Update: planning

Implementation of the Planning Act 2008 continues. Members of the Infrastructure Planning Commission, which will consider applications for development consent for nationally significant infrastructure projects, have been appointed with Sir Michel Pitt named as chair. Drafting has commenced of national policy statements (NPSs). The Department for Communities and Local Government (DCLG) is to publish NPSs covering nuclear power, renewable energy, fossil fuel generation, electricity networks, oil and gas infrastructure, ports and national networks (road and rail) in autumn 2009. Subject to the outcome of public and parliamentary scrutiny, these NPSs are expected to be designated over the course of 2010. The remaining NPSs on water supply, waste water, hazardous waste and airports are being produced on a longer timeframe.

From the large scale project to the small '“ DCLG has unveiled a package of reforms designed to implement the recommendations of the Killian Pretty Review. Among the measures are new rules which would allow minor extensions and alterations to shops, offices, industrial buildings and institutions (including schools, universities and hospitals) to proceed without a planning application. The intermediate approach which is advanced, between permitted development and a full planning application, would deem permission for minor changes granted unless the local planning authority objects within 28 days. The department is also consulting on a new Planning Policy Statement 15: Planning for the Historic Environment. Responses should be submitted by 30 October 2009 (https://www.communities.gov.uk/publications/planningandbuilding/consultationhistoricpps).

The Stansted litigation

Barbone v Secretary of State for Transport [2009] EWHC 463 was brought by the Stop Stansted Expansion group. It applied to quash a decision of the secretaries of state to grant planning permission on appeal for the extension of the passenger terminal at Stansted airport under section 288 of the Town and Country Planning Act 1990 (TCPA). The permission effectively varied a condition on an earlier permission, which had limited air passenger throughput at Stansted to 25 million passengers per annum and the number of air traffic movements to 241,000. The permission allowed a greater annual throughput of 35 million passengers and 264,000 air traffic movements. The project was supported by the future of airport transport White Paper. The grounds of challenge included that the secretaries of state had misapplied their own policy by failing to take into account all the environmental and economic effects of the development and that they had failed to take into account material considerations, namely the balance of trade deficit, noise impacts and greenhouse gas emissions.

Illustrating the courts' deference to the decision-makers' expertise and the lawfulness of attaching considerable weight to national policy, the High Court held that neither the inspector nor the secretaries of state had misinterpreted policy (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 HL applied). Relying on Bushell v Secretary of State for the Environment (1981) AC 75, the judge rejected attempts to re-open policy debates which had been concluded when the government adopted its aviation White Paper.

Unlawful EIA development

Ardagh Glass Limited v Chester City Council & Another [2009] EWHC 745 (Admin) concerned the Quinn glass works at Elton which lie partly within Ellesmere and Neston Borough Council and partly within Chester City Council. Built without permission and in operation since 2005, it was the largest glass container factory in Europe. In 2007 the secretary of state refused a call-in application for retrospective planning permission. Quinn made a second application to the local authorities for retrospective planning permission accompanied by an environmental impact assessment (EIA) in early 2008 which has yet to be determined. The works as unlawful development would have become immune from enforcement sometime in 2009 under the four-year rule, though precisely when immunity accrues was disputed.

Ardagh brought a judicial review challenge seeking an order requiring the councils to take enforcement action against Quinn on a 'precautionary basis' to prevent immunity accruing. Ardagh contended that since the glass works were unlawful EIA development which had not been subject to EIA prior to being built, European law demanded that the local authorities enforce against Quinn. Ardagh also sought an order prohibiting the grant of retrospective permission on the basis that it was contrast to the EIA Directive as held in Case 125/06 Commission v Ireland.

Granting the mandatory order, the court stated that it would be a breach of the EIA Directive if an EIA development were constructed without permission and the planning authorities did nothing. To allow immunity to accrue 'would be a betrayal by the planning authorities of their responsibilities and a disgrace upon the proper planning of this country'.

Rejecting Ardagh's second ground that the grant of retrospective permission for EIA development was prohibited by the EIA Directive, the court held that permission could be granted retrospectively in accordance with the EIA Directive in exceptional circumstances where the developer did not gain any benefit from having unlawfully commenced development without undertaking an EIA. Both rulings are the subject of an appeal.

Screening opinions

Case C-75/08 R (Mellor) v Secretary of State for Communities and Local Government [2009] 18 E.G. 84 (C.S.) concerned the question of whether local planning authorities are required to give reasons where, following a screening opinion, it is determined that a project does not need to be subject to an environmental impact assessment. The ECJ held that that there is no need for a negative screening opinion to contain reasons but a duty to provide further information and relevant documents regarding the reasons for a negative screening decision if an interested party requests the same. That request need not be met by a formal statement and the reasons given can be brief. The Mellor case has been re-listed before the Court of Appeal this autumn.

