UK: Environment Bulletin: Town & Country Planning

Last Updated: 6 December 2007
Article by Maria Cull, Sebastian Charles and John Garbutt

New Control Of Advertisements Regulations

New regulations for the control of advertisements came into force on 6 April 2007. The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 SI 2007 No 783 largely replace similarly named regulations of 1992 but with some changes as follows:

  • There is now a definition of "advertiser";
  • Consideration of the effect of an advertisement by a planning authority must now include regard to the local visual and aural amenity;
  • Planning authorities must take into account the provisions of the development plan, where material;
  • Applications for express consent for certain types of advertisement within an area of special control may be declined without determination;
  • Advertisements on a balloon are no longer excepted from control.

Otherwise the Regulations continue to categorise advertisements in 3 ways, ie (i) those excepted from control; (ii) those classes where there is a deemed consent; and (iii) those that require express consent.

DCLG has published circular 03/07: Town & Country Planning (Control of Advertisements) (England) Regulations 2007. This provides guidance on the new system of control and replaces circulars 15/94 and 5/92 where those circulars apply in England.

We have produced a more detailed guide on the existing and new provisions. Please contact the Planning and Environment Group if you would like to see a copy of this.

Minor errors in the main regulations have made it necessary to publish some amendments - see the Town and Country Planning (Control of Advertisements) (England) (Amendment) Regulations 2007 SI2007 No 1739.

In the Spring 2007 edition of the Bulletin we drew attention to amendments to environmental impact assessment provisions, in particular changes which have been made to more fully implement public participation requirements in the European directive on environmental impact assessment. Readers may know that, beside the main regulations, there are a number of further requirements related to special types of development. New sets of regulations have now emerged. These are:

  • The Highways (Environmental Impact Assessment) Regulations 2007 SI2007 No 1062 - in force from 26 April 2007;
  • The Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (England and Northern Ireland) Regulations 2007 SI2007 No 1067, coming into force on 1 May 2007.
  • The Marine Works (Environmental Impact Assessment) Regulations 2007 SI 2007 No 1518, in force from 24 June 2007.

These sets of regulations primarily incorporate requirements of the Directive and prescribe in more detail the public participation requirements. They will only apply to projects starting after the date when the regulations come into force.

Three further sets of regulations merely make amendments to the main regulations in each case, adding further publicity and public participation provisions, to accord with the directive. These are:

  • The Pipeline Works (Environmental Impact Assessment) (Amendment) Regulations 2007 SI2007 No 1992.
  • The Gas Transporter Pipeline Works (Environmental Impact Assessment) (Amendment) Regulations 2007 SI2007 No 1996.
  • The Electricity Works (Environmental Impact Assessment) (England and Wales) (Amendment) Regulations 2007 SI2007 No 1977.

In each case the amending regulations came into force on 20 August 2007.

Enforcement Appeal And Estoppel

There were mercifully unusual circumstances in the recent case of R (East Herts DC) v First Secretary of State (2007) EWHC 834 (Admin). The facts were that the authority had issued an enforcement notice on the grounds that the developer had erected a building for bed and breakfast lettings, otherwise than in accordance with the approved plan. The developer appealed on the ground that there had been no breach of planning control. The appeal was dealt with by way of written representations but, in error, the authority failed to submit any representations or statement of case. The inspector found in favour of the developer because he felt that with the lack of factual information from the authority he had no alternative but to allow the appeal to quash the notice. However, that would not prejudice the authority from issuing a second notice, which they duly did. On the second appeal, a new inspector found that the appeal having previously succeeded, there had inevitably been a conclusion that there was no breach of planning control. Thus, there was no basis upon which a second enforcement notice could be issued and it was therefore a nullity and was quashed. The authority appealed to the administrative court.

Mr Justice Sullivan supported the authority, concluding that it was implicit in the concept of cause of action estoppel that a matter had been adjudicated, not that the tribunal, through lack of information was unable to adjudicate. Where justice required, the cause of action estoppel rule can be set aside, for example, where the question of fairness to the public interest was brought into play.

The judge found that no injustice would be caused to the developer because, on a further consideration of the appeal, it would be able to present its evidence to demonstrate that there was no breach of planning control.

Accordingly, the second inspector's decision was quashed and that would allow the second appeal to go forward.

Council Members' Duties And Bias - New Case

As is well known, stringent duties are placed upon local government members to be fair minded and to avoid bias. Any planning decision reached by a member of a planning committee has to be made fairly without pre-determination. An important factor is the perception of the public that fairness and propriety attends those responsibilities of members. Some guidance was made available in the recent case of R (Ware) v Neath Port Talbot CBC and Another (Admin Court 30.3.07). The planning committee had to consider an application for planning permission and hazardous waste consent for a high pressure gas reduction system. The application had attracted local objection and 4 planning committee members who had formed a non-politically aligned group attended a meeting where opponents of the scheme discussed their objections. The councillors had not expressed any view as to the application at that meeting. The council's monitoring officer advised those members to make a site visit and that failure to do so might call into question the decision making process, even though those members were not precluded from the committee. When the application came to be considered the 4 councillors were asked to make a declaration about their attendance at the earlier meeting when the application had been discussed. The councillors responded asking whether it would be better for them to leave the committee during the process of decision making on these applications. The monitoring officer advised that this was a matter for them but there was the possibility of a complaint to the Ombudsman if they participated in the decision making process. The result was that the 4 councillors withdrew and the application was approved by 13 votes to 12. Mr Ware sought judicial review of the decision of the council on the basis that the wrong advice had been given by the monitoring officer and, without the four councillors' participation, the decision was flawed and should be quashed.

