Planning issues

The Planning System

The planning system exists to make sure that the right things get built in the right place. Parliament and the Government set the framework for planning. Parliament makes the planning laws and the Government issues statements of policy which local planning authorities (councils) must take into account. Local authorities are required to produce a local development plan (sometimes known as the Unitary Development Plan, UDP) which sets out how national planning policies are to be implemented locally. Planning applications are judged against the principles of the Government’s Planning and Policy Guidelines (PPGs) and the local development plan.

The underlying principle is to promote and not constrain development, although there is increasing emphasis on environmental quality, patterns of land use, decreasing the use of the private car and the need for ‘sustainable’ development – in other words, that planning decisions will not be harmful for future generations.

Development control should make sure that changes to buildings and land and their uses are right for the site concerned, and that the wrong things do not get built. Planning authorities will aim to try and improve the acceptability of a development through what are known as ‘conditions’ rather than refuse planning permission. Conditions are imposed, binding restrictions on how the site or activity can be operated. For example, where residents complain about the noise from a proposed McDonald’s restaurant it is standard practice for planning authorities to grant the permission, ‘condition’ the company to close at 11pm and build acoustic screens where the site is adjacent to residents’ gardens.

Planning – Who is Involved

The officers are ‘neutrals’ and are not political appointees, nor must they ‘take sides’ on planning applications. Their role is to view the development impartially and provide advice on the basis of planning principles. They will also work with McDonald’s to agree ways of mitigating potential problems in order to make the development acceptable. Don’t blame them for this – they are not ‘taking sides’ – they are merely following the principles of the planning system, which is their job.

The final decision is made by local councillors, usually a planning or development committee. Councillors are generally lay people and not planning specialists and rely on the officers’ advice. They have been known to defy officers, but this is risky because at appeal as McDonald’s then cite that the council’s own officers support the application, which tends to carry tremendous weight with the appeal inspector.

Planning decisions are made at meetings of the relevant committee, and these are public meetings. All local councillors will tell you that planning is a ‘free vote’ (councillors do not have to follow a ‘party line’). But in reality, the respective political parties do tend to get together before the meeting (perhaps a week or so) to discuss the items on the planning committee agenda and will probably agree how their party will vote.

Please note that local government is currently undergoing reform, and some councils have adopted or will adopt a new constitution involving a directly elected mayor with an executive or local cabinet. In this case, planning decisions may not be made by a planning committee but by the mayor with the executive or cabinet. If this is the case in your area, you will need to find out the process for judging and taking the final decision on the application.

Where planning decisions are considered to be minor in nature, the council may delegate the final decision to officers. Normally, McDonald’s applications are considered fairly major and contentious so will be determined by elected councillors. However, sometimes, a seemingly innocent planning application for minor site works can actually be a covert application for McDonald’s. For example, a public house submitting an application for changes to its car park layout may seem harmless enough, but it may actually be paving the way for McDonald’s to buy the site and install a drive-through. See what happened on the Molly Maguires campaign.

Watch out for unusual applications – particularly by pubs – especially those involving changes to the car park layout, installation of kitchen extraction equipment and site landscaping. Lobby your councillors to ensure that such decisions are not delegated to officers but are made by councillors at the planning committee meeting. If you suspect such an application is for McDonald’s, if it’s being done by a pub you can ask the licensing officer at your local police station what the changes are for. Pub owners have to keep the licensing authorities informed of any changes to their sites, particularly if it involves changes that impact alcohol consumption.

Planning Applications – The Process

McDonald’s will submit its application to the local council. Important point: The company always submits two identical applications. This is because, by law, the council have to make a decision within eight weeks of the application otherwise McDonald’s can (and usually do) take the council to appeal on the grounds of ‘non-determination’ – i.e. the council not making the decision within the statutory timeframe. The reason for two applications is so that one can be submitted for the ‘non-determination’ appeal, and the other can remain in the local planning system so that the company can continue to negotiate to get it through locally before the appeal is heard (and then they will withdraw the appeal). Important point: even though the two applications are identical, they will have a different planning application reference numbers. Objections must cite both application numbers.

Once the applications have been submitted, the local council planning department notifies those immediately affected who have a certain number of days to respond – i.e. object. It isn’t very long (around 21 days) and the consultation is not very wide geographically. However, this is within the letter of the law. So be alert for public notices and check the register of planning applications at your local planning office each week.

Many councils don’t work in a streamlined way and these applications might go before sub-committees, then full committees and in some cases District Councils before a decision is made. McDonald’s won’t always appeal against this particular piece of bureaucracy, especially if they think that the vote is going their way – but don’t count on this. However they will appeal in contentious cases where the vote is being delayed and they think that it’s going to go against them.

What we’re saying here is that you need to understand how the process works in your particular area, which committee has the deciding vote, where and when they meet and then you have to influence how they are likely to vote.

