Planning update

After endless Westminster-driven changes, the EU is having its turn with a new environmental impact assessment (EIA). The nationally significant infrastructure planning (NSIP) regime continues to evolve under further changes to be introduced before the end of this parliament and is already starting to expand outside of the classic infrastructure categories.

The Supreme Court is finally helping public and private landowners with some of the perversities of the unjust village green regime. The Court of Appeal has tackled some interesting enforcement cases and restored certainty on the question of withdrawal of planning permissions.

Modest effect

After a long journey, a new directive on EIA has been finalised (Directive 2014/52/EU) and came into force on 16 May 2014. The original proposals for a new directive to amend the existing EIA regime were far reaching, but the final version, while important, is more modest in its effect.

Member states have up to three years within which to transpose the new directive into domestic law, but it will be prudent for developers and their advisers to be planning ahead and anticipating the new thinking to ensure a
smooth and compliant transition. The headline points include:

• The directive will not be retrospective. Where the screening (or scoping) process has begun, or an environmental statement (ES) provided, before the transposition date it will continue under the existing directive.
• Local authorities will be required to ensure that identified mitigation is secured and there will be an obligation to monitor the actual effects.

This raises for the first time the likelihood that consideration of significant effects will continue post consent, in a way that goes beyond the existing possibility that the discharge of pre-commencement conditions may, in limited circumstances, trigger the need for EIA in its own right.

• Changes to the screening process. Screening will become obligatory and more prescriptive.
• A requirement to improve coordination of assessments made under different regimes.
• Member states will have to impose ‘effective, proportionate and dissuasive’ penalties for breaches of the directive. This is a major change and raises the possibility of criminal liability being introduced in some respects.
• EIA must be undertaken by ‘competent experts’. Government is to consult and legislate on the details of what this will entail.

The government’s fine tuning of the Planning Act 2008 regime for the consenting of NSIPs continues apace and it announced a suite of proposals following the ‘light touch’ review. One key area is the need to make the process for amendment development consent orders more proportionate to the issues involved. The Infrastructure Bill contains enabling provisions to allow for this.

Another key area is to seek refinements to the examination process which is currently marked
by undue repetition and inconsistency in the
way public hearings are run.

The first NSIP has now been designated under the optional extension of the NSIP regime to business and commercial projects. The scheme is the London Paramount leisure resort proposal on the Thames estuary. Choosing to enter the NSIP regime will always be a complex judgement. In this case, it appears that the certainty on the timing of the development consent order (DCO) decision and access to compulsory purchase order (CPO) powers were key factors.

Recreational purposes

In Barkas v N Yorkshire CC [2014] UKSC 2013 35, the Supreme Court has held that land acquired and laid out for recreation under the Housing Act 1985 cannot be registered as a village green on the basis that use for recreation will have been ‘of right’.

This overturns the landmark case of Beresford v Sunderland CC [2004] 1 AC 889) decision, which is heavily criticised.

This principle will apply under a variety of statutes, not just this Housing Act. It means that when assessing village green risk or resisting village green applications, it is essential to consider carefully any period during which the land had been acquired by a public body and
the statutory basis for its acquisition and use for recreational purposes, as this may provide a
‘knock out’ legal argument as to why registration would not be lawful.

The Supreme Court ([2014] UKSC 7) has separately resolved a long-running saga concerning delay in seeking rectification of two unjustified village green registrations, which will have important implications for other such sites. The essential point at issue was whether the substantial delay in seeking rectification of the register was a sufficient reason to refuse to de-register the land.

The Court of Appeal had held that the delay on one site (Paddico) was too long, but the delay on the other (Betterment) was not. The Supreme Court has held that the delay in both cases did
not justify refusal of rectification. Its essential reasoning was that there was no evidence of specific prejudice to local inhabitants beyond
loss of the (erroneously registered) right to use
the land for recreation, and this was outweighed by the impact on the landowner in terms of loss
of the ability to develop the land and other restrictions, in reaching a conclusion as to what was just in the circumstances.

There is now likely to be a market for registered sites where there are reasonable prospects of demonstrating the site should not have been registered. Betterment had acquired its site on precisely this basis. There is no time limit on seeking rectification of the register.

Planning enforcement

The last few months have seen a spate of planning enforcement cases in the Court of Appeal, which serve as useful reminders of some key themes on the subject:

Newham LBC v Ali [2014] EWCA Civ 676 addressed an injunction sought by the council
to curtail use of a large and well-attended faith centre for followers of Tablighi Jammat, for which temporary permission had previously been granted and then expired.

The centre was at the heart of an ex-industrial brownfield site earmarked for future mixed-use redevelopment. A section 106 agreement had been entered into at the time of the grant of temporary consent, requiring the removal of all buildings associated with its use as a place of worship on expiry of the temporary
permission. Following non-compliance,
a mandatory injunction was sought by the
council, and granted, requiring the trust to
comply with that undertaking.

The judgment of Lord Dyson MR in the
Court of Appeal serves as a timely reminder
of the readiness of the courts to grant and uphold injunctions to ensure effective planning control. Even on the politically charged facts of the present case, it was held that the lower courts had been right to grant the council its mandatory injunction.

However, given closely related and ongoing planning appeals which would determine the future use of the site, the court did accede that
the exceptional circumstances prevailing at the time meant that the terms of the injunction were to be suspended pending the outcome of those
related appeals.

Over-enforcement is an issue that raises
its head time and time again in planning enforcement appeals. In Ahmed v SoS for
DCLG [2014] EWCA Civ 566, LJ Richards reiterates the principles that are to be applied by the planning inspectorate when considering what
an enforcement notice ought to achieve.

This case concerned an enforcement notice seeking the removal in whole of a mixed-use development which had been oversized compared to the consented scheme. It was so far removed from the consented scheme to comprise development for which no permission had
been obtained.

The key message from this case for all parties
is that the purpose of planning enforcement is remedial, not punitive. Over-enforcement can
arise where there is an alternative arrangement to remedy a breach, being acceptable in planning and amenity terms, and less onerous on the landowner.

In such circumstances, appellants should seek
to set out such alternative arrangements as
clearly as possible within their grounds of appeal.
Ahmed makes it clear that the inspectorate should look at such alternatives in the round and aim at
a proportionate outcome to such appeal proceedings.

In Gleeson v SoS for DCLG [2014] EWCA Civ (unreported) the court has confirmed that a planning permission, once issued, may only
be revoked or modified through the existing statutory mechanisms for such processes.
There is no implied power to withdraw and
correct minor errors, no matter how quickly
that may be achieved. This reverses the High Court decision discussed
in the April issue of this update (SJ 158/17 29 April 2014) and restores some welcome certainty on
this point. SJ

Julian Boswall, pictured, is a partner and Alex Minhinick is an associate in the planning unit at Burges Salmon