Mr Justice Collins drew attention to the need for councillors to make decisions fairly and without pre-determination, with an open mind but capable of being changed in response to the submission of argument. There was no evidence that the councillors had acted other than with propriety but equally the monitoring officers had issued overcautious advice. The proper advice should have been that as there was no pre-determination on the part of the councillors then they should stay and vote on the committee. On the correct interpretation of the facts the decision of the planning committee was unsafe and it was appropriate that the planning permission and hazardous waste consent should be quashed.

This is a very difficult area for local authorities and practitioners. The case is a useful guide, albeit that it turns on its individual facts.

Planning White Paper Published

The Department for Communities and Local Government has recently published the long awaited planning White Paper, described as including "major reform of the planning regime". The government seeks to simplify and speed up the planning regime, offering as priority major transport, energy, waste and water infrastructure projects. The proposals include:

  • A new national policy framework;
  • A new independent commission to take decisions on the above infrastructure projects;
  • A requirement on developers to consult more widely, particularly environmental groups;
  • A requirement that new developments shall take into account climate change, with emphasis on reduced carbon emissions;
  • A reduction in red tape for the use of micro-generation technologies including solar panels and wind turbines.

The proposals have not met with universal approval. Industry is concerned about possible neglect of those significant projects which fall short of the term "nationally significant infrastructure". By the same token, there has been concern more widely about the proposals to devolve major decisions to an independent commission. Acceptance of major projects is heavily dependent upon public satisfaction with the planning process. The absence of government accountability by leaving decisions to ministers is seen as likely to present difficulties.

The White Paper is lacking in detail and further developments are awaited with interest. We shall report on an expected range of further consultation documents.

Planning Permission Reasons - New Case

The Town and Country Planning (General Development Procedure) Order 1995 requires the authority to give reasons for their decision whether there is a permission or a refusal. The Order requires that these reasons should include a summary of the relevant policies as well as the reasons for decision. The importance of full compliance was emphasised in the recent case of R (Mid Counties Cooperative Limited) -v- Forest of Dean DC and Others (2007) EWHC 1714 (Admin). The facts were that a supermarket company had made application to demolish a sports ground and 3 dwellings, in order to substitute a superstore. There was also a proposal to relocate the sports club elsewhere. Sport England had expressed concerns about the development of the sports club and the facilities. The local authority granted the planning permissions, on the basis that the development of the superstore should await the completion of the replacement sports club. Unfortunately, the local authority appears to have failed to comply with the Order. The authority had only listed the supposedly relevant policies and had not given any summary of reasons sufficient to satisfy the Order. The operator of an adjacent supermarket sought judicial review of the Council's decisions. Mr Justice Collins found in favour of the applicant, concluding that the mere listing of policies was insufficient. The Court also found that the Council had not properly dealt with Sport England's concerns in that full information had not been made available to the planning committee. Accordingly, both planning permissions were quashed.

The case gives emphasis to the importance of compliance with the Order's requirements. The need for the developer to make a fresh application would no doubt impose considerable delays. We would always advise that in important developments it is vital for developers to monitor the decision making process in order to be satisfied that the procedures are fully complied with.

Housing Green Paper Published

A recently published housing green paper proposes 3 million new homes by 2020. The green paper represents largely a restatement of long established policies, but includes what are described as more ambitious building targets, increased investment and new ways of identifying and using land for development. The green paper once more emphasises the need for more social and affordable housing and for unblocking the planning system. One new initiative worthy of mention is the publication of a supplementary ecotowns prospectus. The emphasis here would be on five new ecotowns, no doubt fully satisfying the twin aims of sustainability and carbon neutrality. Other supplementary documents emphasise a timetable for achieving zero carbon homes by 2016, higher energy efficient standards within the building regulations, along with better water efficiency.

On the assumption that a white paper will follow the green, it is to be expected that the recent flooding tragedies will result in a much stronger emphasis on flood risk prevention, a policy which is in force but where the Environment Agency appear to have insufficient teeth to protect the public interest.

The Risks And Dangers Of Part Permission

The recent case of Johnson -v- The Secretary of State (2007)EWHC 1839(Admin) serves as a warning to developers and others in circumstances where an application for planning permission is allowed only in part. The facts of the case were that planning permission was sought by Mr Johnson for the erection of new dwelling as an extension to an existing detached double garage and the conversion of two dwellings into one larger dwelling and garage. These proposals were the subject of only one application. The conversion was acceptable to the planning authority but the extension was not. Planning permission for the whole development was therefore refused. On appeal, the inspector followed the views of the planning authority but departed from their approach in allowing permission for the conversion. This put Mr Johnson in somewhat of a difficulty because he had entered into an agreement whereby he would pay the freeholder a sum of money if planning permission were granted to enhance the value of the site. Unfortunately that part of the development which was consented could not be implemented because consent for the other part of the development was needed as well. Mr Johnson applied to the Administrative court to have the decisions quashed. However he was unsuccessful. The court held that the inspector clearly had jurisdiction to grant permission for part and refuse permission for another part of any development. The fact that the inspector had not been made aware of the difficulties associated with the inter-relationship of the two developments was a matter which the court felt Mr Johnson had brought upon himself. The court also held that the impossibility of implementing the partial grant without further permission did not mean that the exercise of the discretionary power to grant a partial consent was in itself unlawful. The case is important as a reminder of the risks associated with the partial grant of permission. There are many cases where an agreement to purchase property will be conditional upon the grant of a fresh planning permission to the proposed purchaser. It is important to make clear that any permission granted is capable of being implemented in practice and for the full range of operational development and specialise(s) sought, otherwise the risk of having to make the contracted payments on a successful grant of permission may well be embarrassing. For guidance on this matter please contact the Planning and Environment Group.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.