You will probably be allowed to speak at your local council meeting to state your objections. Councils often have rules about how you can apply to speak, how many people can speak and how long you are allowed (normally in the region of about 3 minutes!). You need to know what your local rules are well in advance and book your slot. This goes for petitions too, they usually have to be submitted before a certain date to be accepted.

Planning committees usually have a secretary or clerk who is based at the civic centre, found out who that is – ring him / her, and ask what the procedure is. Introduce yourself, be friendly and seek their help on, for example, how the whole process works in your area. Clerks can be very helpful to you and will guide you through the procedural maze.

As previously noted, the likely decision is often made in advance and, in many cases, if you haven’t already persuaded the members of the planning committee of your case – you are unlikely to win on the strength of your speech alone. There is a strong chance that they have all already decided how they are going to vote. Your speech should underline what your councillors already know. Don’t rely on your speech alone to influence the decision.

You may well cry that this is not fair and it shouldn’t be like this – ok, but this isn’t going to win your case! Know what’s going to happen, anticipate it and play the system along with everybody else (which is what McDonald’s does).

What Needs Planning Permission?

Whether McDonald’s need planning permission starts with what the site is currently being used for. Land has a ‘designated use’ – i.e. what it has been granted planning permission to be used for. This is regulated by what are known as Use Class Orders, where land and buildings are grouped together into similar types of use. Sites that are classified in the same Use Class can change from one type to another within the same class without any planning permission. If the type of use is to be changed (e.g. from a petrol station to a McDonald’s), then planning permission will be required for ‘change of use’.

Food and drink outlets, including pubs, are all grouped together within the Use Class known as A3, which means that any type of food and drink outlet can be converted to another without any need for planning permission. In other words, McDonald’s can convert your favourite local pub to a McDonald’s restaurant without any planning permission whatsoever. However, even in this case, all is not lost. External works still need planning permission, which includes changes to the car park layout, a drive-through, fences, changes to access in / out of the site, illuminations and signage. Some of these are difficult to fight on planning grounds - drive-throughs, changes to road access or anything else that affects pedestrian safety, road safety or traffic flows are the best bet. Advertising and illuminations can be fought, but the outcome is likely to be restrictions rather than refusal of planning permission. If you can prevent a drive-through you are reducing the viability of the site, and McDonald’s may decide not to go ahead at all (they often apply for the planning permissions before they commit to buying a site).

The Government is currently reviewing the Use Class Orders, and McSpotlight is supporting the campaign to change Class A3. Please see our pages on this A3 campaign and what you can do to add your support for this change.

If the site is not Class A3, for example a supermarket or a petrol station, then McDonald’s will have to apply for planning permission for everything – ‘change of use’. In this case, you can fight the lot – but you should still focus on the strongest planning grounds (discussed later). Sometimes, a site may not be A3 but may have been granted planning permission for A3 in the past although not taken up. If this is the case it may be more difficult to fight the ‘change of use’ (you will need to discuss the status and implications of any previous planning permission with your local planning officer).

Developing Your Planning Grounds For Refusal

Getting The Background Information

Don’t be daunted by the thought of getting into planning, many local residents have done this very successfully. It can be done – some research and reading, and a lot of common sense and local knowledge go a long way.

First of all, go to your local planning office and get your own copy of the planning application and site plan. Go through it with a fine tooth comb and look for any discrepancies and potential problems that the proposal brings, and the implications on the immediate neighbourhood and people who live in, work in and use the area (more about this later).

Book an appointment with the local authority planning officer who is responsible for dealing with the application. Develop a friendly relationship with him / her. Ask for the officer’s views and why he / she plans to recommend granting or refusing the application (note: grant is the most normal response). Ask lots of ‘open’ questions – What? Why? How? Extract maximum information. Try to ensure that you understand exactly what is being asked for (i.e. what requires planning permission and what doesn’t), what will / will not be recommended for approval and why.

Even if the officer is going to recommend refusing the permission, ask why and find out what changes he / she considers would have to be made to make the proposal acceptable. McDonald’s will do this – and will continue to update and revise their plans until the last minute, so try and anticipate what they might do and be ready with your arguments against.

Ask the office to contact you if any changes are made to the plans. McDonald’s work with officers until the 11^th hour before the planning meeting to make their plans acceptable – and you may find that site plans / proposals that you were expecting to speak against are not the ones that are presented at the planning committee meeting.

Having said that, do not rely on the officer ringing you (they are busy people and are managing more than one application). Ring them at least once a week (or more, depending on the changing scenario in your particular case) to ask what changes have been made, what are the latest development etc.

