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THE PLANNING PROCEDURE AND HOW TO EFFECTIVELY OBJECT
The planning system is the key part of local administration, and its scope means that it can be a force for protection of the environment, or as is sometimes the case, it can allow the indiscriminate destruction of social, cultural and environmental 'wealth'.
The system of local planning is relatively young. The first planning Legislation came about in 1948, and has been improved since then. Today, the planning system is governed primarily by the Town and Country Planning Act 1990. In the past there has always been an underlying 'presumption in favour' of development, but the 1990 Act (as amended by the Planning and Compensation Act 1991) reverses this by requiring (in section 54A) that...
"Where making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise".
Section 54A is further reinforced by section 70(2) of the 1990 Act...
"In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations ".
This is very important - in theory, types of development not permitted in the development plan should not be allowed to proceed (see above for info on UDP). In practice, it is not always so clear, especially where there are local 'vested interests', as is the case with Xanadu where the project has been put together by the Local Authority in collusion with the Labour administration, and investment by the local business community.
The Town and Country Planning Act must take account of the development plan. Where there is a departure from the development plan those taking the decision must make a reasoned justification for the 'material considerations' that they believe are relevant to the case.
One further restriction is that planning cannot make rulings on matters which are the statutory responsibility of other regulatory authorities. For example, although the waste local plan can set general guidelines for the siting of waste facilities, the terms of waste licenses cannot be set within planning. Another example are the emissions from factories or large industrial plants - although the general impact of the development is relevant in planning, the decision on whether or not the discharges are "safe" is not a matter for the planning authority, this was illustrated with the Chemix application in Standish.
When making objections you must ensure that you base your arguments on "material planning considerations". It is very simple to say hey I don't want that here, its another thing to say "hey I don't want that here because it breaks the planning rules because ...........", therefore as a campaign we must ensure we are saying the right things to the right people, in this way we will win through.
What is and is not a relevant planning consideration is a very difficult thing to explain, but it could be seen as a sliding scale of 'materiality' relating to law, government reports, local authority policies, but always starting with the Unitary Development Plan.
In practice, especially during inquiries, the relevance of documents is one of the cases you may argue. So we must look at not only the policy documents that relate to the project, but also the very latest documents giving the latest feedback from the government on planning policy, we might for instance look at Scottish policy, which quite often is issued as a test before it is introduced into England, however this version of this document has not yet completed such a task, but it most certainly will be in the very near future.
Challenges to applications.
The main challenges which can be lodged against an application are:
* non-conformance with the requirements of planning law/regulations;
* non-conformance with the publicity requirements of GDO/Circular 15/92;
* non-conformance with EA. regulations;
* technical inaccuracies within the ES, or the application;
* non-conformance with the development plan;
* non-conformance with PPG's;
* non-conformance with circulars.
Note that 'non-conformance' need not be on the part of the developer. It could be the planning authority which has breached the regulations - in which case either the developer, or in a few instances the public, have powers to force a new determination.
If the planning authority make a decision which the public do not agree with they have no right of redress under the English planning system, as third parties are given no rights. If the public wish, any decision made by the planning authority or the Secretary of State can be challenged in the High Court. This would normally cost œ20,000 to œ50,000, and has no guarantee of success, or your money back if you win. There are alternative ways of funding, the main one being legal aid, but obtaining funding from other sources is based mainly on the 'winability' of the case, more on the topic of legal challenges are under the next section.
LAW AND LEGAL CHALLENGES
DON'T TAKE NO FOR AN ANSWER `COMPLAIN'
There are normally three mechanisms for monitoring and complaint...
* Complaints procedures: most local authorities have their own internal complaints procedures where members of the public can seek redress for perceived offences. However, most of these procedures apply to Officers only, not to Members. Since the findings are `internal' the results should normally be acted upon;
* The Local Government Ombudsman/Commissioner for Local Administration: This is an arbitrator, appointed by the Government, to investigate any complaint against an Officer or Member of a local authority. The Ombudsman's findings, are not binding on a local authority, but most local authorities go along with most of the upheld complaints because not to do so would stand against them in any subsequent legal proceedings;
* Judicial Review: where individuals/groups can show that they have a proper case, an application for a review of any decision of a local authority may be granted by the High Court (judicial review). However, this avenue can prove very expensive, with costs running into five-figure sums (but there are ways around this, and we will most certainly be using the legal challenge if all else fails).
In terms of accountability, the most effective means of redress for local people is the Ombudsman. Parliament has approved a 'code of conduct' for local administration. If it can be shown that an officer or a member has breached this code, then it is normally regarded as maladministration, if the need arises we will include info on that in a later version of this briefing.
The public can influence their local authority to respond to consultations in the way they wish. It is a fact that most consultation responses are written by Officers, and approved 'on the nod' by Members. If local people can influence the Officer, or make the Members question the officers approach, changes can be made, with this in mind always look to targeting the relevant officers.
