Planning and Environmental Law Group Annual Planning Seminar

Planning and Environmental Law Group

Annual Planning Seminar 2012

The ICC, Birmingham Monday 19th March 2012

4.5 CPD Hours

Practice Director Tony McDaid

Practice Managers Andrew Bisbey, Gary Smith & Robert Woods

Tel: +44 (0) 845 210 5555 Email: [email protected]

Birmingham London Bristol www.No5.com Fountain Court, Steelhouse Lane 76 Shoe Lane 38 Queen Square Birmingham B4 6DR London EC4A 3JB Bristol BS1 4QS DX 16075 DX 449 DX 7838 Fountain Court Birmingham London Chancery Lane Bristol

No5 Chambers provides services on an equal opportunity basis

Annual Planning Seminar 2012 Monday 19th March 2012, The ICC, Birmingham

Contents

Section 1 Seminar Programme IML Connector – Handset Instructions Profile: Jeremy Cahill QC – Chairperson / Head of Group Members List Questionnaire Seminar Note Paper

Section 2 Less is More? Jeremy Cahill QC & Paul Cairnes

Section 3 Neighbourhood Watch Anthony Crean QC & Peter Goatley

Section 4 Can I Run That Past You Again? Tim Jones & Jack Smyth

Section 5 “…and they all lived happily ever after” Ian Dove QC & Gordon Wignall

Section 6 Legal Update Richard Kimblin & Chris Young

Section 7 What does it all Mean? Dr. Scotford, School of Law – King’s College London

Section 1

Annual Planning Seminar 2012 Monday 19th March 2012, The ICC, Birmingham

Programme 4.5 CPD hours

10:00 – 10:30 Registration & Refreshments

10:30 – 10:40 Welcome Address Jeremy Cahill QC – Chairperson

10:40 – 11:25 Less is More? Jeremy Cahill QC & Paul Cairnes

11:25 – 12:10 Neighbourhood Watch Anthony Crean QC & Peter Goatley

12:10 – 12:30 Refreshment Break

12:30 – 13:15 Can I Run That Past You Again? Tim Jones & Jack Smyth

13:15 – 14:15 Lunch

14:15 – 14:55 “…and they all lived happily ever after” Ian Dove QC & Gordon Wignall

14:55 – 15:35 Legal Update Richard Kimblin & Chris Young

15:35 – 16:10 What does it all Mean? Dr. Scotford, School of Law – King’s College London

16:10 – 16:30 Question & Answer Session Dr. Scotford & No5 Panel

Jeremy Cahill QC - Head of Group Planning & Environment

Jeremy Cahill QC continues to pursue a busy practice as Head of the Planning Group. The following are practice examples from the last year or so.

Housing A great many of the appeal decisions during this period have related to the presence or absence of a 5 year housing land supply and how this is to be calculated and the following are examples of successful appeals:

- M&G Sports ground, Cheltenham. (150 units ; PINS Ref 1183971) - Stenson Fields, South Derby. (500 units ; Ref 2038693) - Long Lawford, Rugby. (99 units ; Ref 2060256) Silk: 2002 - Upper Rissington, Cotswolds. (368 units ; 2112497) Year of Call: 1975 - Greyhound Stadium, Hinckley. (84 units ; Ref 2118652)

- Coton Park East, Rugby. (165 units ; Ref 2113178) - Brewer's Lane, Badsey. (39 units ; Ref 2124085) - Bude, Cornwall. (350 units ; Ref 2115945) - Uppingham Road, Oakham. (96 Units ; Ref 2143475)

The Bude decision is widely regarded as evidence of a turning point in the approach of the new Government towards housing development where there is no 5 year supply. The original Secretary of State decision to refuse was quashed and the new decision, post Plan for Growth, was to allow the appeal. An increasing number of the appeals have addressed the issue of viability such as the Jericho Boatyard appeal in Oxford where the Inspector accepted the "real world" approach to viability assessment.

Retail Appeared on behalf of Asda in the High Court and Court of Appeal hearings in R (Telford Trustees) v Telford and Wrekin Council and Asda [2011] EWCA Civ 896 which concerns the appropriate level of detail required on reasons for grant of planning permission.

Minerals Opencast coal mining appeals in Northumberland ( Ref 2022344) and Leeds. Appearances in the High Court on Judicial Reviews relating to grant of planning permission on behalf of Tarmac and Derbyshire County Council. Aggregate appeals for RMC and Tarmac.

Waste Successful appeal against refusal of planning permission for a sub regional waste treatment plant in Garston, Liverpool. ( Ref 2117527). Permission secured ( at an enforcement appeal) for an unauthorized building in the green belt accommodating a wood recycling plant in Astley, Manchester. ( Ref 2111810-12). Permission secured for recycling of colliery shale near Wrexham, Wales. (Ref A822271). Judicial review of the Environment Agency's approach to licensing in terms of site boundaries.

Care Homes A broad range of care home clients have been represented and there have been successful appeals for Sunrise at Sevenoaks, Winchester, Sutton Coldfield and Surbiton. Advice being given to Mc Carthy and Stone, English Care Villages and other operators on the status of Care home provision in terms of Use Class Order Classes C2 and C3.

Leisure Marina proposals in Solihull ( two), redevelopment of Stradey Park, Llanelli for housing to facilitate a new stadium for The Scarlets, advice on golf course redevelopments in Warwickshire and Cornwall.

Listed Buildings Appeals and advice given in relation to various developments including a Grade II * building in Herefordshire and Hensol Castle in Wales.

Airports JC has the questionable honour of being involved in the longest ever enforcement appeal involving development at Coventry Airport. This has lead to requests for advice on the applicability of the GPDO to airports elsewhere. Successful appeal relating to development at Wolverhampton Airport and advice given in relation to the redevelopment of Dunsfold Aerodrome ( the home of Top Gear).

Wind Farms Advised the Tusmore Park Estate in relation to an adjacent wind farm development.

Articles & Publications: "Budget Special" as published by the Journal of Planning Law in June 2011.

QUALIFICATIONS CLERKS

LLB (Hons), Liverpool University Practice Managers Approved for direct public access Andrew Bisbey Gary Smith MEMBERSHIPS Robert Woods The Planning and Environment Bar Association, the Practice Director Compulsory Purchase Association, Tony McDaid and UKELA Tel: +44 (0) 845 210 5555 Fax: +44 (0) 121 210 7311 [email protected]

RECOMMENDATIONS

He has been recommended in a variety of guides such as UK Legal 500 and Chambers Guide to the Legal Profession as being a leading Silk in both planning and environmental law.

Jeremy Cahill QC has a strong national practice, regularly advising on regeneration projects and retail developments. He counts a number of retirement home and residential housing developers amongst his diverse client base. (Chambers UK 2011)

Rated very highly, Jeremy Cahill QC is praised for his "excellent and incisive approach to cases." He commonly advises on regeneration projects, retail developments, housing, employment and environmental issues. (Chambers UK 2010)

'is well followed for his development planning expertise' (Legal500 2009)

“Superior grasp of the issues that come in to play” .... “He remains one of the foremost respected Silks in the field” (Chambers UK 2006)

Members List - Planning and Environmental Law Group

Jeremy Cahill QC (Head of Group) Silk 2002, Year of Call 1975 Martin Kingston QC Silk 1992, Year of Call 1972 Tony Smith QC Silk 1977, Year of Call 1958 Paul Bleasdale QC Silk 2001, Year of Call 1978 Ian Dove QC Silk 2003, Year of Call 1986 Douglas Armstrong QC Silk 2005, Year of Call 1999 Richard Humphreys QC Silk 2006, Year of Call 1986 Anthony Crean QC Silk 2006, Year of Call 1987 John Gilbert Harvey Year of Call 1973 Timothy Jones Year of Call 1975 Roger S Giles Year of Call 1976 Paul Cairnes Year of Call 1980 Nadia Sharif Year of Call 1985 Kevin Leigh Year of Call 1986 Bernard Thorogood Year of Call 1986 Gordon Wignall Year of Call 1987 Celina Colquhoun Year of Call 1990 David Park Year of Call 1992 Peter Goatley Year of Call 1992 Hugh Richards Year of Call 1992 Sarah Clover Year of Call 1993 Satnam Choongh Year of Call 1994 Tim Sheppard Year of Call 1995 Christopher Young Year of Call 1997 Richard Kimblin Year of Call 1998 Jenny Wigley Year of Call 2000 Bridget Forster Year of Call 2001 Philip Williams Year of Call 2005 Suella Fernandes Year of Call 2005 Jack Smyth Year of Call 2007 Rowena Meager Year of Call 2007 Thea Osmund-Smith Year of Call 2010

Practice Managers Practice Director Tel: +44 (0) 845 210 5555 Andrew Bisbey Tony McDaid Fax: +44 (0) 121 210 1501 Gary Smith [email protected] Robert Woods www.No5.com

FEEDBACK QUESTIONNAIRE

Annual Planning Seminar 2012 th 19 March 2012

Thank you for attending the above seminar. We hope that you found the event interesting and informative. In order to evaluate our seminars and improve them where necessary we like to ask for your feedback. Please could you take a few minutes to complete the following questionnaire and hand it in to the registration desk on your departure. Alternatively, you can post it to the address given at the end of the questionnaire.

All completed forms received by 20th April will be entered into a prize draw. Please note all responses will remain confidential.

THE VENUE & WELCOME

Q1) How did you rate the venue for the seminar?

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Q2) How did you rate the registration procedure on arrival?

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Q3) How do you rate the seating arrangements during the seminar?

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Q4) How do you rate the catering?

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Q5) How did you hear about the event?

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THE COURSE & CONTENT

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Q7) How do you rate the method of presentation?

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THE COURSE & CONTENT (continued)

Q8) How do you rate the course materials?

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Q9) Please rate the question and answer sessions and / or workshops

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INDIVIDUAL SPEAKERS

Q10) How did you rate the performance of the individual speakers?

Jeremy Cahill QC

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Paul Cairnes

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Anthony Crean QC

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Peter Goatley

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Tim Jones

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Jack Smyth

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Ian Dove QC

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Gordon Wignall

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Richard Kimblin

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Chris Young

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Dr. Scotford, King's College London

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GENERAL INFO

Q11) Are there others in your firm who may be interested in our courses? If yes, please list their names and practice areas below:- ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. …………………………………………………………………………………………………..

Q12) Are there any particular topics that you wish to be covered in future seminars? If yes, please list them below:- ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. …………………………………………………………………………………………………..

Q13) Any additional comments? ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. ………………………………………………………………………………………………….. …………………………………………………………………………………………………..

OVERALL EXPERIENCE

Q14) Please rate the seminar overall.

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THANK YOU FOR COMPLETING OUR QUESTIONNAIRE

Please return to Stephanie Lawrence at No5 Chambers, Fountain Court, Steelhouse Lane, Birmingham, B4 6DR, DX 16075 FOUNTAIN COURT.

Section 2

Jeremy Cahill QC Planning & Environment

Jeremy Cahill QC continues to pursue a busy practice as Head of the Planning Group. The following are practice examples from the last year or so.

- Coton Park East, Rugby. (165 units ; Ref 2113178) - Brewer's Lane, Badsey. (39 units ; Ref 2124085) - Bude, Cornwall. (350 units ; Ref 2115945) - Uppingham Road, Oakham. (96 Units ; Ref 2143475)

Listed Buildings Appeals and advice given in relation to various developments including a Grade II * building in Herefordshire and Hensol Castle in Wales.

Wind Farms Advised the Tusmore Park Estate in relation to an adjacent wind farm development.

Articles & Publications: "Budget Special" as published by the Journal of Planning Law in June 2011.

QUALIFICATIONS CLERKS

RECOMMENDATIONS

He has been recommended in a variety of guides such as UK Legal 500 and Chambers Guide to the Legal Profession as being a leading Silk in both planning and environmental law.

'is well followed for his development planning expertise' (Legal500 2009)

“Superior grasp of the issues that come in to play” .... “He remains one of the foremost respected Silks in the field” (Chambers UK 2006) Paul Cairnes Planning & Environment

Paul has extensive experience in advising and acting on behalf of local authorities and developers, principally (but not exclusively) in the Southwest. Prior to joining No.5 Paul was Head of Planning and Administrative Law at No.3 Paper Buildings and practised on the Western Circuit. Since joining No.5 his profile has risen considerably and he is now instructed across the country.

Areas of experience in planning matters include landscape, heritage and transport infrastructure issues. In the context of Localism, Paul has a particular interest in the consultation processes and has recently been instructed to oppose major development schemes on the grounds of, inter alia, prematurity in Gloucestershire (900 homes and associated infrastructure) and Warwickshire (800 homes and Year of Call: 1980 associated infrastructure).

Paul has considerable High Court experience with regard to planning and environmental issues and is regularly instructed in related Judicial Review matters. Paul is consequently familiar with the EIA regulatory framework and its effects.

As part of the No.5 Planning and Environmental Group Paul makes an active contribution to its seminar programme. He also provides in-house training on planning and environmental matters to Council Members and Officers.

His chancery and litigation practice includes the enforcement of planning obligations and agreements. His appellate work has included cases before the Administrative Court, the Court of Appeal and the European Court of Justice. The public law nature of his practice has also involved statutory bodies such as the British Standards Board, Police Authorities and Fire Authorities.

He is regularly instructed in high profile and large scale appeals, recent examples of which include:

• The successful promotion of a mixed-use urban extension to south of Gloucester comprising some 1750 homes and associated community infrastructure (Hunts Grove – PINS Ref: APP/C1625/V/07/1202058)). • Successfully opposing a proposed urban extension to the north of Cheltenham (Glenfall Way – PINS Ref: APP/C1605/A/08/206748)). • Successfully opposing a proposed urban extension to the west of Swindon (Widham Farm – PINS Ref: APP/Y3940/A/09/2107373/NWF) • Successfully opposing a proposed mixed use urban extension to the north of Gloucester comprising some 1750 homes and associated community infrastructure (Land at Innsworth Lane – PINS Ref: APP/G1630/A/09/2097181). • Securing district-wide permanent injunctive relief concerning unlawful waste transfer sites in Rotherham. • Numerous Gypsy appeals concerning unlawful development in the Green Belt, AONBs and sensitive sites. • Numerous appeals concerning residential and commercial development in the Green Belt, AONBs and other landscape and/or scientifically sensitive sites.

QUALIFICATIONS CLERKS

LLB (U.C.W. Aberystwyth) Practice Managers LLM in Public Law (Bristol Andrew Bisbey University) Gary Smith Accredited Mediator (BSPC Robert Woods Regent’s Park College) Practice Director MEMBERSHIPS Tony McDaid Planning and Environmental Bar Association Tel: +44 (0) 845 210 5555 The Bar European Group Fax: +44 (0) 121 210 7311 [email protected]

RECOMMENDATIONS

Paul is recommended in Legal 500 (2010) as ‘very able and very knowledgeable on planning matters’ and (2011) “Paul Cairnes…is part of No5 Chambers exceptional planning and environmental law team.”

NOTABLE CASES

R (on the application of Egerton) v Taunton Borough Council [2008] EWHC 2752 (Admin): The meaning of ‘curtilage’ in the context of the listed buildings legislation.

Wiltshire Council v (1) Secretary of State for Communities & Local Government and (2) Robert Hitchins Ltd [2010] EWHC 1009 (Admin): Disaggregation of housing land supply and the potential use of summary judgment in s.288 appeals.

Stratford on Avon District Council v David Wilson Homes and Others (2011): Successful enforcement of s106 obligation to provide financial contribution to community facilities. Less is More

A Rough Guide to the Localism Act 2011

1. Introduction 1.1 It is expected that at the date of this seminar we will still be awaiting publication of the NPPF. An in-depth analysis of the consultation draft would therefore serve little useful purpose. However, Governments tend to be leaky ships and the various statements (both official and unofficial) that have issued forth since October 2011 give us an inkling of its shape. Consequently, we will use this seminar to canvass with all present what we can expect

1.2 In November 2011 Greg Clark MP (Minister for Decentralisation) described the purposes behind the Localism Act 2011 in the following terms: “The Localism Act sets out a series of measures with the potential to achieve a substantial and lasting shift in power away from central government and towards local people. They include: new freedoms and flexibilities for local government; new rights and powers for communities and individuals; reform to make the planning system more democratic and more effective, and reform to ensure that decisions about housing are taken locally.”1

1.3 The Act has created a new legal framework in which local decision making will operate. It is a major piece of legislation to be will be implemented over time. However, the Government has stated that it expects many of its major measures to be in force by April 2012 including:

 The general power of competence  The community right to build  The Planning reforms  The changes to social housing.

1 Foreword to the Localism Act 2011 (Plain English Guide).

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2. The New Freedoms & Flexibities General power of competence 2.1 Local authorities are creatures of statute. Consequently, their powers and responsibilities are defined by legislation. This can cause problems where they may wish to take particular actions in the interest of their community but are unsure whether they are lawfully entitled to do so.

2.2 Part 1 of the Act gives local authorities a ‘general power of competence’ to act ‘as individuals generally may do’. This general power provides local authorities with the legal capacity to do anything that an individual can do that is not specifically prohibited. This freedom does not affect their responsibilities i.e. local authorities are not entitled to abrogate existing statutory duties. However, the Act does give the Secretary of State the power to remove unnecessary restrictions and limitations where there is a good case to do so, subject to safeguards designed to protect vital services.

2.3 Similar powers have been given to Fire and Rescue Authorities2, Integrated Transport Authorities 3 , Passenger Transport Executives 4 , Combined Authorities and Economic Prosperity Boards5.

Abolition of the Standards Board 2.4 The Act abolishes the Standards Board regime. Instead, it places a statutory duty upon local authorities to promote and maintain high standards of conduct by members and co-opted members of the authority through the adoption of their own codes6. There are teeth to the new provisions and councillors will be required to declare pecuniary interests on taking office 7 . Furthermore, it will be an offence for councillors to

2 Section 9. 3 Section 10. 4 Section 11. 5 Section 12. 6 Section 29. 7 See sections 30-32.

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deliberately withhold or misrepresent a financial interest (punishable by fine and/or disqualification)8.

Predetermination 2.5 In parallel with the abolition of the Standards Board, the Government has used the Act to clarify the rules on ‘predetermination’. The previous rules on predetermination were considered to have stifled debate and valid discussion (often with regard to planning matters). The new provisions are intended to enable councillors to take an active party in local discussions (and campaigns) and reduce the risk of subsequent legal challenges as a result. Where the validity of a decision is being challenged on grounds of bias or predetermination and it is relevant to consider whether the decision- maker had a closed mind (to any extent) then the new provisions come into play. The Act9 provides that the decision-maker is not to be taken to have had, or to have appeared to have had, a closed mind when making the decision just because: (a) the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter, and (b) the matter was relevant to the decision.

3. New Community Rights & Powers Community right to challenge 3.1 The Act provides voluntary and community groups, parish councils and local authority employees the right to express an interest in taking over the running of a local authority service. The local authority must consider and respond to this challenge; and where it accepts it, run a procurement exercise for the service in which the challenging organisation can bid10.

8 Section 34. 9 Section 25. 10 See sections 81-82.

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Community right to bid (assets of community value) 3.2 The Act requires local authorities to maintain a list of assets of community value which have been nominated by the local community11. This includes land or buildings the use of which furthers the social wellbeing or social interests of the community and “it is realistic to think” that this use can continue. Moreover, the Act gives communities time to raise money and bid for such assets should they come onto the open market by imposing a moratorium on the disposal of the asset by the owner until certain conditions have been met12.

The right to approve or veto excessive council tax rises. 3.3 This part of the Act replaces the previous power of Government to ‘cap’ council tax rises. Schedule 5 of the Act sets out the rules for referendums. Each year the Government will determine a set of principles against which the authority’s council tax is to be determined (i.e. a limit!). If the proposed precept is excessive when measured against those principles then the authority is required to hold a referendum whereby local voters will be asked to approve or to veto the rise.

Transparency over senior council officials' pay 3.4 These provisions of the Act require authorities to publish a statement of their policies on pay13. This will include the salaries of senior officials working in local authorities, but also the lowest paid employees.

