Equality assessment in planning

The case of R (on the application of Harris) v Haringey London Borough Council provides salutary lessons for both developers and local planning authorities.

The Court of Appeal quashed a decision of a local authority which granted planning permission for a regeneration project in a run down area of Tottenham. This was because the report to committee upon which the decision was based failed to consider section 71 of the Race Relations Act 1976 (as amended). This required the local planning authority to "have regard" to the need to promote equality of opportunity and good relations between persons of different racial groups.

Section 71 is likely to be replaced later this year by the Equality Act 2010, but the requirement to consider the effect of a development on different racial groups will remain.

Transitional provisions following abolition of the Infrastructure Planning Commission

Currently the Infrastructure Planning Commission (IPC) determines applications for development consent for Nationally Significant Infrastructure Projects (NSIPs). As and when the Localism Bill comes into force, decision on NSIPs will be made by the Major Infrastructure Planning Unit which will be part of the Planning Inspectorate. Final decisions will be made by ministers based on the recommendation of the Unit.

The current commissioners under the IPC will continue in their roles, but as part of the Planning Inspectorate, until 2014.

Advertisements during the Olympics

A consultation was published on 10 March which seeks to restrict "ambush marketing" during the Olympic/Paralympic Games. This is an attempt by a non-sponsor to take advantage of the high profile of an event, team or individual at the expense of an official association, without paying licence fees etc.

Advertisement control is carried out by local planning authorities on the basis of the interests of amenity and public safety but the current regime is not considered sufficient for the purposes of the Games.

There will be an extended definition of "advertising activity" and the restrictions will apply in event zones and during event periods.

The restrictions will be enforced by the police or by officers designated by the Olympic Delivery Authority.

Identifying and managing significant local heritage assets

English Heritage has published a draft Good Practice Guide for consultation. About half of all local authorities have local lists of historic buildings which may not qualify as statutorily listed buildings but are nonetheless valuable in their local area.

However, practice varies between local authorities about how local lists are prepared. This guidance seeks to promote good practice and gives non-statutory advice to local authorities and members of the community.

Community-Led Plans - "Knowing Your Place"

English Heritage has produced guidance on the incorporation of local heritage in Community-Led Plans such as Parish Plans or Village Design Statements.

Localism Bill - pre-application consultation

The Government is consulting on the proposal in the Localism Bill to require developers to consult local communities before making a planning application.

The consultation document sets out thresholds for triggering the requirement, which are stated to be "for discussion".

These are:

  • Residential schemes providing 200 or more new units or sites of 4ha or more;
  • Other developments providing 10,000 sq m or more of new floorspace, or with a site of 2ha or more.

Change to definition of Affordable Housing

Another consultation has been published. This introduces an "affordable rent" product into the definition of Affordable Housing in Planning Policy Statement 3.

These dwellings will be offered to tenants at up to a maximum of 80% of the gross market rent (taking account of the service charge) and will be allocated in the same way as social rented housing.

Disclosure of legal advice rejected

The First-tier Tribunal (Information Rights) (FTTIR) has rejected an appeal seeking disclosure of legal advice given to a local planning authority.

S complained to North Somerset Council that a neighbour had erected decking in breach of planning control. The council's solicitor advised that there was no breach and no enforcement action was taken.

S submitted a request for disclosure of the legal advice which was refused. S appealed to the Information Commissioner (IC).

The IC held that the information was covered by the legal advice privilege exception. The public interest in maintaining the exception outweighed the public interest in disclosure.

S appealed to the FTTIR. The IC's reasons were upheld but the FTTIR added that as the legal advice was given in the light of a "live" matter, it was given in preparation for possible future litigation.

Skinner v Information Commissioner

"Deliberate Disturbance" under the Habitats Directive

It is an offence to deliberately disturb a species protected under the Habitats Regulations, particularly during a period of breeding, rearing, hibernation and migration. A recent case considered the meaning of the phrase "deliberately disturb". This has implications for developers and their consultants in formulating development proposals and mitigation measures for European Protected Species.

Planning permission was granted for a road for a rapid bus route in Hampshire in 2009 but was challenged on environmental grounds.

Permission was given to appeal on two issues of general importance. The Supreme Court held that a "deliberate" action is an intentional act by a person who knows that it will or may result in disturbance of a protected species.

Therefore where an assessment is made and a reasonable conclusion is reached that disturbance is not likely to occur, but unexpectedly it does occur, there is no deliberate act and therefore no offence.

The Supreme Court found that "disturbance" need not be significant to create an offence. However, an act which is likely to have a negative impact on the survival or breeding of a species at the local population level will be an offence. Therefore disturbance of one or two individuals in a rare species may be an offence but disturbance of one or two individuals in a less rare but nevertheless protected species may not be an offence. The court confirmed that each case must be determined on its own merits by the decision-maker.

R (on the application of Morge) v Hampshire County Council