THE LOCAL PLANNING AUTHORITY
Town and Country Planning
In terms of planning law, unlike say environmental health, the public have no powers to bring their own legal actions to seek redress for offences under law - that is the sole responsibility of the Local Planning Authority (the LPA is that part of the local authority which deals specifically with planning matters). But where an LPA fails in its duty to observe the law, the public may seek review through the courts, (judicial review or a direct appeal of a planning decision by an aggrieved person to the High Court).
Of all local authority responsibilities, planning has the greatest effect on the environment. As such, it should receive the most attention. Despite the power of central government, LPAs have quite wide powers to interpret the law and planning guidance. It has to be so, otherwise the system would be too inflexible. There is nothing to say that the guidance must favour the applicant for permission - it could equally favour the environment, or the local community. So unless local people are there, with sufficient knowledge, damaging, unsustainable developments do get passed, that is not to say that simply having local people involved would stop a project.
Strategic Planning
LPAs make plans to determine how an area will develop over the coming years. This is the essence of development planning - which is supposed to ensure that land, and land use, is managed to minimise environmental damage, and disturbance to the lives of the public at large, but of course quite often it does not work that way.
The 'Development Plan' has never been so important since the law now requires that all development should fall within the guidance of the local development plan (Town and Country Planning Act, 1990 s.72(2)). Where development outside of the plan is allowed there must be material considerations in favour of it (Town and Country Planning Act 1990 s.54(A)). It is essential then that the Development Plan, in all its constituent parts, be environmentally sound.
Development Control
The part of planning people most frequently encounter is development control. A developer applies for permission to do something, and the LPA assess the application. It is during the statutory public consultation period of 14 to 21 days that people find out about the application, and opposition/support for the proposal begins, while objections should always be in during that period, never stop sending in objections after the deadline, as sometimes the planning application is put on hold, altered or sent to a public inquiry, also some local authorities take a more pragmatic view towards objections and allow them to be received right up to the day of the planning decision, so while the statutory period of objection may have passed there is still a benefit in making further objections.
Relevance.
The main trap the public fall into when supporting/opposing a planning application is the need to ensure that all objections are 'relevant' in terms of the rules on 'material considerations'. If the message from the public does not conform to the idea, in planning terms, of what is relevant, the LPA will disregard the objections from the public. What is worse, if the LPA accept objections which are not material as part of the reasons for refusing an application, the developer may appeal, win at appeal, and the development will go ahead with fewer planning restrictions than it might have had if the LPA had approved it, so when we consider this aspect we really do need to think very hard about content of the main objections to a project.
That is not to say that 'heart-felt' objections need not be useful - they often are, since to the Members making the planning decisions these will indicate the strength of public opinion. But we need to use good planning objections too, thereby getting our message over to the planning officers better, and in doing so making life more difficult for the developers.
The idea of relevance is much like that in the rules of evidence used by the courts; evidence/submissions on an issue can be ruled as relevant or irrelevant, and weight/consideration applied accordingly. Unfortunately planning law is made in parts rather than having one central regulation on the relevance on evidence, and so the definition of what is relevant is wide, and may be different in different circumstances.
A ruling in the High Court (Glidewell L.J. - Bolton Metropolitan Borough vs. Secretary of State [1991] JPL 241) found that "relevant" need not be interpreted narrowly, but can be considered to mean any information which might cause the planning authority to form a different opinion on the application. but this case needs to be interpreted with care, since the reasoning behind consideration of an issue must be testable at any subsequent planning inquiry; but nevertheless a useful decision since it means that the more 'heart-felt' objections can be interpreted by the Members and considered relevant, or even lead to grounds of challenge if they do not take them into consideration (which is different to them accepting those arguments, but they should consider them even if they reject them).
Various government publications and High Court rulings have determined the
following in the case of planning applications....
Relevant:
* planning laws, circulars and ministerial guidance's;
* physical site considerations;
* amenity value of site;
* existing land use in the area;
* existence of alternative/better suited sites;
* development plan considerations;
* proof of conformance/non-conformance with any of the above.
Not relevant:
* economic feasibility;
* lack of public gain from application;
* matters relating to other planning/regulatory bodies;
* previous 'record' of the developer;
* matters not directly relating to the application or to the exercise of powers under the relevant planning laws, guidance's or structure plans.
Issues related to a development but not directly involved with the application - e.g. the quarrying of aggregates to make the concrete - are not taken as a relevant issue during determination. Only the direct physical effects are taken into account. Where such issues are brought into an application by the developer, they then can be considered as relevant because it is the ES which is taken as the subject of any determination, quite often the developer fails to give any indication at all in the EIS, as to the materials to be used to construct a project, let alone where such materials are to come from, or how they will effect the local communities in those areas.