4. Reforms to the Planning System 4.1 Part 6 of the Act14 introduces significant changes to the planning system. In particular:  Abolition of regional strategies 15 . The regional strategies were introduced by the PCPA 2004. They formed part of the statutory development plan and set out the Government’s policy with regard to new

11 Sections 87-108. 12 Section 95. 13 See sections 38-43. 14 Part 6 of the Act. 15 Section 109.

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development in each part of the country. They imposed housing targets for different areas and often indicated the general locations for such development. The Act is intended to introduce a ‘bottom up’ approach to development planning rather than ‘top down’.  Duty to cooperate 16 . The duty to co-operate came into force on 15 November 2011 when the Localism Bill gained Royal Assent. It requires local authorities to consult and engage with neighbouring councils on a strategic planning level in the preparation of local plans and is intended to fill the void left by the forthcoming abolition of the regional strategies. The duty applies to all planning authorities, national park authorities and county councils in England. It also applies to other public bodies including the Environment Agency, Highways Agency and Homes & Communities Agency.  Neighbourhood planning 17 . The Act introduces a new right for communities to draw up a neighbourhood plan through a local parish council or neighbourhood forum. Provided a neighbourhood development plan or order is in line with national planning policy, with the strategic vision for the wider area set by the local authority, and with other legal requirements, local people will be able to vote on it in a referendum. If the plan is approved by a majority of those who vote, then the local authority will bring it into force. Local planning authorities will also be required to provide technical advice and support to neighbourhoods in the preparation of their neighbourhood.

4.2 Other important changes to the planning system include:  Additional Consultation requirements18: The Act introduces a new requirement for developers to consult local communities before submitting planning applications for certain developments. The particular types of development that will fall within this category are yet to be determined by development orders issued by the Secretary of State.

16 Section 110. 17 See Schedules 9, 10 & 11. 18 Section 122.

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 Changes to the Enforcement regime19: The Act will give LPAs a power to decline to determine retrospective applications in certain circumstances. This will be when an EN has been issued which relates to land and breaches of planning control subject to the application.  The community infrastructure levy20. The Act will reform the CIL regulations to enable greater flexibility and allow some of the money raised to be spent on things other than infrastructure.  Plan-making 21 . The Act limits the discretion of Planning Inspectors to insert their own wording into DPDs. However, the LPIs can still recommend modifications before adoption to make the DPD sound. Also, the Secretary has the power to intervene and direct a LPA to withdraw a DPD before it is adopted.  Nationally significant infrastructure projects 22 . The Act abolishes the Infrastructure Planning Commission and restores its responsibility for taking decisions to Government ministers.

5. Housing Reforms23 Allocations reform 5.1 The Act gives local authorities greater freedom to set their own policies about who should qualify to go on the waiting list for social housing in their area. This is done through modifications to the HA 1986 and requires authorities to draw up Housing Allocation Schemes. The Housing Allocations Schemes must contain a statement of the authority’s policy on the allocation of social housing. However, the HAS must still provide reasonable preference to certain specified vulnerable groups (e.g. homeless, disabled, persons with medical or welfare needs etc).

Social housing tenure reform

19 Sections 123-127. 20 Sections 114-115. 21 Section 112. 22 Section 128. 23 Sections 145-184.

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5.2 Under the previous system social landlords were normally only able to grant lifetime tenancies. Whilst the Government has protected the security and rights of existing social housing tenants, the Act does allow for more flexible provision in future. Pursuant to sections 150 and 151 of the Act a local housing authority in England must now prepare and publish a strategy (a “tenancy strategy”) setting out the matters to which the registered providers of social housing for its district are to have regard in formulating policies relating to— (a) the kinds of tenancies they grant, (b) the circumstances in which they will grant a tenancy of a particular kind, (c) where they grant tenancies for a term certain, the lengths of the terms, and (d) the circumstances in which they will grant a further tenancy on the coming to an end of an existing tenancy.

5.3 Regard must (obviously) be had to the HAS and TS when the Housing Authority formulates or modifies its Homelessness Strategy.

5.4 Social landlords will now be able to grant “flexible” tenancies for a fixed length of time24. The minimum length of tenancy will be two years in exceptional circumstances with five years or more being the norm.

Homelessness legislation. 5.5 The statutory duty on councils to house people who are eligible, in priority need and unintentionally homeless will remain in place. The Act enables Housing Authorities to effectively discharge this duty through the private rented sector25.

24 Section 154. 25 See sections 148-149.

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Housing finance. 5.6 The Act changes the means by which social housing is funded26. In essence, councils will now keep their rental income for use to maintain its social housing.

National home swap scheme. 5.7 The Act enables people who would like to swap their social home to access details of all other tenants who may be a suitable match27.

Social housing regulation. 5.8 The Act abolishes the Tenant Services Authority and transfers its remaining functions to the Homes and Communities Agency28. The Act makes provision for tenant panels (or similar) to monitor the maintenance of standards29. Changes are also made to the way that complaints about social landlords are handled – in future they will be through the Independent Housing Ombudsman only30.

Abolition of Home Information Packs. 5.9 They’ve gone.

Jeremy Cahill QC Paul Cairnes No5 Chambers No5 Chambers +44 (0) 845 210 5555 +44 (0) 845 210 5555 [email protected] [email protected] www.No5.com www.No5.com

26 See sections 167-173. 27 Section 176. 28 Section 178. 29 See section 179 and Schedule 17. 30 See section 180-182.

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Section 3

Anthony Crean QC Planning & Environment

Anthony Crean QC was called to the Bar in 1987 and took silk in 2006. He is a first class Inquiry Advocate and acts for a wide range of private and public sector clients in both promoting and opposing major development proposals. His particular fields of expertise are in Energy, Waste, Coastal Development, Housing and Heritage Conservation. He is variously described in professional publications as ‘A crisp and brilliant advocate’, ‘a reliable silk with a very flamboyant and effective style’ and ‘a revered inquiry advocate’

Outside of his professional practice he takes an interest in the academic life of the University of Oxford where he occasionally presents seminars and papers and he is a visiting Professor of Environmental Law at the University of Buckingham. Silk: 2006

Year of Call: 1987 Recent Notable Cases:

i) Promoting 650 houses with on-site renewable energy generation in Huntingdonshire ii) Opposing a £300m energy from waste proposal in Cheshire iii) Advising on the promotion of a very large energy proposal in the North of England iv) Opposing the development of a large housing estate in the setting of a Grade I listed property in Swindon v) Opposing a Nursing Home based on the English Heritage Policy Statement on Enabling Development vi) Promoting 200 houses in Suffolk

International work and the Marine environment Anthony has extensive experience of advising national and regional government on major development projects. These regularly include the environmental and planning implications of new highway schemes, energy projects and major housing proposals.

With specific regard to the marine environment he acted as counsel at the Dibden Bay Inquiry; a one billion pound project to construct a new national container port on the River Test at Southampton. The issues addressed include the physical, legal and policy implications of introducing Post-Panamax ships requiring a 15 metre draft into narrow coastal waters; the fisheries, marine and environmental implications of introducing major engineering works to alter the physical layout of the waterways; and the most appropriate means of providing mitigating and compensating works to balance the harm done as part of the proposals.

Anthony has particular expertise in relating the obligations contained in European Directives to major development projects in the UK.

He has advised extensively on UK treaty obligations concerning the implementation of governmental commitments to provide access to environmental justice.

Professional Commendations Anthony took silk on his first application and was the youngest planning and environmental silk in the UK at that time. He is regularly awarded full placements in national lists of top-performing planning and environmental law silks.

Anthony is regularly asked to give papers and seminars at the University of Oxford on environmental law issues

QUALIFICATIONS CLERKS

Mphil Practice Managers Andrew Bisbey MEMBERSHIPS Gary Smith Planning and Environment Bar Robert Woods Association Fellow of the Royal Geographical Practice Director Society Tony McDaid

APPOINTMENTS Tel: +44 (0) 845 210 5555 Fax: +44 (0) 121 210 7311 Visiting Professor of Planning Law, [email protected] University of Buckingham Peter Goatley Planning & Environment

Peter acts for a wide range of clients including developers, house builders, retailers, construction companies, local authorities, government agencies, financial institutions, telecommunications companies and utility undertakings.

He is a member of the Attorney General's Panel of Treasury Counsel and sits on the committee of the Planning and Environmental Bar Association. He has extensive experience appearing in Court and at public inquiries in respect of a broad range of matters. He regularly features in lists of highly rated planning counsel and has been described as “a very mature junior with a sound legal mind who is very thorough and a good tactician” (Chambers UK 2008) Peter Goatley "has a following of major developers for his work" (Legal500 2009) Year of Call: 1992

Peter Goatley is widely recognised as an exceptionally capable and diligent junior. He is particularly revered in the context of highway-related matters, and recently acted for the Highways Agency in successfully resisting proposals for a motorway service area on the M42. ( Chambers UK 2010)

- Planning Appeals and Development Plan Inquiries Retail (food and non-food) Residential development Telecommunications installations Listed buildings Motorway service areas Industrial development Transport and Works Act inquiries into major infrastructure projects Compulsory purchase and compensation Highways, including inquiries relating to road schemes, motorway service areas and footpaths Planning enforcement Minerals

- Environmental Matters Water industry consents Proceedings under the Environmental Protection Act 1990 Abatement notice appeals

- Lands Tribunal Proceedings

- Judicial Review and statutory appeals

- Human Rights

- Parliamentary Boundary Commission Inquiries

Peter is regularly listed in both Planning magazine's annual Legal Survey and Chambers & Partners Guide to the Legal Profession as one of the highest rated planning barristers in England and Wales.

QUALIFICATIONS CLERKS

MA (Oxon). Formerly a partner in a Practice Managers medium sized commercial Andrew Bisbey solicitors practice Gary Smith Robert Roods MEMBERSHIPS Member of the Committee of the Practice Director Planning and Environment Bar Tony McDaid Association Tel: +44 (0) 845 210 5555 Fax: +44 (0) 121 210 7311 [email protected]

NOTABLE CASES

R (on the application of Holding and Barnes plc and Alconbury Developments Limited) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295; [2001] 2 WLR 1389; [2001] 2 All ER 929 (the application of the Human Rights Act 1998 to the planning system)

Varey v United Kingdom (2000) 30 EHRR CD39; Times, January 30 2001 (breach of rights under Article 8 of the European Convention of Human Rights)

Staffordshire County Council v Riley and others [2001] EWCA Civ 257; [2002] PLCR 5; (the commencement of development in minerals matters)

Stirk v Bridgnorth District Council (1997) 73 P & CR 439 (quashing a local plan) Neighbourhood Watch A Rough Guide to Neighbourhood Planning

Anthony Crean QC & Peter Goatley

1 We all recall the Open Source Green Paper issued by the Conservative Party, when it was in opposition. With the advent of the Coalition Government the Localism Agenda started to take form and ultimately culminated in the Localism Bill. This eventually stumbled onto the statute book on 15th November last year.

2 There are a number of useful provisions introduced by the Act such as a local authority’s general power of competence and the need for cooperation between authorities1. These are anticipated by most observers to represent useful revisions to the statutory powers and duties of local authorities.

3 The provisions relating to neighbourhood planning set out in Part 6 of the Act, in Sections 116-121 of the Act and Schedules 9-11.

4 What remains to be seen is whether the concept of neighbourhood planning turns out to be more significant in appearance than in reality.

5 However, one can explore the opportunities that it presents to communities and, perhaps, others to try and constructively shape the planning process at the local level.

6 So what is “neighbourhood planning”? Is it clear and obvious? The Government clearly thought so, though they did have to come up with a plain English guide to the Localism Act when the bill was enacted. That stated about neighbourhood planning:

1 Section 102.

- 1 -

Neighbourhood planning Instead of local people being told what to do, the Government thinks that local communities should have genuine opportunities to influence the future of the places where they live. The Act introduces a new right for communities to draw up a neighbourhood plan.

Neighbourhood planning will allow communities, both residents, employees and business, to come together through a local parish council or neighbourhood forum and say where they think new houses, businesses and shops should go – and what they should look like.

These plans can be very simple and concise, or go into considerable detail where people want. Local communities will be able to use neighbourhood planning to grant full or outline planning permission in areas where they most want to see new homes and businesses, making it easier and quicker for development to go ahead.

Provided a neighbourhood development plan or order is in line with national planning policy, with the strategic vision for the wider area set by the local authority, and with other legal requirements, local people will be able to vote on it in a referendum. If the plan is approved by a majority of those who vote, then the local authority will bring it into force.

Local planning authorities will be required to provide technical advice and support as neighbourhoods draw up their proposals. The Government is funding sources of help and advice for communities. This will help people take advantage of the opportunity to exercise influence over decisions that make a big difference to their lives.

Community right to build 7 In addition, Government has also provided for a “Community right to build”. As part of neighbourhood planning, the Act gives groups of local people the power to deliver the development that their local community want. This can include new homes, businesses, shops, playgrounds or meeting halls.

- 2 -

8 A community organisation, formed by members of the local community, will be able to bring forward development proposals which will be able to go ahead without requiring a separate traditional planning application. This entitlement is subject to the provisos that such proposals meet minimum criteria and can demonstrate local support through a referendum.

9 The objective is that the benefits of the development, such as new affordable housing or profits made from letting the homes, will stay within the community, and be managed for the benefit of the community.

10 The Government will also fund sources of help and advice for communities who want to bring forward development under the community right to build.

11 CLG, which has wanted to dispense with so much planning guidance as being unnecessary, has also produced a further “Introduction to Neighbourhood Planning”. This reiterated the points set above but placed the neighbourhood planning agenda in the “Localism” context.

12 In answering the rhetorical question “Why does it matter?” it states

The planning system helps decide what gets built, where and when. It is essential for supporting economic growth, improving people’s quality of life, and protecting the natural environment.

In theory, planning has always supposed to give local communities a say in decisions that affect them. But in practice, communities have often found it hard to have a meaningful say. The Government wants to put power back in the hands of local residents, business, councils and civic leaders.

Neighbourhood planning is optional, not compulsory. No-one has to do it if they don’t want to. But we think that lots of people will want to take the opportunity to influence the future of the place where they live or work.

- 3 -

13 It also provides a five stage outline guide as to how it is proposed to work.

Stage 1: Defining the neighbourhood 14 First, local people will need to decide how they want to work together. In areas with a parish or town council, the parish or town council will take the lead on neighbourhood planning upon the basis that Government perceives that they have long experience of working with and representing local communities.

15 In areas without a parish or town council, local people will need to decide which organisation should lead on coordinating the local debate. In some places, existing community groups may want to put themselves forward. In other places, local people might want to form a new group. In both cases, the group must meet some basic standards. It must, for example, have at least 21 members, and it must be open to new members. Town and parish councils and community groups will then need to apply to the local planning authority (usually the borough or district council).

16 In case there was a concern as to a lack of guidance or oversight, local planning authorities are reminded that it is their job to keep an overview of all the different requests to do neighbourhood planning in their area. For instance, they will check that the suggested boundaries for different neighbourhoods make sense and fit together. The local planning authority will say “no” if, for example, two proposed neighbourhood areas overlap. They will also check that community groups who want to take the lead on neighbourhood planning meet the right standards. The planning authority will say “no” if, for example, the organisation is too small or not considered representative enough of the local community. That clearly has the potential to lead to some interesting debates or friction.

17 However, if after all that, the local planning authority decides that the community group meets the right standards, the group will be able to call itself a ‘neighbourhood forum’. That grand title is simply the technical term for groups which have been granted the legal power to do neighbourhood planning.

- 4 -

18 The town or parish council or neighbourhood forum can then get going and start planning for their neighbourhood.

Stage 2: Preparing the plan 19 Next, local people will begin collecting their ideas together and drawing up their plans.

20 A neighbourhood plan is intended to facilitate the establishment of general planning policies for the development and use of land in a neighbourhood. It can be as detailed, or for that matter as general as the people in the locality (who have involved themselves in the process) actually want.

21 The legislation also provides for “neighbourhood development orders”. As they state, they are development orders by which the community can grant planning permission for new buildings they want to see go ahead. Whilst it would seem surprising to see them use in this way, neighbourhood development orders would also allow new homes and offices to be built without the developers having to apply for separate planning permission. Experience in various parts of the country might suggest that this potential route of obtaining a development consent would appear “unlikely”.

22 Local people are not obliged to choose which route to follow. They can draw up a neighbourhood plan, or a development order, or both. The choice is left entirely up to them save for following some essential ground rules (which may temper the extent of local enthusiasm for the potential use):

(1) Such documents must generally be in line with local and national planning policies. (2) They must be in line with other laws. (3) If the local planning authority says that an area needs to grow, then communities cannot use neighbourhood planning to block the building of new homes and businesses. Doubtless, this restriction may come as a profound disappointment to local action groups hoping to use this process to prevent whatever development the dreaded was likely to occur. However, they can

- 5 -

use neighbourhood planning to influence the type, design, location and mix of new development. It remains to be seen how effective that may be in influencing or preventing development occurring.

Stage 3: Independent check 23 Once a neighbourhood plan or order has been prepared, an independent examiner will check that it meets the right basic standards. If the plan or order does not meet the appropriate standards, the examiner will recommend changes. The planning authority will then need to consider the examiner’s views and decide whether to make those changes.

24 If the examiner recommends significant changes, then the parish, town council or neighbourhood forum may decide to consult the local community again before proceeding.

Stage 4: Community referendum 25 The local council will organise a referendum on any plan or order that meets the basic standards. This ensures that the community has the final say on whether a neighbourhood plan or order comes into force.

26 People living in the neighbourhood who are registered to vote in local elections will be entitled to vote in the referendum. In some special cases people from other neighbourhoods may also be allowed to vote. That may occur where, for example, the proposals put forward in a plan for one neighbourhood have significant implications for other people nearby.

27 If more than 50 per cent of people voting in the referendum support the plan or order, then the local planning authority must bring it into force.

Stage 5: Legal force 28 Once a neighbourhood plan is in force, it carries legal weight. Decision-makers will be obliged, by law, to take what it says into account when they consider proposals for development in the neighbourhood. Just like the provisions of a development plan and other material considerations. What will be interesting is

- 6 -

what weight is given by decision-makers (particularly planning inspectors) when compared to other material considerations..

29 A neighbourhood order will grant planning permission for development that complies with the order. Where people have made clear that they want development of a particular type, it will be easier for that development to go ahead. Perhaps it is a cynical view few that the manufacturers of conservatories and like structures may be salivating at the prospect of this provision.

30 It is clear that such a neighbourhood activity will require funding and support. Among those who have been identified by Government is providing that support include the local planning authority, who will be obliged by law to help people draw up their neighbourhood plans. In addition, developers, parish and town councils, landowners and local businesses (including conservatory manufacturers) may all be interested in sponsoring and taking a leading role in neighbourhood planning. The Government itself has committed to providing £50m until March 2015 to support local councils in making neighbourhood planning a success, having already provided £3m to four community support organisations, who already support communities in planning for their neighbourhood.

31 As a natural counterweight to any “bonfire of existing planning policy, law, guidance or regulations”, a further consultation has been undertaken by Government on the regulations which are proposed to accompany any neighbourhood planning2. The outcome of that exercise is still awaited but the consultation questions give a floavour of what the Government may have in mind:

(1) Seeking to place the minimum of requirements on communities to free them from unnecessary process and to encourage them to get involved. (2) Placing the minimum of requirements on local planning authorities to enable local dialogue on the detail of the process so that it suits local circumstances (3) Not interfering with local authority decision making

2 This commenced on 13th October and finished on 5th January 2012

- 7 -

(4) Reserving regulation making powers wherever possible, and only taking them up in the future if practice proves them to be necessary. (5) Drawing on existing procedures where this is possible and appropriate, to minimise the time taken for communities and authorities to become familiar with the new system.

32 The means anticipated to achieve this, as prescribed through regulations, may be anticipated to (1) draw on existing approaches, such as in the case of holding referendums, where it would be wasteful and unnecessary to reinvent existing approaches that are established and work perfectly well; and (2) be silent on aspects best left to communities and authorities to decide, for example for the procedures at examination where authorities already have a wealth of experience.

