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"Planning and nuisance: revisiting the balance of public v private interest in land use development"

Dr Patrick Bishop, Victoria Jenkins Orcid Logo

Journal of Environmental Law, Volume: 23, Issue: 2, Pages: 285 - 310

Swansea University Author: Victoria Jenkins Orcid Logo

Abstract

This article considers the balance of public and private interests in land use planning; in particular, we seek to explore the nuisance/planning interface in light of two relatively recent developments in England and Wales, namely the Court of Appeal decision in Watson v Croft Promo-Sport and the en...

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Published in: Journal of Environmental Law
Published: Oxford University Press 2011
URI: https://cronfa.swan.ac.uk/Record/cronfa5075
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spelling 2018-11-15T11:26:25.6535694 v2 5075 2011-10-01 "Planning and nuisance: revisiting the balance of public v private interest in land use development" 3f8baf374397719b11ca6e1ba58b4487 0000-0002-0501-0246 Victoria Jenkins Victoria Jenkins true false 2011-10-01 LAWD This article considers the balance of public and private interests in land use planning; in particular, we seek to explore the nuisance/planning interface in light of two relatively recent developments in England and Wales, namely the Court of Appeal decision in Watson v Croft Promo-Sport and the enactment of the Planning Act 2008. Thus, it is believed timely to reconsider the continuing role of private nuisance in the legal control of land use development. We argue that, given that the Planning Act 2008 effectively excludes an action in nuisance in the case of nationally significant infrastructure projects, little room is now left for the courts to be involved in deciding those cases in which planning permission might abrogate private interests. However, where the courts are called upon to do so, we argue that they should focus on their traditional role in invoking the locality doctrine to judge whether the use of land is reasonable rather than involve themselves in questions of the ‘public interest’ nature of the development. It is further argued that in the residual cases where the courts consider nuisance in the context of development authorised by planning consent, private law is able to operate as an indirect means of challenging the outcome of the planning process but, given the democratic legitimacy (albeit imperfect) of the planning regime, the courts ought to adopt a more flexible approach to the question of the appropriate remedy. Journal Article Journal of Environmental Law 23 2 285 310 Oxford University Press nuisance – locality doctrine- Planning Act 2008 – public interest – private rights – participation 1 4 2011 2011-04-01 This was a co-authored piece in which the contribution made by the authors was 50/50. COLLEGE NANME Law COLLEGE CODE LAWD Swansea University 2018-11-15T11:26:25.6535694 2011-10-01T00:00:00.0000000 Faculty of Humanities and Social Sciences Hilary Rodham Clinton School of Law Dr Patrick Bishop 1 Victoria Jenkins 0000-0002-0501-0246 2
title "Planning and nuisance: revisiting the balance of public v private interest in land use development"
spellingShingle "Planning and nuisance: revisiting the balance of public v private interest in land use development"
Victoria Jenkins
title_short "Planning and nuisance: revisiting the balance of public v private interest in land use development"
title_full "Planning and nuisance: revisiting the balance of public v private interest in land use development"
title_fullStr "Planning and nuisance: revisiting the balance of public v private interest in land use development"
title_full_unstemmed "Planning and nuisance: revisiting the balance of public v private interest in land use development"
title_sort "Planning and nuisance: revisiting the balance of public v private interest in land use development"
author_id_str_mv 3f8baf374397719b11ca6e1ba58b4487
author_id_fullname_str_mv 3f8baf374397719b11ca6e1ba58b4487_***_Victoria Jenkins
author Victoria Jenkins
author2 Dr Patrick Bishop
Victoria Jenkins
format Journal article
container_title Journal of Environmental Law
container_volume 23
container_issue 2
container_start_page 285
publishDate 2011
institution Swansea University
publisher Oxford University Press
college_str Faculty of Humanities and Social Sciences
hierarchytype
hierarchy_top_id facultyofhumanitiesandsocialsciences
hierarchy_top_title Faculty of Humanities and Social Sciences
hierarchy_parent_id facultyofhumanitiesandsocialsciences
hierarchy_parent_title Faculty of Humanities and Social Sciences
department_str Hilary Rodham Clinton School of Law{{{_:::_}}}Faculty of Humanities and Social Sciences{{{_:::_}}}Hilary Rodham Clinton School of Law
document_store_str 0
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description This article considers the balance of public and private interests in land use planning; in particular, we seek to explore the nuisance/planning interface in light of two relatively recent developments in England and Wales, namely the Court of Appeal decision in Watson v Croft Promo-Sport and the enactment of the Planning Act 2008. Thus, it is believed timely to reconsider the continuing role of private nuisance in the legal control of land use development. We argue that, given that the Planning Act 2008 effectively excludes an action in nuisance in the case of nationally significant infrastructure projects, little room is now left for the courts to be involved in deciding those cases in which planning permission might abrogate private interests. However, where the courts are called upon to do so, we argue that they should focus on their traditional role in invoking the locality doctrine to judge whether the use of land is reasonable rather than involve themselves in questions of the ‘public interest’ nature of the development. It is further argued that in the residual cases where the courts consider nuisance in the context of development authorised by planning consent, private law is able to operate as an indirect means of challenging the outcome of the planning process but, given the democratic legitimacy (albeit imperfect) of the planning regime, the courts ought to adopt a more flexible approach to the question of the appropriate remedy.
published_date 2011-04-01T03:06:01Z
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score 11.037166

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