With the EA. regulations, a whole new batch of relevant items comes into play. These are specified in Schedule 3 of the SI. This includes... *affects on humans; * affects on flora, fauna, soil, air, water, climate, landscape and the interaction of the above; * material assets; * cultural heritage, more is to be found in other sections on those topics.
Determination and representations period.
On registration of the application the authority must make a determination within 8 weeks. If the application is accompanied by an ES this is lengthened to 16 weeks to give the authority time to consider the ES, but such periods of time can be extended with the consent of the developers. However, the public still has only 21 days to make representations. If the authority have not made a determination within the time limit the developer has the power to appeal to the Secretary of State for Environment for non-determination.
Other planning issues
Work in planning need not be reactive - it can also be proactive. As well as the idea of working on existing or proposed development, it is possible for the public to initiate new issues. For example...
* Trees: The public can lobby their LPA to implement Tree Preservation Orders (TPOs) on certain trees in their area. This is no guarantee against development, but it normally ensures that any developer must protect or minimise the damage to trees with TPOs on them. TPOs represent an effective deterrent to environmental damage - a Kent company has recently been fined £50,000 for breaching a TPO.
As has already been stated in this report some trees do have preservation orders on them a fact that both the planning department and the developers appear to be ignoring.
* Wildlife and habitats: As is acknowledged in Planning Policy Guidance No.1, LPAs must accept their international legal obligations as well as national ones. There is no reason why the Biodiversity Convention and other international conservation documents cannot be considered in any planning application. The planning system also recognises, as a very important materials consideration, the wider wildlife and countryside impacts, particularly in SSSIs, ANOBs, etc. This recognition give some powerful campaigning tools to local groups.
The Green Party would always encourage the local community to push to protect a site, once a project has been defeated, by lobbying the Environment Agency to make a site an SSSI or SSBI, or to make an application to the local authority to declare a site a village green..
* Transport: Planning Policy Guidance no.13 relates specifically to transport, and contains interesting policies which local people could follow up. For example, all local plans should include cycleways on their proposals maps, and LPAs should be practising parking restraint, and encouraging public transport, in urban centres.
* Pollution: Although pollution control is the responsibility of other authorities, the planning process can consider the effects of any development as part of the process to assess the application. Local people can put significant obstacles in the way of potentially polluting developments by asking for environmental statements, risk assessments, and other such planning related documents. These documents - or even the lack of them - provide significant campaigning opportunities. But irrespective of the regulatory bodies in charge of pollution, all large developments need planning permission; it is better to stop such developments at this stage, or get them significantly improved, rather than wait until they are built and discharging.
However it is in the interests of the local community to take out insurance against the risk of pollution, by visiting your local health centre or doctor, and having checks of your families health prior to a project being developed, and then constantly monitor their health after (if the project is built), in this way you would be far better prepared to seek compensation through the courts, and it would also add weight to objections to any future extension of a site.
* Sustainability: Perhaps the most untapped area of campaign related planning activity. Planning Policy guidance No.1 requires that development be sustainable - but this is not defined. It is therefore up to individuals or groups, either through the local plans process or through individual applications, to advance arguments for sustainable development. (This is a whole topic within itself, and is difficult to summarise easily)
Of course the most pro active form of development control is achieved through influencing policies in the development plan - hence the importance of taking part in the development plans preparation procedures. So while the development plan is already in place, lobby for amendments, and watch out for updates, and also remember that the next plan is only about 7 years away from being compiled, make sure that such a new plan is as protective of the local environment as you can make it.
2.2 Environmental Health
The growth of large, industrialised cities, in the latter 19th Century led to the growth of a body of law which was to form the basis of today's environmental health system. Stemming from laws earlier this Century, all local authorities have an obligation to protect public health. Out of this obligation, definite areas of law have been developed, most recently with the Environmental Protection Act 1990, and are outlined below...
2.2.1 Public protection
As this implies, this is the responsibility to protect the public. As well as being charged with the 'fire brigade' responsibilities of dealing with existing nuisances/public health problems, local authorities also have wide powers for proactive research to identify potential problems. This responsibility ranges between the support for the local fire service, to radiation monitoring. It also includes such things as emergency planning, although since the collapse of the Communist Block this has rather taken a back seat.
Specific examples of how public protection works are...
* Emergency planning: In addition to planning for nuclear attack, local
authorities also plan for flooding, aircraft crashes, and accidents at nearby chemical or nuclear establishments. Getting access to the information on local emergency planning can provide a wealth of information on local toxic/explosive hazards - CIMAH[7] sites for example.
* Air pollution monitoring: Many local authorities now undertake monitoring, either continuously or on a frequent basis, of the major air pollutants such as nitrogen oxides, ozone, particulate's and sulphur dioxide. This information is especially relevant to campaigns against industry or road traffic.