33 The Government’s view is that taking up all the powers in a detailed way would be overly bureaucratic and inconsistent with our belief that neighbourhood planning should be community-led.

Minimum Information 34 Clearly, one issue of concern that arose was the information available to an authority or examiner to make an informed decision about the proposed plan or order.

35 Government’s view is that the regulations require that information is provided that is the minimum necessary to enable a local planning authority or examiner to assess the proposals.

36 It is considered that specifying minimum information requirements will assist both local planning authorities and applicants, and ensures a degree of consistency. However, the extent of prescription has not been limited. It is open to local planning authorities to devise their procedures around these minimum requirements. For example, for an application for the designation of a neighbourhood area, Government propose that this should simply consist of

- 8 -

(1) a plan or statement to indicate the proposed area, (2) a statement of why this area is proposed and (3) a statement that the group submitting the application is capable of being a qualifying body.

37 These pieces of information are all needed to enable a local planning authority to make a decision about whether the proposed area is suitable.

38 Another example is the difference in information requirements between a neighbourhood plan and a neighbourhood development order. More information is required to support an order because it can grant full planning permission without the need for a normal planning application to be submitted to the local planning authority.

Publicity and consultation 39 A fundamental principle of neighbourhood planning is that it is community-led. This means that the community is kept fully informed of what is being proposed and is able to make their views known throughout the process. Notwithstanding the experience of problems elsewhere in public decision making the Government propose that their approach should be “light touch”.

40 To that end the Government has proposed that the regulations will only require that the local planning authority should publish information about neighbourhood planning, for example the draft plan or order or the voting result of the referendum, in a manner which will bring it to the attention of those who live, work or carry on business in the area. Once again, it is left open for the local planning authority to do more.

41 It is also anticipated that at information should be published or made accessible following the key stages. For example when the plan or order is ‘made’ (the final draft is published) it is important that this is visible to everyone, so the plan or order should be published on the local planning authority’s website, is available

- 9 -

for inspection at their principal office, and that their website provides details of where the document can be inspected.

Time limits 42 The Government have proposed time-limits in only certain parts of the process to provide information, submit applications or make a decision in order to provide local planning authorities with the ability to flex the process to suit their own practices and timetables.

43 For example it is proposed that the regulations will require a 6 week period from the date the first application for a neighbourhood area is received for representations and responses on the application. This will give different prospective neighbourhood forums an opportunity to submit applications for the same or different neighbourhood areas, and to provide residents and businesses of the neighbourhood areas, and any other bodies an opportunity to comment on the proposals. But no time limit is anticipated to be set for the period the local planning authority has to decide whether to designate a neighbourhood forum.

Local authority decision making 44 The Secretary of State has taken powers to set out how the local planning authority should make certain decisions (e.g. to validate an application or designate a forum). However. It is not proposed to prescribe exactly how the local authority should make key decisions (whether by delegated officer, a full meeting of the Full Council or via the Council’s Executive, etc) in order for the decision to be valid. That is to be left to local planning authorities to decide.

“Future proofing” 45 A number of regulation making powers were taken to enable the neighbourhood planning system to reflect changing circumstances and to reflect experience of putting the system into practice. Hence, not all of the regulations will necessarily be put into effect at the outset. For example, there are powers to set out other conditions that qualifying bodies must meet to be able to represent a community and to allow bodies which do not currently fulfil the conditions for neighbourhood forums in the Act or are not currently in existence to be eligible to be designated

- 10 -

as a neighbourhood forum. This enables the system to respond to situations where new organisations, individuals or groups emerge over time. The Secretary of State has also taken powers to require the examiner to look at additional conditions or matters during the independent examination.

Independent examination 46 This is another aspect of the “light touch” approach to regulation which will largely be left up to the local planning authorities and the examiner to decide when to hold a public hearing into a plan or order.

The referendum 47 A core principle of neighbourhood planning “is that the community should be in the driving seat” of planning the future of their areas.

48 The referendum at the end of the process is designed to ensure that communities have the final say on whether a neighbourhood plan or development order or Community Right to Build order comes into force in their area. The Secretary of State wants the referendum arrangements to make it easy and convenient for local people to have their say on proposed developments and plans. The Secretary of State has powers to set out regulations about how referendums should be carried out.

49 In the first instance this will by reference to the Local Authorities (Conduct of Referendums)(England) Regulations 2007 (SI No 2089/2007). The Regulations will include a provision which specifies the question to be asked in the referendum.

Where will this all take us? Overall, it is an attempt at a significant departure from the central control which has defined the operation of the planning system since its inception by that epitome of the command economy; the Atlee administration. It is too easy to dismiss the new architecture as a further and unnecessary layer of burocracy on an already over- burdened planning system. We prefer an optimistic view which holds that once the teething troubles are dealt with it will lead to a more efficient and effective

- 11 - engagement between the general public and the planning system which is, after all, supposed to exist to promote their interests.

Anthony Crean QC Peter Goatley No5 Chambers No5 Chambers +44 (0) 845 210 5555 +44 (0) 845 210 5555 [email protected] [email protected] www.No5.com www.No5.com

- 12 -

Section 4

Timothy Jones Planning & Environment

Tim's practice extends from the largest of developments (the Greenwich Peninsula) through superstores, quarries and new highways to cutting-edge litigation for individuals before the European Court of Human Rights.

He has also appeared in the House of Lords, and conducted development plan, complex CPO and transport inquiries. He acts for developers, landowners, mineral operators, NGOs and individuals.

Tim's specialist areas include:

• Planning Appeals and Development Plan Inquiries Year of Call: 1975 Residential, mineral, superstore and other retail development, employment and

leisure, wind farms, forward planning

• Planning Obligations Section 106 agreements, including those for the largest of developments, Community Infrastructure Levy

• Minerals Aggregates Minerals Local Plan Inquiries

• Environmental Environmental protection, landfill, waste incinerations, European Directives, Windfarm inquiries

• Compulsory Purchase Town-centre redevelopment, new highways, flood-alleviation, amenity land, cemeteries, housing estate redevelopment

• Lands Tribunal Proceedings Compensation for CPOs and highway impact

• Highways Compulsory purchase, highways inquiries, s278 agreements, footpaths and bridleways

• Judicial Review and Statutory Appeals

• Human Rights Issues relating to planning before the European Court of Human Rights and the Administrative Court

• Other Local Government and Public Law Matters Transport and Works Act Inquiries: railway, light railway and waterway Parliamentary committees Judicial Reviews related to housing, policy formation, caravan sites, local taxation and disabled persons Property Misdescription Act Telecommunications Code

Tim has spoken at seminars and other events abroad (as well as in England, Wales and Northern Ireland) on ECHR and EU law. This has encompassed Bosnia and Herzegovina, Hungary, Ireland, Macedonia, Serbia, Slovakia and Turkey. Tim has also written extensively on planning law, property rights, European law and arbitration.

QUALIFICATIONS CLERKS

LLB (LSE) Practice Managers FCIArb Andrew Bisbey Accredited Mediator (LSM) Gary Smith Robert Woods MEMBERSHIPS Tim is a member of the Planning Practice Director and Environment Bar Association, Tony McDaid the Administrative Law Bar Association and the Compulsory Tel: +44 (0) 845 210 5555 Purchase Association. Fax: +44 (0) 121 210 7311 He is a member of the Bars of [email protected] England and Wales, Ireland and Northern Ireland. NOTABLE CASES

Barnsley v Secretary of State [2010] EWHC 206 (Admin)

Butler v Bath (CA) [2003] EWCA Civ 1614, [2004] JPL 941

Chapman v United Kingdom (ECtHR) 33 EHRR 18

R (Jones) v North Warwickshire BC (CA) [2001] EWCA Civ 315; [2001] 2 PLR 59

R (Bleaklow Industries Ltd) v Peak District NPA [2006] EWHC 3387 (Admin); [2007] JPL 1484

R (CPRE) v Swindon BC [2009] EWHC 1586 (Admin)

R (Maxwell) v Wiltshire Council [2011] EWHC 1840 (Admin) Jack Smyth Planning & Environment

Jack has been rated for the second year in a row by Planning Magazine as one of the top 20 planning barristers under 35 years old. He is one of the youngest names on the list.

He is known as a personable advocate who has developed a broad practice acting on behalf of local planning authorities, appellants and residents’ groups. He has accrued particular experience and interest in gypsy/traveller and wind farm development.

He has experience successfully representing LPAs and residents’ groups in resisting gypsy/traveller sites. This year he has represented residents’ groups in Year of Call: 2007 two high profile gypsy cases in the Midlands which have both featured on Midlands

Today.

He has a great amount of experience successfully obtaining injunctive relief in respect of unauthorised breaches of planning control. This has brought Jack experience of Contempt of Court proceedings on behalf of both local authorities and defendants. He has appeared in the High Court on one such case in the Royal Courts of Justice earlier this year.

Jack is regularly instructed to resist wind farms appeals and is familiar with advising LPAs before the matter proceeds to committee. Last year Jack represented a local planning authority in a 3 week windfarm inquiry, where the decision to refuse was made against officer recommendation. The appeal was dismissed.

Jack has also been led by a Silk on an urban extension inquiry.

Jack has lectured extensively on the new REGULATORY ENFORCEMENT AND SANCTIONS ACT 2008, which has recently gained Royal Assent.

He has also lectured to post-graduate students at the University of Birmingham on planning issues.

QUALIFICATIONS CLERKS

- Degree in Politics from the Practice Managers Durham University, First Class Andrew Bisbey Honours Gary Smith - Graduate Diploma of Law, with Robert Woods Distinction - LLB Practice Director Tony McDaid MEMBERSHIPS - Middle Temple; awarded the Tel: +44 (0) 845 210 5555 Jules Thorn Scholarship (2006) Fax: +44 (0) 121 210 7311 - HELA [email protected] - UKELA RECOMMENDATIONS

Jack Smyth has been pegged as "a star of the future" by interviewees. He is recognised for his gypsy and traveller work as well as his experience in planning inquiries. Chambers & Partners 2012 Enforcement Changes 2011-2012: (1) Localism Act 2011 ss123-124

1. The Localism Act’s sections 123 to 127 deal with enforcement. At the date of writing this paper these have not commenced.1 This paper deals with section 123 and 124.

2. Before we do, let’s see who has been following developments in planning enforcement law.

Question 1 Who built a house, known as “Honeycrock Castle” concealed behind bales of hales and under tarpaulin and sheets of plastic and then tried to rely on the four-year time limit for bringing enforcement proceedings?

Clues: It’s reported at [2011] EWCA Civ 1159 (permission to appeal set aside) and [2010] EWHC 143 (judgment of Sir Thayne Forbes) under the title R (…) v Secretary of State for Communities and Local Government and Reigate and Banstead Borough Council.2

Retrospective Planning Permission

3. Section 123 of the Localism Act 2011 alters the law in England (but not in Wales) respect of retrospective planning permissions. As a result of representations by Lord Avebury and others, it is substantially less restrictive than the original proposal in the Localism Bill. It nonetheless contains restrictions that could cause difficulty for unwary would-be appellants, including those who allow a temporary planning permission to expire without renewing it and those who submit applications

1 24th February 2012, apart from s124(2) which has been partially in force since 15th January 2012 (for the purposes specified in SI 2012/57 art. 4(1)(i) “section 124(2), so far as the amendments made to the 1990 Act confer power on the Secretary of State to prescribe matters by, or make provision in, a development order”. 2 The Appeal decision is digested at [2010] PAD 48.

- 1 - that the LPA determines are invalid for lack of the required information. Section 123 will come into force on such day as the Secretary of State may by order appoint.3

A new power to decline to determine applications

4. Sections 70A and 70 B of the Town and Country Planning Act 1990 give LPAs power to determine subsequent applications and overlapping applications. Section 123(2) will insert a new s 70C into the 1990 Act that will give English local planning authorities a power to decline to determine retrospective applications:

“(1) A local planning authority in England may decline to determine an application for planning permission for the development of any land if granting planning permission for the development would involve granting, whether in relation to the whole or any part of the land to which a pre-existing enforcement notice relates, planning permission in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control.

(2) For the purposes of the operation of this section in relation to any particular application for planning permission, a “pre-existing enforcement notice” is an enforcement notice issued before the application was received by the local planning authority.”

5. For the LPA to be able to exercise the power to decline to determine the application, the following must apply:

(1) An enforcement notice had been issued before the application for planning permission was received by the LPA;

(2) This enforcement notice related to at least part of the land subject to the application; and

(3) The application sought planning permission for a matter or matters specified in the enforcement notice as constituting a breach of planning control.

6. Section 70C is a power, not a duty, so that a LPA may determine such an application and, if it declines to do, it will be vulnerable to judicial review on normal public-law principles (e.g. failing to bear in mind material factors). If the LPA does not

3 Section 240(2).

- 2 - give notice that it has exercised its s70C power4 within the period by the Town and Country Planning (Development Management Procedure) (England) Order 2010 (“the DMPO”) for making an appeal5 an applicant can appeal for non-determination under s78(2).

A new limitation of Enforcement Notice Appeals

7. Section 123(4) will insert new subsections into s174 of 1990 Act, which deals with appeals against enforcement notice. These will apply in England and will provide:

“(2A) An appeal may not be brought on the ground specified in subsection (2)(a) if -

(a) the land to which the enforcement notice relates is in England, and

(b) the enforcement notice was issued at a time -

(i) after the making of a related application for planning permission, but

(ii) before the end of the period applicable under section 78(2) in the case of that application.

(2B) An application for planning permission for the development of any land is, for the purposes of subsection (2A), related to an enforcement notice if granting planning permission for the development would involve granting planning permission in respect of the matters specified in the enforcement notice as constituting a breach of planning control.”

8. Unlike s123(2) where this applies it is absolute and involves no discretion. It prevents appeals against an enforcement notice on ground (a), “that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged”. It will prevent appealing under this ground,6 if:

4 Or its power to decline to determine under ss 70A and 70B.

5 The period is 8 weeks for most developments, 13 weeks for major developments plus any extension to these periods agreed in writing: DMPO 2010 Art. 29. 6 But not appealing under one or more of the other 6 grounds.

- 3 - (1) the enforcement notice was issued after the making of a related application for planning permission, i.e. an application for planning permission that would involve granting permission in respect of the matters specified in the enforcement notice as constituting a breach of planning control; and

(2) the enforcement notice was issued before the period prescribed by the DMPO 2010 for making an appeal.7

9. Section 123(5) and (6) amend s 177 of the 1990 Act, which deals with the grant or modification of planning permission on appeals against enforcement notice. In the future in England the Secretary of State will only be able to grant planning permission when allowing an enforcement appeal if the appeal was made under ground (a) and that only ground (a) appeals will result in a deemed application for planning permission. This is done by introducing new subsection (1C) into s177 and by amending s177(5):

“(1C) If the land to which the enforcement notice relates is in England, subsection (1)(a) applies only if the statement under section 174(4) specifies the ground mentioned in section 174(2)(a).”

“(5) Where an appeal against an enforcement notice is brought under section 174 and -

(a) the land to which the enforcement notice relates is in Wales, or

(b) that land is in England and the statement under section 174(4) specifies the ground mentioned in section 174(2)(a),

the appellant shall be deemed to have made an application for planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control”.

10. The overall effect of these changes is that those seeking retrospective planning permission have fewer options than before. There will be an increased incentive to apply for planning permission in advance of the works or change of use involved or of the expiry of a temporary planning permission.

7 See footnote 5 above.

- 4 - Section 124 (Time limits for enforcing concealed breaches of planning control)

11. The well known cases of Welwyn Hatfield Council v Secretary of State for Communities and Local Government8 and R (Mr Sneeze) v Secretary of State for Communities and Local Government and Reigate and Banstead Borough Council9 led to calls for changes in the law. Despite the landowners in those cases failing, this led to s 124 of the Localism Act 2011.

12. S124 (1) inserts three new sections into the 1990 Act. Firstly, a new s171BA deals with time limits in cases involving concealment. This provides, inter alia:

(1) Where it appears to the local planning authority that there may have been a breach of planning control in respect of any land in England, the authority may apply to a magistrates' court for an order under this subsection (a “planning enforcement order”) in relation to that apparent breach of planning control.

(2) If a magistrates' court makes a planning enforcement order in relation to an apparent breach of planning control, the local planning authority may take enforcement action10 in respect of— (a) the apparent breach, or (b) any of the matters constituting the apparent breach, at any time in the enforcement year.

(3) “The enforcement year” for a planning enforcement order is the year that begins at the end of 22 days beginning with the day on which the court's decision to make the order is given, but this is subject to subsection (4).

(4) If an application under section 111(1) of the Magistrates' Courts Act 1980 (statement of case for opinion of High Court) is made in respect of a planning enforcement order, the enforcement year for the order is the year beginning with the day on which the proceedings arising from that application are finally determined or withdrawn.

…

8 [2011] UKSC 15; [2011] 2 AC 304

9 See paragraph 2 above. 10 ‘Enforcement action is defined in section 171A(2) of the 1990 Act as: “(a) the issue of an enforcement notice (defined in section 172); or (b) the service of a breach of condition notice (defined in section 187A).”

- 5 - 13. Secondly, a new 171BB deals with procedure for planning enforcement orders, providing, inter alia:

(1) An application for a planning enforcement order in relation to an apparent breach of planning control may be made within the 6 months beginning with the date on which evidence of the apparent breach of planning control sufficient in the opinion of the local planning authority to justify the application came to the authority's knowledge.

…

(4) Where the local planning authority apply to a magistrates' court for a planning enforcement order in relation to an apparent breach of planning control in respect of any land, the authority must serve a copy of the application - (a) on the owner and on the occupier of the land, and (b) on any other person having an interest in the land that is an interest which, in the opinion of the authority, would be materially affected by the taking of enforcement action in respect of the apparent breach.

(5) The persons entitled to appear before, and be heard by, the court hearing an application for a planning enforcement order in relation to an apparent breach of planning control in respect of any land include - (a) the applicant, (b) any person on whom a copy of the application was served under subsection (4), and (c) any other person having an interest in the land that is an interest which, in the opinion of the court, would be materially affected by the taking of enforcement action in respect of the apparent breach.

…

14. Those acting for owners will need to protect their position by ensuring that their interest is promptly registered at the Land Registry. Those acting for owners, occupiers and other interested persons who have not been served will need to act quickly to bring themselves within 171BB(5)(c).

15. Thirdly and importantly a new 171BC deals with making a planning enforcement order, providing in its first subsection:

- 6 - (1) A magistrates' court may make a planning enforcement order in relation to an apparent breach of planning control only if - (a) the court is satisfied, on the balance of probabilities, that the apparent breach, or any of the matters constituting the apparent breach, has (to any extent) been deliberately concealed by any person or persons, and (b) the court considers it just to make the order having regard to all the circumstances.

16. This will be of critical importance. LPAs will seek to show deliberate concealment; while those with an interest in land need to consider whether they can dispute it. Relevant evidence may include: postal deliveries to an address; registration for national and local taxation; registration for voting; and inclusion in phone books and directories (both written and online).

17. Whether it is just to make an order will depend on a variety of factors that may include: the period of time for which the breach existed – it is likely to be easier to show injustice where the time limit is 10 years than when a 4-year time limit has only recently expired; human rights including European Convention on Human Rights article 8 (right to respect for private and family and home) and First Protocol article 1 (protection of property); the nature and extent of the deliberate concealment, including whether it involved outright dishonesty, e.g. lying to officials; and whether failings on the part of the LPA contributed the 4 or 10 year time limit being exceeded.

18. The Localism Bill included controversial provision that would have included “inaction” as a form of concealment. This would have covered most (perhaps all) cases where there had been no enforcement for the statutory period and is not included in the Act.

19. Section 124 (2) and (3) make secondary changes to ss 188 and 191 of the 1990 Act.

Question 2

What is a pre-existing enforcement notice?

