A local group sought permission to bring a judicial review of the council's grant of planning permission for a wind farm on the ground that the council had failed to comply with the requirements of the Environmental Impact Assessment Regulations. This was on the basis that technical wind speed data supporting the wind farm application had not been made available to the planning committee nor to the interested parties. At the committee meeting the members were made aware of the existence of the data, which was contained on CDs, but they declined to carry out a site visit.

The court found that planning permission would have been granted in any event. The data was disclosed to the committee meeting and the local group knew of the existence of the data a few days before the meeting but failed to act on that knowledge. There was no unfairness in the breach of the Regulations.

Additionally, the court refused permission on the basis that the claimant did not start proceedings until three months after the decision of the committee. The court said that the need for expedition was of particular importance in challenges to the grant of planning permission. It was important that at the very least a claimant should demonstrate that he was serious at an early stage. It was not reasonable to wait three months after the grant of permission. The developer had incurred expense between the grant of permission and the application having been made and it would be prejudiced if the claim were to succeed.

Andrew Finn-Kelcey v Milton Keynes Borough Council and MK Wind Farm Ltd (17 July 2008)


Compulsory purchase – betterment and date of entry

In Esso Petroleum Co Ltd v Secretary of State for Transport, the acquiring authority was planning some highway improvements which required the compulsory purchase of part of the claimant's property. The authority removed hedges and vegetation from land occupied with the claimant's petrol station for the purpose of avoiding the bird nesting season and to help combat foot and mouth disease. No development was carried out for some time and the claimant carried on operating its petrol station.

The court had to determine date of entry by the acquiring authority. This is relevant in setting the date at which the value of the acquired land is calculated and from which interest on the compensation starts to run.

The court concluded that the land clearance was not minimal and was carried out for the purpose of enabling construction of the highway improvements to proceed. It did constitute entry and the taking of possession and set the date for valuation of the acquired land.

The court also settled the point that, in setting compensation for land acquired under a Compulsory Purchase Order, the Lands Tribunal is entitled to take into account any betterment (i.e. increased value) in the claimant's retained property.


Consultation on changes to the London Plan

This document has been published by the new Mayor of London outlining policies and initiatives he intends to implement. Most changes can be dealt with under the existing London Plan but will require Supplementary Planning Guidance (SPG) to be issued. This is the first stage in a review of the whole plan which is expected to be completed in 2012.

Key issues

Housing – a draft housing strategy will be published in 2008 with revised SPG. The mayor wants to see boroughs bringing vacant property back to use and increased housing densities where appropriate.

Affordable housing targets – the 50% target will be removed. The mayor wants to work with organisations to deliver 50,000 affordable homes over three years.

Tall buildings – Locations will be identified as suitable for tall buildings, in places where there are existing clusters of tall buildings such as Isle of Dogs and Croydon. 

Outer London – an Outer London Commission will be established.

Retail – The mayor will work with Camden and Westminster councils to support and improve the West End. Proposals will be introduced to enable the use of section 106 agreements to require developers to provide affordable shop units in major retail schemes.

Transport – The Crossrail Act received Royal Assent on 22 July 2008. The plan will be changed to allow the planning system to seek contributions towards the cost of Crossrail. In addition, the mayor will oppose a third runway at Heathrow and will review the long-term options for London's airports including scope for a new airport in the Thames Estuary. SPG will be issued on cycle parking and a cycle hire scheme similar to that in Paris. Use of the Thames and other waterways for transportation will be encouraged.


Detailed planning permission – plans form a part of the permission

The High Court has held that the plans submitted with a detailed application for building operations form an integral part of the permission granted. The plans would therefore be taken into account when construing the permission even if there was no direct reference to them in the permission.

The court did draw a distinction between an application for a new build property and an application for an extension to an existing property. In the former the "red-line plan" could be reasonably inferred to show the curtilage of the new house. In the latter there may be an application to extend the curtilage but there was no necessary implication that it would do so.

Barnett v Secretary of State for Communities and Local Government and another