Plan-it Law

Airport expansion and Parliament

Susan Kramer of the Liberal Democrats has introduced the Airports Expansion (Parliamentary Approval) Bill under the ten-minute rule, with all-party support.  The sponsors complain that Parliament is excluded from the planning process for airports and that the decision will be left to the Infrastructure Planning Commission under the Planning Act 2008 - see Hansard.  Hang on a moment, didn't the Government promise Parliamentary scrutiny of National Policy Statements which are a pre-cursor to decisions of the IPC?  Well yes it did, but how has that been watered down? The Act only requires NPSs to be laid before Parliament. They are not subject to negative resolution (or positive for that matter).  If either House does stir itself to pass a resolution, the Secretary of State must issue a statement of his or her reasons.  And actually, if there isn't an NPS, the IPC can still consider an application,albeit the decision is then made by the Secretary of State.  With no NPS in place for airports yet, that's what's likely to happen.  But interestingly, Ms Kramer doesn't refer to this limited influence which Parliament does have in the process.  Does this mean it's so limited she discounts it, or does she feel it's pointless?  Either way, will the new system really give us quicker decisions on national infrastructure, or is Ms Kramer just the beginning of the return of serious protest, such as at the Newbury Bypass and Twyford Down, where people feel disenfranchised from the decision making process and unlikely characters like Swampy become national heroes?

When does a planning permission die?

The default position under s91 of the 1990 Act is that development must be begun not later than the expiration of three years beginning with the date on which the permission is granted. That looks simple enough. But appearances can be deceptive!

The general rule of interpretation, set out in Halsburys Laws, is that, in cases in which a period is fixed within which a person must act or take the consequences "the day of the act or event from which the period runs should not be counted against him."

But s91 seems to exclude this general rule. The time period is explicitly stated as beginning with the day on which permission is granted.

So it seems that the planning permission may expire on the day before the third anniversary, not the day of the third anniversary. Planning caselaw doesn't help us much, with opposite approaches being taken in Henry Boot Homes Ltd v Bassetlaw District Council and the Hart Aggregates case.

The problem might look like an academic one, and it might be just that most of the time. But it's important to bear it in mind if implementation is going to take place at anything approaching the end of the time period. The safest approach must be to regard the day before the three year anniversary as the last date on which yiou can lawfully implement.

Now all you have to do is ensure that you do successfully implement the permission…

IPC

did you see this morning that DCLG have appointed an interim Chief Exec of the IPC - Kevin Williamson

More environmental assessment problems

Baker v. Bath & North East Somerset DC decided yesterday seems to raise a couple of hitherto unknown problems. At the moment the report is only a headnote but basically suggests that there are more transposition problems in this difficult area.  The first is that the thresholds for ruling out assessment of alterations to existing projects don't seem to work.  The judge said the directive requires cumulative effects to be considered in deciding whether assessment is needed. And secondly he has drawn attention to new Article 10A of the EIA Directive which he held requires the Government to alert the public to a review procedure to challenge the suibstantive or procedural legality of decisions which are governed by the public participation requirements of the directive.  Whilst we have an appeal procedure in planning, that can only be initiated by the disappointed applicant.  Is this the way in for third party rights of appeal?  Yet again, the EIA Directive leads you in directions you never thought you'd go.

Green belt - special circumstances

Interesting looking case earlier this week on Lawtel (Summers Poultry) which looks as of it will have some useful discussion on what can amount to "special circs".