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Tim Jones No5 Chambers +44 (0) 845 210 5555 [email protected] www.No5.com

- 8 - Enforcement Changes 2011-2012: (2) Localism Act 2011 ss125-127

Applies to England

Section 125 – Assurance for a Person served with an Enforcement Notice 1. This provides that on or at any time after, an enforcement notice is served on a person, the LPA may give the person a letter giving the person one of the following assurances that:

(i) the person is not at risk of being prosecuted under section 179 in connection with the enforcement notice,

(ii) the person is not at risk of being prosecuted under section 179 in connection with the matters relating to the enforcement notice that are specified in the letter,

(iii) stating that, if the LPA subsequently wishes to withdraw the assurance in full or part, the authority will first give the person a letter specifying a future time for the withdrawal that will allow the person a reasonable opportunity to take any steps necessary to avoid any risk of prosecution that is to cease to be covered by the assurance. The time specified in a letter must be such as will give the person a reasonable opportunity to take any steps necessary to avoid any risk of prosecution that is to cease to be covered by the assurance.

2. Such an assurance is binding upon the LPA. However, the LPA may give the person a letter withdrawing the assurance (so far as not previously withdrawn) in full or part from a time specified in the letter. Withdrawal of such an assurance does not withdraw the assurance so far as relating to prosecution

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on account of there being a time before the withdrawal when steps had not been taken or an activity had not ceased.

Section 126 - Planning offences: time limits and penalties.

3. The level of fine upon conviction of the offence of breaching a condition notice (pursuant to section 187A(12)) is increased from a maximum of level 3 to 4.

4. The prosecution for the offence of (i) non-compliance with tree preservation regulations and (ii) enforcement of control as to advertisements are amended to include the time limit that the charge must be brought within the period of

(i) 6 months beginning with the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings came to the prosecutor’s knowledge; and

(ii) less than 3 years after the date on which the offence was committed.

5. In respect of the time limit (i) a certificate signed by or on behalf of the prosecutor stating the date on which evidence sufficient in the prosecutor’s opinion to justify the proceedings came to the prosecutor’s knowledge is conclusive evidence of that fact.

Section 127 - Powers in relation to unauthorised advertisements and the defacement of premises

The Rogue Advertisement 6. This section introduces a new power for LPAs to remove and dispose of any display structure used for the display of advertisements in contravention of regulations under section 220.

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7. “Structure display” is defined as a:

(a) hoarding or similar structure used, or designed or adapted for use, for the display of advertisements; (b) anything (other than a hoarding or similar structure) principally used, or designed or adapted principally for use, for the display of advertisements; (c) structure that is itself an advertisement; or (d) fitment used to support anything within any of paragraphs (a) to (c).

8. In order take advantage of this power, the LPA must first serve a removal notice removed. The period of time must be at least 22 days beginning from the date of the notice. Service can be achieved by two means:

(a) personally on a person who appears to be responsible for the erection or maintenance of the display structure; or if this is not possible

(b) fix a RN to the display structure itself or to the vicinity of the display structure and serve a copy of that notice on the occupier of the land on which the display structure is situated.

9. Once this is done, if the RN is not complied with within time the LPA may remove and dispose of the offending item. The LPA may recover the reasonable expenses from any person who has been served with the RN.

10. A person on whom a RN has been served may appeal to a magistrates’ court on any of the following grounds that:

(a) the display structure concerned is not used for the display of advertisements in contravention of regulations under section 220;

(b) there has been some material informality, defect or error in, or in connection with, the notice;

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(c) the period between the date of the notice and the time specified in the notice is not reasonably sufficient for the removal of the display structure;

(d) the notice should have been served on another person.

11. It is not open to an aggrieved individual to dispute the RN once the LPA brings proceedings for the recovery of any expenses if he had not appealed the RN originally.

Persistent Blight 12. If a LPA has reason to believe that there is a persistent problem with the display of unauthorised advertisements on a surface of any building, wall, fence, apparatus, plant or other structure or erection it may serve an action notice (“AN”) on the owner or occupier of the land on which the surface is situated. If after a reasonable enquiry the LPA is unable to ascertain the name and address of this person, it may fix an action notice to the surface.

13. The AN must tell the individual what he is required to do and by what date – the period of time for compliance must be at least 28 days from the date of the notice.

14. There is a right of appeal to the magistrates’ court on the grounds that:

(a) there is no problem with the display of unauthorised advertisements on the surface concerned or any such problem is not a persistent one;

(b) there has been some material informality, defect or error in, or in connection with, the notice;

(c) the time within which the measures specified in the notice are to be carried out is not reasonably sufficient for the purpose;

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(d) the notice should have been served on another person.

Remedying defacement of premises 15. This provides that if there is a sign on a surface that the LPA considers to be detrimental to the amenity of the area or offensive it may serve on the occupier of the premises a notice requiring the occupier to remove or obliterate the sign by a time specified in the notice. If it appears that there is no occupier of the premises, the LPA may fix the notice to the surface itself. The notice should specify the time for compliance which should be at least 15 days from the date of service or affixation of the notice.

16. If compliance does not take place the LPA remove or obliterate the sign. The LPA may recover the expenses reasonably incurred in doing that from the person required by the notice to do it provided that the surface in question does not form part of a flat or dwellinghouse, or the curtilage thereof.

17. A person on whom notice has been served may appeal to a magistrates’ court on any of the following grounds that:

(a) the sign concerned is neither detrimental to the amenity of the area nor offensive;

(b) there has been some informality, defect or error in, or in connection with, the notice;

(c) the time within which the sign concerned is to be removed or obliterated is not reasonably sufficient for the purpose;

(d) the notice should have been served on another person.

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2 Interesting Enforcement Cases from the Last Month

R (on the application of Tait) v Secretary of State for Communities and Local Government (2012)

Mr and Mrs Keevil v (1) Secretary of State for Communities and Local Government and (2) Bath & North East Somerset Council [2010] EWHC 322(2012)

Jack Smyth No5 Chambers +44 (0) 845 210 5555 [email protected] www.No5.com

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Section 5

Ian Dove QC Planning & Environment

Ian read law at St Catherine's College, Oxford, and after studying for Bar finals was called to the Bar in 1986. He is a member of the Planning and Environment Bar Association. Prior to taking silk he served on the panel of Junior Counsel to the Crown (Treasury Counsel). He sits part time as a Deputy High Court Judge, a Recorder in the Crown and County Courts and also as an Immigration Judge.

In undertaking a full range of planning work, he has acted for a wide range of clients, including house builders, local authorities and Government agencies, developers and utility companies. “an extremely client-focused, sharp and commercial barrister” (Chambers UK 2008).

Silk: 2003 Ian is described as “someone you can trust your life with” and it has been remarked Year of Call: 1986 upon that “no one gets to Silk before they are 40 unless they are good and he is Position: Deputy Head of outstanding” (Chambers UK 2005). He has substantial experience in the following Chambers practice areas:

Planning Appeals and Development Plan Inquiries • Section 78 planning appeals • Development Plan Inquiries • New settlement inquiries • Business parks • Retail • Village Green Inquiries • Minerals

Planning Enforcement • Enforcement notice appeals • High Court and County Court planning injunctions

Environmental Matters • Waste disposal including landfill and incinerators • Waste transfer stations • Statutory nuisance

Compulsory purchase and compensation • Lands Tribunal proceedings • Major urban regeneration schemes • Major town and city centre retail proposals • Highways • Road proposal inquiries

Judicial Review and Statutory Appeals • High Court challenges and appeals related to planning permissions, Local Plans and appeals

Parliamentary Proceedings • Parliamentary committee hearings

Local Government Law • Local authority powers and proceedings

APPOINTMENTS CLERKS

Deputy High Court Judge Practice Managers Recorder - Crown and County Andrew Bisbey Court Gary Smith Part-time Immigration Judge Robert Woods Inspector for Village Green Inquiries Practice Director Tony McDaid

Tel: +44 (0) 845 210 5555 Fax: +44 (0) 121 210 7311 [email protected]

RECOMMENDATIONS

According to interviewees, Ian Dove QC "provides extremely solid commercial advice, is highly responsive to queries and is very easy to work with." He is extremely well known for his involvement in major projects of all kinds, including large-scale regeneration schemes. Lately, he has been advising on the environmental impact of a spoil heap in Staffordshire that has been burning for several years. (Chambers UK 2010)

Ian Dove QC is well followed for regeneration and matters, involving Environmental Law (Legal500 2009)

NOTABLE CASES

His reported cases include the following;

R v Leominster District Council ex p Pothecary (1998) 76 P&CR 346

JJ Gallagher v S of S [2002] EWHC 1812(Admin)

JS Bloor v Warwickshire County Council [2002] EWHC 334 (Admin)

Warrington BC v Rowlinson [2002]

Northampton Borough Council v S of S and Land Securities [2005] EWHC 168 Admin

Norris v S of S [2007] 1 P&CR 3

Staffordshire County Council v Challinor [2007] EWCA Civ 864

UK Coal Mining v North Warwickshire BC [2008] EWHC 23

R (on the application of Roberts and others) v S of S [2008] EWHC 677 Gordon Wignall Planning & Environment

Types of installation/site (with an emphasis on industry, waste and recyclables) All forms of waste installation including scrap yards, waste transfer stations, animal by-product processors including renderers, slaughtermen and carcass bulking, landfill sites, ferrous and non-ferrous foundries, wind turbines, motor racing (Formula 3, motocross and motor bikes), private aircraft and helicopters, sewers and pipes, recreational lakes, retail stores, housing development, poultry farms, construction sites, kennels, agricultural sites, Part 1 Claims (compulsory purchase).

Courts and tribunals Court of Appeal, High Court, Divisional Court (civil litigation and judicial review), Year of Call: 1987 planning inspectorate (under the Permitting Regulations and in planning appeals

including enforcement), magistrates and Crown Court (licensing and statutory nuisance). Claims may have an international aspect including the transfrontier shipment of waste; fully familiar with jurisdictional issues, the Brussels Regulation and Hague Conference issues as well as the CJJA 1982. Multi-part actions and group litigation (including redress schemes with an international element).

Main issues Flooding: recovery claims; development on the flood plain. Waste: meaning of waste; international transhipment; waste transfer; WEEE; criminal prosecution. Noise, odour, dust: PPS 23 and PPG24; degree of interference; nature and character of area; prescription; “coming to a nuisance”; injunctive relief (interim and final orders); group litigation. Planning enforcement: stop notices; injunctions; appeals; waste enforcement. Housing & retail schemes: markets; effect of noise and flooding; affordable housing; environmental impact assessment; warehousing; s.106 agreements. Agriculture: housing for agricultural workers; flooding. Contamination: oil spillages; kerosene spillages; petrol stations and planning.

Costs and funding A special interest in the funding of environmental litigation; advised members of the House of Lords on the application of LASPO and the implications for the UK's obligations under the Aarhus Convention.

Initial (direct) contact welcome whether from solicitor or client [email protected] 07834 760602 Some public access work exceptionally undertaken

Additional information Contributing editor, White Book CEDR trained mediator Editor, Nuisances, Sweet & Maxwell Part-time judge since 2002

QUALIFICATIONS CLERKS

University of Oxford (MA) Practice Managers Andrew Bisbey Westminster University (Diploma in Gary Smith law) Robert Woods

Norman Tapp memorial Practice Director prizewinner (mooting), Gray’s Inn Tony McDaid

Karmel Scholarship prizewinner Tel: +44 (0) 845 210 5555 (commercial law), Gray’s Inn Fax: +44 (0) 121 210 7311 [email protected]

RECOMMENDATIONS

The highly experienced Gordon Wignall principally focuses on common law actions, particularly cases involving landfill sites, quarries, fires and water rights. He remains a recognised authority on nuisance proceedings. Chambers and Partners 2012

NOTABLE CASES

Arscott v. Coal Authority [2005] LR 6 (Court of Appeal): Defendant entitled to take reasonable steps to protect itself from river flooding since flood waters are a common enemy.

Anthony v. Coal Authority [2006] Env LR 17 (Pitchford J.): Defendant liable to residents for consequences of a deep-seated fire in a reclaimed colliery spoil heap.

Watson v. Croft [2009] 3 All ER 249 (Court of Appeal): Claimants entitled to injunctive relief for noise nuisance from motor racing circuit notwithstanding compliance with planning permissions and s.106 agreement.

Anslow v. Norton Aluminium (Flaux J., 26th May 2010) Group Litigation Order made in respect of 137 claims for noise and other emissions (odour and dust) from an aluminium works: ongoing. Noise said to emanate from foundry's yard, fans and operations generally.

R. v. South Kesteven Magistrates Court, ex p. Bartholemew & Tomlinson [2011] Env LR 3 (Divisional Court): magistrates not entitled to find use of best practicable means to control noise nuisance from marquee in public house. The Duty to Co-Operate and other Conundrums

Introduction

1. In this paper we propose to deal with a miscellany of current conundrums associated with important changes in the law in relation to planning and environmental legislation. The issues to be addressed are, firstly, the vexed question of the proper approach to the duty to co-operate in the context of local development documents that are already progressing through the system. The paper also addresses recent developments and current initiatives in relation to the funding of environmental litigation so as to address the question of compliance with the Aarhus Convention and the legislative follow-up to Jackson LJ’s proposals in respect of costs. Finally, there is discussion in relation to the Community Infrastructure Levy Regulations 2010 and the approach taken in the Court of Appeal recently.

The duty to co-operate

2. In announcing the provisions of the Localism Bill the government made clear that they proposed to abolish Regional Strategies in order to remove the regional level of planning policy and the “top down” approach to, for instance, the provision of housing requirements. The quid pro quo for this legislative provision was the incorporation within the Bill of the duty to co-operate. It appears that it was envisaged that the duty to co-operate would replace the provisions in relation to regional planning and enable cross-boundary and other sub-regional matters to be addressed through practical co-operation between adjoining authorities. So much for the theory.

3. Issues have recently arisen as to the extent to which the duty to co-operate applies in relation to Development Plan documents and, in particular, Core Strategies which were prepared prior to the Localism Act coming into force and, in particular, the provisions of Section 110 of the Localism Act being brought into law in January 2012.

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4. The provisions of Section 110 are obviously central to these contentions, and they provide as follows:

“110(1) In Part 2 of the Planning and Compulsory Purchase Act 2004 (local development) after section 33 insert–

‘33A Duty to co-operate in relation to planning of sustainable development

(1) Each person who is–

(a) a local planning authority,

(b) a county council in England that is not a local planning authority, or

must co-operate with every other person who is within paragraph (a), (b) or (c) or subsection (9) in maximising the effectiveness with which activities within subsection (3) are undertaken.

(2) In particular, the duty imposed on a person by subsection (1) requires the person–

(a) to engage constructively, actively and on an ongoing basis in any process by means of which activities within subsection (3) are undertaken, and

(b) to have regard to activities of a person within subsection (9) so far as they are relevant to activities within subsection (3).

(3) The activities within this subsection are–

(a) the preparation of development plan documents,

(b) the preparation of other local development documents,

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(c) the preparation of marine plans under the Marine and Coastal Access Act 2009 for the English inshore region, the English offshore region or any part of either of those regions,

(d) activities that can reasonably be considered to prepare the way for activities within any of paragraphs (a) to (c) that are, or could be, contemplated, and

(e) activities that support activities within any of paragraphs (a) to (c),

so far as relating to a strategic matter.

(4) For the purposes of subsection (3), each of the following is a “strategic matter”–

(a) sustainable development or use of land that has or would have a significant impact on at least two planning areas, including (in particular) sustainable development or use of land for or in connection with infrastructure that is strategic and has or would have a significant impact on at least two planning areas, and

(b) sustainable development or use of land in a two-tier area if the development or use—

(i) is a county matter, or

(ii) has or would have a significant impact on a county matter.

(5) In subsection (4)–

“county matter” has the meaning given by paragraph 1 of Schedule 1 to the principal Act (ignoring sub-paragraph 1(1)(i)),

“planning area” means–

(a) the area of–

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(i) a district council (including a metropolitan district council),

(ii) a London borough council, or

(iii) a county council in England for an area for which there is no district council,

but only so far as that area is neither in a National Park nor in the Broads,

(b) a National Park,

(d) the English inshore region, or

(e) the English offshore region, and

“two-tier area” means an area–

(a) for which there is a county council and a district council, but

(b) which is not in a National Park.

(6) The engagement required of a person by subsection (2)(a) includes, in particular–

(a) considering whether to consult on and prepare, and enter into and publish, agreements on joint approaches to the undertaking of activities within subsection (3), and

(b) if the person is a local planning authority, considering whether to agree under section 28 to prepare joint local development documents.

(7) A person subject to the duty under subsection (1) must have regard to any guidance given by the Secretary of State about how the duty is to be complied with.

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(8) A person, or description of persons, may be prescribed for the purposes of subsection (1)(c) only if the person, or persons of that description, exercise functions for the purposes of an enactment.

(9) A person is within this subsection if the person is a body, or other person, that is prescribed or of a prescribed description.

(10) In this section–

“the English inshore region” and “the English offshore region” have the same meaning as in the Marine and Coastal Access Act 2009, and

“land” includes the waters within those regions and the bed and subsoil of those waters.’”

5. The argument which has emerged is as to whether or not the duty to co- operate applies in relation to plans which were prepared before the Act came into force but which are the subject of examination afterwards. The competing contentions are as follows.

The case for not applying the duty to co-operate

6. The argument that the duty to co-operate does not apply runs as follows. By virtue of the new Section 33A of the Planning and Compulsory Purchase Act 2004, the duty to co-operate arises in relation to the preparation of Development Plan documents1 and applies to a local planning authority. The proponents of this argument contend that, as a result of the structure of the Planning and Compulsory Purchase Act 2004, the stages of preparation and examination are separate. Preparation is a stage which is covered by Section 19 of the Planning and Compulsory Purchase Act 2004 and contains within it a variety of matters to which regard must be had. However, it is contended that that stages ceases at the point where the document is, pursuant to Section 20(1) of the 2004 Act, submitted to the Secretary of State for

1 See Section 33A(iii)(a)

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independent examination. There are provisions in Section 22 of the 2004 Act which used to lock the Development Plan document into examination, albeit that these have now been reformed. However, the argument is that, once submitted for examination, preparation has ceased.

7. The point which then arises is that it is argued that, because of that distinction between preparation and submission for examination, and because the duty to co-operate applies at the preparation stage, if the Act was not in force at the time when the plan was being prepared then the duty could not be said to arise. Thus, the examination should proceed on the basis that it is not necessary for the Inspector to examine whether or not the duty to co-operate has been complied with.

8. This analysis is the one which it appears is favoured by PINS. It would appear that there is a legal briefing note within PINS which supports the contention that the duty to co-operate does not apply in relation to Development Plan documents prepared prior to the commencement of the relevant provisions of the Localism Act.

The argument that the duty to co-operate does apply

9. The argument that the duty to co-operate does apply in relation to Development Plan documents which were prepared before the commencement of Section 110 of the Localism Act runs as follows. Firstly, attention is drawn to the subsequent provisions of the Localism Act 2011 and, in particular, Section 112. Section 112 is a further section inserting new legislation into the 2004 Act. Section 112 provides as follows:

“112 Adoption and withdrawal of development plan documents

(1) The Planning and Compulsory Purchase Act 2004 is amended as follows.

(2) For section 20(7) (independent examiner must make recommendations with reasons) substitute—

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‘(7) Where the person appointed to carry out the examination–

(a) has carried it out, and

(b) considers that, in all the circumstances, it would be reasonable to conclude–

(i) that the document satisfies the requirements mentioned in subsection (5)(a) and is sound, and

(ii) that the local planning authority complied with any duty imposed on the authority by section 33A in relation to the document’s preparation, the person must recommend that the document is adopted and give reasons for the recommendation.

(7A) Where the person appointed to carry out the examination–

(a) has carried it out, and

(b) is not required by subsection (7) to recommend that the document is adopted, the person must recommend non- adoption of the document and give reasons for the recommendation.

(7B) Subsection (7C) applies where the person appointed to carry out the examination–

(a) does not consider that, in all the circumstances, it would be reasonable to conclude that the document satisfies the requirements mentioned in subsection (5)(a) and is sound, but

(b) does consider that, in all the circumstances, it would be reasonable to conclude that the local planning authority complied with any duty imposed on the authority by section 33A in relation to the document’s preparation.

