As a specialist planning law firm, at Planning Clarity Legal we are regularly asked by property developers the question “When should I retain a planning lawyer?”
Often there is confusion about the various roles played in the town and country planning system by a developer’s professional advisors which also typically includes architects and planning consultants. Then you have lawyers specialising in different areas of law, so for example the developer may have already retained a property lawyer to help them acquire a site which is proposed for development, but then has a planning legal matter arise which they need advice on
Traditionally in the past planning lawyers worked in commercial law firms as part of a wider property legal practice. However, times have changed as these days planning law is its own specialism and specialist planning law firms now exist such as our firm Planning Clarity Legal. We would always recommend that planning legal advice comes from those who know it best being a specialist planning lawyer (similar to the analogy in the medical industry of seeing a cardiologist for advice on a heart issue instead of a general practitioner)
Despite their title, planning lawyers in practice also commonly deal with other specialist legal areas associated with development apart from planning, including highways and compulsory purchase law, which is not always widely known
We discuss below 5 common scenarios where a developer would typically engage our firm’s services as specialist planning lawyers during the course of a planning application or development:
- Negotiating legal agreements under Section 106 of the Town and Country Planning Act 1990. These are planning legal agreements (commonly associated with planning applications) and therefore ideally should be negotiated by planning lawyers, particularly as in many cases these agreements can contain complex planning obligations such as affordable housing provision. Planning lawyers regularly negotiate these agreements with local planning authorities as their ‘bread and butter’ work and are aware of all the relevant issues to consider and can ensure that these agreements include the proper protections for a developer or landowner, mortgagees and any future parties that take an interest in the site bound by the agreement
- Bringing a planning appeal where planning permission has been refused by the local planning authority. Although in practice many types of professionals seek to bring planning appeals on behalf of developers, planning lawyers have an advantage here over other professionals in that we both understand planning appeal procedure and therefore can run an appeal as well as can deal with the preparation of any Section 106 legal agreements which are commonly required for appeals. Further, if there is a hearing or public inquiry to determine the appeal requiring the retention of a planning barrister to carry out the advocacy then planning lawyers as solicitors are professionally qualified and trained to prepare legal briefs to barristers in the proper format and also have designated client accounts which can hold funds for a barrister’s fees
- Reviewing planning applications before these are submitted to the local planning authority to mitigate any risks. It is quite common in our experience for there to be errors contained in planning applications – a common error being the inclusion in the red line development site of land not owned by the applicant under their land titles and another is not serving the correct notice of the application on the owners of the site. These errors if not identified and corrected at an early stage (preferably before the planning application is submitted) and instead found out later (for example when a Section 106 agreement is being negotiated) can subsequently result in either delays in the determination of the application while these errors are corrected or in more serious cases can potentially constitute grounds for a judicial review claim in the courts against any planning permission which is granted. Planning lawyers can review and comment on planning applications before these are submitted to the local planning authority to mitigate any such risks
- Advising on Compulsory Purchase Orders (CPOs). Planning lawyers can advise developers on the correct statutory procedure for the making or promotion of a CPO including preparation of all the relevant legal documents. If a developer or landowner is objecting to a CPO then we can advise them how to make a valid objection and to protect their position. CPOs if objected to can also be subject to public inquiries which planning lawyers can run on behalf of a client including liaising with any other professionals required for the inquiry such as barristers or CPO surveyors
- Negotiating legal agreements under Section 278 and Section 38 of the Highways Act 1980. These are legal agreements for the provision of highway works and dedication of land as highway. Planning lawyers can negotiate these types of agreements on behalf of a developer with the relevant highways authority
As a specialist planning law firm (with our Managing Director Chad Sutton also sitting on the Law Society’s Planning & Environmental Law Committee and being a Legal Associate Membership of the Royal Town Planning Institute) we are experienced and qualified to advise developers on any of the above matters. We also can assist other professionals by advising them and their developer clients on such matters and indeed many of our firm’s clients are professional firms of either architects, planning consultants or property lawyers
The general rule should always be when in doubt speak to a specialist planning lawyer before you act, as it may help you avoid problems which simply don’t need to occur and can save you money in the long term!
Note: all comments and views expressed in this blog are merely opinions and provided for information purposes only and do not constitute legal advice which can be relied upon. Should you require legal advice on a matter then please contact us
