To what extent has English planning law been affected by the recent consolidation of the Town and Country Planning Acts?
Planning law has been and always will be subject to constant amendments necessitated by the ever-changing circumstances of modern life and the variations of government policy. Thus the principal Town and Country Planning Act enacted in 1971 (which was valid until August 24 1990) was amended by some 69 Acts supplementing or amending its provisions. No wonder then that, in these circumstances, this branch of the law was considered as requiring urgent consolidation.
This has now been done by four Acts which received the Royal Assent on May 24 1990 and which, with some minor exceptions, came into force on August 24 1990. These are:
- the Town and Country Planning Act 1990 (chapter 8);
- the Planning (Listed Buildings and Conservation Areas) Act 1990 (chapter 9);
- the Planning (Hazardous Substances) Act 1990 (chapter 10);
- the Planning (Consequential Provisions) Act 1990 (chapter 11).
The Town and Country Planning Act 1990 is now the principal Act, consolidating (with some exceptions mentioned below) the whole of the 1971 Act and all the amendements to it enacted within the 19 years since 1971.
The Planning (Listed Buildings and Conservation Areas) Act 1990 consolidates in a separate Act these two specialised parts of the 1971 Act. Other “special planning controls” contained in the 1971 Act have been inserted into the main consolidating Town and Country Planning Act 1990.
The Planning (Hazardous Substances) Act 1990 consolidates into a separate Act those planning problems concerning “hazardous substances”. The concept of hazardous substances previously appeared in the Housing and Planning Act 1986 Part IV (sections 30-31). These sections introduced the concept of “hazardous substances” into the Town and Country Planning Act 1971 by inserting sections 1A, 1B, 58B to 58N and section 101B in that Act.
The Planning (Consequential Provisions) Act 1990 contains consequential provisions which will be summarised below.
The scheme of the principal Act
Although the principal Act consolidates the law, it introduces amendments to give effect to various recommendations of the Law Commission to correct mistakes and remove anomalies. It is advisable to explain the arrangement of the new consolidating Act.
The Act of 1971 contained 15 Parts, 295 sections and 22 Schedules; the new consolidating Act contains 15 Parts, 317 sections and 17 Schedules. (It should be remembered that two of the additional Acts mentioned above also contain provisions which used to be in the 1971 Act.)
The scheme of the new Act may be summarised as follows:
(1) Part I of the new Act deals with planning authorities. Whereas the old Act dealt with this problem in one section, the new Act uses nine sections, because there is now a wider range of planning authorities:
— local planning authorities (counties and districts);
— joint planning boards;
— joint planning committee for Greater London;
— national parks;
— The Broads (as defined by the Norfolk and Suffolk Broads Act 1988);
— enterprise zones;
— urban development areas;
— some housing action areas (being housing action trusts).
(2) Part II contains sections 10 to 54. This part deals with development plans, generally speaking on similar lines to the old Act.
(3) Part III (“Control over development”) contains sections 55 to 106. It does not materially change the existing law contained in Part III of the old Act, but the definition of “development” is now contained in section 55 et seq of the new Act.
The previously famous section 52 agreements are now section 106 agreements. The new Act contains special provisions about simplified planning zones (sections 82 to 87) and enterprise zone schemes (sections 88 to 89).
(4) Part IV (“Compensation for effects of certain orders, notices etc”) contains sections 107 to 119. This Part corresponds to Part VIII of the old Act (“Compensation for other planning restrictions”). Compensation in respect of various orders pertaining to listed buildings have been omitted from the new consolidating Act, as listed buildings are now dealt with in the Planning (Listed Buildings and Conservation Areas) Act 1990.
(5) Part V (“Compensation for restriction on new development in limited cases”) contains sections 119 to 136. This Part corresponds to Part VII of the old Act without making material changes. The words “in limited cases” in the title of this Part are new words, added to stress that compensation is not due in all cases.