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(7C) If asked to do so by the local planning authority, the person appointed to carry out the examination must recommend modifications of the document that would make it one that–

(a) satisfies the requirements mentioned in subsection (5)(a), and

(b) is sound.’

(3) For section 23(2) and (3) (adoption of development plan documents, whether as prepared or with modifications, must be in accordance with independent examiner’s recommendations) substitute–

‘(2) If the person appointed to carry out the independent examination of a development plan document recommends that it is adopted, the authority may adopt the document–

(a) as it is, or

(b) with modifications that (taken together) do not materially affect the policies set out in it.

(2A) Subsection (3) applies if the person appointed to carry out the independent examination of a development plan document–

(a) recommends non-adoption, and

(b) under section 20(7C) recommends modifications (“the main modifications”).

(3) The authority may adopt the document–

(a) with the main modifications, or

(b) with the main modifications and additional modifications if the additional modifications (taken together) do not materially affect the policies that would be set out in the

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document if it was adopted with the main modifications but no other modifications.’

(4) Omit section 22(2) (development plan document not to be withdrawn once submitted for independent examination unless examiner or Secretary of State directs that it be withdrawn).

(5) In section 21 (intervention by Secretary of State) after subsection (9) insert–

‘(9A) The Secretary of State may at any time–

(a) after a development plan document has been submitted for independent examination under section 20, but

(b) before it is adopted under section 23,direct the local planning authority to withdraw the document.’

(6) The amendments made by subsections (2) and (3) apply in relation to all adoptions of development plan documents that take place after the coming into force of those subsections, including an adoption where steps in relation to the document have taken place before then.”

10. Attention is drawn in particular to the provisions of Section 112(6), which made plain that the new provisions inserted into Section 20 of the 2004 Act which affect the tests to be applied by an Inspector at the examination require those tests to be applied “in relation to all adoptions of development plan documents that take place after the coming into force of those subsections, including an adoption where steps in relation to the document have taken place before then.”

11. When one then looks back to see the changes affected in Section 112(2), the insertions into Section 20(7) of the 2004 Act require an examination of whether or not the duty to co-operate has been complied with. The effect, therefore, of Section 112(6) is to require the Inspector to apply the test of whether or not the duty to co-operate has been complied with even in relation to Development

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Plan documents where steps in relation to the documents were taken prior to the commencement of the Act. Thus, it is contended that the duty does apply, as compliance with it must form part of the examination prior to adoption.

12. The position, it is contended, is reinforced by the particular requirements introduced in the new Section 20(7B). By virtue of that subsection, the newly created power of the examiner to recommend modifications hinges on whether or not the examiner considers that the plan is unsound but nevertheless the duty to co-operate has been complied with. Only if the duty to co-operate has been complied with can the examiner recommend modifications to make the document sound. This therefore reinforces the significance of the duty applying prior to the commencement of the Act since, if it were the case that the duty to co-operate did not apply, it could be contended that modifications could be recommended even though one of the key tests for empowering the ability to make those modifications had not been scrutinised. Effectively, the provisions of Section 112(2) and Section 112(6) would have been rendered nugatory.

13. The argument is augmented by the point that it cannot be in any way unfair or unexpected that the duty to co-operate would apply since it has been known about and a feature of the Localism Bill for a very significant period of time and certainly for as long as it has been a feature of the legislation that the Regional Strategies would be revoked.

A concluded view?

14. Clearly, any legal briefing from PINS in this matter cannot be definitive. The matter can only be ultimately resolved by a ruling in the High Court. Such a ruling appears some way off, as it would have to flow from a challenge in relation to the adoption of a Core Strategy at some point after January 2012. In the mean time, the authors prefer the view that the duty to co-operate does apply, in accordance with Section 112(6), to plans which were prepared prior to the commencement of the Act but the subject of examination after it came into force. It remains to be seen which is the definitive view.

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15. If it does apply the question of the content of the duty has then to be faced, together with the extent of the role of the Inspector at the examination. Is the duty (and the test for the Inspector) purely procedural or is it substantive? Some guidance will be provided by the finalisation of the NPPF, but the legal questions will remain at large.

Costs in environmental cases: the present position

16.

The effect of the Community Infrastructure Levy Regulations 2010

17. The provisions of Section 122 of the Community Infrastructure Levy Regulations 2010 have had an important practical impact on the consideration of proposals in relation to planning applications and, in particular, planning appeals where inspectors have sought rigorously to scrutinise the extent to which provisions in a Section 106 obligation might satisfy the rigours of the Regulation 122 requirements. Regulation 122(2) provides as follows:

“(2) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is–

(a) necessary to make the development acceptable in planning terms;

(b) directly related to the development; and

18. In the recent case of Derwent Holdings Limited v Trafford Borough Council [2011] EWCA Civ 832, a challenge was launched in relation to the validity of a planning permission granted by Trafford Borough Council to Tesco and Lancashire County Cricket Club. A joint application proposed development in two parts: firstly, a superstore on land owned by the Council and, secondly, the redevelopment of Old Trafford Cricket Ground as an improved stadium for international cricket. The proposal was that, if permission were granted, the Council would sell land to Tesco and the proceeds of sale would be passed to Lancashire County Cricket Club to subsidise their development.

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19. The challenge was based on the contention of the relationship between the two parts of the joint application and the materiality of the obligations secured by the planning agreement. In particular, the officers’ report, which dealt with the principle of development, noted that:

“Other than the proposed pedestrian link there is no physical link between the two elements of this application and as such each must be considered separately by the council when assessing the acceptability of the principle of development.”

20. The development was described as not an “enabling” proposal but instead a “cross subsidy” proposal. The complaint was that, notwithstanding what had been set out in the committee report, by requiring the cross-subsidy to be included in a planning agreement for the issue of any consent there was an acknowledgement that the subsidy of the redevelopment of the cricket ground was “necessary to make the development acceptable in planning terms”. That was not only contrary to the committee report but it was also difficult to see how it could have been thought that the redevelopment of the cricket ground was necessary to make the superstore acceptable in planning terms.

21. The conclusion reached by Carnwath LJ was as follows:

“15 Like the judge, I am unable to accept this argument. We are entitled to start from the presumption that those members who voted for the proposal were guided by the officers’ advice. If so, they would have understood that they should consider the merits of the two parts of the proposal separately. They would have found in the officers’ report sufficient reasons to conclude that, so viewed, they were acceptable in planning terms. At the same time they would have been aware that the proposals being put forward as not merely acceptable, but as carrying with it significant regeneration benefits, including the improvement of the cricket ground. The offer of a legal agreement to secure those benefits would no doubt have added to the attractions of the proposal. But that does not mean that it was regarded as necessary to offset some perceived planning objections. Nor is there anything in the officer’s report

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to suggest that it was. There is nothing objectionable in principle in a council and a developer entering into an agreement to secure objectives which are regarded as desirable for the area, whether or not they are necessary to strengthen the planning case for a particular development.”

22. As a result of this conclusion, the challenge was dismissed on all grounds, on the basis that the other complaints made were essentially parasitic on this central submission.

23. The conclusions of the Court of Appeal in paragraph 15 as to the legality of the Section 106 obligation in that case is somewhat difficult to square with the provisions of Section 122(2)(a), which specifically sets out that a planning obligation can only be a reason for granting planning permission if it is “necessary to make the development acceptable in planning terms”. How this obligation fell within that legal requirement is unclear from the conclusions at paragraph 15. Taking the conclusions in paragraph 15 at face value, it would appear that it is quite legitimate for a planning obligation to be taken into account which is not necessary to make the development acceptable in planning terms but simply desirable in terms of the impact on the area. Furthermore, an obligation, it would appear, can be taken into account even if it is not necessary in order to strengthen the planning case for a particular development.

24. The Court of Appeal’s decisions leaves open for further consideration the distinction to be drawn between the provisions of Circular 5/2005 and Regulation 122, the one being relevant policy and the other the legal provisions.

Ian Dove QC Gordon Wignall No5 Chambers No5 Chambers +44 (0) 845 210 5555 +44 (0) 845 210 5555 [email protected] [email protected] www.No5.com www.No5.com

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08/03/2012

Protective Costs Orders

Presented by Gordon Wignall

Protective Costs Orders – What are they?

. Environmental challenges

. EIA

. Judicial Review

. In statutory appeals

. Aarhus

Protective Costs Orders – how might they apply? . Qualifying criteria?

. Public/private balance?

. Who makes the rules?

. Is there any certainty?

. The future?

1 08/03/2012

Protective Costs Orders

Presented by Gordon Wignall +44 (0) 845 210 5555 [email protected]

2 Section 6

Richard Kimblin Planning & Environment

Richard Kimblin is acknowledged in both planning and environmental law as a leading junior.

Inquiry & advisory work:-

Proposals for up to 10,000 houses • Viability issues • Affordable housing and variation of s106 agreements • Housing numbers and supply issues • Rural issues such as polytunnels • Flooding and the application of PPS 25 • Major infrastructure schemes from canals to motorways • CPO and land compensation, both at inquiry and before the Upper Tribunal (Lands) • Power stations • Wind farms and related Year of Call: 1998 infrastructure • Gas storage • Minerals schemes including ROMPS, extensions •

Development with significant heritage implications • Waste planning, permitting and enforcement • Enforcement including the lawfulness of planning conditions

Richard is at ease dealing with major and contentious development of any sort. He has particular experience of proposals with landscape, heritage, noise and air quality issues. For example, he has inquiry experience in respect of: Belton House and Tower, Burghley House and Blenheim Palace. He has promoted proposals for housing, landmark buildings, factory premises in the Green Belt & 40,000 m2 of glasshouses in the setting of an AONB. He has successfully resisted major energy developments.

Court work:-

S288 challenges, most recently on issues of development plan policy in respect of housing supply, noise and alternatives • Defending judicial review of the grant of planning permission in which EIA issues arise, including several cases recently in the Court of Appeal, for both local authorities and interested parties • Defending and bringing statutory nuisance proceedings including motor vehicle proving and testing, waste and leisure uses, recently obtaining the quashing of a notice and award of costs against the local authority on the basis of unreasonableness • EPR appeals to the Secretary of State • Defence of prosecutions, nationwide in Magistrates’ Courts, the Crown Court (including jury trials) and the Divisional Court • Successfully defending and prosecuting POCA applications

He has been appointed Junior Counsel to the Crown [London Panel ‘B’ Panel, having previously served on the London ‘C’ Panel]. As a result, he has a busy planning, environmental and public law practice in the higher courts, both in London and the regional Administrative Courts. He defends judicial reviews and statutory challenges on behalf of the government and local authorities and frequently acts on behalf of claimants and interested parties. He also has significant court experience in defending judicial reviews brought against the Secretary of State for the Home Department in which a wide range of public law and human rights issues arise.

He advises on all aspects of litigation in planning, environmental and regulatory contexts. He is also called upon to advise in several niche areas: mines working facilities and support act matters; Part IIA EPA; WIA 1991 infrastructure issues for developers and undertakers. Prior to his call to the bar, Richard researched the use of groundwater storage for London (which is now an operational scheme and the basis of his PhD thesis), undertook EIA work on schemes such as the channel tunnel rail link and did comparative study of domestic European laws for the European Commission.

Recent Articles and Resources:-

- Recent Lessons in Decision Making. - DISTURBANCE OF PROTECTED SPECIES – A PRACTICAL NOTE AFTER Morge - Planning Law Update - Environmental Regulation - Costing Crime

QUALIFICATIONS CLERKS

BSc Practice Managers PhD Andrew Bisbey Royal Society Western European Gary Smith Fellow Robert Woods

MEMBERSHIPS Practice Director The Planning and Environmental Tony McDaid Bar Association The Administrative Law Bar Tel: +44 (0) 845 210 5555 Association Fax: +44 (0) 121 210 7311 The Compulsory Purchase [email protected] Association The Bar European Group RECOMMENDATIONS United Kingdom Environmental Law Association, of which he is a Richard Kimblin is commended for his expertise with regard to residential Council Member developments, wind farm proposals and highways. Kimblin is "a very astute lawyer – he's meticulous, thorough and also very amenable." Chambers & Partners 2011

Richard Kimblin is a formidable advocate with an impressive track record in the criminal courts. He is a highly sought-after junior for matters relating to waste management, minerals and energy. He excels in mitigation due to his concise, confident style, and is the first choice for many. Chambers & Partners 2010

Determined and hands-on,” Richard Kimblin is sought out for his “practical, confident courtroom style." Commentators both in the region and beyond commend him as their “absolute first choice” for Midlands-centred work. He handles environmental concerns affecting the waste management, minerals and energy industries. Chambers & Partners 2009 NOTABLE CASES

Enforcement:

Staffordshire County Council v Challinor & Anr [2008] JPL,. 392 (effect of certificate of lawful use in subsequent enforcement proceedings)

Policy and plans:

Dinedor v Herefordshire Council and Bloor Homes [2009] 1 P&CR 4 (role of RS in grant of permission)

Matthews v Tamworth BC [2008] JPL 1180 (modification of LP; interpretation of SP & RSS policies)

Johnson Brothers v SSCLG [2008] EWHC 580; [2010] EWCA Civ 254 (interpretation of planning policy)

EIA:

R (oao) Wye Valley Action Group ex p Herefordshire Council [2010] Env LR 18 (polytunnels EIA; Habitats Regulations) [2009]; Court of Appeal [2011] EWCA Civ 20

R (oao) Dry v West Oxon District Council [2010] EWHC 1758; [2010] EWCA Civ 1143; NPC 103 (PPS 25; EIA; HIgh Court; Court of Appeal)

R (oao) CAT v Secretary of State for Energy and Climate Change [2010] (energy; EIA)

R (oao) Miller ex p N Yorkshire Council & another [2009] EWHC 660 (minerals; EIA)

Planning, Procedure, Lands Tribunal

Taff v Secretary of State for Transport [2010] UKUT 128; [2010] JPL, 2, 264-268

R (oao) Singh v Secretary of State for Communities and Local Government [2010] EWHC 1621 (construction of planning permission)

R (oao) Enstone Society v West Oxon District Council [2009] EWCA Civ 1555 (noise; motor sport; Court of Appeal)

Eley V SSCLG & another [2009] EWHC 660 re disclosure in planning appeals and mistake of fact

City and County Residential v Secretary of State for Communities and Local Government [2009] EWHC 1890

Poole v. SSCLG [2008] JPL 1774 (fairness in public inquiries)

National Grid Gas v Lafarge Aggregates Ltd [2008] RVR 126

Beale v SSCLG [2009] re application of the legal tests for immunity from enforcement action

Bryant v SS for Transport [2009] re the Thurrock Dartford charging scheme

Shaik v Secretary of State for Communities and Local Government [2008] All ER (D) 264 (Dec)

Havard v South Kesteven District Council [2006] JPL 1734

Glover v Staffordshire Police Authority [2006] TLR 24 October

Regulatory penalties:

R v Clifton Steel [2008] 1 Cr. App R (S) 52 CA

R v AGC Automotive [2008] 2 Cr App R (S) 26 CA

R v Groombridge [2003] 1 Cr App R (S) 9 CA Christopher Young Planning & Environment

Christopher Young was called to the Bar in 1997 and is a member of Middle Temple. During his training he was twice awarded the Queen Mother Scholarship and also won the Monroe Debating Prize. He is a member of the Planning and Environmental Bar Association and the Compulsory Purchase Association. He specialises exclusively in town and country planning, highways and compulsory purchase matters. The lectures throughout the UK on variety of topics including the Localism Bill, economic viability, sustainability, retail and housing planning policy

For the last 10 years, Christopher has been regularly rated in Royal Town Planning Institute / Planning Magazine as one of the top junior barristers (i.e. non-silk) in the country. For the last three years he has been the highest rated junior outside of Year of Call: 1997 London. During the last comprehensive survey in 2010, he was rated by solicitors,

consultants and other barristers as the third highest rated junior counsel in the country for housing and mixed use development, and the fourth highest for retail and town centre developments. He also has an extensive practice in Wales acting on behalf of Tesco, development companies and LPAs.

He is involved in minerals and waste matters, including representing the Peak District National Park Authority. He represents numerous LPAs on enforcement matters and issues concerning certificates of lawfulness. He is also regularly instructed in respect of compulsory purchase matters, including recent work at Warwickshire County Cricket Club at Edgbaston.

He is also consistently recommended by solicitors in publications such as Chambers Directory and The Legal 500. A recent entry acknowledges him as ‘having a brain you can trust’ with solicitors singing his praises for ‘always being clear’ and ‘inspiring confidence in clients’. A further entry reads “The market has great expectations of Christopher Young who interviewees described as having “silk potential written all over him”. “He never fails to impress us with his talent, commented one client.”

Recent Retail Work:- • Tesco Stores PLC (2010-2011) – recent instructions on supermarket and superstore proposals in Bristol, Portsmouth, Newport, Monmouthshire, Southampton, Powys, Gwynedd, Nottinghamshire Pembrokeshire and Worcestershire • Lidl Stores GmbH (2009-2010) – permission on appeal for a supermarket proposal in Pickering, and advice on proposals in Wolverhampton and Treorchy • Tesco Extra Superstore (2010) – permission on appeal for a 11,000 sqm superstore in Caerphilly, with a partial award of costs secured against the Council • Kerridge Holdings (2011) – permission on appeal on proposal for hotel and restaurant development in Hungerford, West Berkshire on out-of-centre allocated employment land • Bescot Retail Park, Walsall for ROM Capital (2010) – permission on appeal for an Aldi supermarket and Argos store in an out-of-centre location • Bear Flats, Bath for Cougar Estates (2010) - permission on appeal for a Sainsbury Local/Tesco Express in an out-of-centre employment unit • Barbourne, Worcester for Tesco Stores (2009) – permission on appeal for a new store and mixed use development on an out-of-centre allocated housing site • Royal Brierley Crystal Site for Portexcept Ltd (2009) – permission on appeal for 30,000 sqft out-of-centre retail permission and hotel in Dudley on land upon which retail was expressly prohibited • Greatline Ltd (2010-2011) – instructed in respect of 80,000 sqft out of centre foodstore in Corby and advising on successful approach to avoiding a JR challenge by Land Securities • Cheshire West Borough Council (2009) – permission at a call–in inquiry for the UK’s largest out-of-centre Marks & Spencer which the authority wished to secure for employment and regeneration purposes at Ellesmere Port • Trafford MBC (2009) – successful defence on appeal of Member’s decision to refuse a Waitrose-led mixed use town centre scheme • Bassetlaw DC (2010-2011) – successful defence on appeal of Members refusal of an 70,000 sqft out of centre Asda superstore and enabling development; successful defence of officers refusal of an out-of-centre drive thru restaurant

Recent Housing Work:- • University of Reading, David Wilson and Taylor Wimpey (2010-11) – advising and representing at appeal on opposition to proposal by rival developers proposal; also representing the University at an appeal for 1,200 homes and care home in Wokingham (led by Robin Purchas QC) • Bloors Homes (2011) – advising and representing on appeal for 180 homes and mixed used development at Weston Gateway, Somerset; secured 3 month adjournment of appeal from PINS for LPA to successfully determine duplicate application; also advising Bloor Homes on a major housing scheme at Brixham Golf Course • Northern Trust Company (2011) – representing NTC on appeal for housing on the 17 hectare Pontins site in Brixham, Devon • Poltair Homes (2011) – planning permission on appeal for 67 homes on the edge of Padstow, Cornwall; issues of five year supply, discounting and the status of draft RSS • Richborough Estates (2011) - represented the company at appeal for 267 homes in Cheshire, recommended for approval by the Inspector (refused by SS, now the subject of High Court challenge) – key issue successfully discounting of Council 5YS to 3 years • Catesby Properties (2010) – permission on appeal for 160 houses on an allocated recreation site outside Holsworthy in Devon, plus a partial award of costs: issues of 5YS and discounting • Bovale Limited (2010) – permission on appeal for a mixed use housing/employment proposal on allocated employment site adjacent to a large industrial enterprise • Miller Homes (2010) - advising on an application for 500 houses in Worcestershire • Richborough Estates (2010-11) – advising on application for 200 houses in Warwickshire • Galliard Homes (2010-11) – advising on an application and appeal for 150 houses in Gloucestershire • North West Leicestershire DC (2010) – successfully defence at appeal of the LPA’s decision to refuse 1,000 dwellings at Ashby, plus six figure award of costs for LPA • Wales (2010- 2011) – advising several developers on housing proposals in the Principality

