Departure applications: publicity, referral and the case

A departure application is one for development that does not accord with the development plan in force for the area. The label has no separate statutory procedure attached to it, and it does not make permission harder to obtain as a matter of law. What it does is trigger extra publicity, push the decision to committee in most schemes of delegation, and change the shape of the case you have to write.

Section 38(6) of the Planning and Compulsory Purchase Act 2004 still governs. Determine in accordance with the plan unless material considerations indicate otherwise. Every departure case is an argument about the second half of that sentence.

What makes an application a departure

The test is conflict with the development plan read as a whole, not conflict with a single policy. A scheme may breach a detailed design policy while complying with the strategy, and a council that labels that a departure has usually not done the reading.

The plan includes the adopted local plan, any adopted neighbourhood plan, and in London the spatial development strategy. Supplementary planning documents are not part of the plan, so conflict with an SPD is a material consideration rather than a departure.

Interpreting a policy is a matter of law, and the courts have been clear that policy wording means what it means rather than what either party would prefer. Where the conflict is real, say so plainly. Officers respect an applicant who identifies the conflict and then argues the balance far more than one who pretends there is no conflict at all.

The publicity that follows

Article 15 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 sets the publicity requirements. Where an application is for development that does not accord with the development plan, the authority must publicise it by site notice and by advertisement in a local newspaper, the same treatment given to major development and to EIA development.

Two practical consequences. The newspaper advertisement adds time before the application can be determined, so factor it into the programme rather than discovering it in week six. And the wider publicity draws objections that a purely neighbour-notified application would not, which matters if the scheme is contentious.

Where community engagement has been done before submission, record it. A Statement of Community Involvement that shows the scheme changed in response to consultation is worth having when the departure advertisement produces a postbag.

Referral, and the myth that departures always go up

The general requirement to refer every departure to the Secretary of State no longer exists. Referral now arises under the consultation direction, which is reissued periodically and lists categories of application that a local planning authority must refer where it proposes to grant permission.

The categories that matter most in practice:

• Green Belt development above a stated scale or materially higher than surrounding development.
• Development affecting playing fields where the relevant body has objected.
• Development where the Environment Agency has maintained a flood risk objection.
• Development affecting a World Heritage Site above stated thresholds.

In Greater London a separate regime applies, and applications of potential strategic importance are referred to the Mayor under the Mayor of London Order rather than to the Secretary of State. Check the current direction before advising a client that a departure will be called in, because it usually will not be.

How committees treat them

Most schemes of delegation reserve departures for committee. That is a practical matter rather than a legal one, and it changes how you prepare: the audience becomes members rather than the case officer, and the officer report becomes the document that frames the debate.

Three things follow. The planning balance has to be expressible in a paragraph. The benefits have to be specific and, where possible, secured by obligation rather than asserted. And the officer needs a form of words they can put in a recommendation, which you can help draft.

An illustrative example

Illustrative only: a 45 home scheme on a site outside the settlement boundary in an authority that cannot demonstrate a five year housing land supply. The site adjoins the built edge, has no landscape designation, and the only conflict is with the settlement boundary policy and a countryside protection policy.

The case is written in four moves. Identify the conflict with those two policies precisely. Show compliance with the rest of the plan, including design, affordable housing, drainage and biodiversity. Establish that the supply position engages the presumption and that the two policies are therefore out of date for the purpose of the balance. Then weigh the benefits, with the housing delivery quantified against the shortfall, which is where the standard method for calculating local housing need supplies the arithmetic.

The scheme is still a departure. It is simply a departure with a reasoned case attached.

Reasons that actually justify a departure

Material considerations that carry weight, roughly in the order officers find them persuasive:

1. Policies that are out of date, whether because the plan is old, because supply is short, or because national policy has moved since adoption.
2. Changed circumstances on the site or in the area since the plan was adopted, evidenced rather than asserted.
3. Benefits that would not otherwise be delivered, secured through a section 106 obligation.
4. Consistency with the plan's objectives even where a detailed policy is breached, showing the conflict is technical.
5. An emerging plan that allocates or supports the site, with weight depending on its stage.

Weak arguments, for completeness: that the policy is unfair, that a neighbouring authority takes a different view, and that permission was granted on a different site with different facts. The last one is not precedent, though consistency of decision making is itself a material consideration and worth raising where the facts do match.

What the decision notice says afterwards

A permission granted as a departure is recorded as one, and the decision notice or the officer report will say so. That matters later. A subsequent application on the same site cannot rely on the earlier grant as establishing a principle, because the balance was struck on the material considerations as they stood at that date, and those move.

It also matters for the plan. Repeated departures on the same policy are evidence that the policy is out of step, and that evidence is useful at the next plan review even though it does nothing for the application in front of you.

Drafting the case

Structure the Planning Statement so the conflict appears early rather than being buried. A reader should reach the end of page two knowing which policies are breached and why you say permission should still be granted.

A sequence that works:

1. Identify the development plan and its date.
2. Set out compliance policy by policy, and state the conflicts plainly.
3. Assess conflict with the plan as a whole, with a conclusion.
4. Set out the material considerations, each with evidence.
5. Apply the balance, explaining why the considerations outweigh the conflict.
6. Offer the obligations and conditions that secure the benefits relied on.

Where part of the scheme could stand alone if the rest fails, consider how the permission would operate, a question examined in severability.

Enter your postcode on PlanScope to see which supporting documents a scheme of this kind usually needs before you start drafting.

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.