Plan-it Law

January's Conundrum - planning and IPPC

This month's conundrum from our e-bulletin, Future Perfect?, reads as follows, as written by Oliver Ennis....

A recent case (Ian Frank Harrison v (1) SS Communities and Local Government (2) Cheshire West and Chester Council (2009)) has added further fuel to the debate about the relationship between the planning system and the integrated pollution prevention and control regime. The case emphasises that the regimes are distinct and serve different purposes. The fact that an environmental permit has been granted does not prevent a planning decision maker from concluding that a development will have an unacceptable impact on local amenity. This is a salutary tale for developers. PPS23 advises that both regimes should complement each other and that developers should give consideration to twin tracking applications. Do you think the current division of responsibilities makes for effective decision making?

Community Infrastructure Levy - Law Society response

I thought it might be useful to make the headlines of the Law Society's  CIL response available.  The headline points were:

 

1    There are no transitional provisions. As a result, developments which have already received planning permission can be subject t to CIL.  

 

2   Regulation 94 and the suggested scaling back of section 106 hands a new weapon to objectors who will be able to scrutinise permissions to see if Reg 94 has been complied with and in cases of doubt commence judicial review proceedings.  As lawyers this might well be in our interests; but we do not think it is an improvement to the planning system.

 

3   Nor will Reg 94 achieve the aim of stopping double recovery or double charging.  There are many other ways apart from s.106 which local planning authorities could use to obtain planning benefits.  It may not result in the observance of the policy tests either.  If the Secretary of State wishes to enforce his policy he can do so by making it plain he will do so on appeal, and award costs.

 

4   Some infrastructure is needed to mitigate environmental effects under the EIA Directive.  There is however not enough certainty in the case of CIL proposals to ensure that it is going to come forward at the appropriate time.  This leads to the real risk that developers will end up paying twice – once in CIL and a second time if the infrastructure in question is late, or abandoned.  This also leads to validity problems with the permission itself under the EIA regime.

 

5   The exemptions for charities are disallowed if development is commenced before determination of the claim for relief.

 

We'd be interested to know what others said.  Do let us know using the comments below. Or perhaps you'd like to send us a copy of what went in from your organisation.  If so, please send it to caroline.bywater@mills-reeve.com

 

David

 

CIL consultation response

We have just submitted our response to the CIL consultation paper - here's a link so that you can see what we have said.

A summary of consultation responses is expected to be published on the DCLG's website in January 2010. 

Protecting waste management sites - a new dawn?

Have practitioners come across waste management sites being threatened by inappropriate nearby development because either there were no or inadequate policies to protect those sites? 

We have found that a number of LPAs keen to allocate, say, residential sites are often embarassingly unaware of their proximity to or potential effect on waste management facilities. 

One of my own cases involved a 500-house allocation very close to an old but operational landfill site (surely the large gas plant should have been a hint?) with additional sorting and composting activities.  The LPA had not considered the protection policy in the (then) Waste Local Plan because it was not the waste planning authority -- it just didn't "click".  The waste planning authority said it had not been aware of the proposal, so had not drawn the WLP policy to anyone's attention.

It's not of course just a matter of dealing with actual nuisances but once a community knows of the existence of a nearby waste facility most nuisances, real or imagined, caused by it or not, are laid at its door.  The operator has to find the means to deal with the subsequent barrage of complaints. 

This is not the "positive and proactive delivery of sustainable development" to which DCLG refers in its recent Progress Report on the Killian Pretty Review.

In the East of England these problems might soon be a thing of the past.  We understand that a new RSS-level plan policy is being mooted. This would safeguard waste management sites by introducing a presumption that sensitive receptor uses should not be permitted within 200m of waste management facilities and a requirement that proposals within 500m should be the subject of prior consultation.   Sounds like a useful step in the right direction.

May's Conundrum - Freedom of Information?

Each month in our e-bulletin, Future Perfect,we pose a conundrum and invite readers' views and comments.  May's conundrum relates to requests for information and reads as follows...

Requests made of a public authority under the Freedom of Information Act (FOIA) must be given a response within 20 working days after receipt by the public authority (and the Environmental Information Regulations contain broadly analogous provisions - which are not the subject of this article). That delay increases if further information is required or if the authority requires payment of a fee. Whether intentionally or not, this can cause serious delay and uncertainty to those seeking information from a public authority.

It has been suggested to us that one method of tackling such a delay might be to write a letter to the authority under the pre-action protocol of the Civil Procedure Rules, seeking the same information as that outlined in the FOIA request. The pre-action protocol is designed to be used by parties to a dispute without resorting to the courts. Most importantly though, it can require a response in much less than 20 working days.

But what are the implications of making such a request? The Civil Procedure Rules state that a legal challenge may result if information requested under a pre-action protocol letter is not provided - because a dispute would remain unresolved. Presumably you would have to root the request firmly in terms of a real dispute - so that the separate basis for requesting further information of the authority could be justified. Remember also that documents disclosed under the pre-action protocol can only be used to resolve the dispute to which the request relates. Finally, particular care would have to be taken to ensure that no false or misleading allegation was made in the course of pursuing the request.

We suspect that this may be an avenue worth pursuing in extremis - where litigation may actually be said to arise by an authority's failure to disclose. But we have not yet attempted this purely as a means of obtaining information - has anyone else had experience of it?