Rosewell Review of Planning Inquiries Published

On 12 February 2019, the Government published the report of Bridget Rosewell OBE, further to her review of the planning appeal system.

The Report makes a series of thoroughly sensible recommendations, across all stages of the appeal process, which have been received well by practitioners, including:

Submission to Start Date

  • Streamlining the validation process by introducing pro-forma documentation that can be electronically checked.
  • A Reform of statements of case, through use of pro-formas as well as greater engagement and precision.
  • Streamlining the process for determining a mode of appeal.
  • Faster issuing of the start letter identifying the inspector with responsibility for the appeal.

Start Date to Inquiry

  • A senior inspector should lead on the date and venue of the inquiry (identified as a present source of delay). There is a suggestion for greater consultation and flexibility by permitting the appellant to contribute to the cost of the venue.
  • Statements of common ground should be more informative and produced earlier (policed by the inspector).
  • Greater pre-inquiry management (telephone conferences are strongly encouraged).
  • Greater use of round table procedures and topic based approaches to inquires.
  • Greater accessibility to information through the online portal.
  • The possible use of transcription technology
  • Inspectors are advised to manage cross-examination effectively, reporting inappropriate behaviour to professional bodies.

Can Privacy from Overlooking be Protected by the Tort of Nuisance?

In Fearn v Board of Trustees of Tate Gallery, the neighbours to the Tate Gallery sought an injunction to restrain the use of its viewing gallery.

Amongst the interesting issues in the case, Man J addressed whether overlooking could form the basis a claim in nuisance, finding that the law of nuisance is capable of ”protecting privacy rights from overlooking in an appropriate case”, and noting that whether it does or not would depend on whether there is “a legitimate expectation of privacy”, having regard to locality.

Interestingly, Mann J rejected the submission that the planning process by itself “is a sufficient mechanism for protecting against infringement of all privacy rights…”. Indeed, in the instant case, the Judge found that overlooking did not appear to have been considered within the planning process and so provided “little or no assistance” to resolving the nuisance claim.

Accordingly, this judgment may give rise to claims in nuisance, further to the conclusion of a planning process, where neighbouring landowners remain aggrieved by an impact of overlooking on the enjoyment of their land.

Yet another CJEU Habitats ruling: Holohan v An Bord Pleanála

On 7 November 2018 the CJEU gave judgment in Holohan, a case concerning a proposed ring road around Kilkenny in south-east Ireland. The proposed route will cross rivers which form part of a Special Area of Conservation. The CJEU decided, at [40], that:

“… an ‘appropriate assessment’ must, on the one hand, catalogue the entirety of habitat types and species for which a site is protected, and, on the other, identify and examine both the implications of the proposed project for the species present on that site, and for which that site has not been listed, and the implications for habitat types and species to be found outside the boundaries of that site, provided that those implications are liable to affect the conservation objectives of the site.”

The judgment appears to interpret the EU Environmental Directives more onerously, so as to mean that in addition to assessing the impact on habitat types and species for which the site is protected, appropriate assessments must also consider other habitat types and species which happen to be present on the site, and those outside the boundaries of the site which might also be affected.

Scope of section 73 of Town and Country Planning Act 1990 reconsidered

It is well established that the grant of an application under s.73 of the 1990 Act results in a fresh and stand-alone grant of planning permission (see London Borough of Lambeth v Secretary of State for Communities and Local Government). The power under s.73 has been held to mean:

“[a power] impose different conditions upon a new planning permission, but only they are conditions which the council lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application…”.

The decision in R (Vue Entertainment Ltd) v City of York Council appeared to suggest a nuance to that test, as follows:

“… it is not open to the council to vary conditions if the variation means that the grant (and one has therefore to look at the precise terms of grant) are themselves varied.”.

Most recently, in Finney v Welsh Ministers, Sir Wyn Williams considered that observation and held that:

“… a variation pursuant to section 73 can be lawful notwithstanding that it may necessitate a variation to the terms of the planning permission which preceded the section 73 application.”

Accordingly, there is no hard-edged rule that a local authority (or inspector) may not grant an application under section 73, if it would result in a variation to the terms of the planning permission. The test is simply whether the fresh grant of permission which results from s.73 would amount to “… fundamental alteration of the proposal put forward in the original application”.

About the Author

Ashley Bowes was called to the Bar as a Prince of Wales scholar by Gray’s Inn. He holds a doctorate in law and specialises in Planning, Property, Environmental and Public law. He is the Assistant Editor of Sweet and Maxwell’s Journal of Planning and Environment Law and a contributor to Moore and Purdue’s A Practical Approach to Planning Law (13th ed.). Ashley Bowes has appeared in the recently created specialist Planning Court within the High Court, and has wide experience of Public Inquiry work covering planning and enforcement appeals, local plans, village greens, common land and rights of way.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

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