Recent Care Home/ Retirement Living Work:- • Aspen Care and King Edwards Grammar School, Stratford upon Avon (2010- 11) – advising and representing on proposal for 120 bed care home and enabling development for the School including a new library building and the 15th Century Guildhall • Retirement Villages, Somerton (2011) – represented RV at appeal into 60 bed care home, plus extra care and assisted living units • Metnor and Care UK, Poole Dorset (2010-11) – planning permission on appeal for 80 bed care home on allocated strategic employment land • Archstone Care Home, Wiltshire (2011) – advising on care home with enforcement issues

Recent Sports Related Developments:- • Edgbaston Cricket Club Redevelopment (2011) - representing BCC and WCCC in CPO proceedings • Stroud Rugby Club (2009) – permission on appeal for redevelopment of the Fromehall club ground for 120 houses • Mendip Hills (2009) – permission on appeal for Olympic scale rifle and pistol shooting ranges in the open countryside work • Edgbaston Cricket Club Redevelopment (2009-10) - representing WCCC in JR proceedings • Solihull Rugby Club Redevelopment (2010) - represented Solihull MBC at appeal: appellant withdrew and substantial costs awarded to the LPA

Recent CPO Work:- • Birmingham City Council (2011) – advising and represented BCC in Housing Act CPO regeneration proposals in North Newtown • Birmingham City Council (2011) – advising and represented BCC in Education Act CPO in Newtown • Coventry City Council (2011) – advising and represented CCC on Planning CPO in Far Gosford • CPO secured for Staffordshire University & Stoke Sixth Form College (2009) • Stoke-on-Trent City Council and RENEW (2009-2011) – advising and representing on major large scale clearance CPOs in the Pathfinder area, including under HHSRS system • Herefordshire Council (2010- 2011) – representing commercial operators in respect of their opposition and compensation claims relating to two different CPOs

QUALIFICATIONS CLERKS

BA (Hons) Double First Practice Managers Dip Law Andrew Bisbey LLM (London) Gary Smith Robert Woods

Practice Director Tony McDaid

Tel: +44 (0) 845 210 5555 Fax: +44 (0) 121 210 7311 [email protected] RECOMMENDATIONS

“Christopher Young is noted for his remarkable degree of expertise in planning, highways and CPOs. Over the past year, he has represented both Tesco and Lidl in a number of separate planning issues, and also acted in a major litigation challenging the government's high-profile eco-town proposals.” Chambers UK 2010

"Christopher Young has a following of major developers for his planning work" Legal500 2009

Legal Update

Richard Kimblin1

INTRODUCTION

1. Palaeontologists had problems with categorisation. They were interested in fossils and wanted to make sense of what they found. What were they to split up, and what were they to lump together? They found that if they lumped the right fossils together and split others into separate groups, they learned rather more as a result.

2. The “Legal Update” is a more recent pastime than that engaged in by gentlemen during the 18th Century. However, when one inspects the more recent fossil record in the Law Reports, one encounters precisely the same issue. The pile of planning cases needs to be sifted. The system adopted this year is as follows:

(i) Plan making and development control – using the domestic planning regime lawfully. (ii) Decision making – how “non-planning” legal principles can unpick planning decisions. (iii) European law – key aspects and examples and their impact on planning decisions. (iv) Localism – some early indicators from the courts on application of provisions in the Act.

3. Cases are referred to in short form. A full list of cases referred to appears at the end of these Notes.

1 [email protected]

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PLAN MAKING AND DEVELOPMENT CONTROL – USING THE DOMESTIC PLANNING REGIME LAWFULLY

4. The Court of Appeal revisited the matter in Greyfort Properties. Without formally overruling Hart Aggregates it held that there was no particular form of words that would be required, and that there was no effective difference between the “no development shall take place until ..…” and “ ….. before development commences” formulas. The court also declined to accept that a condition requiring approvals to be given prior to “work” commencing on site was anything other than a prohibition on “development” commencing on site without the necessary approvals. Further, while agreeing that the correct interpretation of a planning condition is a matter of law for the court, a court would not substitute its own view on whether a particular condition went to the ‘heart’ of a permission unless the decision maker (local authority or planning inspector) had reached an irrational conclusion. There would seem to be very little, if any, difference between the ‘irrationality’ exception in Prokopp and the ‘heart of the permission’ test in Hart Aggregates.

5. The practical approach (now) to resolving the issue as to whether a planning permission has been lawfully implemented is:

· Was a ‘material start’ made to development by carrying out sufficient operations? If so · Had all conditions requiring discharge before any (as opposed to part of the) development commenced been complied with? If not · Do any of the recognised exceptions apply (subsequent approval, irrational to enforce now)?

Where a condition provides for ‘details to be submitted’ it is also specified that the agreed details should be implemented as agreed.

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6. In Hulme the inspector granted permission for a wind farm and imposed conditions which were designed to deal with the potential impact on local residents of amplitude modulated (“AM”) noise resulting from the rotation of the turbines. Condition 20 laid down what constituted a "greater than expected" level of AM noise and condition 21 required a scheme to be adopted which could evaluate and monitor that level when complaints were made. Condition 21 stated that once R could demonstrate compliance with condition 20, the scheme would cease to operate. H challenged the permission on the basis that the conditions failed to provide a proper enforcement mechanism.

7. The Court of Appeal held that Condition 21 stated in terms what the scheme to be approved was designed to do, namely to provide for the measurement of the AM levels generated by the turbines and to evaluate compliance with condition 20. Nothing was said about what was to happen if the evaluation carried out pursuant to the scheme demonstrated non-compliance. However, it was possible to read into conditions 20 and 21 an obligation to comply with the requirements of condition 20. Such a construction did not fall foul of the Walton principle. The implied term relied on in Walton depended on reading into the planning permission an obligation which was said to arise from extrinsic circumstances. In the instant case, the obligation not to contravene the standards set out in condition 20 arose as a necessary implication from the language of the express conditions when read in the context of the inspector's decision letter. Accordingly, it was more accurate to describe it as a matter of construction than implication. But even if it could be described as an implied condition, it was very different in nature from that envisaged in Walton. Accordingly, there was an obligation on R to comply with the AM levels specified in condition 20 and that obligation would run for the duration of the planning permission and could be enforced by the planning authority in the normal way.

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8. This decision represents an apparent departure from well established practice. Those involved in drafting planning conditions should continue to ensure enforcement mechanisms are expressly provided for.

9. Development Plan documents are required to be “sound” as required by the Planning and Compulsory Purchase Act 2004, Section 20(5). We continue to see challenges to inspector’s decisions as to the soundness of Development Plan documents. Linden Homes is a case about an inspector failing to grapple with the viability evidence which was presented by a housing developer.

10. The DPD proposed the creation of some 1,820 residential units in the town centre. It proposed that there be some 250 units on a railway station site. The developer proposed a scheme for that site which required, on viability grounds, more than 250 residential units. The developer submitted substantial viability evidence which demonstrated that the 250 unit scheme was not viable.

11. Notwithstanding the developer’s evidence, the inspector concluded that the plan was sound and the developer challenged that finding.

12. The challenge succeeded because the inspector failed to grapple with and to address the unchallenged evidence from the developer that the 250 unit scheme was not viable. The reasons which the inspector gave, while could, lawfully, be brief, did not explain to the reader, even an experienced and expert reader, why or how the plan could be sound, in light of the viability evidence.

13. The outcome in Linden is to be contrasted to that in Barratt Developments in which Barratt’s challenge on similar issues failed in the Court of Appeal.

14. The origin of the dispute was that the local authority’s development strategy required that all proposals for housing include at least 30% affordable

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housing. Barratt complained about the requirement but did not attack the approach to economic viability. The inspector, after the examination, rejected Barratt’s challenge to the policy.

15. In the High Court and the Court of Appeal, Barratt argued that the 30% starting point ignored the economic viability. Barratt’s challenge failed because it was obvious from the inspector’s reasoning that the issue of economic viability had been addressed and, importantly, Barratt’s complaints about the approach to particular matters such as the internal rate of return, should have been explored during the course of the examination. Barratt had not previously raised the matter as a major issue and for such a challenge to succeed an applicant would have to show that the issue was a material matter of controversy. If the developer does not raise the point clearly as an issue before the inspector, then his opportunity to complain later has been lost.

16. The requirement for soundness in development plan documents is not new. Nor is the proper application of s38(6) of the 2004 Act, however it is still misunderstood more frequently than one might expect.

17. After a 12 day inquiry an appeal against refusal of planning permission for an incinerator was dismissed. The appellant challenged that outcome in the High Court (Resource Recovery Solutions (Derbyshire) Limited v. Secretary of State for Communities and Local Government [2011] EWHC 1726 (Admin)). The court quashed the decision and remitted it to the Secretary of State for redetermination. It will be redetermined by the written representation procedure.

18. The two main attacks on the Inspector’s decision were on her failure to identify clearly what she considered the relevant provisions of the Development Plan to be and that she left the Regional Strategy (RS) out of account.

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19. The s38(6) duty requires any decision maker to decide the application in accordance with the Development Plan unless material considerations indicate otherwise. The Decision Letter contained no reference at all to a key component of the Development Plan, namely the RS policy which required waste collection and waste disposal authorities to achieve minimum targets for recycling of municipal solid waste. Further, that policy required authorities to make particular provision for facilities and such provision was to be centred around large developments in the three cities sub-area, which the appeal site was located within.

20. The RS was very much more up to date than the Local Plan. It provided significant policy support for the proposal. The High Court concluded that the decision letter did not show that the Inspector had:

(i) considered the Development Plan; (ii) identified provisions in it which were relevant to the issues before her; (iii) properly interpreted the provisions of the Development Plan; (iv) considered whether the development accorded with the Development Plan; (v) provided any or any adequate reasons as to whether the proposal accorded with the Development Plan, read as a whole; (vi) complied with the statutory duty set out in Section 38(6) of the Planning and Compulsory Purchase Act 2004.

21. Put shortly, it is imperative that decision makers clearly identify what they consider the material elements of the Development Plan to be. Unless that is done, one is left in some doubt as to whether the decision maker has properly understood the policy framework which they are obliged to use for making their decision, unless material considerations indicate otherwise.

22. The position was made rather worse by the absence of any reference to the RS. In this regard, one has some sympathy with the Inspector. At the time that the inquiry sat during September and October 2010, the Regional

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Strategy had been purportedly revoked by a letter published by the Secretary of State. This action was unlawful, as demonstrated in the “Cala” litigation. However, by the time the Inspector came to issue her decision, the High Court had made it clear that the Secretary of State’s action was unlawful and hence the Regional Strategy was “back in force”. However, the real difficulty was that there was an opportunity for the Inspector to refer this issue back to the parties and that was not done.

23. The practical issues of dealing with RS policy remain for us all until such time as the provisions of the Localism Bill are (i) given Royal assent; and (ii) are in force. Until that time, the RS continues to form part of the Development Plan and failure to have regard to it will give rise to an unlawful decision. Issues as to the weight to be given to the RS are clarified by the Court of Appeal in Cala. For the time being, developers will continue to rely upon the RS, particularly in respect of proposals of more than local significance, and decision makers ignore it at their peril. One notes, of course, that the same unlawfulness which unpicked the Inspector’s decision could equally found a ground for judicial review of the grant of planning permission. As the Judge found, “It is difficult to understand why no reference is made to a key component of the Development Plan, the RS. This is particularly so in a decision which, upon the Inspector’s own account, entailed a balancing exercise”.

DECISION MAKING – HOW “NON-PLANNING” LEGAL PRINCIPLES CAN UNPICK PLANNING DECISIONS

24. EIA has been a well known acronym in the planning sphere for some decades. However, the present context is equalities impact assessment (more on environmental impact assessments later in these notes).

25. Those familiar with gypsy and traveller work will know that equality issues have been central to that area of planning pursuant to the Race Relations Act

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1976 – see recent examples such as Medhurst v. SSCLG [2011]; R (Baker) v. SSCLG [2008] EWCA Civ 141.

26. However, there is now an emerging and active area of challenge pursuant to Section 149 Equality Act 2010. Public authorities are to have regard to the need to eliminate discrimination, to advance equality of opportunity and to foster good relations. As to equality of opportunity, that includes removing or minimising disadvantages and to meet the needs and to encourage participation of particular groups. Further, as to fostering good relations that includes the tackling of prejudice and the promotion of understanding. The Section applies to those groups which can be identified by reference to age, disability, race, religion or belief, sex, and sexual orientation.

27. Recent examples of the Section being deployed as a ground of challenge include Bailey and Green. These are “library” cases. In Green the local authority was held not to have sufficiently directed its mind to these obligations. However, in Bailey an EIA had been carried out and sufficient regard had been had to the Section 149 duty.

28. In the planning sphere, Harris is a salutary example.

29. The case is concerned with a regeneration scheme in Haringey. Permission was granted for the development of a site known as Ward’s Corner. The development is substantial and an important part of the regeneration of the Borough of Haringey. The case turned on whether or not the council, in granting planning permission, had discharged its duty under Section 71 of the Race Relations Act 1976. That provides, in summary, that the council, and other public bodies, has due regard to the need to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups.

30. The council received a letter from a local resident in the following terms:

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“May I kindly request you and all decision makers to carefully consider the Human suffering the loss of achievement, of the Ethnic Minority Businesses in West Green Road, Seven Sisters Road and the High Road, known as the Wards Corner.

I live above my Business with by family, and it is a live and work business concept … I am part of this Diverse local Ethnic minority Community who I serve and depend on my Shop for their unique and specialist Food products that is non available in National Supermarkets.

Demolition will destroy the existing Ethnic Minority Business, the Owners, their families, employees and their suppliers. The owners and their families have built up their existing businesses with many years of hard work and determination, in some cases hard work of three generations of the family. There are a number of traders who live above their businesses and in this case they will be forced out of their homes. The traders will not be able to relocate their business to a new location and be successful due to the poor state of the world economy … The customers and residents will lose their choice of shopping and the specialist shops.”

31. The Court of Appeal upheld the challenge because there was sufficient potential impact on equality of opportunity between persons of different racial groups, and on good relations between such groups, to require that the impact of the decision on those aspects of social and economic life be considered. The Section 71 duty was not discharged because there was no reference to it in the report to committee, nor in their deliberations.

32. The Court pointed out that it does not follow that Section 71 considerations will be decisive in any particular case. The weight to be given to the requirements of the section is one for the decision maker, but it is necessary to have due regard to those Section 71 needs.

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33. An LPA (in England) is required to include on the face of a decision notice a summary of the reasons for the grant of planning permission and a summary of the policies and proposals in the development plan which are relevant to the grant of permission (see now Art 31(1) of the Town and Country Planning (Development Management Procedure) Order 2010). An application by Asda for permission to build a new superstore on the site of the existing council offices (an edge of centre site) was objected to by the Telford Trustees, the owners of the tow centre (where Asda was currently a tenant), on grounds, inter alia, that there was a sequentially preferable site available and the impact on the town centre. The Council granted permission stating on the face of the decision notice that the proposal was in accordance with PPS4. The Trustees applied for judicial review to quash the permission on grounds including a failure to give an adequate and intelligible summary of their reasons on the ‘sequential test’ and ‘impact’ issues.

34. The Court of Appeal held that the statutory requirement was to give a summary of the reasons for the grant of planning permission, not a summary of reasons for rejecting an objector's representations, even on a principal issue, R (on the application of Siraj) v Kirklees MC (2010) EWCA Civ 1286, [2011] JPL 571 followed. To the extent that there was a difference of approach in R (Ling (Bridlington) Ltd) v East Riding of Yorkshire Council (2006) EWHC 1604 (Admin), (2007) JPL 396 and R (Tratt) v Horsham DC (2007) EWHC 1485 (Admin) and R (Midcounties Co-operative Ltd) v Forest of Dean DC (2007) EWHC 1714 (Admin), (2007) 2 P & CR 30, Ling was to be preferred. The planning committee adopted the statement of reasons set out in the officer's report and had accepted that the proposal was in accordance with PPS4. In doing so, it had necessarily accepted that the requirements of the sequential approach and the impact assessment were met. There had been no need for the summary to spell that out in terms. The officer's report had dealt at length with the considerations material to both the sequential approach and the impact assessment and if the report disclosed legal errors, it had been open to the Trustees to rely on those errors by way of a

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substantive challenge to the decision to grant planning permission rather than the ‘reasons’ challenge advanced.

35. A further ground of challenge was also dismissed. The Trustees alleged a failure to take into account a material consideration. The matter was known to the Council’s cabinet, but the planning officers and committee had not been informed. However, in its voluminous representations to the planning committee the trustees had never taken the point even though it was to be taken as having the knowledge to be able to do so. In any event, on the facts, it was not a material consideration.

EUROPEAN LAW – KEY ASPECTS AND EXAMPLES AND THEIR IMPACT ON PLANNING DECISIONS

36. In Bowen-West the claimant challenged the Secretary of State’s grant of planning permission in respect of a landfill site which was to receive low level radioactive waste at an existing hazardous waste landfill site.

37. The ground upon which the challenge was founded related to the adequacy of the Environmental Statement. The developer had informed the local authority that it intended, at a later stage, to apply to extend the site.

38. The claimant argued that the Environmental Statement should not engage in “project splitting”. Rather, it was necessary to consider the indirect, cumulative and likely significant environmental effects of the whole development, including the future proposal.

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39. The High Court rejected the challenge because it was accepted, even by the claimant, that the application was not part of a piecemeal proposal or an integrated element of a more comprehensive scheme.

40. The question of project splitting and cumulative impact is still a live one, and continues to cause difficulty. Permission has been granted to appeal to the Court of Appeal, and it is likely that that judgment will provide some assistance in this regard.

41. Cumulative impact was also at issue in Smout. That is also a landfill case in which the matter at issue was the review of planning permissions which had to be undertaken because part of the area of landfilling had been listed as a Special Area of Conservation (SAC). In carrying out that review, three modification orders were made and two of them were challenged. The challenge came before the High Court on the basis that there was a requirement to reconsider the environmental effects of the entire operation. The High Court rejected that approach, emphasising that no planning permission was in issue, at all. Rather, the effect of the orders was to change the scope of that which was permitted, for nature conservation purposes.

42. In such an instance, the environmental impact of the orders had to be assessed by reference to the question of what environmental difference they made to the scheme.

43. Also in the context of waste, there have been several challenges to decisions in respect of waste incineration. One example is Cornwall Waste Forum. In this case, a planning inspector allowed the appeal and granted planning permission for an incinerator. The decision was quashed on the basis of an error of law arising from the Conservation of Habitats and Species Regulations 2010.

44. After the inquiry had closed the Environment Agency (EA) granted a permit under the Environmental Permitting Regulations 2010. The inspector then

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granted planning permission relying upon the fact of the permit as an indication that an appropriate assessment under the Habitats Regulations was then unnecessary because the Environment Agency was a competent authority and would have carried out an appropriate assessment itself.

45. The challenge succeeded because the claimant had objected throughout that an appropriate assessment should be undertaken by the inspector.

46. Issues of air quality and air emissions were, no doubt, matters of planning control. The inspector had made a legal error in considering that air quality issues that pertained to the construction of incinerators were matters for the Environment Agency as a competent authority under the Habitats Regulations. Moreover, the claimant had a legitimate expectation that the Secretary of State would act as the competent authority.

47. There have been some cases of wider and more general significance which derive from the EIA and Habitats Directives. These include Clientearth, Bund fur Umwelt and Buglife.

48. Clientearth is a challenge by a campaigning NGO to seek to enforce the levels set at a European level as to air quality standards. The claimant sought a declaration and some mandatory orders in respect of the failure of the United Kingdom to comply with Directive 2008/50. In particular, the concern was in respect of emissions of nitrogen dioxide.