(6) Part VI (“Rights of owners, etc to require purchase of interest” ie purchase notices and blight notices) contains sections 137 to 171. This Part corresponds to Part IX of the old Act without significant changes.
(7) Part VII (“Enforcement”) contains sections 172 to 196. This Part corresponds to Part V of the old Act. The provisions relating to “enforcements of control in special cases” which, in the old Act, were in Part V are now transferred to Part VIII (see below).
(8) Part VIII (“Special controls”) contains sections 197 to 225. This Part corresponds to Part IV of the old Act, but the provisions relating to listed buildings are contained in a separate Act.
The provisions relating to “control by waste land” (sections 104 to 107 of the 1971 Act) were amended by section 46 of the Housing and Planning Act 1986 and now, with further amendments, they have found their way into this part — under the heading: “Land adversely affecting amenity of neighbourhood” (sections 215 to 217).
(9) Part IX (“Acquisition and appropriation of land for planning purposes etc”) contains sections 226 to 246. This Part corresponds to Part VI of the old Act, with a number of amendments introduced by various Acts between 1971 and the 1990 consolidation.
(10) Part X (“Highways”) contains sections 247 to 261. This Part corresponds to Part X of the old Act with a number of amendments, introduced by many Acts, the most important being the Town and Country (Amenities) Act 1974.
(11) Part XI (“Statutory undertakers”) contains sections 262 to 283. This Part corresponds to Part XI of the old Act without any essential amendments.
(12) Part XII (now called “Validity”) corresponds to the previous Part XII, which was entitled: “Validity of planning instruments and decisions and proceedings relating thereto”. There are no significant changes, but some rearrangement of the sections (dealing with appeals and judicial review) has been effected.
(13) Part XIII (“Application of Act to crown land”) corresponds to sections 266 to 268 of the old Act. The previous provisions have been amended and enlarged and are now contained in sections 293 to 302 of the new Act.
(14) Part XIV (“Financial Provisions”) corresponds to Part XIII of the old Act with some rearrangement of sections, but without any significant amendments.
(15) Part XV (“Miscellaneous and general provisions”) contains those provisions of Part XIV of the old Act, which cover other special cases other than Crown Land (the latter being dealt with in Part XIII of the new Act).
Planning (Listed Buildings and Conservation Areas) Act 1990
This Act consolidates the part of the 1971 Act dealing with the above two subjects. Other categories of “special control” were left in the main consolidating Act, described above.
Whereas in the Act of 1971 listed buildings were dealt with in eight sections, and conservation areas in three sections, the new consolidating Act deals with listed buildings in Part I of the Act (containing 68 sections) and conservation areas in Part II of the Act (containing 26 sections). The reason for this expansion is that in the old Act control and enforcement in “special cases” were not dealt with separately from general planning control. The new Act, however, contains its own full code of control and enforcement. No significant amendments have been introduced and this Act is a strictly consolidating measure.
Planning (Hazardous Substances) Act 1990
This Act consolidates with amendments the part of the 1971 Act covering “hazardous substances”.
This Act is a typical example of a “skeleton” Act. It is left to the Secretary of State for the Environment to specify the substances that are “hazardous” and to prescribe the procedures governing applications for “hazardous substances consent”, their issue, enforcement etc.
Planning (Consequential Provisions) Act 1990
This Act (containing seven sections and four Schedules) defines the “consolidating Acts” as the : Town and Country Planning Act 1990; the Planning (Listed Building and Conservation Areas) Act 1990; the Planning (Hazardous Substances) Act 1990; and the Planning (Consequential Provisions) Act itself in so far as it reproduces the effect of the repeal enactments.
The continuity of the law is preserved, as section 2 states that “the substitution of the consolidating Acts for the repealed enactments does not affect the continuity of the law”.
The four Schedules to this Act contain:
— repeals (54 so far as England and Wales are concerned);
— consequential amendments (74 of them); they contain mostly the references to the provisions of various Acts which are now replaced by the reference to the new Acts;
— transitional provisions and savings (mostly self-explanatory); and
— transitory modifications.
