The planning application form requires a description of the proposed development. That is important because it governs the extent of the permission sought, and is used in the notices and publicity, which alerts parties to their opportunity to inspect the application and lodge representations.
Legal position
The legal position in Scotland was declared 30 years ago, in the Cumming case. The description must be accurate, convey the substance of what is applied for and give full and fair notice to possible objectors.
In the Cumming case, the development had been described as a roadside petrol station. However, the accompanying plans showed roadside petrol stations, restaurants, car parks and a 40 bed lodge. A local hotelier had relied on the description, assumed there was no overnight accommodation included, and had not objected to the application.
Current practice
After the Cumming case, inevitably the pendulum swung in the opposite direction, and very detailed descriptions are very much the norm, especially for mixed use developments. For example:
office development (class 4), provision of a mobility hub, ancillary retail (class 1), food and drink (class 3/ sui generis) and leisure uses (class 11), landscaping, car parking, access, infrastructure and associated works
Very detailed descriptions are not without risk. The variation of condition procedure (section 42 in Scotland, section 73 in England and Wales) cannot be used if the variation creates a conflict with the description of the development.
For example, in the Finney case the permission described the development as two wind turbines with a tip height of up to 100m; the condition variation procedure could not therefore be used to permit a tip height of up to 125m.
Amendment by planning authority
There is a trend for descriptions of development to be amended by planning authorities when validating applications. The intention is presumably to make the description more complete and accurate.
That might be reasonable, if the applicant is given the opportunity to agree the amendment. However, the amendment is often contained in the pro forma validation letter, without any attention being drawn to the change. Even if the applicant spots the change, by then the planning authority will have carried out the neighbour notification, and will therefore be reluctant to change the description.
There are examples where, rather than making it more complete and accurate, the planning authority actually changes the description.
Planning authorities are relying on the HOPS guidance on validation of planning applications, issued in 2017. However, that guidance is aimed at applicants – "This document will assist you in submitting a valid application first time …". It does not advocate descriptions being changed by planning authorities.
Deciding the application
A grant of planning permission does not have to specify the description of development in precisely the same terms as mentioned in the validation letter.
For wind farm developments where planning authorities added mention of tip height into the description, appeal reporters have granted permission using the original description, with the tip height being specified by condition. That facilitates use of the condition variation procedure to accommodate future changes to the tip height.
Where there has been an inadvertent change to the nature of the development, it might be necessary for fresh publicity and consultation to be carried out, before permission can be granted.
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