Planning Constraints

This page identifies a series of major planning constraints. The list is not exhaustive.

Each item is described, its relevance to the planning application process outlined and links provided to the associated local and national policy information. The items covered are:

Flood Risk

Flood risk is a material planning consideration and relates to both river and coastal flooding. It is a very important element in the planning process particularly in the light of current concerns about climate change and the need for sustainable development. The aim of national policy guidance is to ensure flood risk is taken into account at all stages of the planning process, to avoid inappropriate development in areas at risk of flooding, and to direct development away from areas of highest risk. Planning Policy Statement 25 'Development and Flood Risk' set out Government policy on the subject.

• Environment Agency: Am I at risk of Flooding? 

Contaminated Land

Contamination of land can occur as a result of previous industrial use and may represent harm to human health and the environment. Although there are powers to deal with historical contamination under Part IIA of the Environmental Protection Act 1990 it is anticipated that many contaminated sites will continue to be dealt with under the planning system. Contamination is a material planning consideration which means that a Local Planning Authority (LPA) must consider contamination issues when they prepare development plans or consider individual applications for planning permission.

Land contamination is usually dealt with through the planning system which will ensure where necessary that remediation takes place. It is the responsibility of the developer to carry out the remediation and satisfy the local authority that the remediation has been carried out as agreed.

A key difference between planning powers and those of Part IIA of the Environmental Protection Act 1990 is that Part IIA deals with the contamination risk from a site in its current use, but the planning system has regard to the proposed use. Therefore the remediation requirements under the planning system can be wider than under Part IIA. Where remediation is carried out under the planning system, the site will be left in such a condition that it would no longer meet the definition of contaminated land under Part IIA.

• Environment Agency: Land Contamination 
• DEFRA - Contaminated Land 

Listed Buildings

Listed buildings are buildings of special historic or architectural interest which have been recorded by the Department of Culture, Media and Sport. Buildings on the list are graded I, II* and II, Grade I being the most important. For Listed Buildings an additional and seperate planning consent is needed. Applications affecting Grades I and II* listed buildings and those involving demolition are required to be referred to the Secretary of State for Culture Media and Sport.

Internal and external works to listed buildings also require listed building consent. Listed Building Consent is required for repairs alterations and /or extensions which materially alter the appearance, structure or historic interest of a listed building. This is in addition to any requirement for planning permission for a proposal.

There are some 840 listed buildings in Torbay. The buildings include High Street shops and houses, country houses and cottages, a range of agricultural buildings, walls and even telephone boxes and milestones.

For listed buildings a Design and Access statement needs to be submitted with every application.

The Commission for Architecture and the Built Environment (CABE)  is the government's advisor on architecture, urban design and public space. They work directly with architects, planners, designers, developers and clients, offering them guidance on projects.

Tree Preservation Orders

The impact of development proposals on the natural environment is an important material planning consideration. Trees can have an important role to play in our landscape that should be retained for future generations wherever possible. Sometimes there are large and important trees on or adjoining development sites that could be affected by the development. Where a tree is protected, or is considered to have important amenity value we will consult our tree team on the planning application.

Tree Preservation Orders (TPO’s) were introduced to enable Local Planning Authorities (LPA) to protect important trees. Current legislative controls are contained within the Town and Country Planning Act 1990 and interpreted in the publication Tree Preservation Orders - A Guide to the Law and Good Practice

Tree Preservation Orders:  A Guide to the Law and Good Practice

TPO's can be placed on any single tree, group of trees or an area of trees or woodland that has amenity value. Trees that are exempt from TPO’s are those that are dead, dying, diseased or imminently dangerous and fruit trees grown for the commercial production of fruit. TPO controls prohibit the cutting down, uprooting, topping, lopping, wilful damage or wilful destruction of trees without prior consent from the LPA. The maximum penalty for carrying out works to TPO trees without consent is currently £20,000.

It is important to note that trees growing in Conservation Areas enjoy similar protection to trees covered by a TPO and the Council must be notified if work is proposed to them or there is a request to be fell regardless of the need for a planning application.

Planning permission could be refused if it would have either an adverse impact on the long term health and survival, or the loss of a protected tree or group of trees. If planning permission is granted there will be conditions attached to ensure that the tree(s) are not damaged during construction works. Conditions would usually include a requirement for protective fencing to be erected before any works commence on the site and the prohibition of excavation of service runs, storage of materials or changes in levels within a specified distance of the tree.

A tree work application is required to undertake work to protected trees and in conservation areas, the Council must be notified of works to non protected trees over a certain size. Further information is also available in the Arboriculture section of this website.

• Tree Preservation Orders:  A Guide to the Law and Good Practice

Conservation Areas

A Conservation Area is an area of special architectural or historic interest, the character or appearance of which it is desirable to preserve or enhance. The Planning (Listed Buildings and Conservation Areas) Act 1990 sets out the special planning controls that apply to conservation areas.

There are 24 Conservation Areas in the Torbay Council.

In addition to normal planning requirements certain additional controls apply in conservation areas. The permitted development rights are more limited and tree work applications are required for works to non protected trees over a certain size. Conservation Area Consent is required for certain demolition works even if planning permission would not normally be necessary.

• English Heritage: Conservation Areas 

The Commission for Architecture and the Built Environment (CABE) , is the government's advisor on architecture, urban design and public space. It works directly with architects, planners, designers, developers and clients, offering them guidance on projects.

National Guidance

A guide to the special controls that apply to Listed Buildings are set out in the Planning (Listed Buildings and Conservation Areas) Act 1990. 

A useful guide to listed buildings and conservation areas is Planning Policy statement 5 (PP 55) Planning for the Historic Environment

Areas of Outstanding Natural Beauty

An Area of Outstanding Natural Beauty (AONB) is designated by Natural England, under the National Parks and Access to Countryside Act 1949. AONB’s share the highest status of protection in relation to natural and scenic beauty. The primary objective of designation is conservation of the natural beauty of the landscape.

Designation brings with it restrictions on the type of development that can be carried out without planning permission. Policies and decisions on planning applications in AONB's will only permit development where it supports the conservation or enahncement of the natural beauty of the landscape or would foster the economic and social well being of the area providing that it is compatible with their conservation.

• Natural England: AONB 

Article 4 Directions

An Article 4 Direction is a direction made either by the Secretary of State or the Local Planning Authority to restrict the scope of permitted development rights , either indefinitely or for a specified period.

Certain types of development can normally be carried out under permitted development rights without the need for planning permission. In some circumstances, authorities may wish to control the exercising of these rights in order to ensure satisfactory development is carried out. This is done by means of a direction under Article 4 of the Town and Country Planning (General Permitted Development) Order 1995.

Government policy states that permitted development rights should only be withdrawn in exceptional circumstances, where there is evidence of a real and specific threat to the countryside in particular or to conservation areas.

Local Planning Authorities have to apply to the Secretary of State for approval of an Article 4 direction. If approved planning applications have to be formally made to the LPA and the LPA may be liable to pay compensation if it subsequently refuses permission or grants it subject to conditions not previously imposed on the permitted development.

• View Article 4 Directions 

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