The Planning Court

As mentioned in our alert of November/December 2013, a new and specialist Planning Court is being created. It will open for business on 6 April 2014, as part of the High Court. The court will be overseen by a Planning Liaison Judge and will hear planning-related judicial review and statutory challenges, including claims relating to:

  • Planning permissions and other development consents.
  • Enforcement.
  • Applications under the Transport and Works Act 1992.
  • Wayleaves.
  • Highways and other rights of way.
  • Compulsory Purchase Orders.
  • Town and Village Greens.
  • EU environmental legislation and domestic transpositions.
  • National, regional or other planning policy documents, statutory or otherwise.

Any claim relating to such a matter, which is commenced after 6 April 2014, should be issued in the Planning Court. Any claims already underway as at that date will be automatically transferred to the new court.

Revised planning guidance

The government has published its online Planning Practice Guidance (PPG) to sit beside the National Planning Policy Framework (NPPF).

The PPG is divided into 41 categories, each of which is based on a series of questions and answers. Each section contains hyperlinks to the relevant legislation and to other related sections within the PPG.

The government has also published a list of guidance documents which have been cancelled and replaced by the PPG.

Note, however, that some guidance is cancelled for England while being retained for Wales. Also, there are a number of documents appended to circulars which are retained despite the cancellation of the related circular:

  • Annex A to Circular10/95 (Direction relating to demolition) is retained.
  • Appendix A (list of model conditions) to Circular 11/95 is retained.
  • The Consultation Direction appended to Circular 02/09 is retained.

While the new PPG does not contain the bulk of the cancelled guidance, it nevertheless runs to over 600 pages when printed. It appears that the PPG will retain the previous version of each section when it is updated, but it remains to be seen how widely notification of updates will be published. It is obviously easier to update an online resource; it is therefore anticipated that updates and amendments will be made more frequently than previously.

Restatement of application of green belt policy

As with previous green belt policy, paragraph 87 (in Section 9) of the National Planning Policy Framework (NPPF) provides that inappropriate development is, by definition, harmful to the green belt and should not be approved except in "very special circumstances".

By paragraph 89 of the NPPF, local planning authorities are effectively directed to view the construction of any new buildings as "inappropriate development", with some specific exceptions.

In Wood v Secretary of State for Communities and Local Government [2014] EWHC 683 (Admin), the court set out the approach which local planning authorities should use in applying green belt policy as set out in the NPPF. It held that the authority should ask three questions, and carefully consider the answers:

  • Is inappropriate development proposed?
  • Do very special circumstances exist?
  • Do these circumstances clearly outweigh both the potential harm to the green belt caused by the inappropriate development, and also any other harm?

Where each is answered positively, the local planning authority should give "substantial weight" to any harm which would be caused by the development.

What constitutes a screening opinion?

Under The Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (Regulations), a local planning authority may give a screening opinion as to whether an environmental impact assessment will be required in support of a planning application. The authority is required to give a written statement, stating "clearly and precisely" the full reasons for the authority's decision.

In R (on the application of CBRE Lionbrook (General Partners) Limited) v Rugby Borough Council [2014] EWHC 646 (Admin), the claimant alleged that, having adopted a negative screening opinion in relation to proposals to develop a retail park, the Council breached the Regulations in deciding it was not required to adopt a further screening opinion on a revision of the proposals.

The revisions to the original planning application were set out in an email, sent by the developer's planning consultant to the Council. The revisions amounted to a net increase in floorspace, but with no other change to the nature of the proposals. The planning consultant concluded that a further screening opinion was not required and, in an email response, the Council agreed.

The claimant stated that the Council could not rely on the original screening because the revisions to the scheme constituted a different proposal. The court rejected that proposition. The planning agent had not requested a fresh screening opinion and the planning officer's reply did not purport to be a screening opinion. The email was simply the Council's decision that a further screening process was not required for the revised proposals.