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Planning Law Notes
What is planning?
Hall and Tewdwr-Jones (2011) make it clear that planning is about a series of processes more than it is about vague images of maps and the like.
 "[P]lanning as a general activity is the making of an orderly sequence of actions that will lead to the achievement of a state goal or goals."
How has planning law evolved?
The roots of planning law in England lie in the 19th century and the problems which came about as the result of the industrialisation.
 Hall (2014) has said that the problem was "the giant city itself" where concentration caused many issues - thousands of the rich and millions of the middle classes were brought into close contact with millions of the poor and the very poor

This led to the creation of a new set of social relationships which needed managing
 As a result of these different types of people all being in the same small space, the focus was on planning for all, rather than focusing on poor housing or poor health conditions.
This concentration ultimately had two consequences:

1. Social Movements Seeking to Replan Cities
Pinder (2005) argued that these social movements emphasised spatial concerns.
 They proposed 'restorative Utopias' in so far as they responded to the upheaval of the modern city by projecting a new spatial form that was intended to restore values about urban settlement, community, order and harmony

Such an approach was not anti-urban, it simply had a different vision of what urban living should look like
 It posited that expansion could take place without the disorder that came about as a result of industrialism.

2. Legislative Intervention
Responding to the above concerns, mist planning legislation in the latter part of the nineteenth century was focused on public health and improving the sanitary conditions of housing.
The first Planning Act was passed in 1909.
 This gave local governments the power to develop planning schemes, albeit the focus still being on sanitary conditions
 Similarly, it gave powers to local authorities to close down houses which were unfit for human consumption. This power to close down houses which were unfit for human habitation gave rise to the seminal Administrative Law case of Local Government Board v Arlidge

Local Government v Arlidge

Facts: Pursuant to s17 of the 1909 Act, Hampstead Borough Council made an order prohibiting a house, which Mr Arlidge was the assignee of a lease on,
from being used for human habitation until it was fit for purpose
 Mr Arlidge appealed to the Local Government Board, which held a public inquiry and confirmed the order
 Mr Arlidge sought a quashing of that order for breach of natural justice

Held: The House of Lords held that the Board was under no obligation to observe the order
 "Such a body as the Local Government Board has the duty of enforcing obligations on the individual which are imposed in the interests of the community. Its character is that of an organisation with executive functions. In this it resembles other great departments of the State. When, therefore, Parliament entrusts it with judicial duties, Parliament must be taken, in the absence of any declaration to the contrary, to have intended it to follow the procedure which is its own, and is necessary if it is capable of doing its work efficiently"
 New administrative institutions were emerging to deal with collective issues such as housing and planning, and these were understood to operate differently from a court.

Town and Country Planning Act 1947
The 1909 Act was ultimately insufficient, which was obvious by the 1940s - Cullingworth
(2015) notes that much of England was not actually subject to any kind if planning restrictions.
As a result of this insufficiency, the Town and Country Planning Act 1947 brought almost all development under control by making it subject to planning permission.
 This forms the current blueprint for our contemporary planning system and its key features - the requirement that any 'development' requires planning permission,
the co-ordinating role of the central government, and the role of local development plans - can be seen in the contemporary planning system
One of the great successes of the 1947 legislation is that it has not remained static.
 It has been subject to ongoing legislative amendment, with consultations in 1962,
1971 nad most recently in 1990 (although most immediately it was subject to amendment in the Planning and Compensation Act 1991)
This reform has continued through the addition of other legislative measures
 The Planning Compulsory Purchase Act 2004 overhauled the system for the creation of local plans by introducing 'local development frameworks' 

The Planning Act 2008 introduced a new framework for dealing with 'nationally significant infrastructure projects', which requires the creation of national policy statements concerning infrastructure development

The act aims to provide a more coherent approval system for major projects and to incorporate debate and consultation in to the process earlier on.
 s14 sets out the list of 'nationally significant infrastructure projects'
which the Secretary of State has the power to amend
The Localism Act 2011 as introduced as an important commitment to localism

