Calling in Planning Applications

1. Who deals with planning applications?

The Welsh Government has a clear policy about who should decide planning applications and this is provided in Planning Policy Wales, available at www.wales.gov.uk/planning. Local planning authorities have responsibility for their areas and should make decisions about planning proposals wherever possible.

The Welsh Ministers can, however, call in a planning application if they consider it appropriate to do so and determine it themselves. Welsh Ministers rarely do this, but if they do the decision to call in the application will always be taken by the Minister with responsibility for planning. A decision on the planning merits of the application itself i.e. whether planning permission should be granted, will normally also be taken by the Minister with responsibility for planning.

2. Who can make a request for an application to be called in?

Anyone can submit a request for a planning application to be called in for determination by the Welsh Ministers. The request must be made in writing (e-mail requests are acceptable) and should include your name, address and the reasons why you consider the application should be called in.

If a request is made by a person acting in an ‘official’ capacity e.g. as an Assembly Member representing constituents or as a representative/officer of an organisation, that should be made clear in the request. If the request is made by someone normally associated as having ‘official’ status but acting in a ‘personal’ capacity, that should also be made clear in the request. The status of those requesting call-in is not relevant to the issues to be taken into consideration (see section 4 below) but would be relevant in handling any request for release of information that may arise. More information on the Welsh Government’s use of this information and data protection policy is at the end of this leaflet.

3. When can a call-in request be made?

A request can be made at any time before the local planning authority issues its decision notice. The later the request is made in the planning application process, however, the less time there is for the Welsh Ministers to consider it.

4. How do the Welsh Ministers decide whether an application should be called in or not?

The Welsh Ministers will only call in an application if the proposed development appears to raise planning issues of more than local importance. All development proposals are different and there are no rules about what is a planning issue of more than local importance. It is not possible to provide a complete list of situations where call-in of a planning application may be warranted. Six examples of issues that could cause the Welsh Ministers to call in an application rather than letting the local planning authority decide it are provided in Planning Policy Wales (paragraph 3.12.1). These are just examples and not the only situations in which call-in may be warranted.

The six examples are:

1. If the proposal conflicts with national planning policies. The publication ‘Planning Policy Wales’ sets out the national planning policies.

2. If the proposal could have wide effects beyond the immediate locality.

3. If the proposal may give rise to substantial controversy beyond the immediate locality.

4. If the proposal is likely to significantly affect sites of scientific, nature conservation or historic interest, or areas of landscape importance.

5. If the proposal raises issues of national security; and

6. If the proposal raises novel planning issues.

The decision on whether a planning application should be called in by the Welsh Ministers will be taken on the facts and circumstances of that particular application.

The issue is whether or not it would be more appropriate for the particular application to be decided by the Welsh Ministers rather than the local planning authority. The detailed planning merits of an application will not be taken into account when the question of call-in is being considered. Whether an application is called in or not, this does not imply or infer any view from the Welsh Ministers about the merits of the proposal. Many call-in requests are made on the basis that the Welsh Ministers should call in the planning application to refuse or allow it but any call-in decision taken on that basis would be unlawful.

While any person or organisation may ask for an application to be called in, the identity of that person or organisation will not be relevant to the consideration and determination of the request. The matter that will be of importance to the Welsh Ministers in considering call-in is whether planning issues of more than local importance are involved. For them to take into consideration in their deliberations who has asked for, or supported/opposed, call in could leave them open to successful challenge in the Courts on the basis of having taken into account an immaterial consideration – even where, for example, statutory consultees are involved in the call in request. It is the information the person or organisation provides on the question of whether planning issues of more than local importance are involved that is vital and not their particular identity.

The Welsh Ministers may only call in an application which is still before a local planning authority for consideration and determination and, when they call in an application, they are taking responsibility for considering and determining the application out of the hands of the local planning authority.

The question of call-in is solely about who should be the decision maker on an application for planning permission – the Welsh Ministers or the local planning authority – and not whether planning permission should be granted or not. Nor is it about whether they agree with the weight that the local planning authority has attached to the policies when determining the application.

1 To assist them in deciding whether a planning application raises planning issues of more than local importance, the Welsh Ministers may, depending on the issues raised by the application, consult within the Welsh Government and with external advisors (for example, Cadw and Natural Resources Wales). These consultees are, as indicated, asked to consider and respond to the 5 questions above.

