Planning and Environmental Protection: A Review of Law and Policy


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Quarrying falls within Annex II to the Directive, which lists those projects which must be subject to an assessment where they are likely to give rise to significant effects. Local residents argued that the county council had acted unlawfully by determining the conditions without requiring the operators to submit an environmental statement. At first instance, Hidden J argued for the former. The determination of conditions without consideration of an environmental statement was therefore unlawful. The House of Lords subsequently affirmed this verdict and offered a little further advice on activities requiring multiple or staged permissions: the principle in this and similar cases seems to me to be clear: the Directive does not apply to decisions which involve merely the detailed regulation of activities for which the principal consent, raising the substantial environmental issues, has already been given.

This is the principle of European Community law which enables individuals to rely upon provisions of directives, which are precise and unconditional, in their national courts. As an emanation of the UK state, Durham County Council was bound by the terms of the Directive and it had therefore to receive and consider an assessment before approving the proposed operations.

But this would result, Durham argued, in an obligation being imposed on a private individual the quarry operator or, in other words, it would be an example of horizontal direct effect—a directive should impose an obligation on Member States not on individuals—something which the case law15 of the European Court of Justice has sought to avoid. In resolving this 10 11 12 13 14 15 R. Above n. A private individual has used a principle to be found, not in the Treaty of Rome, but in the case law of the European Court17 to persuade the Court of Appeal to adopt a purposive interpretation of a directive, rather than rely upon a literal reading of the implementing regulations.

It is a procedural victory but not necessarily a substantive one: having received and considered the assessment, the County Council will still enjoy wide discretion constrained only by Wednesbury18 reasonableness in the conditions it chooses to impose. But coming as it did, in the first months of the new millennium, this case may come to be seen as a milestone19 in the conflict between public and private interests which, according to Professor MacAuslan , planning seeks to mediate.

It represents a clear departure from judicial attitudes in earlier cases. Planning control has always amounted to an intrusion on the rights of property. Secretary of State for the Environment [] 3 All ER HL in which their Lordships held that an environmental statement must be submitted even though it is unlikely to influence a decision-maker, who already has all the relevant information but in a different form.

When the activities which give rise to complaints concerning smoke, fumes, noise, odour etc. In a case20 involving noise from traffic entering and leaving a commercial port, Buckley J held that planning consent was analogous to statutory authority in conferring a defence against claims in nuisance. If this decision is interpreted as extinguishing a private right to sue in nuisance without remedy or compensation, it is contrary to English law. If however, the planning permission is understood as bringing about a marked change in the nature of the area, then the locality test of what is a reasonable amount of noise, dust or fumes to be expected in an industrial, residential or commercial area remains the basis of a defence against nuisance.

Given the criticism which this decision attracted, it was not surprising that the Court of Appeal chose to narrow further the latter interpretation when considering a similar case. Secondly, the development had to make a specific change to the nature of the locality, which, in this later case, the operation of pig units in a rural area did not.

The High Court has also held that, whilst the possibility of actions in nuisance had to be considered by a planning authority, that did not oblige the authority to withhold consent for housing in the vicinity of an existing source of odour an animal treatment works. Interference caused by an exceptionally tall building Canary Wharf in East London was deemed not to constitute a nuisance.

Citing precedents dating from the seventeenth century that the interruption of view and other passive effects of one building upon another were not in the absence of some easement or covenant unlawful, their Lordships declined the opportunity to modernise nuisance by recognising that receiving adequate TV signals is, for many people, a necessary precondition of the full enjoyment of their homes.

Medway Chatham Dock Company [] Env. Wheeler and Anr v. Saunders Ltd and others [] 2 All ER Exeter CC ex parte J. Hunter and others v. However, this development took place within the boundary of an enterprise zone Isle of Dogs where even a building of this height metres required the agreement only of the London Docklands Development Corporation.

Enforcement of Environmental Laws and Regulations: A Literature Review

The erection or extension of even a single-storey building can impair the view previously enjoyed by neighbours. For those affected it represents the loss of a private good. By analogy, interference with TV signals simply by the presence of a tall building must also fall within that category. Nuisance serves to protect the former whilst recognising the latter; planning pursues the latter whilst ensuring that the extinction of any property right as, for example, in compulsory purchase is appropriately compensated. Planning is inherently utilitarian: it is recognised that there may be losers as well as gainers as a result of any planning decision or development plan policy.

