Update | Planning: Growth and Infrastructure Bill, discretion in EIA cases

The government remains convinced that the planning system is holding back growth despite the sea of unimplemented permissions awaiting market demand or finance. The rush to bring in major changes with a war mentality cannot overcome the fact that planning represents a balance of interests in a complex civil society where the expectations and rights of those affected by planning decisions are deeply rooted. At the same time, perversely, the localism agenda is hampered by a lack of interest in pro-?active civil engagement as most people ?are too busy, confused or uninterested to ?get involved.

What is coming next? In mid-November it was the curbing of judicial review, with details to follow. In October it was publication of the Growth and Infrastructure bill, which is intended to address a mixed bag of bugbears in the planning system to assist economic recovery. The bill also contains long overdue proposals to curb the use of ?town and village green legislation as a means of destroying or delaying development projects.

The bill covers a wide range of issues from reduced paperwork for planning applications, minor amendments to minerals permissions, a new ability to amend existing Electricity Act consents through to proposals to take decision making on major schemes away from underperforming local authorities.

The bill proposes that where an LPA is classed as underperforming planning applications can be made directly to the planning inspectorate. Regulations are to be published on the criteria against which LPAs will be assessed, and it is expected to relate to application turn-around times. This is a controversial proposal as it would remove decision making from the local authority, which critics argue is contrary to the spirit and aim of the localism agenda. While designed to help applicants, the attractiveness of circumventing the LPA will need to be balanced against the fact it would result in applicants losing their right to a planning appeal of any refusal. There are also more practical questions surrounding how PINS will administer applications and how consultation with the community will operate given that the application is not within the jurisdiction of the LPA.

Arguably, the most eye-catching proposal is the intention to extend the types of developments that can be classed as Nationally Significant Infrastructure Projects (NSIP) under the Planning Act 2008 to include large scale business or commercial projects. This would mean applications for these developments would be determined by the National Infrastructure Directorate of the Planning Inspectorate rather than the local authority. The aim of this proposal is to help developers get large scale consents more quickly. The NSIP regime is still bedding down, and this is a clear vote of government confidence in the regime in advance of the major review promised for 2014. It does not, however, sit comfortably with localism as CPRE and others have vocally pointed out.

The bill contains major changes to town and village green (TVG) law which will substantially change the balance of power in favour of landowners and developers under this legislation. The mere publication of the bill has already done this, as its existence alters the tactics required by both sides. The key change is a preclusion on registering land as a TVG where a ’trigger event’ (such as, publication of a draft development plan with the land allocated for potential development or submission of a planning application) has occurred. The land can only be registered if there is a ‘terminating event’ bringing the development proposal to an end (the refusal of the planning application for example) and the application for TVG status is made within two years of that event (the existing tests for TVG will also still apply). The purpose of this reform is to protect landowners who find themselves hit with TVG applications on land which are within the public development plan process or the subject of planning applications. It applies to trigger events before the provision comes in force, but not to undetermined current TVG applications. The TVG application has been the most potent weapon for opponents of development in the last 10 years as demonstrated by the extraordinary level of court cases in that time. The government appears to have finally appreciated the destructive effect of this legislation, undermining the planning system, and its profound injustice under which land value is permanently destroyed without compensation, when land is registered.

Discretion in EIA cases

The Supreme Court recently issued its decision in the case of Walton v Scottish Ministers [2012] UKSC 44 in relation to a road bypass. The decision is of interest for the comments made by Lord Carnwarth on the discretion of the court in cases involving the Strategic Environment Assessment (SEA) and Environmental Impact Assessment (EIA) Directives. The appellant had argued that the decision complained of was in breach of the SEA Directive and as a result must be quashed. This argument relied upon the well-established position in Berkeley v Secretary of State for the Environment (No. 1) [2001] 2 AC 603 that the courts have a very narrow discretion not to quash decisions where there has been a breach of European law.

While not disapproving of the decision in Berkeley, Lord Carnwarth highlighted its particular factual circumstances and, in particular, that by the time the matter came before the court the developer had already abandoned the scheme. Lord Carnwarth noted that in Berkeley there was “no countervailing prejudice to public or private interests to weigh against the breach of the directive on which Lady Berkeley relied. The countervailing case advanced by the secretary of state was one of pure principle”. By contrast, in Walton the Scottish minister’s position was that they intended to proceed with the development. In Lord Carnwarth’s view “the potential prejudice to public and private interests from quashing the order is very great. It would be extraordinary if, in relation to a provision which is in terms discretionary, the court were precluded by principles of domestic or European law from weighing that prejudice in the balance.”

