Powers under planning legislation — Planning application in two parts — Division of responsibility between county council and district council — Waste recycling plant and 10 units for light use — Whether application relating to county matter — Whether hybrid application can be severed — Planning authorities to establish land’s primary uses when considering development proposals — Application for judicial review refused
The application for judicial review was brought by Wokingham District Council for an order that Berkshire County Council had no power to deal with part of a planning application made to the county council and for an order prohibiting the county council determining it. The application for the development in question had been made on a form provided by the district council. The major part of the development was a waste recycling and transfer station: on the remainder of the site 10 units for light or industrial use were proposed.
Question 22 asked whether the proposal involved processing of waste, and an affirmative answer was given. Part of the form headed “Royal County of Berkshire” asked for additional information. The completed application was submitted to the respondents and the question arose to whether the council had power to deal with the application. Under Schedule 1 para 3 of the Town and Country Planning Act 1990 “the functions of a local planning authority which relates to a county matter shall be exercised by the county planning authority”. Among other classes of operations, “county matters” include the use of land or the carrying out of operations for the deposit of refuse or waste material.
Held The application was refused.
1. The construction question must be approached on the basis that Parliament must have intended there to be a match between the policy responsibilities of the respective councils on the one hand and their control responsibilities on the other.
2. The applicants contended that a hybrid application could be severed. However, that could result in an application which should be dealt with as a whole, albeit in two or more elements being dealt with piecemeal.
3. The relevant words of the Schedule did not permit severance. To construe it that way could produce an administrative nightmare as developer, district council and county council tried to determine how many applications were subsumed within the one overall application.
4. The court could not accept that the word “relates” should be used in a very general sense. To construe it that way would entail that any application which included a development which was a county matter in however peripheral a way would deprive the district council of any power, even though the substance of the application might be of vital significance in local plan terms.
5. In fact Parliament was intending that there be an overall relationship between the application and a county matter, ie whether or not it was functionally connected to a county matter and if so whether the predominant purpose was a county matter. Further, according to PPG23 — Planning and Pollution Control — the primary use of the land would have to be identified in order to determine whether a proposed development was a county or district matter.
Robert Fookes (instructed by the solicitor to Wokingham District Council) appeared for the district council; Michael Humphries (instructed by solicitor to Berkshire County Council) appeared for the county council.
