planning law news – December 2011
In this issue, Blake Lapthorn's Planning team looks at:
Localism Act 2011
On 15 November 2011 the Localism Bill finally
gained royal assent. A few provisions are immediately in force and
more are due to come into force on 16 January 2012. The majority
will be brought in by commencement orders at a later date,
currently thought to be around spring next year.
Regional Spatial Strategies (RSS) will remain
in place until the strategic environmental assessments and
sustainability appraisals relating to each RSS have been concluded
and a revocation order is finally issued by the Government.
Nonetheless the weight to be attributed to the RSS in the decision
making process will continue to wane despite the fact it continues
to form part of the statutory development plan for the time
being.
Nonetheless, the new duty to co-operate, in
the planning of sustainable development, placed on local
authorities is in force care of a new s33A in the Planning and
Compulsory Purchase Act 2004 inserted by s110 of the Localism Act.
The duty is intended to offset the abolition of the RSS but is
likely to cause substantial debate, both at examinations in public
and determinations of planning applications, on whether local
authorities have fulfilled the duty. Guidance is expected to be
published next year to which decision makers should have
regard.
The pending revocation of RSS will also put
the spotlight on Core Strategies in identifying housing land supply
and setting local housing targets. The draft National Planning
Policy Framework (NPPF) required an evidence base to be used to
ensure local plans met the full requirement of market housing in an
area. This requirement, to fully consider strategic housing, is
likely to place a heavy burden on local authorities, both
financially and administratively, in adopting new policies. The
lacuna this could create and the litigation that could arise has
already been seen in a few cases where, on appeal, council's have
stated their intent to re-examine housing supply and needs due to
the legislative changes. The argument has been accepted in
preference to developers' arguments that housing land and supply
shortfall existed and therefore permission should not be granted in
cases in Romsey, Hampshire and Barton Farm, Winchester (Cala Homes
case). The appeals were considered premature in the face of
emerging policy. In effect, it seems council's may be given
reasonable time to regularise their policies. These early decisions
are likely to be challenged as developers have little, if any,
certainty.
Provisions relating to the preparation of
neighbourhood planning documents are in place via ss117 to 120 of
the Localism Act 2011 although the details are currently being
consulted on in the Neighbourhood Planning Regulations 2012
Consultation.
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why being 'prompt' remains critical in judicial review
The High Court (in R (Macrae) v County of
Herefordshire District Council) has held that the requirement
for an application for judicial review to be brought promptly
remains good law in cases where the grounds of challenge are not
based on EU law or national law giving effect to such. The decision
re-affirms the decision in R (Buglife: the Invertebrate
Conservation Trust) v Medway Council.
Contrast this with cases where grounds are
based on EU law or national law giving effect to EU law. In such
cases the idea of promptness is regarded as offending EU legal
principles of effectiveness and certainty. This was established in
the case of Uniplex v NHS Business Services Authority and
has been re-affirmed, in a planning context, by R (U &
Partners (East Anglia) Ltd) v Broads Authority where a
judicial review application against a grant of planning permission
for an EIA development was made a week before expiration of the
three month time limit. The claim had not been brought promptly but
the judge was bound by Uniplex to ignore Civil Procedure Rule 54.5,
from where the 'promptly' rule originates, and quash the grant.
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Wildlife and Habitats Regulations under scrutiny
The Autumn Statement delivered on 29 November
2011 revealed the Government's concern that "endless
environmental goals, however worthy" will reduce the
likelihood of green objectives being achieved and cause businesses
to fail because of "ridiculous costs" being placed on
firms by "gold plated EU rules on habitats".
Following the Autumn Statement DEFRA announced
a review of the implementation of the EU Habitats and Wild Birds
Directives to ensure the most conducive climate for future economic
growth. DEFRA clarified that the review will be focussed on
obligations that affect the authorisation process for proposed
development with the aim of lowering burden on businesses while
upholding the purpose of the directives.
Wildlife bodies clamoured to denounce the
review stating that, in combination with the Localism Act and the
National Planning Policy Framework, the review will make it easier
for countryside and green heritage to be developed. They argue that
the natural environment improves developments, creating more
attractive places to live and work, and consequently adding a
financial value.
As a timely example the courts, in R
(Cornwall Waste Forum, St Dennis Branch) v Cornwall Council,
quashed planning permission for an energy-from-waste installation
due to a failure on the part of the planning inspector, who granted
permission, and the Environment Agency, that granted an
environmental permit to undertake appropriate assessment under
regulation 61(1) of the Conservation of Habitats and Species
Regulations 2010 as regards the effect of the development on nearby
Special Areas of Conservation (SAC). Objectors had a legitimate
expectation that the planning inspector would consider evidence and
give views on an appropriate assessment but instead misdirected
himself that the effect of air emissions was not a matter for the
planning regime. PPS 10 requires that development harmful to an SAC
should not be permitted.
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more changes on the way to listed building regime, highways and
environment
Changes to the listed building regime are a
priority according to the Government's Penfold Review concerning
non-planning consents and attention will now be turned to
consulting on changes in this area by the Department of Business,
Innovation and Skills (BIS).
The four main tenets are to:
- scrap unnecessary consents and simplify others
- reform working practice in determining authorities
- set timeframes for determining such applications, and
- make it easier to apply.
Examples of possible changes to achieve such
aims include:
- legally defining a listed building’s special interest so only
that part of the building with special interest is protected by
regulation. Therefore, works that impact other parts of the
building will not require the consent and application numbers
should be decreased
- allowing developers to apply for a Certificate of Immunity from
listing at any time and which will remain valid for five years.
Contrast the current requirement of applying only after an
application for planning permission
- Statutory Management Agreements between owners and authorities
sanctioning specified works to be done without an application. This
concept, of increasing efficiency, borrows heavily from the idea,
for example, of Planning Performance Agreements
- removing the need for Conservation Area Consents required for
the demolition of unlisted buildings and to make such demolition
subject to the normal planning system
- introducing prior approval for specified works to listed
buildings, therefore creating a deemed grant if no response, to a
notification, by the local authority is received, and
- introducing certified applications for listed building consent
by accredited independent agents.
Finally, and equally as important, the BIS
document clarifies that the Government will be consulting on
changes to environmental permitting as well as current arrangements
for highways and transport consents. More consenting regimes will
come under the remit of environmental permitting and will include
water abstraction and impoundment, flood defence and fish pass
consenting.
As regards highways and transport there will
be consultation to improve stopping up orders by potentially
processing such orders simultaneously with planning permissions and
merging them into the planning system.
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falsification of environmental records
Under regulation 32(1)(g) of the Pollution
Prevention and Control (England and Wales) Regulations 2000 (now
regulation 38 of the Environmental Permitting (England and Wales)
Regulations 2010) it is an offence for a company to intentionally
make false entries in records required under environmental
permits.
The Court of Appeal has clarified that
criminal liability for breaching the provision cannot fall on a
company where an individual employee, given the responsibility to
keep such records, has caused the breach. In such cases it is the
individual who is liable for the same offence (St. Regis Paper
Company Ltd v R).
An exception to this general rule remains;
where the intent can be attributed to a company if the company
could be regarded as having the directing mind and will (Tesco
Supermarkets Ltd v Nattrass). In the extant case the exception
did not apply.
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