Departure applications and referral to the Secretary of State

A departure application is one that does not accord with the development plan. It is not unlawful and it is not unusual. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires determination in accordance with the plan unless material considerations indicate otherwise, and the whole point of that final clause is that a properly justified departure can be granted.

What changes is the procedure. A departure triggers a specific publicity requirement, it usually goes to committee rather than being decided by an officer, and in defined categories it must be referred to the Secretary of State before permission can be issued. Getting the sequence right is a programming question as much as a policy one.

What makes an application a departure

The test is conflict with the development plan taken as a whole, not conflict with a single policy.

That distinction matters. A scheme that breaches a parking standard while complying with the housing, design, heritage and transport policies is not necessarily a departure. A scheme on land allocated for employment, proposing housing, plainly is.

The development plan for these purposes includes the adopted local plan, any adopted minerals and waste plans, the spatial development strategy where one applies, and any made neighbourhood plan. A conflict with a made neighbourhood plan makes an application a departure just as surely as a conflict with the local plan.

Three points of practice:

• The applicant does not declare a departure. The authority forms the view, usually at validation or during assessment, and the application form does not have a box for it.
• Whether an application is treated as a departure can be argued. Where the conflict is marginal or the policy is out of date, it is worth putting the case in writing early, because the publicity and referral consequences follow automatically from the label.
• A departure is not the same as a proposal that engages the tilted balance. A plan that is out of date can produce a presumption in favour of sustainable development while the application is still, formally, a departure.

Advertising a departure and the publicity required

Article 15 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 sets the publicity rules, and departures sit in the highest tier.

Development that does not accord with the development plan in force in the area requires publication of a notice in a newspaper circulating in the locality, together with a site notice or individual neighbour notification. That is the same tier as EIA development and development affecting a public right of way.

Two consequences follow for the programme. Newspaper advertising has lead times and publication dates, and the 21-day representation period runs from the later of the notices, so a poorly timed advert can add two or three weeks. And because the advert names the application as a departure, it attracts objections that a standard neighbour letter would not.

Check the wording of the advert when it appears. An advert that misdescribes the site or the proposal has to be repeated, and the clock starts again.

The same publicity family applies to major development generally, and the practical detail is set out in publicity for major development and the rules.

Referral categories under the consultation directions

The requirement to refer departures to the Secretary of State used to be broad. It is now narrow, and the categories are set out in directions rather than in the Order.

The Town and Country Planning (Consultation) (England) Direction 2009 requires authorities to consult the Secretary of State before granting permission in defined categories, including specified Green Belt development above stated floorspace and site area thresholds, and development of playing fields where Sport England has maintained an objection. Separate directions cover other situations, including major development in a flood risk area where the Environment Agency maintains an objection.

Verify the current directions on gov.uk before relying on any summary, including this one. Directions in this area are amended and replaced periodically, and the thresholds move.

Outside those categories, most departures are decided locally. The authority advertises the application, takes it to committee, and issues the decision without any referral at all.

Green Belt and playing field referrals

The two categories a consultant meets most often behave differently.

For Green Belt, the referral is triggered by inappropriate development above the thresholds in the direction, measured by floorspace or site area. The practical work is establishing whether the proposal is inappropriate development at all, because the exceptions in national policy take many schemes outside the category entirely. Where the proposal is inappropriate and above the threshold, plan for the referral from the start rather than discovering it at committee.

For playing fields, the trigger is an objection maintained by Sport England, which is a statutory consultee for development affecting playing fields. The route through is usually to resolve the objection rather than to test the referral: an agreed replacement provision, a contribution to improved facilities elsewhere, or a redesign that keeps the pitch. An objection withdrawn before determination removes the referral requirement.

In both cases the referral is to consult, not to seek approval. The Secretary of State is being given the opportunity to intervene, and in most cases does not.

What the Secretary of State does with a referral

Three outcomes are possible.

The first, and by far the most common, is that no intervention is made and the authority is free to determine the application as it sees fit.

The second is a direction restricting the grant of permission. Article 31 of the Development Management Procedure Order 2015 allows the Secretary of State to direct that an authority shall not grant permission without specific authorisation, which holds the position while the case is considered.

The third is a call-in under section 77 of the Town and Country Planning Act 1990, which removes the decision from the authority entirely. The application is then determined by the Secretary of State following an inquiry, with the inspector reporting rather than deciding.

Call-in and referral are separate mechanisms and should not be conflated. A referral is a duty on the authority in defined categories. A call-in is a discretion exercised by the Secretary of State, usually against published policy on matters of more than local importance, and it can happen whether or not there has been a referral.

The time a referral adds

Build the referral into the programme rather than treating it as an unknown.

The sequence is: committee resolves to grant subject to referral, the authority sends the referral with its officer report and the consultation responses, the Secretary of State considers it within a stated period, and the authority issues the decision once that period has expired or a response confirms no intervention. The period can be extended, and extensions are not unusual on contentious Green Belt cases.

Two consequences worth planning for. A resolution to grant is not a permission, and nothing can be relied upon until the notice is issued. And where a section 106 agreement is being negotiated in parallel, the referral period is useful time rather than lost time, so run them together.

Where an authority is simply not determining the application within any reasonable period, the alternative route is an appeal against non-determination, with the trade-offs set out in appealing non-determination instead of waiting. A duplicate application is the other option, described in twin-tracking a duplicate application.

Presenting the departure case

A departure application lives or dies on the planning statement, and the statement has to do four things in order.

1. Identify the conflict precisely. Name the policies the proposal does not comply with, quote the relevant wording, and state the extent of the conflict rather than minimising it.
2. Assess the plan as a whole. Set out the policies the proposal does comply with, and reach a conclusion on whether there is conflict with the development plan taken as a whole, because that is the section 38(6) question.
3. Address the age and status of the plan. If relevant policies are out of date, say which and why, and set out the consequence for the balance.
4. Set out the material considerations that are said to indicate otherwise, with evidence attached to each: housing land supply position, economic benefits, delivery of infrastructure, environmental gains, and the absence of harm on the matters the policy was protecting.

Then perform the balance explicitly. Officers writing a committee report for a departure need a structure they can adopt, and a statement that hands them one tends to be quoted rather than argued with.

PlanScope can draft that Planning Statement, structured around section 38(6) and the adopted policies, for review by a qualified planner before submission.

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.