Planning and nuisance: Revisiting the balance of public and private interests in Land-use development

Journal of Environmental Law

Volumn 23, Issue 2, 2011, Pages 285-310

  Bishop, Patrick ^a   Jenkins, Victoria ^a  

^a SWANSEA UNIVERSITY   (United Kingdom)

Author keywords

Locality doctrine; Nuisance; Participation; Planning Act 2008; Private rights; Public interest

Indexed keywords

ENVIRONMENTAL PLANNING; LAND USE PLANNING; LEGAL RIGHTS; PRIVATE SECTOR; PUBLIC SECTOR;

ENGLAND; UNITED KINGDOM; WALES;

EID: 79960103190     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eqr002     Document Type: Article

References (116)

1. A principle reaffirmed by the House of Lords in Hunter v Canary Wharf [1997] AC 655
2. J Steele and T Jewell, 'Nuisance and Planning' (1993) 56 MLR 568, 573
3. [1993] QB 343
4. [1996]Ch19
5. [2009] EWCA Civ 15; [2009] 3 All ER 249
6. A more democratically accountable version of which is supported by the new Coalition Government in the UK. See further n 47 below.
7. D McGillivray and J Wightman, 'Private Rights, Public Interests and the Environment' in T Haywood and J O'Neil (eds), Justice, Property and the Environment (Ashgate 1997)
8. P McAuslan, Ideologies of Planning Law (Pergamon Press 1980)
9. J Alder and D Wilkinson, Environmental Law and Ethics (Palgrave 1999) 228
10. HM Government, 'Planning for a Sustainable Future' (Cm 7120, 2007)
11. Planning and Compulsory Purchase Act 2004, s 39, provides that bodies responsible for local development planning must exercise their functions with the objective of contributing to the achievement of sustainable development; and, Planning Policy Statement 1: Delivering Sustainable Development
12. See for example, Environmental Justice: Rights and Means to a Healthy Environment for All (ESRC 2001)
13. R (Alconbury Developments Ltd and others) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295
14. McAuslan (n 10)
15. Milichap agrees with McAuslan that public interest has become the overriding rationale for planning but, whereas McAuslan promotes participatory rights, Milichap prefers a rationale for planning based on 'community rights'. This would provide decision makers with a legal duty to consider the interests of the community in their decision making (rather than rely on participatory processes that fail to reflect the interests of the community).
16. D Milichap, 'Real Property and its Regulation: The Community-Rights Rationale for Town Planning' in S Bright and J Dewar (eds), Land Law: Themes and Perspectives (OUP 1998) 428-54
17. See for example, the discussion on this issue in both Delivering Fundamental Change (Department of Communities and Local Government, 2002) and Planning for a Sustainable Future (n 11)
18. United Nations Economic Commission for Europe, Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (1998). Following its signature of the Convention, the EU amended its original Directive on environmental impact assessment (Directive 85/337 on the assessment of the effects of certain public and private projects on the environment [1985] OJ L175/40) to strengthen the provisions on participation. See further Directive 2003/35 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Directives 85/337 and 96/61 [2003] OJ L156/17; Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L197/30.
19. By virtue of the Local Government Act 1972, s 222
20. [1980] QB 156
21. Gillingham (n 4) 359
22. C Crawford, 'Public Law Rules over Private Law as a Standard for Nuisance: OK?' (1992) 4 JEL 262, 262-63
23. M Lee, 'Hunter v Canary Wharf Ltd (1997)' in C Mitchell and P Mitchell (eds), Landmark Cases in the Law of Tort (Hart 2010) 321
24. The defence of statutory authority may be traced back to series of cases decided during the late nineteenth century, eg Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430
25. The Court of Appeal therefore adopted the interpretation of Gillingham advocated by Crawford (n 24)
26. Wheeler (n 5) 30
27. Hunter (n 1)
28. Created by London Docklands Development Corporation (Area and Constitution) Order 1981 SI 1981/936, as amended by the London Docklands Development Corporation (Area and Constitution) (Amendment) Order 1981 SI 1981/937
29. Hunter (n 1) 710. See Lee (n 24) 324.
30. See n 7
31. [2008] EWHC 759; [2008] 3 All ER 1171, [50]
32. See n 7 [33]
33. Town and Country Planning Act 1990, s 70(2) and Planning and Compulsory Purchase Act 2004, s 38(6). Together these sections are understood to mean that in taking decisions on planning applications there is a presumption in favour of the development plan.
34. The local plan must be in accordance with national policy, which is also a material consideration in the decision on any individual planning permission. Historically, it was also necessary to comply with regional policy. In England, the Regional Planning Board was responsible for creating regional spatial strategies with which the local development framework (including the local development plan) had to be in accordance. The coalition government has however, revoked all regional spatial strategies.
35. Department for Communities and Local Government Press Release 'Pickles Plans to Abolish Regional Government' 22 July 2010 accessed 1 February 2011.