49. The court refused to provide the relief sought because the UK government had admitted that it was in breach in that only three out of forty three areas or conglomerates in the United Kingdom met the target under the Directive. The court took the view that so far as enforcement of the Directive was necessary, that was a matter for the European Commission, and not for the court.

50. Bund fur Umwelt is a decision of the European Court which emphasises the access which is available for NGOs to the court in order to seek review of

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environmental decisions. The case points out that the EIA Directive gives legal standing to non-governmental organisations such that they have sufficient interest to bring judicial review proceedings. In short, the Directive expressly provides for such NGOs to have “rights capable of being impaired”.

51. Buglife and predecessor cases such as U, establish that in cases involving enforcement of rights under a European Directive, the requirement for promptitude in CPR54 is not sufficiently certain to be compliant with European law. Hence, the only certain time limit which is available during which judicial review proceedings must be brought, is the three month time limit. However, the normal provisions as to the requirement to bring proceedings promptly continues to apply if the grounds of challenge relate solely to non-European matters of law.

52. Questions of certainty also crop up in the criminal or quasi-criminal jurisdiction. There have been two significant cases concerned with the transfrontier shipment of waste: R v. N and R v. V etc.

53. In R v. N, the defendant was charged with the illegal transport of waste which fell within the scope of the Regulations. It was argued that the Regulations were not sufficiently precise so as to enable the defendant to know when it was or was not contravening Regulation 23 of the Regulations. The point was run as an Article 7 ECHR point. The Court of Appeal (Criminal Division) had some sympathy with the point. The principal point is that there is no clear guidance as to how much contamination of materials to be recycled is required in order to render the entire load in breach of the Regulations.

54. The difference is between household waste (Category Y46 waste) which is prohibited from transportation, and waste which falls within Category B3020 which are excluded from the export prohibition.

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55. The court held that while this was a difficult exercise for both the jury and for a judge in summing up, it was feasible for the matter to be adequately presented and summed up such that the defendant could have a fair trial.

56. In R v. V and Others there was an argument, put in three separate ways, that the means by which the European Regulation was transposed into the domestic legislation was much wider than it should be. Moreover, it was argued that the punishment available in respect of that wider approach taken by the domestic legislation, was not proportionate. The Court of Appeal dismissed these arguments quite summarily.

57. Mogden Sewage Treatment Works is a works operated by Thames Water Utilities Limited and serves some two million people. It has given rise to litigation over many years from a large group of residents who complain about the smell and mosquitoes which arise from it. In Dobson, the claimants obtained declarations in their favour as to the effects the works had upon their amenity. The findings were:

(i) The allegations in respect of mosquitoes failed. (ii) A significant proportion of the odour complaints succeeded and TWUL were found to have failed to manage the sewage treatment works with all reasonable regard and care for the interests of others. (iii) However, TWUL were immune from suit while it was performing its statutory duty, but remained liable for nuisance. (iv) TWUL could not escape liability under Article 8 of the ECHR by using the statutory defence under the Water Industry Act 1991, Section 94(1), because it had failed to have reasonable regard for others. (v) Those claimants who had a proprietary interest were awarded damages.

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58. Lastly I mention Barr v Biffa Waste which is a case about the relationship between regulation under statutory powers and common law remedies. The High Court took a radical approach. The Court of Appeal will have handed down judgment by the date of the oral delivery of these notes. An update will be provided.

LOCALISM – SOME EARLY INDICATORS FROM THE COURTS ON APPLICATION OF PROVISIONS IN THE ACT

59. The Localism Act 2011 includes provisions for the amendment to the CPO legislation2. Problems have arisen as to the interpretation of Section 17 certificates. For the reasons explained by the President of the Upper Tribunal (Lands Chamber) in Thomas Newall Limited those difficulties are not so likely to occur in the future:

26 The efforts made by the parties to bring within section 17 what is stated in the certificate in relation to parcel A derives from an approach that requires that effect for the purposes of section 17 must be given to all that the certificate contains. I fully accept that in principle the approach should be to seek to give effect to the totality of the document. But the certificate must be construed in the light of the statutory provisions that give rise to it. As I have said, the clear implication of saying that permission would have been granted “subject to” criteria in the local plan that have the function of determining whether or not permission should be granted is that permission might or might not have been granted, depending on whether the criteria were satisfied; and, if the certificate had stated expressly that permission might or might not have been granted for agricultural dwellings or affordable housing, the inescapable conclusion would be that it was not stating that permission would have been granted for such classes of development; and therefore the statement itself would properly fall to be treated as having no effect for the purposes of section 17 . This would cause no difficulty at all for the operation of the rest of the certificate. Unlike a compulsory purchase order or a planning permission a section 17 certificate only requires to be interpreted for the purposes of determining the compensation payable to the claimant by the acquiring authority. Here the certificate did not say expressly that permission might

2 See Part 9 of the Act

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or might not have been granted for these classes of development, but this was necessarily implicit in what it did say. Accordingly on a proper construction of the certificate, in my judgment, it does not state that planning permission would have been granted for those classes of development in the unqualified way that section 17 requires.

27 I have reached this conclusion simply on the basis of the words in the certificate and the provisions of the Local Plan to which it refers. I do not think that there is any need to refer to extraneous material. If, however, there were doubt as to the meaning of the certificate it would undoubtedly be appropriate to have regard to the resolution of the council pursuant to which it was prepared and the report of the planning officer on which the resolution was based. The function of the certificate is to provide an input into the assessment of compensation for the deemed compulsory purchase, a matter that concerns only the claimant and the acquiring authority. Both are well aware of these documents. The recommendation, which the council adopted, was that a positive certificate should be granted for Green Belt uses and that a negative certificate should be granted for residential and commercial development. Moreover the report, in saying that “development for affordable housing or agricultural worker's dwellings would depend on justification being made at the appropriate time”, makes clear the officer's view that permission for this might or might not be granted, and his recommendation was founded upon this. To treat what the certificate said in relation to agricultural dwellings and affordable housing as not stating that planning permission would be granted for those uses would therefore accord with the terms of the council's resolution and the officer's report. There is nothing in the witness statement of Mr True and the correspondence to which he refers that suggests to me that the view of the council was other than the one that appears from the officer's report.

28 The result, therefore, is that under section 15(5) the development for which it is to be assumed that planning permission would have been granted does not in my judgment include residential uses. This is a conclusion that effectively subsumes the preliminary issue and makes a specific answer to it unnecessary, although, as I have said, the ineffective part of the certificate was not intended to suggest, and did not, that the site should be taken to satisfy the requirement in policy H7 that it must be located in or adjoining a village as defined. It is not the effect of the Act, however, that the negative part of the certificate requires it to be assumed that the hope that permission might be granted for such uses is to be ignored. There is no provision to this effect, and section 14(3) provides:

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“Nothing in [ sections 15 and 16 ] shall be construed as requiring it to be assumed that planning permission would necessarily be refused for any development which is not development for which, in accordance with those provisions, the granting of planning permission is to be assumed.” Thus the possibility of permission that the planning officer envisaged in his report and which was reflected in the ineffective part of the certificate can be brought into the reckoning if it gives rise to hope value.

29 I would add that sort of the problems that have arisen with the section 17 certificate in this case are unlikely to arise in future when Part 9 of the Localism Act 2011 is brought into force. Section 234 of the Act, besides substituting new sections 14 and 15 for sections 14 to 16 of the 1961 Act, substitutes also a new section 17 and a new section 18 , which provides a right of appeal to the Upper Tribunal against a section 17 certificate. Thus in such a case as this it will be open to each party to appeal against the certificate, and it will be for the Tribunal to determine on the evidence what development, if any, is appropriate alternative development for the purposes of section 14 – that is to say, development for which at the valuation date planning permission could reasonably have been expected to be granted on the valuation date on the assumptions set out in subsection (5) (see subsection (4)). And, whether a section 17 certificate has been sought or not, under section 14(3) compensation will fall to assessed on the assumption that planning permission would have been granted for appropriate alternative development. (emphasis added)

60. A feature of the Localism Act 2011 which has been much focused upon is the general power of competence. This part of the Act has been brought into force in an expeditious and somewhat hasty manner after the decision in Bideford Town Council which is concerned with the practice of holding prayers prior to dealing with the council’s business. The case is a good example of the rigorous approach taken by the court to the interpretation of the powers of local authorities to carry out particular functions or to conduct its business in particular ways. The case, brought by the National Secular Society, rested upon the interpretation of the power set out in the Local Government Act 1972, particularly at Section 111. The objection was that there was no power for the council to summon and require the attendance of councillors for any part of the meeting which included religious worship of a specified kind, namely worship led by Christian and Quaker prayer leaders.

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61. The Secretary of State for Communities and Local Government has brought into effect the general power of competence for local authorities. This, it is said, fills the gap left in the powers available to local authorities to include the saying of prayers within the scope of council meetings.

62. It is to be pointed out that the challenge is, and never was, of any effect in respect of prayers said before a meeting commences.

63. On the basis of its use to address the Bideford issue, the scope of the general power of competence is, it appears, wide and of wide application.

Richard Kimblin No5 Chambers +44 (0) 845 210 5555 [email protected] www.No5.com

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CASES REFERRED TO (R(Bailey) v Brent LBC [2011] EWCA Civ 1586

R(Baker) v SS CLG [2008] EWCA Civ 141

Barratt Developments Plc v Wakefield MDC [2010] EWCA Civ 897; [2011] J.P.L. 48 R. (on the application of National Secular Society) v Bideford Town Council [2012] EWHC 175 (Admin)

R. (on the application of Buglife: the Invertebrate Conservation Trust) v Medway Council [2011] EWHC 746 (Admin); [2011] Env. L.R. 27;

Bowen-West v Secretary of State for Communities and Local Government [2011] EWHC 2930 (Admin)

Bund fur Umwelt und Naturschutz Deutschland, Landesverband Nordrhein- Westfalen eV v Bezirksregierung Arnsberg (C-115/09) European Court of Justice (Fourth Chamber) [2011] 3 C.M.L.R. 15; [2011] Env. L.R. 29

Dobson v Thames Water Utilities Ltd [2011] EWHC 3253 (TCC)

Greyfort Properties Ltd v SS CLG [2011] EWCA Civ 908 R(Harris) v Haringey LBC [2010] EWCA Civ 703

R(Green) v Glos CC [2011] EWHC 2687

Linden Homes Ltd v Bromley LBC [2011] EWHC 3430 (Admin)

MWH Associates Ltd v Wrexham CBC Upper Tribunal (Lands Chamber) [2011] UKUT 269 (LC); [2011] R.V.R. 263

Cornwall Waste Forum St Dennis Branch v Secretary of State for Communities and Local Government

R. v V & Others [2011] EWCA Crim 2342

Smout v Welsh Ministers [2011] EWCA Civ 1750;

R. (on the application of Clientearth) v Secretary of State for the Environment, Food and Rural Affairs [2011] EWHC 3623 (Admin); (2012) 109(2) L.S.G. 17;

R. v Ideal Waste Paper Co Ltd & Othrs [2011] EWCA Crim 3237;

Hulme v SS CLG [2011] EWCA Civ 638

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Resource Recovery Solutions (Derbyshire) Ltd v Secretary of State for Communities and Local Government [2011] EWHC 1726 (Admin)

R(Telford Trustees) v Telford & Wrekin Council & Asda Stores Ltd [2011] EWCA Civ 896

Thomas Newall Ltd v Lancaster City Council Upper Tribunal (Lands Chamber) [2011] UKUT 437 (LC)

R. (on the application of U & Partners (East Anglia) Ltd) v Broads Authority [2011] EWHC 1824 (Admin); [2012] Env. L.R. 5; [2011] J.P.L. 1583;

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Case Law Update

1. Some interesting cases have been handed down by the High Court and Court of Appeal concerning technical aspects of Environmental Impact Assessment Screening, procedure at enforcement appeals, material considerations and protective costs orders.

1. Environmental Impact Assessment and Screening

2. The EIA Directive (85/337 as amended) and the Habitats Directive (92/43) have provided ample opportunities for those seeking to challenge decisions to grant planning permission. By way of summary, key principles governing the requirements for and approach to Environmental Assessment are:

(i) The wording of the Directive indicates that it has a wide scope and a broad purpose (Dutch Dykes – Kraaijveld v. Gedeputeerde Staten Van Zuid-Holland (case C-72/95) [1997] Env LR 3, 265, para 31 and 39).

(ii) The underlying objective of the Directive is to ensure that projects which are likely to have significant effects on the environment should be granted development consent only after prior assessment of the likely significant effects has been carried out (Rochdale MBC ex parte Tew [2000] Env LR 1, at page 26).

(iii) The Environmental Statement does not stand alone. Representations made by consultees are an important part of the environmental information which must be considered by the local planning authority before granting planning permission (Tew at page 29).

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(iv) A decision to defer a description of a likely significant adverse effect and any measures to avoid, reduce or remedy it, to a later stage would conflict with the public’s right to make an input into the environmental information and would conflict with the underlying purpose of the Directive (Tew, at page 29).

(v) Member states may choose either to set thresholds and criteria for deciding whether a specific project needs to be assessed or may use a case by case approach but in either case no project likely to have significant effects on the environment should be exempt from assessment. If it were otherwise, the objective of the Directive would be undermined (WWF v. Bozen (case C-435/97) [2000] 1 CM LR149, at para 45).

(vi) It is for the domestic courts of each member state to decide in any particular case whether the decision to require an assessment or not was correctly made (Bozen at para 48).

(vii) The EIA procedure must be used, not an alternative procedure because to do so would undermine the objective of the Directive.

3. The decision to be taken at the screening stage is likely to involve two issues: Firstly, does the description of this particular development fit within the meaning of Schedule 2 or Schedule 1 to the Regulations? This is a key question because that decision determines whether the expense and delay of producing an EIA is to be borne or not. Secondly, is the development Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size, or location1?

1 See the definition of “EIA development” in regulation 2(1) of the 1999 EIA Regulations - 2 -

a. Schedule 1 or Schedule 2?

4. Before deciding whether a proposal falls within schedule 1 or schedule 2 it is necessary to consider whether it is a “project” in Article 1.2 of the Directive.

5. In R (Save Britain’s Heritage) v Secretary of State [2011] EWCA Civ 334 the Court of Appeal considered the question that had been before CJEU in Commission v. Ireland2, namely whether demolition works were a “project” for the purposes of the EIA Directive. Sullivan LJ (with whom the other members of the court agreed) held that execution of demolition works fell within “the execution of ... other ... schemes” in the definition of project in Article 1.2. He went on to hold that if demolition is capable of being a project or scheme it is also capable of being an “urban development project” within paragraph 10(b) of Annex II (see para 26 of judgment). As a consequence the court quashed paragraphs 2(1)(a)-(d) of the Town and Country Planning (Demolition- Description of Buildings) Direction 1995.

6. The consequence of these two cases is that demolition projects must be screened to determine whether EIA is required.

7. Judicial interpretations of “urban development project” are contained in Bateman v South Cambridgeshire DC [2011] EWCA Civ 157 in which Moore-Bick LJ observed that an extension to a grain storage and handling facility could not “..by any stretch of the imagination be described as an urban development ...” (para 14).

8. However, in R (Warley) v Wealden DC [2011] EWHC 2083 (Admin) Rabinder Singh QC (sitting as a deputy High Court Judge) held that the term “urban development project” was capable of including tennis courts. The judge identified a two stage approach:

54. In my view, there is, on proper analysis, no conflict between any of these authorities as to the approach to be taken by the court in cases of this kind.

2 Case C-50/09, see paragraphs 97-101 of the judgment of the CJEU - 3 -

Without in any way wishing to summarise what I have more fully set out in the passages already quoted, it is clear that the correct approach is to envisage two stages. The first stage is to ask whether on well established principles of administrative law there has been any misdirection by the local planning authority as to the law. If there has, then it is the proper role of the court to correct that error of law. 55. The second question is to do with situations where the law is being applied to a particular set of facts. The court may only intervene in such a situation if the conclusion to which a local planning authority has come is one which is irrational.

9. The conclusions to be drawn are, that if in doubt as to whether a project falls within schedule 1 or 2, consider screening.

b. Schedule 2 development likely to have a significant effects on the environment ?

10. If the proposed development falls within the definition of “project” in Article 1.2 and falls within Schedule 2 it is necessary to consider whether it is likely to have significant effects on the environment by virtue of factors such as its nature size or location. This element of the screening process is the most common.

11. R (Renfree) v Secretary of State [2011] EWCA Civ 863 the Court of Appeal considered the circumstances in which a decision maker is required to reconsider a screening opinion. The question to be considered is whether the inspector’s failure to refer the matter back to the Secretary of State is irrational or not. By adopting that test the Court has reduced the opportunities for challenges based on a failure to reconsider screening decisions. The case of Hargreaves v. Secretary of State [2011] EWHC 1999 (Admin) is an example of a case where a challenge based on that ground failed.

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12. Although the Court of Appeal has re-affirmed that a decision on screening is an exercise of planning judgment which will only be quashed on Wednesbury grounds, it is clear that the courts will still intervene, particularly when a decision is based upon inadequate information. There are some who contend that the court’s role is not limited to reviewing the decision maker’s exercise of planning judgment but that the court itself to review the adequacy of the information. That contention is based on the CJEU’s judgment in WWF v. Bozen [2000] 1 C.M.L.R. 149 ; in that case the court held (para 48):

48. It is for the national court to review whether, on the basis of the individual examination carried out by the competent authorities which resulted in the exclusion of the specific project at issue in the main proceedings from the assessment procedure established by the Directive, those authorities correctly assessed, in accordance with the Directive, the significance of the effects of that project on the environment.

13. The courts may well be reluctant to accept this approach. The duty to give reasons when adopting a negative screening opinion is reinforced by the provisions of regulation 4(7) of the 2011 EIA Regulations. Any reasons are likely to be subject to careful analysis, as occurred in Bateman.

c. Assessment

14. Berkeley v Secretary of State for Environment, Transport and the Regions [2001] Env LR 16 makes it clear that the Environmental Statement (ES) is the cornerstone of the regime. The requirement of the Directive is that the public be given an opportunity to express an opinion. That purpose and objective is frustrated if the environmental information from the Environmental Impact Assessment is not collated in a systematic manner. Hence, an ES is to be a single accessible compilation of the relevant information, including a non-technical summary, produced by the developer at the very start of the application process. Two recent cases have raised the issue of what should be contained in the ES.

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15. In R (Brown) v Carlisle City Council [2010] EWCA Civ 523 the Court of Appeal considered a challenge to a grant of planning permission based upon the contention that the ES was inadequate.

16. The development proposed was a freight distribution centre adjacent to Carlisle airport. The developer entered into a section 106 agreement which provided that the freight distribution centre could not be built and occupied without works being carried out to repair or renew the main runway at the airport (the subject of a prior application). The ES did not include an assessment of the effects of the works to the airport. It was held that the ES was deficient and as a result the grant of planning permission was unlawful.

17. In allowing the appeal and quashing the permission because there were no exceptional circumstances to persuade him otherwise, Sullivan LJ held that;

“21. No authority was cited for the proposition that the connection between two developments must be an operational or functional one for the environmental effects of one of the developments to be part of the cumulative effects of the other. The answer to the question—what are the cumulative effects of a particular development—will be a question of fact in each case. There may be a cumulative effect notwithstanding the absence of a functional link…..”

18. Sullivan LJ considered at paragraph 44 that;

“If a permission is subject to a condition which requires certain works to be carried out, the environmental effects of those works will be part of the cumulative effects of the development which has been permitted. The fact that permission is granted subject to the completion of a s.106 agreement which requires those works to be carried out is

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a difference of form, not substance for the purposes of the EIA Regulations.”

