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Lecture 4

PLANNING LAW AND STATUTORY INSTRUMENTS

Geraint Ellisg.ellis@qub.ac.uk

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Lecture Structure

• Basic legal concepts.• The law-making process• Key planning legislation• Legal case studies

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Learning outcomes

Students will be able to: • Understand the basic concepts of UK law• Discuss the process for enacting planning

legislation.• Describe the main pieces of planning

legilsation.• Provide examples of legal cases in the

planning field.

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Basic legal concepts

• The rule of law• Types of law• Legal interpretation• Precedent

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Rule of law

• All government authority MUST be exercised in line with written laws.

• Avoids arbitrary use of state power.• Everyone is equal before the law.• Regarded as a precondition for a free

and democratic society.• … but says nothing about the fairness of

the laws.• Judicial review

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What does the term ultra vires mean when used in a legal context?

Extre

me

flexi

bilit

y

Actin

g bey

ond le

gal .

..

Legal

imm

unity

30% 30%

39%

1. Extreme flexibility

2. Acting beyond legal powers

3. Legal immunity

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“Ultra Vires”

• “beyond the power”• Allows the courts to dismiss the

actions of a planning authority for overstepping the provisions of legislation

• E.g. Chersey UDC v. Mixnam’s Properties Ltd [1964].

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Types of law

• Legislative sources of law:• Primary legislation (Acts of Parliament)• Secondary or delegated legislation:

• E.g. statutory instruments, byelaws.

• European legislation• Judicial sources of law:

• Common law

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What is “Common Law”?

Laws

based

on

anci

e..

Laws

mad

e by

the

H...

Laws

devel

oped th

ro...

17%

50%

33%1. Laws based on

ancient custom2. Laws made by the

House of Commons

3. Laws developed through the decisions of the courts

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Legal precedent

• Later courts are bound to apply same reasoning as an earlier court on similar cases.

• Allows consistency and application of principle and reason in courts decisions.

• The court hierarchy• Precedent in planning cases:

• E.g. Collis Radio Ltd v. SSE [1975]

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How would you interpret “The owl of Minerva takes flight at dusk”

Older

peo

ple

loose

th...

Older

peo

ple

are

wise.

The tim

e fo

r ref

lect

ion...

0%

60%

40%

1. Older people loose the ability to think sharply.

2. Older people are wise.

3. The time for reflection is when the action is over.

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Legal interpretation

• Legislation may be contested or ambiguous.

• Judicial approaches to interpretation:• The literal approach• The golden approach• The mischief approach

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The law making process

• For Acts of Parliament:• First reading of a Bill (announcement)• Second reading (general debate)• Committee Stage (detailed scrutiny)• Report Stage (Report of committee,

amendment)• Third reading (vote on amendments)• Other House (i.e. House of Commons or

Lords)• Royal Assent

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What is unusual about how NI law is currently made?

Techn

ical

ly it

is a

ll ...

Only E

nglis

h MPs

c..

It has

to b

e re

newed

...

60%

20%20%

1. Technically it is all secondary legislation

2. Only English MPs can vote on it.

3. It has to be renewed every year.

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NI legislation

• Under Direct Rule:• Orders In Council• A form of delegated legislation• A temporary measure…

• Under devolution:• Acts of the NI Assembly

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Key planning legislation

• Scotland• The Town and Country Planning Act (Scotland) 1997 • New Bill in the Scottish Parliament

• England and Wales• The Town and Country Planning Act 1990.• Planning and Compensation Act 2004.

• Northern Ireland• The Planning (Northern Ireland) Order 1991• The Strategic Planning (Northern Ireland) Order 1999 • The Planning (Amendment) (Northern Ireland) Order

2003

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Secondary planning legislation in NI

• Planning (Use Classes) (Amendment) Order (Northern Ireland) 1996

• Planning (Fees) (Amendment) Regulations (Northern Ireland) 1997

• Planning (Use Classes) Order (Northern Ireland) 2004

• Planning (General Development) (Amendment) Order (Northern Ireland) 2002

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Other related legislation

• Environmental Impact Assessment• National Parks• Housing • Transport and Traffic• Listed Buildings• Wildlife protection• Agriculture• Caravan sites• Compulsory purchase

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Can planning law over rule law wildlife protection?

Yes No

61%

39%

1. Yes2. No

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Examples of legal cases

• Issues in DC:• Stringer V. Ministry of Housing and Local

Government [1970]• Change of use:

• Ealing Borough Council v. Ryan [1965]• Planning conditions:

• R v. Hillingdon London Borough Council (ex parte Royco Homes Ltd) [1974]

• Human rights:• Alconbury [2001]

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Sources of information

• Legislation:• http://www.opsi.gov.uk/legislation/

• Legal cases:• http://www.bailii.org/

• Other online sources at: • http://www.qub.ac.uk/directorates/

InformationServices/TheLibrary/OnlineResources/OnlineResourcesbySubject/Law/

• Journal of Planning and Environmental Law

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Summary

• All law is governed by a number of key legal principles.

• The law making process• NI legislation• Key planning legislation• Examples cases