Applications made by the council on its own land

When a council wants to build a school extension, a leisure centre or a housing scheme on its own land, it applies to itself. The application is made and determined under the Town and Country Planning General Regulations 1992, which set up a distinct procedure for development by local planning authorities, and the permission that results is granted by the authority to itself. That arrangement makes people uncomfortable, and the safeguards that answer the discomfort are procedural rather than structural.

There is no independent decision maker. There is no third party right of appeal. What there is instead is publicity, a code of conduct, a requirement to give reasons, and the availability of judicial review.

The two regulations and what they cover

The 1992 Regulations distinguish between two situations.

Regulation 3 covers development by the authority on its own land for its own purposes, sometimes called a regulation 3 application. A council building a household waste site, a depot or a new classroom on land it owns falls here.

Regulation 4 covers development by the authority jointly with another person, or by the authority on land it does not own. A council in a development partnership with a housebuilder, delivering homes on a former car park, falls here.

The distinction matters for the status of the permission afterwards. Where land granted permission under these regulations is later sold, take advice on whether the new owner can rely on it, because the position is not identical to an ordinary permission and the answer depends on which regulation was used and how the permission was framed.

Who decides, and the constitutional safeguards

The decision rests with the authority, which means either the planning committee or an officer acting under delegated powers. Most councils' constitutions require their own applications to go to committee rather than being delegated, and the more significant the scheme, the more likely that is.

The safeguards operate at three levels.

• Officers preparing the report are required to give professional advice independently of the service department promoting the scheme
• Members must declare interests under the authority's code of conduct and withdraw where a disclosable pecuniary interest arises
• The reasons for the decision have to be recorded, and a committee departing from the officer recommendation must say why

Predetermination is the concept people reach for, and it is narrower than it sounds. Section 25 of the Localism Act 2011 makes clear that a councillor is not to be taken to have had a closed mind simply because they previously expressed a view on the matter. What is not permitted is arriving at the committee with a mind already closed to the arguments.

The practical safeguard that does the most work is the separation between the council as landowner and promoter on one side, and the planning service on the other. Where the officer report reads as advocacy for the scheme rather than as assessment of it, that is the thing to point at.

Publicity and consultation

Nothing about the route reduces the publicity requirements. Site notices, neighbour notification and press advertising where required all apply in the ordinary way, and the consultation period runs as normal.

Statutory consultees are consulted as they would be on any application. Where the council is also the highway authority, the same organisation advises itself on highways, which is another point where the separation of roles matters. Ask for the highway authority's consultation response as a document, because it should exist as one.

Objections are made through the public register in the usual way, and they should be framed as planning arguments rather than as complaints about the council applying to itself. The technique for following the file is the same as for any application, as set out in registering and tracking a neighbouring application.

For the general picture of how the process works from the council's side, see how a council grants planning permission to itself.

Planning obligations where the applicant is the council

A council cannot enter into a section 106 agreement with itself, because an agreement needs two parties. That creates a practical problem where the scheme would normally be expected to deliver affordable housing, open space or an infrastructure contribution.

The usual solutions are to secure the matter by planning condition instead, to have a third party such as a development partner or a registered provider enter into the obligation, or to use a unilateral undertaking from a separate legal entity. Where a council has set up a housing company, that company is a separate person and can covenant.

Watch for requirements that quietly disappear. A scheme promoted by a council that would attract a substantial affordable housing obligation from a private applicant, and delivers none because the mechanism was awkward, is worth questioning in an objection. The levy applies in the ordinary way to council development unless relief is available, so the same scrutiny applies there.

Where the scheme includes affordable homes, the tenure and numbers should still be set out in an Affordable Housing Statement and secured by something enforceable.

Challenging a decision

There is no third party appeal against a grant of permission, whoever the applicant is. Three routes exist and all are narrow.

The first is asking the Secretary of State to call the application in for their own determination under section 77 of the Town and Country Planning Act 1990. Call-in is used sparingly and normally requires the proposal to raise issues of more than local importance. A request has to be made before the council determines the application, so timing is everything.

The second is judicial review in the High Court, on public law grounds: failure to take account of a material consideration, taking account of an immaterial one, bias or apparent bias, inadequate reasons, or procedural unfairness. Claims must be brought promptly and within six weeks for planning decisions.

The third is complaint to the Local Government and Social Care Ombudsman about maladministration, which can address process failures but cannot overturn a permission.

Apparent bias is the ground that people assume applies automatically to a council deciding its own application. It does not. The statutory scheme expressly contemplates authorities determining their own proposals, so the argument has to rest on something specific: a member with an undeclared interest voting, a report that suppressed a consultee objection, a decision taken before the consultation closed.

What to do if you object

Read the officer report carefully when it is published, usually a week before committee. Compare it against the consultation responses on the register and note anything omitted or summarised in a way that changes its sense.

Register to speak at committee if the constitution allows it, and use the time on one or two planning points rather than on the fairness of the arrangement. Put the detailed material in writing beforehand so it forms part of the record.

And keep the correspondence. If a judicial review is later contemplated, the timeline of what was said and when is the foundation of the claim, and it is far easier to assemble as you go.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.