Departure applications and the consultation direction

A departure from the development plan is an application that conflicts with the adopted plan but which the authority is minded to approve anyway. It is not a separate application type and there is no departure form. What changes is the publicity the application attracts, and in defined categories, a duty on the council to tell the Secretary of State before it issues a permission. Both of those add weeks to a timetable, which is why the point matters commercially rather than only legally.

Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires determination in accordance with the development plan unless material considerations indicate otherwise. A departure is simply the second half of that sentence being used.

What makes an application a departure

The test is conflict with the plan read as a whole, not conflict with a single policy. Almost every scheme of any size breaches something, and an authority does not treat a minor conflict with a design policy as a departure.

What usually does count is a proposal that offends a spatial or strategic policy. Housing outside a settlement boundary. Development on an allocated employment site for a different use. Loss of designated open space. Residential development on land safeguarded for minerals. Where the conflict goes to the plan's strategy rather than its detail, the departure label attaches.

The decision on whether something is a departure is the officer's, and it is worth asking early. If you think your scheme is one and the officer does not, the answer affects the advertising, the committee route and the risk of a late intervention. And if the officer thinks it is one and you do not, you need to know before the newspaper notice appears.

Where the conflict is with a settlement boundary in particular, the analysis is well trodden, and settlement boundaries in local plans sets out how inspectors have treated them.

The extra publicity a departure attracts

The Town and Country Planning (Development Management Procedure) (England) Order 2015 sets the publicity requirements. For development that does not accord with the development plan in force, the authority must publish a notice in a local newspaper as well as display a site notice.

That newspaper advertisement is the practical marker. If you see one for your own application, the authority has classified it as a departure whether or not anyone has told you.

The advertisement has three consequences. It extends the effective consultation window, because representations received after the statutory period but before the decision still have to be considered. It reaches an audience that neighbour letters do not. And it creates a record that an objector can point to later if the authority tries to characterise the conflict as immaterial.

The consultation direction and what it covers

Separately from publicity, a direction made by the Secretary of State requires authorities to consult before granting permission for certain categories of development. The categories have changed over the years and the current direction should be checked on gov.uk rather than recalled from an older application, but the shape has been stable: certain Green Belt proposals above a stated scale, large out-of-centre retail and leisure schemes that do not accord with the plan, development affecting playing fields where the statutory consultee objects, and development affecting World Heritage Sites.

The trigger is the authority being minded to grant. A refusal does not engage the direction at all, which produces the slightly odd position that a recommendation to approve slows the application down and a recommendation to refuse does not.

Written ministerial statements sometimes add categories or alter emphasis between formal revisions, so check those too. How they interact with policy is covered in written ministerial statements in planning.

What notification does to the timetable

Once the authority notifies the Secretary of State, it cannot issue the permission until the period allowed for a response has passed or a response is received. The Secretary of State can do nothing, can issue a holding direction that freezes the decision while call-in is considered, or can call the application in for determination.

Most notifications end with no intervention. The cost is time rather than outcome. On a committee cycle, the sequence of resolution to grant, notification, response period and then issue of the decision commonly adds a month or more, and it can add far more where a holding direction is issued. The mechanics of that are set out in holding directions in planning.

Plan for it. A resolution to grant is not a permission, and a section 106 agreement that has to complete within a fixed period from resolution can expire while the file sits with the department.

How officers justify a departure recommendation

The report has to do three things, and applicants can make each of them easier.

1. Identify the conflict precisely, naming the policies and explaining the nature of the breach rather than describing it in general terms.
2. Identify the material considerations that are said to outweigh the conflict, and explain the weight given to each.
3. Reach and record a conclusion under section 38(6).

The material considerations that carry weight in practice are the familiar ones: the age and consistency of the plan with national policy, housing land supply, the absence of harm in the particular circumstances, benefits that can be secured by obligation, and the fallback position if permission is refused.

What does not work is a generalised assertion that the plan is old. Age alone reduces weight only where the policies are demonstrably out of step with current national policy, and the officer has to say which policies and why.

Committee treatment and the political dimension

Departures are rarely delegated. Most constitutions send them to committee, sometimes to a full council meeting where the conflict is strategic.

That changes the drafting job. A committee report for a departure is read by members who will be asked in public why they are approving something the plan says no to, and the answer has to be sayable in two sentences. Applicants who supply that sentence in their planning statement, rather than burying it on page forty, tend to get it repeated in the officer report.

Expect a deferral to be more likely than usual. And expect a decision to attract closer scrutiny on challenge, because a departure decision that fails to grapple with section 38(6) is the classic ground for judicial review.

Evidence an applicant should supply

Put the conflict at the front of the planning statement, not in a section headed policy compliance near the end. Name the policies breached, state the extent of the breach, then set out the considerations relied on.

Supporting evidence should be proportionate but specific. Where housing land supply is relied on, provide the calculation rather than the assertion. Where the fallback is a permitted development right or an extant permission, evidence that it is deliverable. Where benefits are relied on, quantify them and offer the mechanism that secures them.

One honest caveat. Departures are decided on judgement, and two authorities faced with similar facts reach different conclusions more often in this area than almost any other. Build the case, but price the risk.

Enter your postcode on PlanScope to see which supporting documents your application is likely to need.

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.