PLANNING, ENVIRONMENT & PROPERTY NEWSLETTER 30 April 2020 INTRODUCTION Jonathan Darby Contents Welcome to this week’s edition 1. INTRODUCTION of our Planning, Environment Jonathan Darby and Property newsletter. It has been another busy week for the 2. PROMISES TO KEEP: RECENT group, with the launch of our DEVELOPMENTS IN THE LAW OF new webinar series “39 from 39”. The inaugural PROPRIETARY ESTOPPEL Planning law episode featured Richard Harwood David Sawtell QC, Celina Colquhoun and Daniel Stedman Jones discussing three Supreme Court cases, whilst 3. AIR QUALITY AND LOCKDOWN: SHORT today’s episode featured Damian Falkowski TERM HOPE BUT LONG TERM and David Sawtell on the topic of “Exiting the CHALLENGES lockdown – property and development disputes Rose Grogan and their resolution”. They have proven to be very popular and we have found this new format to 5. RIVERS OF SEWAGE, BLOATED MARES be an excellent means of connecting with many AND REDUNDANT SEX TOYS – LOCK familiar faces, as well as some new ones. Watch DOWN BITES? this space (https://www.39essex.com/category/ Stephen Tromans QC seminars/) for further episodes during the weeks commencing 11th and 18th May. As ever, we very 6. TILTED1? much welcome feedback, as well as suggestions Celina Colquhoun for future topics for discussion. 11. SIZEWELL C, OPPOSITION AND In this week’s edition we have articles from David PLANNING PROCESS Sawtell (on recent developments in the law of Stephen Tromans QC proprietary estoppel); Rose Grogan (on the impact of lockdown on air quality and some issues that 12. CONTRIBUTORS PLANNING, ENVIRONMENT & PROPERTY 30 April 2020 Page 2 may be coming down the line once the current number of recent decisions, even where the fact restrictions are lifted); Stephen Tromans QC pattern in the instant case they are advising on (first, revisiting his thoughts on the likely rise in does not involve a family farm. waste and other forms of environmental crime resulting from lock-down; second, updating us as One consistent theme is that the courts have been to Sizewell C); and Celina Colquhoun (reflecting on reluctant to impose rigid rules on the application where we are with the tilted balance in light of a of the doctrine of proprietary estoppel, either in recent judgment of Mr Justice Holgate). We hope respect of establishing liability or when considering that you enjoy the read! remedies. The Privy Council considered the issue at the end of 2019 in Mohammed v Gomez [2019] PROMISES TO KEEP: UKPC 46; 22 ITELR 652. Mr Gomez and others RECENT DEVELOPMENTS had erected houses on land belonging to Mr IN THE LAW OF Mohammed and his predecessors in title. Even PROPRIETARY ESTOPPEL in the absence of an actual spoken promise that David Sawtell the land would be conveyed to them, it was held that they were entitled to a remedy. In standing In Habberfield v Habberfield by in silence and acquiescing in their conduct, [2019] EWCA Civ 890; 22 ITELR the landowner had represented that they had an 96, Lewison LJ quoted the poet Robert Frost’s interest in the land. The Board emphasised at words in ‘Stopping by Woods on a Snowy Evening’: [26] that it was doubtful how possible or useful it ‘The woods are lovely, dark and deep, was to draw “fine distinctions” between different categories of representation: “once one has moved But I have promises to keep.’ beyond claims based on specific contractual rights, there may be no clear division between the nature The point made in that case at [33] was that, and quality of any alleged verbal assurances, and “Underpinning the whole doctrine of proprietary the conduct of the respective parties in response.” estoppel is the idea that promises should be The uncertainty of any assurances given may not kept.” The circumstances in which promises necessarily be fatal to a claim. are made about the disposition of rights in land outside of a formal legal instrument are protean. Unconscionability is central to the doctrine, even Unsurprisingly, therefore, the doctrine has been if its precise contribution is hard to pin down called upon in cases ranging from the assertion of (see, for example, the discussion by Martin Dixon an easement against a local authority (as in Joyce in ‘Confining and defining proprietary estoppel: v Epsom and Ewell BC [2012] EWCA Civ 1398, or the role of unconscionability’ (2010) 30 Legal Crabb v Arun DC [1976] Ch 179), a development Studies 408-420). In Habberfield, the claimant agreement with echoes of an overage payment had worked on the family farm all her life relying on the grant of planning permission (Yeoman’s on the assurance that once her parents could Row Management Ltd v Cobbe [2008] UKHL 55; no longer run the business it would be passed [2008] 1 WLR 1752) or a dispute arising from an to her. In 2008, her