Update: planning

The Planning and Compulsory Purchase Act 2004 introduced a whole new development plan system based upon regional spatial strategies, and local development frameworks, the latter containing local development documents (LDDs), of which development plan documents are subject to examination by inspectors. The new planning system has already claimed its first victims, as inspectors have rejected the Stafford and Lichfield core strategic LDDs as 'unsound'.

Outline planning permission: up in the flames?

The European Court of Justice (ECJ) has provided another bombshell for the British planning system. This time it concerns the approach to reserved matters approval and the requirements of an environmental impact assessment (EIA). In R (Barker) v Bromley London Borough Council (Case C-290/03) [2006] WLR (D) 117, Mrs Barker challenged the council's decision that an EIA was not required at the reserved matters stage of the planning process in relation to a leisure development at Crystal Palace '“ once the site of the great glass structure tragically destroyed by fire. As a matter of domestic law, an EIA could only be required at the outline planning permission stage. The House of Lords referred the matter as a preliminary reference under Art 234 of the EC Treaty.

The ECJ reiterated that the EIA Directive (Directive 85/337/EEC) requires an EIA to be submitted wherever 'development consent' is granted. It held that 'development consent' is ''¦the decision'¦ which entitles the developer to proceed with the project'. The ECJ ruled that, given that obtaining a development consent is a multi-stage process, an EIA should be carried out if it becomes apparent during the second stage that one should be carried out. Accordingly, national law cannot preclude an EIA at the reserved matters stage. This raises the possibility that reserved matters approval could be refused despite the existence of a valid outline planning permission. In parallel with the decision in Barker, the ECJ has ruled in infraction proceedings in Commission v UK (Case C-508/03) that the UK regulations on EIA did not correctly transpose the Directive as amended.

The Department of Communities and Local Government has issued guidance following the ECJ's ruling (a similar letter has been sent by the Scottish Executive). It states that local planning authorities should have regard to Circular 02/99 and undertake a screening process at the reserved matters stage regardless of whether EIA was carried out at the outline stage. The ECJ's ruling does not change the guidance in Circular 02/99 requiring an EIA at the earliest stage possible, that is, before the grant of outline planning permissions. The greatest potential threat from the ECJ's ruling is to older outline planning permissions where EIA was not required, and where all matters were reserved. The infraction proceedings made clear that the EIA Regulations and Circular 02/99 will need to be amended following the ECJ's judgment. However, the interim guidance states that the final guidance on the full implication of the ECJ's judgment will only be published following the outcome of the Barker proceedings in the House of Lords in November this year.

Time limits for enforcement and EIA: a ticking time bomb?

In Case C-98/04 Commission v UK the Commission alleged that the system of granting certificates under s 191 of the Town and Country Planning Act 1990, which certifies that a development is immune from enforcement action following the expiry of the time limit for enforcement, failed to transpose the EIA directive adequately. The Commission argued that the certificate system was capable of rendering lawful development that had been carried out without an EIA despite the fact that an EIA would have been required if an application for planning permission had been made. The Advocate General agreed with the Commission. However, the ECJ itself side-stepped the question on a technicality. The ECJ stated that the certificate was simply the logical consequence of the time limit provision for enforcement. Since the Commission had not directly challenged the time limit provisions, the ECJ held that the complaint was not made out. However, the ECJ's judgment has left open the prospect of future properly constituted challenge.

Town and village greens

In recent years, one of best weapons in the arsenal of those opposed to development was the registration of the land as a village green. This largely resulted from the effect of the decision of the House of Lords in R v Oxfordshire County Council ex parte Sunningwell PC [2000] 1 AC 335. The House of Lords has recently reconsidered the village green regime in Oxfordshire County Council v Oxford City Council [2006] UKHL 25. The case concerned the status of nine acres of land belonging to the City Council called the Trap Grounds.