But provided that decision or policy is in pursuit of the overall interests of the area, and it is not unreasonable in the Wednesbury sense, then the planning authority is not liable in negligence to any person who consequently incurs loss. Planning and human rights The Human Rights regime represents yet another overlapping jurisdiction and one which can be expected to disturb the equilibrium between public and private interests.

Stringer v. Minister of Housing and Local Government [] 1 All ER 65 at 77, in which the operators of the radio-telescope at Jodrell Bank Cheshire opposed a development which would increase the local background radiation from electrical machinery in the proposed garage. In Lopez Ostra v. In determining whether, in cases of this type, a state had breached its duty to protect private and family life, home and correspondence, the Court held that: regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in any case the State enjoys a certain margin of appreciation.

It was the margin of appreciation which, by a six to three majority of the judges in the ECHR, saved the United Kingdom from considerable embarrassment in the Buckley31 case. Mrs Buckley, a gypsy, argued that her right to family life had been infringed when the local planning authority took enforcement action after she had parked her two caravans on land which she owned but which was not designated for that purpose in the local plan.

However, it could well be that the more lasting effect on the UK planning system will come from Bryan v. UK32 and subsequent cases which are concerned with the procedural, as distinct from the substantive, rights which the planning system confers. Lopez Ostra v. Guerra and others v. Buckley v. Bryan v. However, the ECHR went on to accept that the right of an aggrieved appellant33 to refer the decision in an enforcement notice appeal to the High Court was sufficient to ensure that Article 6 1 was not violated by the existing UK procedures.

This innovation had been suggested earlier by the planning lawyer, Robert Carnwath , and by Sir Harry later, Lord Woolf, who argued , 12 that the growing number and complexity of environmental disputes necessitated the establishment of a specialist tribunal. The Scottish Ministers. In summary, the argument advanced in Bryan37 viz. However, offering property developers a means of challenging their obligations in the conservation of Georgian facades was, I suspect, not uppermost in the minds of the original authors of the European Convention or of those who drafted the Human Rights Act Whatever the precise structure of any environment court which is eventually implemented, it is likely that the appeals, reviews and cases, which have been of most interest to the contributors to this volume would tend to be considered by a multi-disciplinary body including lawyers, planners, surveyors and scientists.

One might therefore anticipate the gradual emergence of a more consistent approach. But whilst the appellate role of the Secretary of State might be removed, the role of the central executive in setting out the overall policy aims of planning will remain. Governments are elected to govern in the public interest.


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  3. A Light in Dark Times: Maxine Greene and the Unfinished Conversation.

Passing such decisions to the judiciary will not make them any easier or, indeed, any less political. Planning seeks to regulate the use of land in the public interest. But contemporary environmentalism is motivated and characterised by a deep apprehension that the true external costs of industrialism may outweigh the benefits. We do not claim that the following chapters represent an exhaustive account, that is, one which leaves no aspect of planning or environment unconsidered. From a distance, it may appear that the anticipation of environmentally unacceptable activities and impacts in relation to land use, on the one hand, and water use, on the other, have much in common.

Both may be seen as mechanisms by which environmental protection may be directed towards overall objectives and the conformity of particular proposals with those objectives may be secured.

Environmental law - Wikipedia

However, it is remarkable that, in the United Kingdom, the regulatory systems which apply to land use planning and water use planning have evolved, to a great extent, independently of one another. Whatever justification exists for this is largely historical in character, but the new emphasis upon holistic environmental regulation places in contention any legal or administrative barriers between the control of different activities which impact upon the environment. Hence, the time is ripe to revisit the separation between town and country planning and water quality planning and to reassess whether this regulatory separation is genuinely conducive to better protection of the environment as a whole and the ecosystems which are dependent upon it.

Having embarked upon this, potentially wide-ranging, line of enquiry some qualifications are needed to confine the discussion within manageable limits. The first is to note that, following the general theme of this work, the comparisons and contrasts that are to be drawn are between town and country planning and water quality planning.

That is to say, that the weighty concern of water quantity management, the reconciliation of water demands upon limited supplies and the consequences of over-use of water supplies upon the aquatic environment, will be addressed here only incidentally but see Chapter Nine. Whilst the role of land use planning in preventing developments which impose unacceptable demands upon vulnerable watercourses and groundwater supplies T HE PURPOSE OF 20 William Howarth is a fundamental concern in the protection of the aquatic environment, the respective use of the two planning regimes to prevent water pollution and the deterioration of water quality is taken as the central focus of attention.