The ongoing reform and amendments to the planning framework represent b range of competing interests involved in the process of planning - we must remember that there is more to planning law that just the environments.
 Layard (2002) notes that the current flashpoints of planning concerns are disparate with agitated commentators often at loggerheads with one another.
o The following competing interests all lead to different conceptions as to the suitability of the current planning framework:
 Businesses - are concerned with the delays and bureaucracy that planning applications entail
 The mammoth public inquiry for Heathrow's Terminal 5, taking 524 days over four years is oft cited as an example
 Pressure Groups - are concerned with access to the planning system
 They welcome simplification of the process, alongside holding it to be unacceptable for applicants to appeal a refusal or permission where interested third parties are unable to do so
 Government - are concerned with the complexity, uncertainty and lack of community engagement with the system.

What are the conceptual themes which preoccupy planning theorists?

Public Interest
Campbell and Fainstein (2003) identify a range of themes and issues which planning theorists are concerned with
 They identify the public interest as the leitmotiv of the planning process - the vast majority of debates as to planning issues coming down to the question of what will serve the public interest

As societal views progress, the public interest will also quickly change.
 Contrastingly, McAuslan (1980) recognised three competing ideologies: public interest, private interests and public participation.
Dispute Settlement
Another key theme which is regularly drawn out is the dispute settlement aspect of planning law 


Hewart says that enquiries to settle polycentric disputes arising between public and private interests are not well addressed by traditional bi-polar adjudicative frameworks

Courts are not well suited to resolving the disputes to which planning gives rise and thus the planning process fills that gap
Harlow et al similarly recognised this dispute settlement theme

Citizens interests were to be protected by creating a right to be heard
Lord Clyde in Alconbury - The decision of the Secretary of State in the planning process is not a judicial function under the HRA and so there is not need to provide an independent body to determine these issues

Planning is matter of determination and application of policy. Whilst having some judicial qualities, ultimately the process is about balancing the public interest and national priorities against private interests.
 "The functions of the Secretary of State in the context of planning may conveniently be referred to as 'administrative', in the sense that they are dealing with policy and expediency rather than with the regulation of rights."

What is the basic planning law framework?
The Town and Country Planning Act 1990 is the governing piece of legislation. It is best understood as constituting four interrelated parts:

1. 2.

3. 4.

The Creation of Policy Plans
The Requirement to Seek Planning Permission
The Consideration and Determination of a Planning Application
The Right to Appeal and Methods of Enforcing Planning Permission

How is planning policy created?

Local Development Frameworks
As a result of the complex system that had developed, the Planning and Compulsory
Purchase Act 2004 overhauled the process by replacing local development plans with 'local development frameworks', whilst also setting out a new procedure for creating these frameworks.
The procedure for creating local development frameworks was explain by Carnwath LJ in
Barratt Developments plc v The City of Wakefield Metropolitan District Council
In order to prepare the Core Strategy, the following required:
(a) The authority must have regard among other things to:
a. National policies and advice contained in guidance issued by the Secretary of
State (b) It must contain a reasoned justification of the policies (reg 13(1))
(c) Before it is adopted it must be submitted for independent examination by a planning inspector on behalf of the Secretary of State, to determine (inter alia)
whether it satisfies these requirements and 'whether it is sound' (s20(5))
(d) Any person who makes representations seeking to change the plan must be given an opportunity to appear before and be heard by the inspector (s20(6))
(e) The inspector must make recommendations and give reasons for those recommendations
(f) The authority can only adopt the strategy, as originally proposed or with modifications, in accordance with the recommendation of the inspector (s23)

NOTE: s113(3) of the 2004 Act provides the possibility for local development frameworks to be changed
The overall aim of this framework is that local planning policy is easily accessible.
Central Government Policy
There are four different types of central government policy documents in the planning context: (i) the NPPF 2019, (ii) national planning practice guidance, (iii) 'Dear Chief Planning
Officer' letters, and (iv) National Policy Statements under the Planning Act 2008.
(a) National Planning Policy Framework 2019
The NPPF 2019 is a 73-page document replacing he 57-page NPPF 2012 which in turn replaced over 1000 pages of guidance that had been encapsulated in a series of planning policy statements.
Tewdwr-Jones (1997) has described the system: "Rather than developing a statutory national physical plan, the government has preferred to rely on a system of discretion rather than prescription, a process where central government sets out the legal framework and broad policy for local government to interpret"
These policy documents have no legal footing, however they play an important role in limiting discretion.
 The NPPF 2019 states that "The National Planning Policy Framework must be taken into account in preparing the development plan, and is a material consideration in planning decisions"
The overreaching guidance of the NPPF is what is characterises as a presumption in favour of sustainable development. (b) National Planning Practice Guidance
The nature from this guidance is quite distinct from that of the NPPF, as explained by the judgements of Lindblom LJ and Sales LJ in Save Britain's Heritage.
 "We are concerned hwer not with a planning policy