19. What is particularly interesting is the importance Sullivan LJ placed on the Environmental Information that had accompanied the first application. The Court of Appeal however made clear that the obligation was to consider the representations in response to the Environmental Statement as well as the statement itself;

“ 35 Even if the two applications had not been materially different, the fact remains that the defendant did not consider the “environmental information” which had been provided in respect of the first application when it came to consider the second application. … the obligation under reg. 3(2) is to take into account the “environmental information”, which includes not merely the Environmental Statement but, most importantly, any representations made in response thereto: see reg 2(1) and Berkeley at 615D- 616D. The totality of the information in respect of the first application had persuaded the defendant that it was a departure from the development plan and the Secretary of State that it should be called in.”

20. It is essential that a developer preparing an ES, or a local planning authority considering whether an ES is adequate, pays careful attention to the requirement to assess the likely significant effects including secondary indirect and cumulative effects of the project. The European Commission publication ‘Guidelines for the Assessment of Indirect and Cumulative Impacts as well as Impact Interactions’ (May 1999) continues to provide very useful guidance

21. The question of alternatives in an Environmental Assessment has not, to date, been a very productive one, in the case law. The EIA Directive does not require a developer to undertake an assessment of alternatives considered in his site selection process. It is only in the event that alternatives are in fact considered that some

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assessment must be made. In other words, if a developer does not want to consider alternatives, there is no requirement to do so. In respect of Strategic Environmental Assessment (SEA), the situation is different and has resulted in the quashing of a policy in a core strategy.

22. In Save Historic Newmarket Limited v Secretary of State for Communities and Local Government [2011] EWHC 606, the Court quashed a policy in the Core Strategy of Forest Heath District Council. Newmarket is a principal town within the council’s district and was to be one of the focal points for housing development in the district. The council commenced the process of developing its Core Strategy. Between March and July 2005 the council prepared an Issues and Options paper, together with an SA. The question posed in the Issues and Options paper was “Where new development should go?”. The key question was whether most of the new development should go to Newmarket or whether it should be spread more widely.

23. Following consideration of the responses to the paper, preferred options were published in August and September 2006. The SA for the 2006 document included a table showing the allocation of houses to particular areas. It showed Newmarket’s allocation to be 500 altogether of which 400 were to be on “land east of Fordham Road at Hatchfield Farm”.

24. In July and August 2008 the council produced its final policy options and a further accompanying SA. Option CS2 provided that Green Field land would be allocated as “an overextension to the northwest (sic) of Newmarket for approximately 1000 dwellings as part of a mixed use development… to be built between 2010 and 2020.”

25. Apart from the unfortunate error of putting the development in the wrong quadrant of Newmarket, the whole of CS2 was entirely new and had not been

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subject to consultation. The increase from 500 to 1000 dwellings was obviously immaterial, as was the fact that the rate at which they were proposed to be built out had increased because they were to be built over a ten year period instead of a fifteen year period.

26. The challenge to the process was successful because the Directive (2001/42/EC)3 requires an environmental report to be prepared for any assessment required by the Directive, which report evaluates the likely significant environmental effects of implementing the plan or programme and any reasonable alternatives, taking into account the objectives and geographical scope of the plan or programme. Moreover, the Directive requires that the reports are of sufficient quality. The judge explained, that:

“Quality involves ensuring that a report is based on proper information and expertise and covers all the potential effects of the plan or programme in question. In addition, since one of the purposes of the Directive is to allow members of the public to be consulted about plans or programmes which may affect them, the report should enable them to understand why the proposals are said to be environmentally sound. To that end, the report must not only be comprehensible but must contain the necessary information required by the Directive.”

27. In short, the council in this case failed to provide the necessary information to the public in the form of an SA before it adopted its final policy, CS2.

3 See the implementing regulations, Environmental Assessment of Plans and Programmes Regulations 2004

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2. Procedure at Enforcement Appeals

28. A word of caution regarding procedure at enforcement appeals: make sure all parties attend the site visit. In R(oao Tait) v Secretary of State for Communities and Local Government, QBD, 17 February 2012, a local planning authority had issued an enforcement notice in respect of external works to T’s property, alleging breach of planning control. T appealed the notice. She was notified of a site visit by the planning inspector with representatives of both parties and that if she failed to attend, it might proceed in her absence. She was also informed that if any party was absent, the inspector would decide on the most suitable course of action which could result in an unaccompanied site visit or no visit at all. T informed the inspector that she would not be available for the scheduled visit and had understood that in those circumstances, it would not go ahead. However, the inspector visited the site, carried out an external inspection in her absence and upheld the enforcement notice.

29. Vincent Fraser QC, sitting in the Administrative Court, held that the clear practice when undertaking a site visit was that there should be representatives present on behalf of both sides, as reflected in the planning inspectorate's guidance published on its website. Further, the letter sent to T contemplated that if a party failed to attend, the inspector should either conduct an unaccompanied site visit or abandon it. Anyone reading the letter would be entitled to conclude that the inspector would not conduct an accompanied site visit in her absence, Hibernian Property Co v Secretary of State for the Environment 72 L.G.R. 350 applied. The inspector accepted that there had been a conversation with the local planning authority representative in the absence of T. That meant the site visit was at least in part accompanied by the local authority representative, and so was an accompanied site visit. Given the letter sent to T, and in light of the inspector's guidance, T had a legitimate expectation that that would not occur. The authorities made clear that it was important that justice was seen to be done, and the approach taken was that if an inspector had a conversation in the absence of a representative there was a real risk that justice would not be seen to be done, Norfolk Capital Group Ltd v Kitway Ltd [1977] Q.B. 506 and George v Secretary of State for the Environment 77 L.G.R. 689 followed. There was, at the very least, a real risk that T had been prejudiced, and

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that an objective person would not consider a fair procedure to have been carried out. Accordingly, there had been an error of law.

3. Material considerations: Fall-back position

30. In R(Bibb) v Bristol CC [2011] EWHC 3057 (Admin), the claimant applied for judicial review of a grant of planning permission by the defendant local authority to a Tesco store. The issue related to the how a fall-back position should be evaluated as a material consideration. It was held that two aspects of a fall-back position need to be established before it could be a material consideration. These were (a) the nature and content of the alternative uses or operations and (b) the likelihood of the alternative use or operations being carried on or carried out.

31. Planning permission A had been granted in 2009 for the change of use of the premises from comedy club to retail use. In 2010 Tesco wanted to operate the store as a Tesco Express and made a further planning application B for the installation of plant and equipment (an extra chiller/freezer) and alterations to the rear service yard. Planning permission B was granted.

32. Ouseley J held that :

“40….The grant of planning permission A does not mean that planning permission B should be granted simply because it is necessary to enable planning permission A to be implemented, or to be operated in a particular way which the developer would wish. Planning permission B could therefore lawfully be refused on the grounds that it would enable an extant planning permission A to be reactivated undesirably, e.g. if a new road were necessary to enable an old quarry to be reopened. Similarly, if a planning permission was necessary to enable a permitted use, granted without constraints, to be fully exploited in a way which was undesirable, it could be refused e.g. if permission for a caravan site covered a large field, but half could not be used in practice without a further facilities block, that block could be refused

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permission because it would enable the permitted but undesirable intensification of the use to occur.

…

42. However…the local planning authority has to accept the factual premise that without the grant of planning permission B, planning permission A would not be implemented, or would only be operated in a materially different way from that proposed with permission B. But it cannot stop there. As Mr Wills recognised, it is the impact which would occur without the grant of planning permission B, the fallback position, which is the real baseline against which the significance of the grant of planning permission B to the implementation of planning permission A has to be judged. It is the difference between the two which is material.”

33. It was clear that that essential premise was not accepted by the committee. There was nothing in the committee's discussions to support the view that it thought that Tesco would not operate without the extra chiller/freezer. There was no evidence which could have permitted committee members to conclude that there was a material difference between the impact which Tesco Express servicing would have from the permitted store and that which a likely worst case baseline would produce. The application was dismissed.

4. Protective Costs Orders

34. In R (on the application of Young) v Oxford City Council & Anor [2012] EWCA Civ 46, the Court of Appeal declined to allow a protective costs order where the applicant had failed to establish that the issues raised were of general public importance and needed to be resolved in the public interest.

35. Y applied for judicial review the local authority's decision to grant planning permission for the re-development of a university campus adjoining his home. He - 12 -

asserted that it had failed to have regard to relevant planning policies and had failed to take into account the effect of noise from the site. His claim was rejected and he sought to appeal on the basis that issues of interpretation arose in relation to the Town and Country Planning Act 1990, s 75(3). He had had the benefit of a limited protective costs order in the Administrative Court and claimed that he could not continue the appeal without a full protective costs order. He asserted that his income was modest and that while he had some valuable assets, they were outweighed by his liabilities.

36. Richards J held that the Corner House4 principles applied, but that the qualifying case of R(oao Garner) v Elmbridge BC [2010] EWCA Civ 1006 did not as the case did not engage EU law provisions bringing in the Aarhus Convention 2001. Applying Corner House, justice did not require that a protective costs order be made. The real question was simply whether the relevant local planning policies could have been intended to apply to the very particular circumstances of the case. Moreover, the subject of the planning permission was a matter of local community interest rather than one of general public importance. Further, Y had a very real personal interest in the outcome of the case: his main complaint being the impact of noise on houses adjoining the site, including his own. Next, it would be wrong to say that he had no significant means. On the evidence available it could not be concluded that he was without the funds to meet a costs order against him were he to lose the appeal. Finally, although a protective costs order had been granted to Y in the Administrative Court, the reasons for that suggested pragmatism rather than any acceptance that the issues were ones of general public importance (see paras 9, 11- 17 of judgment).

37. Anthony Crean QC, of chambers, was counsel for the respondent in this case. He has noted that tactically, it is a good idea to put up a robust defence to such applications as, if you succeed in opposing it, the litigant might decide to abandon the substantive proceedings, which is what happened here; and that, interestingly Richards J’s dicta that even in a planning case where the Directive has direct effect,

4 R. (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 W.L.R. 2600. - 13 -

the non-Garner Corner House principles may still be applied, is at odds with LJ Sullivan in Garner. How that will be resolved remains to be seen.

5. Court Challenges to Recent SS Decision Letters

Richborough Estates v SSCLG and Cheshire East [2011]

38. This was a recovered appeal for 269 units of housing on greenfield BMV agricultural land on the edge of Sandbach in Cheshire. The Inspector recommended the appeal be allowed but the Secretary of State took the opposite view and after much delay issued the decision on 4 July 2011. Richborough issued a High Court challenge to the decision in August 2011. But Secretary of State decided not to fight this case and it was resolved by way of Consent Order.

39. The Inspector recommended the appeal be allowed largely because of the shortfall in the five year housing land supply. The Council contested the supply at the inquiry, but the Inspector found there was approximately only a 3 year supply. He recommended approval despite finding there was a five year supply if one looked at the housing land supply at the town of Sandbach on its own. The Secretary of State rejected the Inspector’s recommendation and focussed his decision on the fact there was supposedly not a shortfall in the supply at Sandbach.

40. The challenge was lodged on four grounds but the first was that Secretary of State had failed to follow his own policy in PPS3 and focussed on a five year supply calculation for a geographical area below the district level, for which there was no support in PPS3 or the Development Plan. In the Consent Order the Secretary of State expressly “concedes that he made an error of law by introducing an additional requirement relating to the provision of a five year housing land supply in Sandbach which has no basis in the development plan or PPS3.”

41. Although the Consent Order was signed on behalf of the Secretary of State on 18 October 2011, at the time of writing these notes nothing has happened in respect of a redetermination for the last 5 ½ months. - 14 -

Fox Strategic Land v SSCLG and Cheshire East Borough Council [2011]

42. This case involved a site about one mile away from the Richborough site. It was broadly the same size, catering for 280 units again on greenfield BMV agricultural land. In this case the Inspector recommended refusal and the Secretary of State unsurprisingly agreed. This decision was also challenged in the High Court and one of the main complaints about the decision was the obvious inconsistencies with the Richborough decision. For example prematurity was raised as an issue by both the Inspector and the Secretary of State in the refusal of this case but not in the Richborough decision. There were many other grounds of challenge including a claim that the Secretary of State had applied the wrong test in PPS7 in respect of the loss of best and most versatile agricultural land.

43. The Secretary of State refused to consent to judgment in this case. The Court hearing took place at the start of February. At the time of writing these notes, a decision had not been issued by the Court, but it is imminent.

Cala Homes (South) Limited v SSCLG and Winchester [2011] (Cala No3)

44. This is the well known proposal for 2,000 dwellings on the edge of Winchester. In what has been labelled ‘Cala No3’, following the previous two rounds of litigation over the RS, the Secretary of State was in this instance considering the merits of the Cala application through a recovered planning appeal. The Inspector recommended approval not least because of the absence of a five year housing land supply and the fact the latest housing figures mirror the rate of growth set out in the RS making its intended revocation largely irrelevant. But the Secretary of State disagreed claiming the proposal was premature because the Council was consulting on a new Core Strategy. The consultation was however only in its infancy and had only taken the form of a draft document called the “Blueprint” which the Council had put out for consultation as an initial stage on the various options open to the LPa. Rather than fight Cala Homes in Court again, the Secretary of State has consented to judgment as in the Richborough case.

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45. The grounds of challenge were very extensive. But Cala were content to agree that following wording in the Consent Order: “The First Defendant concedes that the said decision should not be allowed to stand because it is accepted that he erred in law in failing to give adequate reasons when considering how the Second Defendant’s emerging core strategy and, in particular, the so- called Blueprint process, impact on his decision.”

Christopher Young

No5 Chambers

+44 (0) 845 210 5555

[email protected]

www.No5.com

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Section 7

Dr Eloise Scotford

Biographical Details

Dr Scotford is a Lecturer in the School of Law at King’s College London, and has held this post since September 2010. This followed three years as Career Development Fellow in Environmental Law, Faculty of Law and Corpus Christi College, University of Oxford. Dr Scotford teaches environmental law, public law, EU law and tort law. Her research focuses on domestic and EU environmental law, particularly in relation to the comparative legal treatment of environmental principles, waste law, and air quality and climate change regulation.

Dr Scotford obtained the University Medal in Law at the University of Sydney in her undergraduate law degree. After then working as Associate to the Chief Justice of Australia in Canberra and as Lecturer in Law at the Universities of Sydney and New South Wales, she read for the BCL, MPhil and DPhil at the University of Oxford. The Presumption in Favour of Sustainable Development – a LlLegal PPtierspective

Dr Eloise Scotford School of Law, King’s College London

The Policy

At the heart of the planning system is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan making and decision taking. Local planning authorities should plan positively for new development, and approve all individual proposals wherever possible. NPPF [14]

1 The Presumption • Local authorities should: – plan positively for new development, approve all individual proposals wherever possible – prepare Local Plans on the basis that objectively assessed development needs should be met – unless the adverse impacts of allowing development would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole

NPPF ‘sustainable development’ • Framework core planning principles – SD = increasing and optimised (‘green’) development and growth over medium term • Sustainable development = development The primary objective of development management is to foster the delivery of sustainable development, not to hinder or prevent development. [53] The application of the presumption should achieve the delivery of enhanced levels of development consistent with national, strategic and local requirements. 5 []

Environmental aspects?

• Adverse environmental impacts to be minimised where practicable – Promotion of green design, efficient resource use, ‘sustainable’ transport, minimal pollution and climate change adaption, more than preserving and enhancing natural environment – EU nature conservation law as constraint – Ambiguous green belt protection

2 The Legal Issues • Legal relevance and impact of NPPF approach to sustainable development in relation to: 1. Local Development Plans 2. Planning consent decisions and decision- making generally 3. Environmental Assessment 4. NPPF itself? • Role of sustainable development in environmental law more broadly 7

Some Legal Background

• Sustainable development as a contentious legal ‘principle’ or concept, due to two interrelated issues: 1. Ambiguous definition 2. Ambiguous legal effect • More profound debate in international law, more developments in EU law, but also a UK and English legal story

International Law • Brundtland Report 1987: ‘development that meets the needs of the present without compromising the ability of future generations to meet their needs’ • Reconciling economic , en vironmental and social policies and priorities The beauty of principles that attempt to reconcile inconsistent ideas is that each side can interpret those ideas to its advantage. (Tarlock, ‘Ideas Without Institutions’, 2001)9

3 International Law ctd • Gabčikovo-Nagymaros Project (Hungary v Slovakia) (1997) – State of ‘normative anarchy’ not to have a leggpal princi ple of sustainable development that harmonises the needs of development and environmental protection (Judge Weeramantry, minority opinion) – Environmental focus and constraint

Sustainable Development/Sustainability If this concept [SD] is caught between political vagueness and legal ambition… international lawyers could be serious about detecting its normative core… Clarity can only come from defining the essence of 'sustainable' with respect to its object. The essence is neither 'economic sustainability', nor 'social sustainability', nor 'everything sustainable', but 'ecological sustainability’. K Bosselmann, The Principle of Sustainability (2008) 11

EU Law • Within scope of EU law, Art 11 TFEU is an overarching and binding EU policy goal: – Art 11: ‘environmental protection requirements’ shall be integrated into all EU policy areas , particularly with a view to promoting sustainable development – Environmental protection focus but still definitional ambiguity • Legal effects? – ‘Fundamental concept of environmental law’ (AG Leger, First Corporate Shipping) 12

4 English Law • Sustainable development as a weak legislative goal or strategic obligation only – S39(4) PCPA 2004; s4(1) LGA 2000 – Legal effect? – Cf Thoobyrnby on w aste objectives, wit h less definitional ambiguity + EU law backing • Central government policy goal – Mainstreaming SD (2011) – Cf statutory climate change duties: Hillingdon (potential significance of climate change policy developments in constraining airport policy) 13

English Law ctd • Contrast also NI and proposed Welsh legislation – SD duty on all public bodies • ‘Core principle underpinning planning’ – PPS1 (including climate change supplement), PPS3, PPG13 et c: l egal eff ect? – No case law directly on core principle – ‘Sustainability’ implicated as material consideration in some JR cases, but on basis of policies/dev plans making it relevant and elaborating its meaning (eg Horsham, Ludlam, Johnson Bros) 14

Conclusion • Legal effect of sustainable development as goal or strategic objective is an overarching one, not giving rise to precise and actionable obligations in English law • Planning obligations to which it gives rise depends heavily on relevant policy instruments and their content • NPPF changes this policy context and thus legal consequences of SD – Meaning of SD in NPPF as a whole important

5 Local Development Plans • To be adopted to incorporate presumption of sustainable development but also to be consistent with objectives, principles and policies of NPPF – What does it all add up to? therein lies meaning of ‘sustainable development’ • NPPF to operate as default planning policy document • But LDPs subject to EU review: – SEA (Hertfordshire); Habitats Directive

appropriate assessment if applicable 16

Planning Consent/Decision- Making • NPPF and derivative LDPs will guide planning consent and decision-making • Opportunities for legal challenge will be based on deviation from this ppyolicy – To the extent that NPPF version of sustainable development promotes economic growth above all, challenges based on failure to take seriously environmental effects even less likely to succeed – but a more nuanced view of SD may yet be extracted from NPPF

Environmental Assessment

• Again, any suggested failure to consider seriously aspects of sustainable development in an environmental assessment will carry little extra weight in light of the NPPF considering its weak environmental protection • And in light of current case law: – Blewett [2004] Env LR 29 – Littlewood [2008] EWHC 1812

6 NPPF Itself • Breach of EU law? – EU nature conservation obligations respected – But SEA review an interesting possibility • Inconsistent government policy – Compare Natural Environment White Paper 2011: ‘We will retain the protection and improvement of the natural environment as core objectives of the planning system’ – Judicial review of high level policy? – Conduct of consultation important

Implications for Environmental Law Generally • For a subject in which there is a real appetite for environmental principles, including sustainable development, to mean something precise and take on legal roles, NPPF is a potentially significant development – NPPF gives a definition of sustainable development – albeit one that some interest groups, scholars etc might not like • And that definition has legal implications 20

Some Reflections • Problem with environmental principles more generally (eg polluter pays principle, precautionary principle) – Legally ambiguous without some bold judicial doctrine (LECNSW or ECJ) or legislative elaboration (or legally relevant policy elaboration) • Guiding/overarching function of principles but allows differing interpretations – Precisely this ambiguity being played out and exploited by political debate on NPPF – how it

will be defined and legally crystallised is key 21