Secondly, it must be recognised that the system of town and country planning operative in England and Wales is of bewildering intricacy and the danger of being swamped by detail must be avoided if useful general inferences are to be drawn. For the purpose of emphasising comparisons and contrasts with water quality planning a strongly thematic approach is needed.

This involves identifying the centrally important features of the regulatory regimes at the expense of leaving out much of the detail that would properly feature in a fuller account of either system of control. It is to be stressed, therefore, that the coverage that follows seeks to provide a basis for a comparative discussion rather than anything approaching a comprehensive account of the law and policy on land use planning or water quality planning.

Finally, it is necessary to acknowledge that any analysis based mainly on legislative principles may be neglecting institutional and political factors which might support quite different inferences. Local authorities, for example, which undertake the greater part of the responsibility for administering the town and country planning system in practice, have a local democratic mandate. The elected representatives of local people will be unavoidably subject to a corresponding political obligation to be responsive to environmental and other primarily local concerns.

By contrast, the Environment Agency, which has the principal responsibility for the administration of water quality planning, has no directly corresponding political mandate and draws its remit from its allocation of responsibilities under national legislation and policy and the considerable body of technical expertise that it possesses in relation to the implementation of its environmental responsibilities.

The key point to appreciate is that the practical effect of a body of law is capable of being greatly influenced by the nature of the body that is entrusted with its implementation, and the actual impact of the two regulatory regimes under consideration may be strongly dependent upon different perceptions of environmental priorities as between local authorities and the Environment Agency.

Moreover, the legally-based analysis that follows may not give adequate weight to the contrasts that arise because of the different perspectives of those entrusted with administrative and lawenforcement responsibilities.

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Nonetheless, for any progress to be made, some judgement has to be exercised, even if it is not likely to be met with universal endorsement. It is, tentatively, proposed, therefore, that the following may be treated as the axioms of town and country planning law: 1 2 3 4 5 6 7 8 the Executive Responsibility Principle; the Plan Formulation Responsibility; the Development Definition; the De Minimis Exception; the Authorisation Principle; the Consultation Obligation; the Materiality Principle; and the Determination Principle.

In terms of their basic functions, within the town and country planning system, the principles are outlined in the following paragraphs. The executive responsibility principle Whilst practical responsibilities for formulating development plans and determining applications for development consent are normally allocated to local planning authorities, the appropriate Secretary of State has ultimate control over the town and country planning system by means of a range of legislative, administrative and adjudicative powers.

At the administrative level, the Secretary of State has wide-ranging powers to issue guidance to local authorities to ensure that they act in accordance with general planning policy. Hence, control over structure plans adopted by local authorities is maintained by a requirement that, in formulating a structure plan, the local authority must have regard to any regional or strategic planning guidance 1 2 3 4 S. The plan formulation responsibility A duty is imposed upon planning authorities to formulate development plans for a range of different kinds of purpose under Part II of the Act.

The purpose of the structure plan is to provide a general account of policies applicable to land use within the area, whereas local plans apply policies stated in the structure plan in relation to identified areas of land. Broadly, the function of development plans is twofold: first, to provide a statement of the manner in which national and local policies are to be applied within the relevant area and, secondly, to provide a guide to determinations of whether particular kinds of development will be allowed in particular locations.

Planning and Environmental Protection: A Review of Law and Policy Planning and Environmental Protection: A Review of Law and Policy
Planning and Environmental Protection: A Review of Law and Policy Planning and Environmental Protection: A Review of Law and Policy
Planning and Environmental Protection: A Review of Law and Policy Planning and Environmental Protection: A Review of Law and Policy
Planning and Environmental Protection: A Review of Law and Policy Planning and Environmental Protection: A Review of Law and Policy
Planning and Environmental Protection: A Review of Law and Policy Planning and Environmental Protection: A Review of Law and Policy
Planning and Environmental Protection: A Review of Law and Policy Planning and Environmental Protection: A Review of Law and Policy
Planning and Environmental Protection: A Review of Law and Policy Planning and Environmental Protection: A Review of Law and Policy
Planning and Environmental Protection: A Review of Law and Policy Planning and Environmental Protection: A Review of Law and Policy
Planning and Environmental Protection: A Review of Law and Policy Planning and Environmental Protection: A Review of Law and Policy

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