When to consult us

This is the legislative background for consultation with us and our duty to respond. Here are full details of the legislation.

Town & Country Planning (Development Management Procedure) Order 2015 (as amended) (DMPO)

Article 18 (1) ‘Consultations before the grant of permission' sets out that subject to paragraph 1(A):

"before granting planning permission for development which, in their opinion, falls within a category set out in the Table in Schedule 4, a local planning authority must consult the authority or person mentioned in relation to that category...".

Paragraph 1(A) states that:

"Paragraph (1) does not apply in relation to an application for technical details consent unless the authority or person mentioned in relation to a category in the Table in Schedule 4 has advised the local planning authority by a valid notice that they wish to be consulted in relation to the development.

(1B) For the purposes of paragraph (1A) a notice is valid if it specifies a particular site and it was given in writing to the local planning authority before the date on which the permission in principle to which the application for technical details consent relates was granted.".

Article 20 (2) ‘Consultations before the grant of planning permission pursuant to section 73 or the grant of a replacement planning permission subject to a new time limit' sets out that:

"Before granting planning permission on an application in relation to which this paragraph applies, the local planning authority must consult such authorities or persons falling within a category set out in the Table in Schedule 4 as the local planning authority consider appropriate".

For applications for development

The Canal & River Trust is listed at (za) in the Table in Schedule 4 of the DMPO as a consultee on:

Development likely to affect:

(i) any inland waterway (whether natural or artificial) or reservoir owned or managed by the Canal & River Trust, or
(ii) any canal feeder channel, watercourse, let off or culvert, which is within an area which has been notified for the purposes of this provision to the local planning authority by the Canal & River Trust.

Here are details of our notified area.

The order provides for us to be consulted where development is 'likely to affect' the particular waterway concerned. A letter from the Department of Environment to Chief Planning Officers on 9 June 1997 advised that:

"development likely to affect the particular waterway" covered:

• development which involves any digging of foundations
• the building of anything large which could impose a loading on the side of the waterway
• any development which could create a breach in the waterway for example by increasing surface water discharges
• any major change of land use, for example from fields to housing."

In summary, local planning authorities have to consider (1) if the proposal falls within our notified area and if it does (2) is the development likely to affect our infrastructure. If the answer is yes, then there is a statutory requirement to consult the Trust.

When considering whether or not development is likely to affect our network we suggest that thought should also be given to whether or not the access to the development is gained over the waterway by way of a bridge.

Article 18 (1) also sets out exceptions to the requirement to consult including where ‘the authority or person so mentioned has advised the local planning authority that they do not wish to be consulted'. We have not set out any such exceptions. The letter from the Department of Environment did however advise that it was not necessary to consult British Waterways (the Canal & River Trust's predecessor organisation) about various types of household & minor development which “would not impact on the structure of the waterway or its integrity. This includes domestic roof extensions, changes to the external appearance of buildings which do not involve foundations or additional loadings and the erection of sheds, fences etc. where no significant foundation is required.”

For permission in principle

The Town & Country Planning (Brownfield Land Register) Regulations 2017 Article 12 sets out that before a LPA adds a site to the part 2 brownfield land register or determines an application for permission in principle (from a third party), it must consult in accordance with the requirements for consultation set out in the table in schedule 4 of the Town & Country Planning (Development Management Procedure) (England) Order 2015 (as amended).

Town & Country Planning (Brownfield Land Register) Regulations 2017 Article 12 states:

Consultation with other persons, bodies or authorities before entering land in Part 2.

12. (1) Where a local planning authority propose to enter land in Part 2 and residential development of the land would, in the opinion of the local planning authority, fall within a category set out in the Table in Schedule 4 to the Town and Country Planning (Development Management Procedure) (England) Order 2015(1), the local planning authority must consult any person, body or authority mentioned in relation to that category.

(2) The local planning authority must also consult any person, body or authority with whom they would have been required to consult in relation to an application for planning permission for residential development of the land.

(3) The duty to consult a particular person, body or authority in accordance with paragraph (1) or (2) does not apply where:

(a) that authority is the local planning authority
(b) that person, body or authority has advised the local planning authority that they do not wish to be consulted about proposed entries in Part 2 situated within a particular area, and the land in question falls within that area; or
(c) that person, body or authority has published standing advice in relation to a category of development and the potential development falls within that category.

(4) The exception in paragraph (3)(c) does not apply where the standing advice was published before the period of 2 years ending with the date that requisite notice in relation to that land was given in accordance with paragraph (1) of regulation 6.

We're listed at (za) in the Table in Schedule 4 - see the ‘for applications for development' section above.

Due to the varied character of our network we haven't produced standing advice.

For technical details consent

The Town and Country Planning (Development Management Procedure) (England) Order 2015 (DMPO) provides the framework for consultation on planning applications in England. This includes applications for technical details consent. Article 18 (1) and (1A) ‘Consultations before the grant of permission' (see above) sets out the position for consulting at technical details stage.

It's for us to decide if we want to be consulted at technical details stage. We do this by issuing a notice to the LPA before permission in principle is granted to say we want to be a statutory consultee at technical details stage.

For applications for prior approvals

The need to consult the Canal & River Trust in accordance with Schedule 4 of the DMPO also applies to applications for the prior approval of certain permitted electronic communications apparatus (including mobile phone operator masts) under Part 16 of the The Town and Country Planning (General Permitted Development) (England) Order 2015, as amended. The notified area for such prior approvals should be taken to be that applicable to household and minor scale development.

For applications for advertisement consent

The Town and Country Planning (Control of Advertisements) (England) Regulations 2007, Part 3, and Express Consent Article (13) Duty to consult sets out that:

(1) Before granting an express consent, the local planning authority shall consult -
(d) Where the authority considers that a grant of consent may affect the safety of persons using any railway, waterway, dock, harbour or aerodrome (civil or military), the person responsible for its operation and, in the case of coastal waters, the Corporation of Trinity House

We should therefore be consulted where the grant of advertisement consent would affect the safety of persons using any waterway, dock or harbour for which we are the navigation or harbour authority. See details of our waterways.

Our duty to respond

Article 22 of The Town and Country Planning (Development Management Procedure) (England) Order 2015 sets out the duty to respond to consultation. It sets out which applications the duty relates to. It also covers the timescale and form of the response that is required.

In terms of timescale, "the period prescribed… is the period of 21 days beginning with the day on which:

(a) the document on which the views of consultees are sought, or
(b) where there is more than one such document and they are sent on different days, the last of those documents, is received by the consultee, or such other period as may be agreed in writing between the consultee and the consultor".

Planning Practice Guidance states "The 21 day period does not begin until the statutory consultee in question has such information as will enable it to provide a substantive response". Paragraph: 011 Reference ID: 15-011-20140306

The Trust is also required to make a substantive response. This "is one which:

(a) states that the consultee has no comment to make
(b) states that, on the basis of the information available, the consultee is content with the development proposed
(c) refers the consultor to current standing advice by the consultee on the subject of the consultation, or
(d) provides advice to the consultor".

Due to the varied character of our network we have not produced standing advice.

Contact us if you have a query over whether or not to consult us.