Local authorities, as Registration Authorities, are obliged to register all greens. The House of Lords held that land cannot be a green unless it has been registered. Therefore, if local residents can establish that a significant number of them have carried out lawful sports and pastimes on the land as of right for a period of at least 20 years, continuing up to and including the date of application for registration, the land can be registered as a green. The lawful sports and pastimes can be informal activities, such as dog-walking, picnics, blackberry-picking or games. In addition, once the land has been registered as a green, under s 12 of the Inclosure Act 1857 and s 29 of the Commons Act 1876, anyone causing damage to a green or other recreation land, or who builds on the land, or interferes with its use, can be summarily convicted of an offence and is liable to a fine. Therefore, once land has been registered as a green, the landowner cannot act in any way to prevent the local community from indulging in sports and pastimes on the land. Hence, the land cannot be developed or built upon.

Bias

In Condron v National Assembly of Wales [2005] EWHC 3007 (Admin), Lindsay J quashed a decision of the National Assembly to grant planning permission for a mining consent on the grounds of apparent bias. The apparent bias arose from a conversation between an objector and a member of the planning committee. The claimant's account of the conversation was described in the following terms in the judgment:

'It was a reasonably brief conversation but during this I explained that he had two little boys and asked him whether he would be concerned about the proposal being developed close to their school. He agreed that it was a concern but concluded in English, that he was 'going to go with the inspector's report'.'

This case is on appeal to the Court of Appeal.

Another case involving apparent bias is also currently on appeal to the Court of Appeal. In R (Port Regis School Ltd) v North Dorset District Council [2006] EWHC 742 (Admin), an agricultural society had applied for planning permission to use agricultural land as a showground, upon which it wanted to erect a pavilion. A supporting business plan indicated that a room within the pavilion would be dedicated to the local Masonic lodge, which would be providing a capital contribution towards the scheme. The planning officer recommended refusing the application, the full council decided on the chair's casting vote to grant planning permission. The claimant local school sought judicial review of this decision, contending that it was unlawful because of apparent bias. The chair and one other member of the council who had voted in favour of granting permission were freemasons, albeit that neither was a member of the local Masonic lodge.

Both members had previously declared their membership of the freemasons, in accordance with the authority's code of conduct, adopted pursuant to the Local Government Act 2000, but neither had declared any prejudicial interest in the planning application. The claimant argued that the 'oath of mutual assistance' sworn by all freemasons gave rise to an apparent bias. Newman J dismissed the application, holding that a fair-minded observer would not have concluded that there was a real possibility of apparent bias affecting the decision of the full council. The court examined what the principle of 'mutual assistance' actually means within freemasonry. Lindsay J concluded that the true meaning to be attributed to the oath of mutual assistance is that, when all the oaths, declarations and rituals are read together and in context, freemasonry does not require a freemason, when in local government, to favour other freemasons or the interests of freemasonry. By its own standards, freemasonry underpins the requirements of impartiality and fairness set by the law. A fair-minded approach to that information does not allow for a suspicion of unhealthy influence in public life and, in the present case, the councillors' membership of the freemasons did not give rise to apparent bias.

Change of land ownership: taste the difference

Since planning permission is concerned with the use of land it is rare that the identity of the user will have any part to play (personal permissions for gypsies are the obvious common exception). In R (Horne & Meredith Properties Ltd) v Bridgnorth District Council [2005] EWHC 2251 (Admin), His Honour Judge Mole QC sitting as a High Court judge held that the change in ownership of a competing supermarket store from Somerfield to Sainsburys was a material consideration that required a reconsideration of the planning application. The application for planning permission had been supported by a retail assessment that sought to show both a qualitative and quantitative need for the proposed development. The court held that it was inescapable that the assessment might change when a significantly stronger competitor, as Sainsbury's was, occupied the Somerfield floor space. The effect of the change was material in that it had some weight in the decision-making process, even if it might not be determinative

Losing the (green) plot?

One of the more controversial forms of property speculation involves the selling of green field plots to investors. The plots are marked out by poles. The high court upheld an inspector's decision that the marking out with poles amounted to development (Berstone Ltd v First Secretary of State, CO/7101/2005, 30 June 2006, Mole HHJ).

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