#5274 - Planning Law - Environmental Law

• TCPA 1990 – S57(1) - you need planning permission for any development of land.

• S55 – development of land is either operational development (building, mining, engineering and other operations) or material change of use.

(1A) Building includes…

(2) Things not to be taken as development.

(4) + (5) Further definitions of things included.

• Chas Storer (2009) – waste processing site which has accepted processed paper not accepting comingled waste.

Court - highlighted that the meaning of development will determine what is governed by planning law. Also the question of what counts as material change is very fact-specific and thus turns on specific circumstances of case. Finally, courts will approach Planning Inspector’s decision with much reference to what PI wrote and what that means.

Notice of Planning Application.

• S65 – development orders may make provision requiring notice to be given of any application for planning permission – and provide for publicising such applications and the form of the notice given. The notice to be given may vary with the different lever of planning permission.

This must be satisfied before they can entertain the application.

• Development Order 1995 – creates 3 different types of publicity requirements for different levels of planning application (major development etc.). In Gavin (2003) the court gave a lot of leeway to the council to decide how to publicise the development but still required that the specifications for publicity were met.

How and what to consider?

• S70 – (1) LPA, upon application for planning permission, may grant PP either unconditionally or on conditions or they may refuse the application.

(2) Authority is to have regard to provisions of development plan so far as material and other material considerations.

Material Considerations:

• Stringer (1971) – any consideration which relates to the use and development of the land is capable of being a planning consideration and thus a material one – whether it is actually material will depend on circumstances.

Also public interest will include private interests and so both will be considered by LPA/SoS. (thus discretion of decision maker is wide since so many things are considerable/count).

• Tesco (1995) – Lord Hoffmann – Whether something is a material consideration is a question of law whilst the weight a material consideration is given is a question of planning judgement. Provided it has regard to all material considerations it can give them whatever weight it wishes. Courts are concerned only with the legality of the decision making process, not with merits of decision.

• Enviro protection can be a material consideration in itself – NPPF para 109, planning system should contribute to local enviro by: protecting valued landscapes, recognising wider benefits of ecosystem services, minimising impact on biodiversity, preventing unacceptable levels of pollution, and mitigating spoiled land.

• Pollution Regs: NPPF sets out various considerations inc. that other schemes of regs exist in relation to pollution/idea of regimes being complementary.

Hopkins (2006) – s288 claim saying that inspector should have found the relevant pollution regime to sufficiently protect from dust particles – LPAs may leave pollution considerations to reg schemes where appropriate but are not obliged to do so. No primacy need be given to the judgement of the regulator over the LPA. It is the impact, rather than the control, of emissions which LPA should focus on.

Harrison (2009) – fact that impact of pollution might be capable of being controlled by a pollution regime did not necessarily mean the only possible option available to an Inspector was to leave everything to that regime in terms of material consideration of pollution and pollution regs.

• Nature Conservation: 1994 Regs – authority in exercising functions to have regard of the requirements of Habitats Directive.

Morge (2011) – Lord Brown – another case of overlapping regulations. The planning authority had to take account of the regs but were perfectly OK to give permission where it seemed that they were complied with. Indeed only where it seemed that licence under conservation regs unlikely either under directive 12(1) or via derogation would it not be OK.

• Waste Management: Horner (2007) – concerning claim that Council failed to consider BPEO policy, law is: (i) planning permission needn’t meet BPEO, (ii) sufficient for LPA to keep in mind as important but not overriding, (iii) should consider in general waste plan and in each application, (iv) can’t expect a full evaluation in each application due to resources, (v) intensity of consideration (in terms of referring to and applying them) depends on whether there is a local waste management plan and what it says, (vi) where there is no such plan the LPA must undertake some BPEO analysis.

National Policy:

• NPPF: Largely a policy document and has no statutory basis but is used.

NPPF constitutes guidance for authorities in drawing up plans and as a material consideration.

• Planning Circulars: No statutory basis but understood as quasi legislative as they prescribe for specific situations and not broad policy as above.

Enstone Uplands (2009) – Important to remember circulars are not enactments and whilst a good indicator as to legality it is not necessary to comply. More about good practice.

• Dear Chief Planning Officer: Document of descriptive nature as to developments in planning policy/law.

Cala Homes (2011) – SoS stated that his intention to change law must be accounted for as material consideration – since letter addressed expert audience and didn’t prescribe weight to be given to consideration it was not unlawful to give such advice since they could happily give it no weight at all.

• National Policy Statements: S104 Planning Act - SoS must have regard to NPSs with regard to “nationally significant infrastructure projects”.

They are also material considerations with regard to planning applications.

Local Development Frameworks?

• Creation? Barratt (2010) – Procedural requirements for creation: (i) authority must regard national policies and SoS advice, (ii) give reasoned justification, (iii) submit plan to planning inspector to check whether it satisfies these, (iv) give opportunity for people trying to change plan to see inspector, (v) inspector must make recommendations and give reasons for them, (vi) must follow inspectors advice.

S39 - any person who or body which exercises any function in...