the kind contained in the
NPPF, but with practice guidance whose role, largely, is to amplify published policy
[…] [T]he Government's planning policy for England is the NPPF. The Planning
Practice Guidance supplements and explains policies in the NPPF, and assists in their application. And it should be construed, if it can be, consistently with them"
This form of guidance also has no statutory basis, but are oft understood as quasi-legislative in nature as they provide quite specific guidance about how decisions should be made.
(c) 'Dear Chief Planning Officer' Letters
Letters to chief planning officers tend to be very short and often announce new developments such as the introduction of new ore removal of old policy and legislation.
 The documents are descriptive in nature and provide very little substantive guidance
Despite their brevity, they have given rise to some difficult legal issues as was shown in the
Cola Homes (South) Limited v Secretary of State for Communities and Local Government case

Cola Homes (South) Limited v Secretary of State for Communities and Local
Government

Facts: After the Secretary of State's attempt to revoke Regional Strategies by executive action was found invalid, the Chief Planner sent a letter to all local planning authorities stating that 'the Secretary of State wrote to Local
Planning Authorities and to the Planning Inspectorate on 27 May 2010 informing them of the Government's intention to abolish Regional
Strategies in the Localism Bill [now the Localism Act 2011] and that he expected them to have regard to this as a material consideration in planning decisions'
 C brought an action for judicial review arguing that the Secretary of
State was 'engaging in a transparently unlawful attempt to subecr the application of the statutory framework for the taking of planning decisions, and to thwart the effect of judgement Sales J in the first proceedings, by asking national decision-makers to take into account,
when acting under the extant legislation, the Government's proposal to seek changes to that legislation in the future'
 In the Divisional Court Lindnlom J found that the Secretary of
State was entitled to advise authorities that the proposed revocation of Regional Strategies was to be regarded as a material consideration

Held: The Chief Planning Officer's letter was not unlawful, but it might have been better and more fully expressed
 If the letter had advised the local planning authorities to ignore the policies in the regional strategies, this would have been unlawful
 However, it did not do this, it simply ordered that the
Government's intention to abolish the regional strategies was a material consideration

Regard must be had to the audience of the letter: it was addressed to the Chief Planner's fellow professionals
 These people did not need to be reminded that re-establishing regional strategies as part of the plan mean that planning applications had to be determined in accordance with the regional strategies unless material considerations indicated otherwise
 NOTE: this reasoning reflects a complex interaction between the legislative and executive regimes - this reflects one of the Court's primary functions in this area of making sense of the relationship between the various instruments which relate to planning.
(d) National Policy Statements - Planning Act 2008
National Policy Statements are required for Nationally Significant Infrastructure Projects pursuant to Part 2 of the Planning Act 2008 s13 sets out the means by which National Policy Statements can be legally challenged by way of judicial review.
Pursuant to s104 Planning Act 2008, the Secretary of State must have regard to National
Policy Statements in the determination of applications relating to large infrastructure projects.
Interpretation of Planning Policy s70(2) TCPA and s38(6) of the Planning and Compulsory Purchase Act 2004 place decisionmakers under an obligation to consider local development plans.

This, then, raises the question as to how local development plans should be interpreted.
This issue was first approached by the Supreme Court in the Tesco Stores case.

Tesco Stores Ltd v Dundee City Council (Scotland)
o Facts: Counsel referred the Court to a number of judicial dicta which were said to support the proposition that the meaning of the development plan was a matter to be determined by the planning authority and: the court had

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