In Friends of Basildon Golf Course v Basildon District Council [2009] EWHC 66 Wyn, Williams J held that a local planning authority, having issued a negative screening decision, did have the power to subsequently determine that the development was nevertheless an EIA development (see the view expressed by Richards J in R(Fernback) v Harrow LBC [2002] Env LR 10). However, the judge found that there was no power for a local planning authority (in contrast to the secretary of state) to reconsider such matters of their own volition. The adoption of a further screening opinion was dependent upon a request for such an opinion from the prospective developer.

Interpretation of planning permissions

Bleaklow Industries Ltd v Secretary of State for Communities & Local Government & Ors [2009] EWCA Civ 206 concerned appeals by the secretary of state for communities and local government and the Peak District National Park Authority, from a decision of Sullivan J. The park contained a source of fluorspar supply, a mineral used in the chemical industry. An historic planning permission had been granted by the minister for 'the winning and working of fluorspar and barytes and for the working of lead and any other minerals which are won in the course of working these minerals'¦'. The authority issued an enforcement notice for a particular area within the site under the Town and Country Planning Act 1990, alleging a breach of planning control by winning and working of limestone not in accordance with the planning permission.

The freehold owner of the area and its lessees including Bleaklow appealed against the enforcement notice to the secretary which appointed an inspector for a public inquiry. The inspector upheld the enforcement notice. Bleaklow appealed under section 289 of the 1990 Act against the inspector's decision. The High Court allowed the appeal and remitted the matter to the secretary for redetermination. The secretary and the authority appealed. The court was required to determine whether the operations carried out in respect of limestone were within the meaning of the development permitted by the planning permission.

The Court of Appeal overturned the High Court, holding that the minister granted planning permission due to the importance of fluorspar to the industry and not because of the need of limestone to be quarried. It was not intended to be permission for the winning and working of limestone and permitted extraction of limestone on defined terms and at the same time not allowing large scale commercial removal of limestone extracted in the course of winning fluorspar. The inspector was entitled to conclude that the operations carried out during the relevant period in respect of limestone extraction on the area exceeded that which was permitted by the planning permission. The Court of Appeal's judgment also provides helpful guidance upon the requirements of fairness in a public inquiry; it rejected arguments that the inspector had acted unfairly in ruling in favour of submissions which had been made by third parties but which had not been pursued by the local planning authority.

Planning officers' duties

In R(on the application of Kimberley Miller) v North Yorkshire County Council [2009] EWHC 2172(Admin), the court emphasised that 'the duty on a planning officer goes beyond a duty simply not to mislead the committee but rather includes a positive duty to provide sufficient information and guidance to enable members to reach a decision applying the relevant statutory criteria'.

Giving reasons for granting planning permission

In R (on the application of the Governing Body of Langley Park School for Girls) v Bromley LBC [2009] EWHC 324 (Admin), the claimant sought an order quashing the planning permission to the Langley Park School for Boys for rebuilding the school. Following the decision by the development control committee to grant permission, a meeting was held between planning, legal and committee officers to draft the reasons for the decision. Draft reasons were sent to the committee chair for approval and then circulated to other members of the committee in advance of a public meeting in which those reasons were formally endorsed. It was said that the stated reasons for the decision were not the committee's actual reasons for granting permission and that therefore there had been a failure to give an adequate summary of reasons as required by article 22 of the Town and Country Planning (General Development Procedure) Order 1995.

Dismissing the claim, the court held that it had not been demonstrated that the reasons expressed in the grant of planning permission were not the reasons which had motivated the committee. If members had publicly adopted the reasons drafted and circulated by officers it was difficult to see how it could be argued that those were other than the reasons which had motivated their decision to grant permission. It is often not possible for all the reasons for granting permission to be aired at committee meetings. However, the fact that a reason is not discussed does not mean it lacks relevance.

The High Court's decision to uphold the grant of permission has since been overturned by the Court of Appeal but on a different ground concerning the council's failure to consider an alternative scheme to the one which it approved (see Langley Park School [2009] EWCA Civ 734). The contention that the statement of reasons for granting planning permission did not reflect the council's decision-making process was not renewed before the Court of Appeal. Therefore, Wyn Williams J's findings on that point remain relevant when considering the adequate provision of reasons.