For most people 1997 will be noted for the birth of Marcus Rashford, and Dolly the sheep; the death of Princess Diana, the launch of Channel 5, and a general election that saw Tony Blair celebrate his election with a ‘Cool Britannia’ reception at Downing Street attended by Noel Gallagher, Vivienne Westwood and Helen Mirren. For a few planning lawyers it is also the year the House of Lords issued the City of Edinburgh1 judgment on how planning decisions should be made.
In 2019 Marcus Rashford lights up the pitch at Old Trafford, Dolly is dead, Diana’s children have children, Cool has been replaced by Woke – and Brittannia is neither – but the issues considered in City of Edinburgh are still highly relevant to the English planning system. The primary purpose of this book is to explore and explain the law, policy and governance issues that surround the exercise of the two statutory provisions (“the legal test”) that sit at the heart of the planning decision making process in 2019:
Section 70(2) of the Town and Country Planning Act 1990 (“the 1990 Act”) which provides that “in dealing with an application for planning permission… the authority shall have regard to the provisions of the development, so far as material to the application, and to any other material considerations” the decision-maker shall have regard to the provisions of the development plan, so far as material to the application.
Section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) which provides that “If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
The book will focus on the legal test set out above, beginning with the meaning and effect of the development plan, moving on to the scope of material considerations and how they are balanced against the plan in the decision making process. It will also look in detail at how this traditional balance shifted with the adoption of the National Planning Policy Framework 2012, the introduction of the ‘tilted balance’ presumption in favour of sustainable development, and its impact in cases such as ‘Suffolk Coastal’.
Planning decisions are at risk of being quashed for both legal and procedural errors. The book will therefore additionally examine other wider planning considerations that may be relevant such as the specific legal duties relating to the consideration of sites that contain listed buildings and conservation areas or are affected by landscape or ecological designations. And as even the hardest of Brexit exits will not immediately wipe out the impact of European issues such as Environmental Impact Assessments and Habitat Regulations assessments so these issues, along with obligations arising from the Human Rights Act 2001 and the Equality Act 2010 will be summarised, with reference to the most recent caselaw.
Planning applications are submitted by individuals who own or want to develop land but they are decided by local authorities and the decision making process is a public function. This means that governance issues are relevant, such as the content and relevance of the Council’s constitution including the scheme of delegation, the difference between regulatory and Executive functions, member codes, interests and bias, committee reports and minutes and the latest position on reasons – for approvals and refusals. The book will examine all of these issues with reference to planning decisions.
1City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33