In deciding whether an application should be called in it is not open to the Welsh Ministers to consider the planning merits of the proposed development. What they must do, however, is identify the planning issues raised by the application and assess how they have been addressed by the local planning authority. In this way they can reach a conclusion on whether the application raises planning issues of more than local importance. To assist in this the Welsh Ministers will ask themselves and any consultees1 the following questions:

(i) What are the issues raised by the application?

(ii) Has the local planning authority identified those issues in its consideration of the application?

(iii) Has the local planning authority identified the national planning policies and legislation/directives relevant to those issues?

(iv) Has the local planning authority assessed those issues in an appropriate manner? Here the concern is with whether the local planning authority’s assessment has been made in a reasonably robust way, using up-to-date technology and knowledge. The Welsh Ministers cannot take into account whether or not they agree with the conclusions of the local planning authority on the merits of the issue – that is not something they can take into consideration when considering whether a planning application should be called in for their determination.

(v) Does the consideration of these issues lead to the conclusion that it would be more appropriate for the planning application to be determined by the Welsh Ministers rather than by the local planning authority?

As indicated above, Planning Policy Wales advises that call-in is generally only considered appropriate where an application raises planning issues of more than local importance and that it could be considered appropriate where, for example, proposals are in conflict with national planning policies. This does not mean, however, that because a proposal is in conflict with national planning policies or is perceived to be more ‘national’ than ‘local’ in character that it will automatically be called in for determination by the Welsh Ministers. In considering whether to call in an application for planning permission the Welsh Ministers are concerned with whether the local planning authority has identified the planning issues and the relevant planning policies and how the authority has assessed the issues and policies.

The advice is that applications which conflict with national planning policies could be called in, rather than would be called in – this is because the planning legislation requires that applications for planning permission should be determined in accordance with the development plan (which must conform with national planning policies) unless material considerations indicate otherwise. In light of this requirement, it is possible for planning permission to be granted contrary to national planning policies provided material considerations justify such action.

Applications for planning permission are made to the relevant local planning authority in the first instance and it is for that authority to identify the planning issues arising from the application, the policies – local and national – relevant to those issues and what weight

to attach to those policies on the circumstances of the application. In considering whether to call in an application for planning permission the Welsh Ministers are concerned with whether the local planning authority has identified the planning issues and the relevant planning policies and how the authority has assessed the issues and policies – hence the questions referred to earlier in this leaflet. They are not concerned with the weight to be attached to the policies as that is a matter entirely for the local planning authority – and the reasonableness of the weight attached is a matter for the Courts once the decision on the merits of the planning application has issued and not for the Welsh Ministers as part of the call-in process.

Whether an application is called in or not, this does not imply or infer any view from the Welsh Ministers about the merits of the proposal. Many call-in requests are made on the basis that the Welsh Ministers should call in the planning application to refuse or allow it but any call-in decision taken on that basis would be unlawful.

It is possible that an application may be called in and the outcome is as the requester had wanted. The reason for that would be:

1. It had been concluded that the planning application raised issues of more than local importance; and

2. Having been through the appropriate processes and procedures, the planning merits of the decision warranted the decision taken.

5. Will the Welsh Ministers call in an application because of concerns about the way that the local authority has been handling it?

No. If a person has concerns about any actions or inactions of the local planning authority, these must be dealt with through the authority’s Monitoring Officer or through the Public Services Ombudsman for Wales (PSOW). Details of how to contact the PSOW can be found at www.ombudsman-wales.org. If anyone considers that there has been fraud or any other criminal act committed by a local planning authority in its consideration and determination of a planning application they should submit their evidence to the Wales Audit Office and/or the police.

6. How long will it take to make a decision?

A call-in request will be dealt with as quickly as possible. The decision about whether or not to call in an application may, however, depend on a number of things, for example when information relating to the application the subject of the call-in request is available to those considering it, for example, the Local Planning Authority’s Officer’s Report on the application.

If a call-in request is made very late in the planning application process, it may not be possible to deal with it before the local planning authority determines the application.

7. What happens if a call-in request is turned down?

The local planning authority is free to continue to consider and determine the application in the normal way.

8. What happens if a call-in request results in the application being called in?

The application is passed to the Welsh Ministers to decide and the first step is to consider whether the proposed development should be subject to Environmental Impact Assessment (EIA).

