| Winckworth Sherwood |
Issue 24 Planning Ahead |
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| Review of EIA Legislation I Consultation on New Circular for National Parks and Broads I Greater Flexibility for Planning Permissions I Courts Refuse to Require Enforcement Action Pending Screening |
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bb133eleftPlanning Ahead Issue 24 - December 2009
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| Greater Flexibility for Planning Permissions |
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The Government has published Greater Flexibility for Planning Permissions: Guidance which provides assistance on the use of the measures introduced following this year's consultation. Briefly, the guidance covers:
This enables applicants to apply to their Local Planning Authority (LPA) for a new planning permission to replace an existing permission granted on or before 1 October 2009, which is about to lapse, in order to extend the period in which the development must be started. The information, consultation and fee requirements for these applications are less than for other planning applications but it has to be for the same development as the earlier application. Only one extension to each permission is allowed. A successful applicant will receive a new permission with a new time limit.
This allows non-material amendments to be made to an existing planning permission through a simple application procedure. A 'non-material' amendment is not defined as it is dependent on the context of the overall scheme of the planning permission but the LPA must be satisfied that the amendment sought is non-material. Only a person with an interest in the land to which the non-material amendment relates, or their agent, can apply. The normal requirements for planning permissions relating to statutory consultation and publicity do not apply.
This enables LPAs to use their discretion in deciding which statutory consultees should be consulted in respect of a minor material change to a planning permission. A minor material change is not defined in law but the guidance supports the proposed definition that a minor material change is 'one whose scale and nature results in a development which is not substantially different from the one which has been approved'. An application to make a minor material amendment cannot be made concurrently with an application to extend the time limits for implementing a planning permission. This is because an application to make a minor material amendment would result in a new permission which could not have been extant on 1 October 2009 and which therefore cannot be extended. |
| Courts Refuse to Require Enforcement Action Pending Screening |
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This month has also seen another case in the series of applications brought against Hinton Organics. In R (on the application of Louisa Baker) v Bath & North East Somerset Council & (1) Hinton Organics (Wessex) Ltd & (2) Hinton Organics Ltd [2009] EWHC 3320 (Admin), the applicant, Louisa Baker applied for an order requiring Bath & North East Somerset Council to take effective enforcement action against Hinton Organics or, alternatively, for a declaration that the local authority's failure to take effective enforcement action was unlawful.
The local authority had granted Hinton Organics a ten year permission to use a field as a waste composting site in 1999. The permission was temporary allowing the local authority to review the impact of the development and to maintain the openness of the Green Belt. Other planning permissions were granted and subsequently quashed by the Court on the basis that the local authority had failed to comply with the environmental impact assessment regime, in particular, the local authority had failed to carry out a screening process for the development. Hinton Organics continued to operate the site despite the fact there was no extant planning permission other than the original 1999 permission. Louisa Baker submitted that there had been a three-year delay in carrying out a screening process and enforcement action against Hinton Organics was necessary. The Court held that the screening process had not taken place but it was likely to do so in the near future. Until the screening opinions had been obtained it would be impossible for the local authority or the Court to say that it was an environmental impact assessment development. The delays that had occurred in the granting of planning permission for the extension of the site were understandable and did not justify the making of a mandatory order or a stop notice against the local authority to take enforcement action. |
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PLANNING AHEAD
Issue 24 - December 2009
Review of EIA Legislation
Consultation on New Circular for National Parks and Broads
Greater Flexibility for Planning Permissions
Courts Refuse to Require Enforcement Action Pending Screening
Review of EIA Legislation
The second judgment was in the case of R (on the application of) Mellor v Secretary of State for Communities and Local Government [2009] EUECJ C-75/08 in respect of which the European Court of Justice issued a preliminary ruling on 30 April 2009. The ECJ ruled that it was not necessary for a negative screening decision issued by a planning authority to contain reasons. However, if an interested party so requests, the planning authority is required to provide reasons for the determination or the information or documents in response to the request made.