In addition to the planning officer, you should also develop a similar relationship with both the traffic engineer and environmental officer. The traffic engineer will comment on traffic impacts, road and local transport issues, bus flows, impact of delivery vehicles etc. The environmental officer will be concerned about litter, air quality, smells and noise. Find out what they plan to advise councillors and why. Explore issues with them in the same way as the planning officer – they also often lack the detailed local knowledge of residents.

Aim to make friends with all the officers involved. Don’t give away your arguments, but get to know theirs (and McDonald’s), so that you know what you’re up against. Once you start researching your own planning grounds for refusal, be careful about what you tell officers in terms of what you plan to argue – everything you say to them may get back to McDonald’s – the officers are stuck in the middle (in the same way that they will tell you what McDonald’s are planning). Test your ideas by saying, for example, "What about….." Seek their opinions and advice. Once you know what’s going on, you need to find the holes in McDonald’s arguments. They are usually there, but often don’t get spotted or highlighted strongly enough.

Sources of Planning Help

The guiding principles for judging planning applications are the Government’s Planning Policy Guidance Notes (PPGs). The PPGs are published on the DTLR’s website at www.databases.dtlr.gov.uk/planning/npp/ListPublications.asp?thisCategory=PPGS

and can be downloaded. You could perhaps obtain a copy of the book Butterworth’s Planning Law Guidance from your library. Also your local planning department will have a set of PPGs and may allow you to view them. These are big things, and there are 25 of them! The most common ones for this type of development are PPGs 1, 6, 13, 19 and 24. But not all of these may apply to your situation and there may be others that do. This is where someone who knows planning can help – they will know which PPGs to cite and how for your particular concerns.

The other document that you need to consult is your local development plan to see whether there are any provisions against the proposed development that the officers have not considered. There will be a reference copy at your local planning office that you can use, and you should be permitted to photocopy any relevant pages that you want (although you will probably be charged for this). Many local authorities now post the local plan on their website, so it’s worth checking whether you can access it this way. Reading and getting to grips with your local plan is a long boring haul, but worth it.

The strength of your local plan as the basis for an argument will depend on whether it has been ‘adopted’ – i.e. formally agreed and ratified via public enquiry. You may have an adopted plan, but there may also be a draft one, which is the planned update. The adopted one is the most powerful, but the draft one – particularly if a ‘deposit’ one – i.e. has been agreed locally and is waiting to be formally ratified – can still count. If you’re really unlucky, you may end up reading both an adopted and deposit version – but this is well worth doing. As with PPGs, you should aim to cite the relevant local plan excerpts that support your objections.

Planning Arguments Against The Development

McDonald’s may well provide what is known as a Traffic Impact Assessment, where they measure traffic on adjacent roads and also expected visitors to the site and make a case that states that the development will not be a problem. They always argue that 70% of their custom comes from ‘pass-by’ traffic and this is accepted as received wisdom. Therefore you need to provide evidence as to why this is not acceptable on the site (e.g. pedestrian safety). We also know that McDonald’s argue that their peak times are 5-7pm on Fridays and Saturday lunchtimes. Think about how you might demonstrate the problems with this.

Do your own traffic counts on comparable McDonald’s sites. McDonald’s have been known to lose when local communities have done this, where it has been shown that McDonald’s are understating their traffic projections (which they always do). See the Hinchley Wood decision letter where the inspector found in the community’s favour on this issue. But you will need to present your findings in a statistically valid way. Photographic evidence (e.g. of traffic / congestion problems) will also help.

There is a database called TRICS (Trip Rate Information Computer System) which contains traffic survey information on many different land use categories, including fast food restaurants. Many councils subscribe to this, and can obtain data of McDonald’s restaurants on comparable types of site. Your local authority’s traffic engineer will know, find out if TRICS has been consulted and what information was found.

McDonald’s may also argue that the siting of their restaurant on where you don’t want it will actually reduce reliance on the private car. This is how their argument goes – people who want to visit McDonald’s are travelling further afield to other restaurants in the area and this generates longer car journeys (‘trips’ in planning jargon). The planned restaurant (that you’re objecting to) is an ‘infill’ and that it helps the Government’s objective to reduce car use by reducing the length of car journeys in the area! This has been accepted at appeal, so you might need to show that the disadvantages of more cars in your area outweigh any advantages of shorter journeys in the locality.

To summarise – we recommend a focus on pedestrian safety, vulnerable pedestrians who will be affected, increased traffic, road congestion, impact on local roads (and pedestrians) from traffic turning in / out of the site, detrimental effect on local bus operations. In addition, there may be policies in your local development plan regarding town centre vitality, concentrations of particular types of outlets in particular areas etc. and these are also very powerful planning considerations. Find out what these are and use them. However, do not let the officers know too much detail of what you plan to argue – it will get back to McDonald’s. And don’t share it with the local press either.