parents offered to make her invalid option to renew a lease (Taylor Fashions a partner in the business. This fell short of her Ltd v Liverpool Victoria Trustees Co Ltd, Old and expectation as she would not have overall control. Campbell Ltd v Liverpool Victoria Friendly Society The Court of Appeal rejected the submission that [1982] QB 133). Recently, however, the law reports the refusal of this offer meant that her equity was have been dominated by its use as an argument in extinguished. There are cases where a claim has agricultural businesses run by families, following failed because of things that have happened since Gillett v Holt [2001] Ch 210 and Thorner v Major the expectation was created and the detriment [2009] UKHL 18; [2009] 1 WLR 776. Practitioners suffered: in most of these cases, however, the should be alive, however, to the trends shown in a PLANNING, ENVIRONMENT & PROPERTY 30 April 2020 Page 3 claimant received something in exchange for their arises.” The remedy may not even be proprietary: detriment. Lewison LJ made it plain that promises in Habberfield and Guest, as well as the earlier case lie at the foundation of the doctrine. In Habberfield, of Davies v Davies [2016] EWCA Civ 463; [2017] 1 the claimant had not abandoned her expectations FLR 1286, the remedy was money. and her parents had not changed their position in the belief that she had no further claim upon them. Agricultural businesses have been part of the fact This should be contrasted with the first instance pattern for a number of the most recent cases decision in Horsford v Horsford [2020] EWHC 584 on proprietary estoppel, but they are far from (Ch). The defendant attempted to assert an equity being its only arena. The doctrine operates even arising out of proprietary estoppel as a defence though, as Robert Frost wrote, the parties have to a claim arising out of a partnership agreement litigated “without a farmhouse near”. Whether the that was entered into after the alleged equity claim is for money or an easement, John Mee’s arose. Mr M Rosen QC sitting as a Judge of the observation in his case comment on Joyce ((2013) Chancery Division rejected this. He noted that the 3 Conv. 156-164) as to the “open-textured nature effect of a later contract on an earlier promise of proprietary estoppel and the lack of clarity on the is a fact-sensitive one, citing Whittaker v Kinnear question of remedies” still rings true. [2011] EWHC (QB) 1479. The agreement in this case specifically dealt with the property where it AIR QUALITY AND was alleged the claim to a proprietary estoppel LOCKDOWN: SHORT TERM equity had arisen. At [165], he noted that any such HOPE BUT LONG TERM rights were extinguished by the contract: “When a CHALLENGES person has rights in respect of property, and then Rose Grogan enters into a contract which is inconsistent with the Over the last few years, much continued existence of those rights, the person is government and judicial time estopped from asserting those rights”. has been devoted to how to achieve compliance with EU limit values for nitrogen dioxide in the One further point that emerges from recent case shortest possible time (the legal test in Directive law is the flexibility of the remedy available to the 2008/50/EC). The UK is still not compliant with EU court. Neither reliance nor expectation emerged limit values for Nitrogen Dioxide (NO2), 10 years as the dominant paradigm in Habberfield, where after the deadline for compliance. This article it was noted at [68] that “there was no clear looks at the impact of lockdown on air quality and point of division between different categories of some issues that may be coming down the line proprietary estoppel claims”. In March 2020, the once the current restrictions are lifted. Court of Appeal re-affirmed this approach in Guest v Guest [2020] EWCA Civ 387, where Floyd LJ at Over the course of 2019, local authorities were [48] reflected on the academic debate as to the looking at how to implement local measures determination of the remedy and the refusal of the to achieve compliance with EU limit values for courts to engage in it: “The courts have preferred Nitrogen Dioxide (NO2). Some local authorities had to identify its aim or task as the fashioning of a announced measures, with cities such as Leeds remedy that is appropriate in all the circumstances planning to implement their clean air zones by as of the case to satisfy the equity that has arisen, and early as January 2020. Lockdown and pressures so to avoid an unconscionable result.” In refusing on local authorities to divert resources to the front the appeal, he noted at [75] that, “the courts have line of the pandemic has caused significant delays asked, in a first stage, whether an equity arises, to clean air zones.