Chapter 15 - Land Use Regulation in the UK and the Role of the Court

Summary

INTRODUCTION

This chapter provides an overview of land use regulation in the UK, access to justice and the role of the courts. It focuses on the system that operates in England and Wales and highlights its relationship with European jurisprudence. Although broadly similar, Scotland has its own system with its own terminology. That said, a version of this chapter was delivered as a presentation and there was significant interest in the likely outcome just over a week before the referendum on Scottish independence. At the time this was too close to call, and in the event the narrow majority in favour of remaining as part of the UK may have only been secured as a result of the additional devolution of powers promised. This is of relevance to the debate as, in considering the system that currently operates in England and Wales, the recent passage of the Planning (Wales) Act 2015 through the Welsh Government will bring further change and further limit the current control exercised by Westminster.

In order to put the recent changes to the process into context, this article sets out an overview of the planning process in England and Wales and the interrelation and interdependencies between statute and the common law. In a system where the decision-maker for land use planning consents is often the same body as sets the policy against which such decisions are taken it explores in detail the key case of Alconbury and the reasoning that led to the House of Lords’ affirmation regarding the separation of powers, access to justice and compliance with the European Convention on Human Rights (ECHR) within the planning system. The importance of the role of the Courts within this system has grown significantly, even since Alconbury.

The wider tensions between the aims and objectives of European jurisprudence, their effect on the judicial review process and the delivery of development are also explored. ‘Judicial review has grown from an exceptional remedy of last resort to the predictable next step for a determined objector’ and it is impossible to separate the growth in European legislation from the marked increase in judicial review challenges in England and Wales over the past 15 years. Also considered are the ways in which the Courts have sought through the development of case law to effect necessary change.