You could consider writing your own ‘appraisal’ or written summary of your objections for your councillors, containing your evidence (e.g. your traffic counts). You have the local knowledge. Make sure that councillors get it before their parties hold their respective meetings to discuss the planning committee agenda, but that officers get it in time for the planning committee meeting but too late for them to pass it to McDonald’s to respond.

Arguments To Avoid

McDonald’s always argue that they are creating jobs and "want to be a good neighbour" and "contribute to the community". Everyone knows that Mcjobs are intensive, unpleasant, low paid and exploitative. However, be aware that the planning system considers economic growth and development – and local jobs are part of this. The planning system has no brief to nor any means of judging the quality of those jobs (for this or any other type of planning application) and will never attempt to do so, and such arguments – whilst morally valid – have no constituency in planning terms. We would recommend that you give such statements from McDonald’s the contempt that they deserve – and not even argue against them as part of your formal argument (although of course you could raise the issue privately with local councillors as a concern). The trick is to have a powerful planning case that reduces their ‘Mcjobs’ argument (which they always state) to complete insignificance.

The issues about McDonald’s "being a good neighbour" and "contribution to the local community" we suggest you take on as part of your PR / publicity machine (see relevant advice pages), because this is just PR floss and has no substance in planning – let alone fooling the local community. Whilst they will cite this in their deputation (speech at the planning committee) to try to make themselves look good you do not have to respond to it there. We recommend you don’t – you’ve probably got only 3 minutes – do the planning arguments (despite what you might feel about this). You can destroy their PR floss before you even enter the committee rooms (via your publicity machine).

Don’t fight your case on litter, noise or smells – these ones always lose at appeal and McDonald’s know it. See our abstracts of appeal inspectors’ decisions. Although these are the most unpleasant aspects of living next door to McDonald’s, at appeal the Inspector will merely ‘condition’ (i.e. make McDonald’s do) McDonald’s to install more litter bins and do litter patrols (litter), close at 11pm (noise) and use extractor equipment (smells) – which everyone who has ever lived next door to one of these will tell you doesn’t work; but that is received wisdom over many years and is unlikely to change. Even where noise is next to residents’ gardens, McDonald’s will get their consultants to produce a report which show no problem and will offer acoustic screens and tree planting to mitigate any perceived problems. This will tend to get accepted at appeal.

Be very wary of developing a case on the grounds of pollution; no community has yet won one on these grounds, and a major appeal was lost on this issue some years ago. However, in recent years, air quality has become a more prominent aspect of planning and local plans.  Local authorities now have air quality objectives to meet, and the air quality implications of traffic fromd evelopment may be included in the local plan.  The measurement of air quality in relation to traffic will be specific to the dynamics of your area, and you should speak to your Environmental Officer on this issue.  McDonald’s have started to do air quality assessments on contentious developments, and their reports are (surprise! surprise!) demonstrating no adverse impact.

the impact on air quality and health is still the subject of cutting-edge research.  However, you might like to look at information on the Department for the Environment, food and Rural Affairs (DEFRA) website and also the Department of Health.  See the follwoing web pages (and alos others in the same sections of these sites):

www.defra.gov.uk/environment/airquality/airpoll/addendum.html
and
www.doh.gov.uk/comeap/statementsreports/healtheffects.htm

If you feel that you have an UNUSUAL pollution case, then seek expert advice before you try and argue it (e.g. from a free planning advice centre, or a friendly planning consultant not involved with your particular case, and who never does freelance work for McDonald’s).

If you are in an environmentally-sensitive area (e.g. a nature park), or a conservation area or where listed buildings might be affected then you should contact relevant interest groups such as English Nature, The Council for the Protection of Rural England, The Forestry Commission, Friends of the Earth, English Heritage, your local Heritage organisation and any others that may have an interest in supporting your cause. See our pages on the successful New Forest campaign. You will also need to speak to your local authority conservation officer, as per planning, traffic officers etc. to ascertain his / her views, get advice etc.

Other issues that may be of concern to local people but are not considered relevant when judging planning are loss of a view, loss of lighting to what are considered non-habitable rooms (landing, bathrooms, plus secondary windows in habitable rooms), loss of property value, boundary disputes, moral / ethical issues (e.g. unhealthy food, advertising / promoting to children – even if the site is next to a school), competition from new business - if anything, the planning system is geared up to welcome competition – so don’t argue the destruction of your local fish and chip shop – and don’t suggest they argue this either. Whilst many of these issues will anger the local community (especially property values), don’t use them in your case because they don’t count as a consideration. But do use them to mobilise people to join your cause and to discredit the company via your publicity machine.

See also:

Organise your task force

Write letters of objection

Lobby local politicians and other influential groups

Organise a petition

Mobilise people to fight the application

Set up a publicity machine

Research other legal issues

Get ready to fight McDonald’s appeal

How to occupy the site

How to run a campaign

STS home page