Crown development and how it gets determined

Crown development is subject to planning control. That has been the position in England since June 2006, when the Planning and Compulsory Purchase Act 2004 removed Crown immunity and inserted a dedicated Part into the Town and Country Planning Act 1990. A government department building a prison, a barracks or a laboratory applies to the local planning authority in the ordinary way, pays a fee, and gets a decision it can appeal.

The special routes exist for a narrow class of case: development that is nationally important and urgent, and development where national security limits what can be put in the public domain.

What counts as Crown development

Crown land, for these purposes, is land in which there is a Crown interest or a Duchy interest. That takes in land belonging to a government department, land held by the Crown Estate, and land of the Duchy of Cornwall and the Duchy of Lancaster. The appropriate authority for each is identified in the Act, and it is the body that makes the application or gives consent to someone else making one.

Local authority development is not Crown development, and is dealt with under the separate 1992 General Regulations. Nor are the many bodies that feel governmental but are not the Crown, such as most non-departmental public bodies, so check the legal status of the applicant before assuming a special route is available.

An ordinary Crown application looks like any other on the register. It carries the same validation requirements, the same publicity, the same consultation with statutory consultees and the same determination periods, and the same rules on publicity for major development apply.

The ordinary route through the local authority

Most Crown development goes here, and there is little that is distinctive about it. The application is made to the local planning authority, decided against the development plan under section 38(6) of the Planning and Compulsory Purchase Act 2004, and appealable to the Planning Inspectorate if refused or not determined in time.

Where the authority sits on it, the same options apply as for anyone else, including the approach set out in appealing non-determination instead of waiting.

Two practical differences are worth noting. Crown applications on operational sites often involve constraints that cannot be fully described in a public document, which changes how the supporting statements are written. And the consultation body list tends to be longer, with the Ministry of Defence safeguarding team, the Civil Aviation Authority or the Health and Safety Executive appearing on schemes where they would not otherwise.

Fees are payable in the ordinary way, and a Crown application is counted in the authority's performance statistics like any other, so there is no procedural incentive for a council to treat it differently.

Applications made to the Secretary of State

Section 293A of the Town and Country Planning Act 1990 provides a route for urgent Crown development. It can be used where the appropriate authority certifies that the development is of national importance and that it is necessary that the development be carried out as a matter of urgency.

Both limbs have to be satisfied. National importance without urgency does not open the route, and urgency on a locally important scheme does not either. The application goes to the Secretary of State, who may hold an inquiry or a hearing, and who determines it in place of the local authority.

The Levelling-up and Regeneration Act 2023 added a further route for Crown development of national importance without requiring the urgency test, with the detail carried in regulations. Commencement and the procedural detail have been brought forward in stages, so confirm the current position and the applicable regulations on gov.uk before choosing a route.

How the urgent procedure differs

The shortened procedure trades local determination for speed, and the safeguards shift rather than disappear.

The local planning authority is consulted and its views on local planning issues are taken into account, but it does not decide. Third parties can make representations, and an inquiry may be held where the issues warrant it, though the timetable will be tighter than a standard call-in inquiry.

Choosing the route is a judgement made before the application is prepared, because the evidence base differs. A case for the urgent route has to document why the timetable cannot accommodate an ordinary application, with reference to operational need rather than to programme convenience, and the certificate is open to challenge if the reasoning is thin.

National security and closed material

Section 321 of the Act allows a direction that evidence relating to national security, or to the security of premises or property, be heard otherwise than in public. Where that happens, a special advocate can be appointed to represent the interests of those excluded from the closed session.

For an applicant, the practical effect is on the supporting documents. Technical reports may need a public version and a closed version, and the environmental information supplied for an environmental impact assessment has to be handled carefully because the EIA Regulations assume publication. Agree the approach with the determining body early, and expect the redaction exercise to take longer than the drafting.

Where the site adjoins a designated habitat, the appropriate assessment work still has to be done and disclosed in a usable form, as set out in habitats regulations assessment and what an applicant supplies.

Enforcement and where immunity still bites

One honest caveat on all of this. The special routes are used rarely, and the great majority of defence, prison and government office schemes go through the ordinary application process with a standard supporting document set.

Removal of immunity did not make the Crown liable in exactly the same way as a private owner. The Act makes special provision for enforcement in relation to Crown land, including restrictions on entering land and on criminal liability, and consent from the appropriate authority is needed for certain steps.

In practice, disputes are resolved by correspondence between the authority and the department rather than by notice and prosecution. That is a weaker position for a council than it has against a private developer, and it is one reason that conditions on Crown permissions tend to be drafted with more precision than usual.

The supporting statements for a Crown application are conventional. A Planning Statement setting out the policy case, the need argument and the alternatives considered does most of the work, with the national importance case carried in a separate certificate where the urgent route is used.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.