Legislative provisions requiring the preparation of local development frameworks comprising local development documents, which replace the existing development plan system, are have now been in force for many months. Undoubtedly it will take local planning authorities some considerable time to transfer to the new system and there are bound to be teething problems along the way.
One such problem occurred in a case that came before the Court of Appeal at the end of October. In R(on the application of Martin Grant Homes Limited) v Wealden District Council [2005] EWCA Civ 1221; [2005] PLSCS 187 two developers wished to promote the use of land they owned for the purposes of housing development within the local planning authority’s area and had made representations in a review of the existing local plan. After the new local development framework provisions came into force the local planning authority abandoned the local plan review in order prepare for the new development plan system. The emerging local plan was then adopted as a non-statutory plan for the area.
The judge at first instance allowed the developers’ claim for judicial review of the defendants’ decision to abandon the emerging local plan, finding that the transitional provisions in the Planning and Compulsory Purchase Act 2004 required the local plan to continue. The local planning authority appealed.
The Appeal Court held that the discretionary power to withdraw the plan had been exercised properly in view of the local planning authority’s decision to promote the new local development documents and that this was not an unreasonable course of action. The transitional provisions exist to avoid a policy vacuum in planning procedures while the local development frameworks were being prepared, but did not require a local planning authority to continue with the local plan review if it did not wish to; it simply preserved the relevant provisions of the 1990 Act during the transitional period.
The decision of the judge at the first instance was therefore set aside.
Although the decision may be correct in law, the provisions entitling a local planning authority to withdraw a plan do seem likely to prejudice developers or landowners who may be, as in this instance, seeking to protect their interests or who may wish to promote a planning application that is broadly in accordance with the provisions of a draft local plan or plan review. The fact that no up-to-date statutory plan might exist for some considerable period, in view of the time taken to promote local development documents and adopt the local development framework, means that there maybe a hiatus period, when there is no suitably up to date statutory development plan against which decisions in respect of planning applications can be judged. The requirement, in the existing planning legislation, that decisions are taken in accordance with the provisions of the plan, could not be applied; and developers would be left to promote their application or appeal in reliance on other material considerations. In addition, developers or landowners seeking to protect their landholding interests in the area would have to wait until the new local development documents were produced, which may well be at a time when policy for that particular development, both nationally or locally, may have changed considerably.
Gill Castorina is an associate at Paul, Hastings, Janofsky & Walker (Europe) LLP
Legislative provisions requiring the preparation of local development frameworks comprising local development documents, which replace the existing development plan system, are have now been in force for many months. Undoubtedly it will take local planning authorities some considerable time to transfer to the new system and there are bound to be teething problems along the way.
One such problem occurred in a case that came before the Court of Appeal at the end of October. In R(on the application of Martin Grant Homes Limited) v Wealden District Council [2005] EWCA Civ 1221; [2005] PLSCS 187 two developers wished to promote the use of land they owned for the purposes of housing development within the local planning authority’s area and had made representations in a review of the existing local plan. After the new local development framework provisions came into force the local planning authority abandoned the local plan review in order prepare for the new development plan system. The emerging local plan was then adopted as a non-statutory plan for the area.
The judge at first instance allowed the developers’ claim for judicial review of the defendants’ decision to abandon the emerging local plan, finding that the transitional provisions in the Planning and Compulsory Purchase Act 2004 required the local plan to continue. The local planning authority appealed.
The Appeal Court held that the discretionary power to withdraw the plan had been exercised properly in view of the local planning authority’s decision to promote the new local development documents and that this was not an unreasonable course of action. The transitional provisions exist to avoid a policy vacuum in planning procedures while the local development frameworks were being prepared, but did not require a local planning authority to continue with the local plan review if it did not wish to; it simply preserved the relevant provisions of the 1990 Act during the transitional period.
The decision of the judge at the first instance was therefore set aside.
Although the decision may be correct in law, the provisions entitling a local planning authority to withdraw a plan do seem likely to prejudice developers or landowners who may be, as in this instance, seeking to protect their interests or who may wish to promote a planning application that is broadly in accordance with the provisions of a draft local plan or plan review. The fact that no up-to-date statutory plan might exist for some considerable period, in view of the time taken to promote local development documents and adopt the local development framework, means that there maybe a hiatus period, when there is no suitably up to date statutory development plan against which decisions in respect of planning applications can be judged. The requirement, in the existing planning legislation, that decisions are taken in accordance with the provisions of the plan, could not be applied; and developers would be left to promote their application or appeal in reliance on other material considerations. In addition, developers or landowners seeking to protect their landholding interests in the area would have to wait until the new local development documents were produced, which may well be at a time when policy for that particular development, both nationally or locally, may have changed considerably.
Gill Castorina is an associate at
