In his leading judgment, Lord Neuberger held that it is not:
- The grant of planning permission for a particular development does not mean that that development is lawful. All it means is that a bar to the use imposed by planning law, in the public interest, has been removed. Logically, it might be argued, the grant of planning permission for a particular activity in 1985 or 2002 should have no more bearing on a claim that that activity causes a nuisance than the fact that the same activity could have occurred in the 19th century without any permission would have had on a nuisance claim in those days.
A necessary step in the justification of this result is treating both regulatory requirements and requirements resulting from the rules announced by common-law courts in their decisions as the act of regulating affected companies.
But Lord Neuberger's point suggests that this is inappropriate. A grant of permission to build a property -- or market a drug -- removes a regulatory barrier but it does not speak to whether the actions taken pursuant to the permission are otherwise lawful. Regulators and common-law courts are concerned with different issues . The former: whether a person has fulfilled a series of requirements prescribed by statute and regulation. The latter: whether a person has failed to live up to normative standards imposed by the common law. Or to put the point more bluntly, regulatory approval should not function as a blank check.
There may be, I suppose, a difference between extinguishing a private right of action and (in effect) expropriating property great enough to support "a strong presumption against allowing private rights to be overridden by administrative decisions without compensation" (at para. 222, per Lord Carnwath) only in respect of property interests, but the comparison between the English and American approaches is nonetheless interesting.