There has been a sense for some time that the high water mark in EIA cases has been reached and that the courts will not automatically quash every decision where there has been a breach of the SEA or EIA Directives. Although no breach of European Law was established in the Walton case, Lord Carnwarth’s speech is a useful indicator of how the courts may approach potential breaches of European Law. Substantive breaches of European Law are still likely to result in decisions being quashed, but there will be a need to show that not only has there been a breach, but that that breach has caused sufficient prejudice to outweigh the public interest in preserving the consent.

Separately, the decision also means that Scots Law is now likely to adopt a more relaxed view of “standing” in public law judicial review cases, bringing it much closer to that which operates in England and Wales.

Interpretation of policy

Earlier this year the Supreme Court provided guidance on the approach that decision makers should take to the interpretation of policy. While the policy in question concerned a local development plan document, subsequent cases this year have demonstrated the broader application of the Supreme Court’s interpretive approach to specific decisions, including a recent flood zones case (R Manchester Ship Canal Co and Peel Holdings v Environment Agency [2012] EWHC 1643).

Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 concerned an application for judicial review by Tesco against the Council’s interpretation of its development plan policy regarding the sequential test to out of centre retail outlets.

The court took the opportunity to rehearse and review many of the arguments that are typically raised in respect of policy interpretation, before unanimously ruling that statement of policy should be “interpreted objectively and in accordance with the language used, read as always in its proper context”. Development plan documents are not statutory or contractual documents and should not be subjected to the same level of scrutiny of such documents, but nonetheless, an objective meaning can be determined from the context of the statement of policy. Many policy statements confer discretion on the decision maker, but that discretion comes after the legal construction of the statement of policy; “planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean”.

In the instant case the correct interpretation of the development plan policy meant that, when considering alternative sites for out of centre retail under the sequential test, local planning authorities need only satisfy themselves that no other sites suitable for the development proposed exist in preferable locations (albeit with a realistic dose of flexibility and realism in the application of that test).

It is clear that the implications of this decision and the split between the roles of the decision maker and the court in interpreting and applying policy are going to take some time to play out.

Mobile agricultural units

A recent case provides further clarification as to what can constitute development in the context of structures used in agriculture, and the role of EIA in such a decision (R (oao Save Woolley Valley Action Group Limited) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin)).

Golden Valley Paddocks Limited installed ten mobile poultry units able to house 1000 ducks each. In considering whether the units needed planning permission the council treated them as chattels and made a comparison with caravans after having considered the tests set out in the Skerritts case ([2000] 2 PLR 102) of size, permanence and physical attachment to the land. The ability to move the completed structures around the site was clearly a material consideration. However, the court disagreed and said that to determine whether or not something is a building should be considered in the planning context which may produce a different result to the ordinary context. In this case it meant that even if the units had been moved around, they would still have been present on the site with no material change to their impacts. Therefore the council had misdirected itself in respect of whether or not the poultry units could be development within section 55 of the Town and Country Planning Act 1990 (TCPA).

The court also concluded that when deciding whether works are development under section 55 of the TCPA “ ‘the definition of “development’…can, and should, be interpreted broadly… so as to include, wherever possible, projects which require EIA under the EIA Directive, or developments which require EIA under the EIA Regulations 1999. Otherwise the directive will not be effectively implemented into UK law”.

Here the poultry units were found to fall within annex II of the EIA regulations as being an “Intensive Livestock Installation”. Again the court reiterated that the thresholds set out in Annex II (and Schedule II of the EIA Regulations) are not absolute and the wider and more purposive wording in the directive should be considered.

This case is a useful reminder that EIA is not triggered only when works are development under section 55 of the TCPA. Where those works require EIA section 55 should be considered purposively to ensure that the requirements of the EIA Directive are fulfilled.

This case further demonstrates how the planning and EIA regimes are being applied purposively by the courts in the agricultural context to regulate the use of large structures and ensure that their impacts are considered as part of any decision making process. It follows the approach taken to the large scale use of polytunnels and is a timely reminder that the planning and EIA regimes are dynamic and should be carefully considered when investment decisions are being made that rely on large structures being used in agricultural businesses. 

Julian Boswall is a partner and Cathryn Tracey is a solicitor at Burges Salmon