36. In Wales, for example, the planning system is structured around the Wales Spatial Plan that provides a 20-year agenda at national level for local and community planning. Peoples, Places, Futures: The Wales Spatial Plan (National Assembly for Wales 2004) and updated in 2008.
37. This would have been a key component of the regional spatial strategy although, as outlined above, these have recently been abolished by the new Coalition Government
38. Indeed, a motor circuit may also be an essential part of the local authority's 'community safety' or crime and disorder prevention strategy in dealing with the illegal use of 'off-road' vehicles-see further V Jenkins and S Macdonald, 'Keeping Off-Roaders on Track: Addressing the Misuse of Off-Road Vehicles in Urban and Rural Settings' [2010] JPEL 16
39. Watson (n 34) [88]
40. McGillivray and Wightman (n 9) 151
41. Gillingham (n 4) 352-3
42. Operating in conjunction with the town and country planning system were the Transport and Works Act 1992, Highways Act 1980, Harbours Act 1964, Gas Act 1965, Electricity Act 1989 and the Pipelines Act 1962. Development for which consent was previously provided under these statutes is now subject to the Planning Act 2008 where this falls within the thresholds outlined below.
43. K Barker, Barker Review of Land Use Planning (HM Treasury 2006) 83-4 and Planning for a Sustainable Future (n 11)
44. For example, on-shore wind farms are only included under the Act if they have a generating capacity of more than 50 megawatts
45. See further, B Kelly, 'The Planning Bill: Implications of the Proposals for a New Regime for Major Infrastructure for Democracy and Delivery' [2008] JPEL 1
46. See Major Infrastructure Planning Reform-Work Plan (Department for Communities and Local Government, December 2010) available at accessed 1 February 2011.
47. Conservative Party Open Source Planning, Policy Green Paper No. 14.
48. The Coalition: Our Programme for Government (HM Government 2010)
49. Planning Act 2008, s 152 and s 158
50. This clause was initially introduced in the report stage of the House of Commons and was not, therefore, subject to proper debate by that House
51. Railways Act 1993, s 122
52. Some major infrastructure projects which were provided for under statute, such as the Cardiff Bay Barrage Act 1993, are subject to the statutory authority exclusion of nuisance; and nuisance is also excluded under other specific statutory provisions, such as that enjoyed by Network Rail or s 76 of the Civil Aviation Act 1982 that precludes an action in nuisance as a result of disturbance created by aircraft
53. R Harwood, 'The Planning Bill: Infrastructure Proposals' [2008] JPEL 1411
54. 'Unprecedented Alliance Forms Against Planning Bill Licence to Pollute' CPRE, 14 October 2008 accessed 1 January 2011.
55. Wildtree Hotels Ltd and others v Harrow London Borough Council [2001] 2 AC 1
56. While the normal remedy in nuisance is an injunction, damages may be awarded for past and future interference and harm, eg Dennis v Ministry of Defence [2003] EWHC 793, [2003] Env LR 34
57. Planning Act 2008, s 120 and ch 5
58. See n 18
59. See further B Kelly, 'The Planning Bill: Implications of the Proposals for a New Regime for Major Infrastructure for Democracy and Delivery' [2008] JPEL (Supp) 1
60. J Maurici., 'Judicial Review under the Planning Act 2008' [2009] JPEL 446, 451.
61. Planning Act 2008, s 24 'Alteration of harbour facilities'. This provides thresholds for 'nationally significant infrastructure projects' in this field that relate to increases in quantity per year of the material embarking and disembarking from different types of ship. Hence, the development in Gillingham may have fallen into this category.
62. Planning Act 2008, part 3
63. In the Barker reviewof land-use planning major commercial development was excluded on the basis that 'few schemes would be of national economic significance', while the planning of even major housing developmentwas considered to be a 'core function of local authorities', n 47,83-4
64. Town and Country Planning Act 1990, s 77
65. The SoS has wide discretion to call-in applications and a third party can request that any application be called-in. The Government has recently taken measures to reduce the number of applications called-in by the Secretary of State. The relevant Direction is now the Town and Country Planning (Consultation) (England) Direction 2009.
66. See further accessed 1 January 2011.
67. NB J Griffith, The Politics of the Judiciary (5th edn Fontana Press 1997)
68. The local plan must be in accordance with national policy, which is also a material consideration in the decision on any individual planning permission
69. J Steele, 'Private Law and the Environment: Nuisance in Context' (1995) 15 LS 236, 258
70. From April to June 2010 local authorities received 127,100 applications for planning permission accessed 1 January 2011).
71. The statutory limit for dealing with these is 8 weeks. The level of discontent with planning decisions is evidenced by the number of planning appeals by developers-nearly 17,000 in England in 2009/10 (The Planning Inspectorate Statistical Report: England 2009/2010 (The Planning Inspectorate, 2010 accessed 1 February 2011).
72. Gillingham (n 4) 363
73. Town and Country Planning Act 1990, s 100
74. Wheeler (n 5) 29
