many instances their roles can overlap but this article is directed at informing the developer of the roles that can be undertaken by the planning solicitor.
The role of a planning solicitor is often misunderstood and underestimated by the developer, who may see the solicitor’s role as being confined to the giving of advice when a legal problem arises and that of a co-ordinator of the “team” when a planning appeal is lodged. Those roles are important, but regrettably the planning solicitor (or perhaps more correctly the solicitor who does some planning) in the past may have devalued even that role by becoming in many cases no more than a post box, channelling information from A to B without comment, reacting to events rather than being an initiator of them. This has been a waste of the planning solicitor’s talents and an inefficient use of financial resources by the developer.
So what special expertise does or should a planning solicitor have which can be called upon by the developer? The planning solicitor is well suited to undertake the roles of:
- adviser
- negotiator
- advocate
- co-ordinator
- draftsman.
Adviser
Obviously, the planning solicitor can advise on planning law, a subject that is becoming increasingly complex in itself.
The scope here would include advice on whether planning permission is required, the legal and administrative steps needed to obtain it, and how to appeal against a refusal. It may be something as “simple” as the completion of a planning application form or as complicated as advice on the prospects of overturning in the High Court the Secretary of State’s decision on appeal. The submission of a planning application may be considered to be relatively simple, but many applications are legally incorrect for one reason or another. Unfortunately, nowadays this often means that the hard-pressed planning officer will put the application to the bottom of his in-tray, leading to a delay of several weeks or months before the merits of the proposal are even considered. Delays mean loss of profits, and can mean no profits at all or even losses if option periods are jeopardised. The planning solicitor can ensure that the legalities are complied with throughout the planning process.
Advice on planning law is, however, wider than this. Many proposed developments, as well as requiring planning permission, need other consents, licenses or agreements before they can proceed — road or footpath closures or diversions, highway adoption agreements, section 52 agreements and hazardous substances consents, for example. The planning solicitor can advise not only on the need for these consents or agreements but also how and when to obtain them.
The planning solicitor is therefore crucial in ensuring that consideration of the planning merits of a proposal is not delayed or prejudiced by legal technicalities.
The planning solicitor is also well suited to advise on planning in its widest sense, for instance whether a site has development potential, whether permission is likely to be obtained on application or appeal, the areas of technical evidence required for an appeal, and advising upon proofs of evidence. This may not at first sight appear to be a solicitor’s role. Surely, a planner advises on the prospects of obtaining planning permission and the solicitor advises on planning law. While the planning solicitor’s cup of tea may be planning law, his bread and butter is the consideration and application of structure and local plans and Government circulars and advice in relation to development proposals. Just as a planning consultant must have a good working knowledge of planning law, a planning solicitor worth his salt must have a thorough knowledge of and empathy with planning as a distinct professional discipline — and indeed with other professional disciplines associated with planning.
A planning solicitor should therefore be able to advise:
- on the legal requirements to obtain planning permission
- on whether planning permission is likely to be obtained
- on the best means of obtaining planning permission.
Negotiator
It is rarely advisable except for the simplest of applications to submit a planning application without some discussions with the local planning authority. Further, post-application discussions are almost inevitable with major proposals. What are the purposes of these discussions? They are:
- to explain
- to persuade
- to reach agreement
- to discover.
The proposal needs to be explained as does its appropriateness to the area and its compliance with the letter and spirit of structure and local plans and government advice. The planning officer should leave these discussions satisfied that he understands the proposal, and at least recognising that there are strong arguments in favour of allowing it. This may require not only explanation but also persuasion. Ideally, these meetings should be concluded with an agreement. This may be agreement as to the totality of the proposal or perhaps a part of it. Even if it is the latter or no agreement is reached, such meetings should at least elicit the likely objections to the proposal, their strength and whether an amended proposal might overcome those objections.
Why is a planning solicitor suited to this role? A solicitor by training and experience is used to explaining proposals, discovering the problems associated with them, persuading others as to the appropriateness of them and endeavouring to reach agreement on them (if that is a possibility). As well as being temperamentally suited to that role, he will have the added advantage of knowing planning and understanding how local planning authorities work (who you need to speak to, how to penetrate the bureaucratic machine, how to speak to members of the planning committee etc). Many planning solicitors, after all, cut their planning teeth in local authorities.
Advocate
Most people will understand the term “advocacy” in the context of planning to mean advocacy at planning inquiries.
Most planning solicitors will have appeared as advocates at many planning inquiries and so will understand the rather specialised form advocacy takes in these cases. It involves (in view of the inevitable preponderance of professional witnesses at inquiries) challenging the facts and assumptions upon which adverse professional judgments are based and ensuring that the facts and assumptions of your own professional witnesses are sound. It involves (usually in the opening address) ensuring that the inspector is aware of the crucial issues before him and involves (particularly in the closing address) the advocate summarising the strengths of the proposal and the weaknesses of the objections so that the inspector is led inexorably to only one conclusion.
Advocacy is, however, not limited to public inquiries. The same elements underlying advocacy at public inquiries apply equally to the drafting of written representations.
Co-ordinator
All planning inquiries involve a number of individuals or organisations:
the Department of the Environment;
the local planning authority;
the client, who may be several individuals in the same company;
the advocate;
the professional witness(es).
Without central control of the appellant’s case, paper can be flying in all directions with no one understanding precisely what they have to do, why they have to do it, when they have to do it, how they have to do it and what is happening!
It is crucial that the planning solicitor undertakes this role. Why? It requires a combination of skills, an understanding of planning and planning law, organisational ability and effective communication skills.
While those skills are not necessarily limited to planning solicitors, it is of the utmost importance that the co-ordinating role (which requires day-to-day handling) is given priority by the person undertaking that role. Other professionals involved in planning inquiries will either be spending much of their time drafting and redrafting their proofs of evidence or will not have the time or resources to handle the matter on a daily basis. Perhaps uniquely the planning solicitor can undertake that role exclusively, ensuring that everything runs as smoothly as possible.
Draftsman
Many development proposals will require agreements under section 52 of the Town and Country Planning Act 1971 and sections 38 and 278 of the Highways Act 1980 to be executed. The planning solicitor is especially qualified to undertake this task.
Draftsmanship, however, goes further than this. Development proposals are usually preceded by land acquisition agreements whether in the form of transfers of land, option agreements or conditional contracts. It is crucial that the provisions in those agreements accurately reflect the client’s proposals for the land and are complied with by the client.
Sloppy drafting of such agreements can in extreme cases ruin the client’s opportunity to develop land. It is therefore important that such agreements are drafted by solicitors who understand the planning process.
Further such agreements, particularly option agreements, often contain very detailed obligations upon the developer as to when to apply for planning permission, what to apply for, the steps required to be taken to obtain planning permission and when development must be commenced or completed.
The planning solicitor can ensure not only that such obligations are realistic but also that the subsequent steps involved in obtaining planning permission (such as the application itself) comply with those obligations.
The planning solicitor by qualification, experience and temperament is well suited to play a crucial and demanding role in planning. It is important that the developer obtains value for money from his solicitor — and this can be achieved only by calling upon the full range of his expertise. Effective use of a planning solicitor can save time and expense. If used correctly he can be the crucial factor in the success of a development proposal.