EIA is a process for identifying the environmental effects (positive and negative) of a proposed development before it is determined. In Wales, this process is given legal effect primarily through the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 [SI 1999 No 293].

The effect of the regulations is that applications for planning permission for development which fall within any of the descriptions in the regulations must undergo a screening process to see whether they should be subject to EIA.

If it is considered that the proposed development would be likely to have a significant effect on the environment then it should be subject to EIA. If so, the applicant has to provide the information referred to in the Regulations to be able to assess the environmental effects of the development. This information – referred to as an Environmental Statement (ES) – will then be taken into account in the consideration of the application.

In considering the need for EIA it may be necessary for the Welsh Ministers to consult advisers within the Welsh Government and outside of it, for example Natural Resources Wales (NRW) on the possible effects on the environment.

If the Welsh Ministers conclude that EIA is not required the papers will be passed to the Planning Inspectorate. If EIA is required the applicant will be told and the letter about that decision will identify the specific issues which need to be addressed in addition to those in Schedule 4 to the EIA Regulations.

When the applicant submits the Environment Statement (ES) it will be assessed to decide whether the ES not only covers the main issues but does so in a reasonably robust way using up-to-date methods. If there are significant gaps in the information provided the Welsh Ministers will ask for more information. Only when the Welsh Ministers are satisfied that the ES meets at least the minimum requirements of the EIA Regulations will the papers be passed to the Planning Inspectorate.

If the Welsh Ministers consider that the ES does not meet the minimum requirements of the EIA Regulations, aside from asking the applicant to provide more information, they may take no further action.

The decision on whether EIA is required is made as quickly as possible but the need to consult and, if EIA is required, the time needed to provide an ES, can cause some delay before the papers are passed to the Planning Inspectorate. The policy of the Welsh Government is that called in applications and appeals are not ‘started’ by the Planning Inspectorate until all EIA issues have been resolved.

Advice on EIA, including how to establish whether EIA is necessary, is provided in Welsh Office Circular 11/99 “Environmental Impact Assessment (EIA)” (www.wales.gov.uk/planning).

Once the issue of EIA has been resolved – either through EIA not being required or an adequate ES being provided – the papers will be passed to the Planning Inspectorate to process. The application could be dealt with in one of three ways:

the exchange of written representations; an informal hearing; or a public inquiry.

Each of those procedures is governed by a set of statutory rules on those regulations and the way in which the relevant procedure is taken forward by the Planning Inspectorate is provided in National Assembly for Wales Circular 07/2003 “Planning (and Analogous) Appeals and Call-in Procedures” (www.wales.gov.uk/planning).

Whichever procedure is followed, a Planning Inspector will prepare a report that will normally go to the relevant Minister to consider and take the decision.

9. Is there a right of appeal against a decision on a call-in request?

No. There is no statutory right of appeal against a decision on a call-in request. It is open to an individual to apply for judicial review in the Courts if they think an application should or should not have been called in. However, this is limited to legal or procedural aspects of the decision only. Anyone contemplating such action is strongly advised to seek their own legal advice before doing so.

10. How can someone follow progress about a call-in request?

The progress of every call-in request from start to finish is recorded on:www.wales.gov.uk/planning.

If you have any questions about this leaflet you can email us at:planning.division@wales.gsi.gov.uk

11. Access to information

All call-in requests should include the name and address of who is requesting it.

The Welsh Government will only use personal data submitted to it under the call-in process to inform the person who asked for the call-in request. We will not use it for any other purpose or share it with third parties.

All of the information held by the Welsh Government relating to a request for a planning call-in will be processed and managed by us in accordance with our obligations and duties under the:

Data Protection Act 1998. Freedom of Information Act 2000. The Environmental Information Regulations 2004; and All other laws relating to access to information.

Your information, including your personal information, may be the subject of a freedom of information request by another member of the public. When responding to such requests we may be required to release information, including your personal information. Our response to such requests will be in accordance with the guidelines provided by the Welsh Government Code of Practice on Access to Information. The Code is published on the internet and can be accessed by visiting: www.information.wales.gov.uk.

12. More Information

For more information about the personal data and its use, if you have any concerns about the accuracy of personal data, or wish to exercise any of your rights under the Data Protection Act 1998, you should contact:

Information Rights Unit Welsh Government Cathays Park Cardiff CF10 3NQ

The Information Commissioner’s Office: www.ico.gov.uk

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