75. Watson (n 34) [56]
76. See generally, Law Commission, 'Administrative Law: Judicial Review and Statutory Appeals' (Law Com No 226, 1994)
77. R v Foreign Secretary ex parteWorld Development Movement Ltd [1995] 1WLR 386 and on planning in particular R v Inspectorate of Pollution ex parte Greenpeace Ltd (No 2) [1994] 4 All ER 329
78. C Hilson and I Cram 'Judicial Review and Environmental Law - Is There a Coherent View of Standing?' (1996) 16 LS 1
79. Order 53, r 4(1) requires that an action must be brought 'promptly' and within three months of the decision. See generally, R v Hammersmith LBC, ex parte Burkett [2002] 3 All ER 97. Challenges to planning decisions made by the Secretary of State under the process of statutory review must be instigated within six weeks of the Secretary of State's decision (Town and Country Planning Act 1990, s. 288). The courts have some discretion to review the substantive legality of decision making but in practice this is restricted to cases of procedural impropriety, illegality of irrationality. The courts in England andWales have absolute discretion with regards to the imposition of costs Bolton Metropolitan District Council v SS for the Environment [1995] 1WLR 1176. The traditional rule in the UK courts is that the unsuccessful party must pay the successful party's costs, but this is subject to the discretion of the court to issue a Protective Costs Order-see further below.
80. A number of cases have been brought before the Aarhus Compliance Committee of the United Nations Economic Commission for Europe which found that the UK was in breach of the Convention as a result of these restrictions on the process of judicial review
81. The report of the meeting is available at accessed 1 February 2011.
82. See in particular, (Communication ACCC/C/2008/32) available at accessed 1 February 2011.
83. See further W Upton and J Neill, 'Why Access to Justice Remains Uncertain' (2010) 22 ELM 182
84. Town and Country Planning Act 1990, s 78
85. Delivering Fundamental Change (Department for Communities and Local Government, 2002)
86. On third party appeals in general see M Purdue, 'The Case for Third Party Planning Appeals' (2001) 3 Env L Rev 83
87. S Crowe, 'Third Party Appeals: Will They Work? Do We Need Them?' [1995] JPEL 376
88. Remedies - Guidance on Good Practice 6, The Commission for Local Administration in England available at accessed 1 February 2011.
89. Watson (n 7) [28]. Although utilised extremely infrequently, the Secretary of State is also vested with the power to revoke planning permission by virtue of the Town and Country Planning Act 1990, s 100. This does not however amount to an avenue of redress for third parties.
90. Case C-427/07 Commission v Ireland [2010] Env LR 8. This case involved a challenge to the Irish government regarding its implementation of the Environmental Impact Assessment Directive-see n 89 below. Ireland was found to be in breach of Art 10a of the Directive which provides that the costs of bringing a challenge in this context should not be prohibitively expensive. The Irish Government argued that this provision applied only to court fees, but the European Court of Justice ruled that this provision applied to all costs of the case.
91. See generally, M Seneviratne, 'Updating the Local Government Ombudsman' [2008] PL 627
92. Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment [1985] OJ L175/40
93. Aarhus Convention Implementation Report (DEFRA 2008)
94. R (on the application of Corner House Research) v SS for Trade and Industry [2005] EWCA Civ 192, [2005] 1WLR 2600
95. See n 88
96. Review of Civil Litigation Costs: Final Report (December, 2009) 310-11. accessed 1 February 2011.
97. See eg Environmental Justice: Rights and Means to a Healthy Environment For All (ESRC/FOE 2001)
98. Brooke LJ, 'Environmental Justice: The Cost Barrier' (2006) 18 JEL 341
99. T Yang, 'Environmental Regulation, Tort Law and Environmental Justice: What Could Have Been' (2002) 41 Washburn LJ 607
100. Ministry of Justice, 'Proposals for Reform of Civil Litigation Funding and Costs in England and Wales: Implementation of Lord Justice Jackson's Recommendations' (Cm 7947, 2010)
101. Steele (n 70) 258
102. Hunter (n 1)
103. Steele (n 70) 239
104. [2009] EWCA Civ 107; [2009] Env LR 30
105. See n 14
106. See n 12 and accompanying text
107. Eg Alconbury (n 14), '[o]ne element which lies behind the framework is the policy of securing what is termed sustainable development, an objective which is essentially a matter of governmental strategy.' [140].
108. Lee (n 24) 311
109. For example, Planning Policy Guidance Note 1: General Policy and Principles, (HMSO 1988), para 15 provided: 'There is always a presumption in favour of allowing applications for development, having regard to all material considerations, unless the development would cause demonstrable harm to interests of acknowledged importance.'.
110. Town and Country Planning Act 1990, s 70(2) and Planning and Compulsory Purchase Act 2004, s 38(6)
111. Planning Policy Statement 12: Local Spatial Planning, (Department of Communities and Local Government 2008)
112. S Tromans, 'Nuisance-Prevention or Payment?' (1982) 41 CLJ 87
113. [1895] 1 Ch 287
114. Watson (n 34) [86]
115. Watson (n 7) [50]
116. Tromans (n 107) 95