Consultation on New Circular for National Parks and Broads
A new consultation paper, Consultation on the English National Parks and the Broads, has been published by the Department for Environment, Food and Rural Affairs. The purpose of the circular is to provide updated policy guidance on the English National Parks and the Broads. It also outlines the Government's vision for the National Parks and the Broads for the period up to 2050. The circular covers a wide range of issues but places particular emphasis on the following:
• dealing with climate change;
• continuing to conserve and enhance the landscape and natural heritage;
• fostering biodiversity; and
• securing maximum value for money from the available funding.
The circular will replace Department of the Environment Circular 12/96 and joint Department of Environment, Department of Transport and Welsh Circular DoE 125/77, DTp 8/77, WO 182/177. The deadline for responses is 5 February 2010. Click on the link to view the draft circular http://www.defra.gov.uk/corporate/consult/nationalpark/index.htm
Greater Flexibility for Planning Permissions
The Government has published Greater Flexibility for Planning Permissions: Guidance which provides assistance on the use of the measures introduced following this year's consultation. Briefly, the guidance covers:
• Extensions to the time limits for implementing existing planning permissions;
This enables applicants to apply to their Local Planning Authority (LPA) for a new planning permission to replace an existing permission granted on or before 1 October 2009, which is about to lapse, in order to extend the period in which the development must be started. The information, consultation and fee requirements for these applications are less than for other planning applications but it has to be for the same development as the earlier application. Only one extension to each permission is allowed. A successful applicant will receive a new permission with a new time limit.
• Non-material amendments to existing planning permissions;
This allows non-material amendments to be made to an existing planning permission through a simple application procedure. A 'non-material' amendment is not defined as it is dependent on the context of the overall scheme of the planning permission but the LPA must be satisfied that the amendment sought is non-material. Only a person with an interest in the land to which the non-material amendment relates, or their agent, can apply. The normal requirements for planning permissions relating to statutory consultation and publicity do not apply.
• Minor material amendments;
This enables LPAs to use their discretion in deciding which statutory consultees should be consulted in respect of a minor material change to a planning permission. A minor material change is not defined in law but the guidance supports the proposed definition that a minor material change is 'one whose scale and nature results in a development which is not substantially different from the one which has been approved'. An application to make a minor material amendment cannot be made concurrently with an application to extend the time limits for implementing a planning permission. This is because an application to make a minor material amendment would result in a new permission which could not have been extant on 1 October 2009 and which therefore cannot be extended.
Courts Refuse to Require Enforcement Action Pending Screening
This month has also seen another case in the series of applications brought against Hinton Organics. In R (on the application of Louisa Baker) v Bath & North East Somerset Council & (1) Hinton Organics (Wessex) Ltd & (2) Hinton Organics Ltd(2009) [2009] EWHC 3320 (Admin), the applicant, Louisa Baker applied for an order requiring Bath & North East Somerset Council to take effective enforcement action against Hinton Organics or, alternatively, for a declaration that the local authority's failure to take effective enforcement action was unlawful.
The local authority had granted Hinton Organics a ten year permission to use a field as a waste composting site in 1999. The permission was temporary allowing the local authority to review the impact of the development and to maintain the openness of the Green Belt. Other planning permissions were granted and subsequently quashed by the Court on the basis that the local authority had failed to comply with the environmental impact assessment regime, in particular, the local authority had failed to carry out a screening process for the development. Hinton Organics continued to operate the site despite the fact there was no extant planning permission other than the original 1999 permission. Louisa Baker submitted that there had been a three-year delay in carrying out a screening process and enforcement action against Hinton Organics was necessary. The Court held that the screening process had not taken place but it was likely to do so in the near future. Until the screening opinions had been obtained it would be impossible for the local authority or the Court to say that it was an environmental impact assessment development. The delays that had occurred in the granting of planning permission for the extension of the site were understandable and did not justify the making of a mandatory order or a stop notice against the local authority to take enforcement action.
Sara Hanrahan - Partner
Tel: 020 7593 5144
Nicola Raistrick - Partner
Tel: 020 7593 0275
Richard Bull - Solicitor
Tel: 020 7593 5074
Anjana Ghosh - Solicitor
aghosh@wslaw.co.uk
Tel: 020 7593 5088