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.

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