There are other ways of proactively campaigning. For example, many local authorities, and through them fire authorities, have few procedures for reacting to accidents involving radioactive materials. This can be a key point in campaigns against the transport of spent nuclear fuel or nuclear warheads.
2.2.2 Statutory nuisance
One of the major tasks on local authorities is to 'abate public nuisances'. What is, or is not, a statutory nuisance is a branch of law within environmental law as a whole - distinction having to be made between what constitutes a 'nuisance', and then whether that nuisance is a 'private' nuisance (which is a matter for the person concerned) or a 'public' nuisance (which is a matter for the statutory authority - the local authority). There are case laws which have identified some broad definitions of nuisance...
"A nuisance which materially affects the reasonable comfort and convenience of persons within its sphere, may be a public nuisance";
"An offensive trade, either from the noise or smell, carried out to the annoyance or discomfort of all persons in the neighbourhood, is a nuisance".
As well as being a nuisance under common law, a nuisance could also be classed as a 'statutory' nuisance within the meaning of the Public Health Act, 1936 (the powers of which have now been transferred to the Environmental Protection Act 1990 = EPA). As such, the local authority is obligated to abate the nuisance as soon as possible. The definition of a statutory nuisance within the Public Health Act is...
"Any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance".
Actions for statutory nuisance are contained in sections 79-82 of the EPA. An important limitation for local authorities is that they are not entitled to bring a claim for statutory nuisance against a process which is allocated for the IPC under section 79(10).
Under section 79 a statutory nuisance arises with regard to:
* any premises in such a state as to be prejudicial to health or a nuisance;
* smoke emitted from premises so as to be prejudicial to health or a nuisance;
* fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;
* any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance;
* any accumulation or deposit which is prejudicial to health or a nuisance;
* any animal kept in such a place or manner as to be prejudicial to health or a nuisance;
* noise emitted from premises so as to be prejudicial to health or a nuisance;
* any other matter declared by any enactment to be a statutory nuisance.
While most of that only applies after a project is in place, it never the less allows objectors to point to possible long term problems that will be associated with the project, and allows protesters to rightly point out to the local authority that at some stage they may very well have to prosecute the developers under the various laws relating to pollution.
Under section 80, where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, the authority is under a duty to serve an abatement notice requiring either:-
* the abatement of the nuisance or prohibiting or restricting its occurrence or reoccurrence;
* execution of such works and the taking of such steps as may be necessary for those purposes;
... and the notice shall specify the time or times within which the requirements of the notice are to be complied with.
Once the 21 days have elapsed and there has been no appeal, an offence will be committed if the person acts in contravention of the notice. A fine of up to œ20,000 may be imposed. A person who commits an offence in the course of private activities, such as a noisy neighbour, in contravention of the notice may suffer a fine of up to œ2,000. In the case of an offence committed by a trade or business the penalty leaps ten-fold with a maximum penalty of œ20,000. In addition the local authority may also take steps to reduce or abate the nuisance and recover costs from the person responsible.
Apart from highly technical defences, the only other defence available is that the best practicable means were used to prevent or counteract the effects of the nuisance. This will only apply to nuisances arising from trade premises. Other possible defences include a notice under the Control of Pollution Act 1974 (construction sites). In cases where more than one person was liable under section 80 above, the measures will apply to both, regardless of whether one or the other was responsible.
This responsibility on local authorities give tremendous powers to local people. They can highlight cases of 'nuisance' and then get the local authority to take action on their behalf. The problem with this process is that some local authorities are reluctant to use their powers because of the expense such action can incur. For this reason it is often necessary to threaten (or make) a complaint to the Ombudsman.
Notice the obligation `likely to occur', this could form a very strong argument to ensure that excessive pollution levels are not exceeded, and give enough to frighten Wigan into taking more interest in the pollution levels likely to result from Xanadu, the local community should not threaten that they MIGHT take action against the local authority, they should state that THEY WILL TAKE ACTION, if due consideration is not given to likely pollution levels.
Individual action
The EPA also introduced new powers for the citizen to make complaints against individuals/companies causing nuisances. Procedure exists under section 82 of the EPA for an aggrieved person to make a complaint to the magistrates' court. Actions can only be brought on an individual basis for harm which is caused to the plaintiff or to interference's with personal property. However, the range of persons who may prosecute is actually a limitation on the range of persons who may take action, the wording of section 82 being limited to or envisaging someone who is 'aggrieved'. This is wide enough to include a person directly affected and perhaps a relative or helper acting on behalf of a disabled person who is directly affected. A person aggrieved was defined by Lord Denning[11] as follows:
'The words "person aggrieved" are of wide import and should not be subjeced to a restricted interpretation. They do not include, of course, a mere busybody who is interfering in things that do not concern him; but they do include, of course, a person who has a genuine grievance beca
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