SEPTEMBER 2012

This month the newsletter tells the story But the tide at Margate is turning. Spurred on Text of the legal battle over the world renowned by the phenomenal success of the new Turner

Dreamland Amusement Park in Margate and Contemporary art gallery, the Council resolved to considers the reinstatement of the PINS compulsorily acquire Dreamland under section compensation scheme. Other news includes: 226(1)(a) of the Town and Country Planning a complaintText to the Aarhus Compliance TActext 1990 to create the world’s first heritage

Committee about changes which prevent amusement park, to be developed in partnership a successful claimant in private nuisance with the Dreamland Trust and with offers of cases from recovering their ATE premium; funding from the Government’s Sea Change the close of the public examination into new Programme and the Heritage Lottery Fund. The nuclear power at Hinkley Point C and further development of the heritage amusement park at litigation challenging the Government’s policy Dreamland was specifically aimed at achieving of excluding former inhabitants of the Chagos the objectives of the Adopted Local Plan policy Islands in the Indian Ocean. T8. In a 15 day contentious inquiry that was Dreamland, regeneration and widely reported in the national media, the owners Margate of Dreamland set out a different vision. Their nebulous plans included wanting to develop In August, the Secretary of State for almost half of the site with over 450 houses, Communities and Local Government confirmed, relocation of some of the existing buildings without modification, Thanet District Council’s to a site some distance from Dreamland and compulsory purchase order of the site of the separated by a railway line. In a short decision world renowned but sadly derelict Dreamland letter, accepting his inspector’s recommendations, Amusement Park. In many respects, Dreamland the Secretary of State agreed with the inspector’s is synonymous with Margate. It had developed conclusion that the alternative proposals put in the nineteenth century as a leisure site in forward by the objectors were “fanciful and tandem with Margate’s development as Britain’s unlikely to succeed”. first holiday resort. In 1919, following a change The Secretary of State concluded that the in ownership, the site was transformed into an Council’s Phase 1 proposals described in the amusement park and named after Dreamland at order would make a valuable contribution to the Coney Island, New York. In its heyday it attracted economic, social and environmental well-being of over half a million visitors each year and its the immediate areas as well as the regeneration success was integral to that of Margate. Since its of Margate. closure in 2006 the site has rapidly deteriorated along with Margate’s fortunes. However, uniquely, The decision provides an ample Dreamland contains three listed buildings, two demonstration of the utility of section 226(1) (a) of them Grade II* including the famous Scenic as a tool for urban regeneration. This power to Railway, which fell into disrepair and necessitated compulsorily acquire land for planning purposes the Council in taking urgent action to preserve was significantly widened by the Planning and these buildings. Compulsory Purchase Act 2004 with the stated

1 aim of providing a positive tool to help acquiring ultimately settled with the Inspectorate paying authorities with planning powers to assemble those parties’ costs of redetermination. The land where this is necessary to implement the Parliamentary Ombudsman was also critical of proposals in their community strategies and the Inspectorate’s approach to compensation. Local Development Documents. These powers The August 2012 version of Good Practice are expressed in wide terms and can therefore Advice Note 15 (now entitled Feedback, be used by such authorities to assemble land for complaints and challenges) now says (para 24): regeneration and other schemes where the range of activities or purposes proposed mean that no “Where maladministration or an error other single specific compulsory purchase power by the Planning Inspectorate has led to would be appropriate. injustice or hardship, we will try to offer a remedy that returns the complainant Martin Edwards advised Thanet District to the position they would have been in Council in the lead up to the making of the otherwise. If that is not possible, the Planning compulsory purchase order and represented the Inspectorate will provide compensation for Council at the public inquiry. unnecessary expense incurred as a result of an acknowledged error where there are Planning Inspectorate reinstates compelling reasons to do so” compensation scheme Remedies may include ‘financial compensation for costs incurred as a result of The Planning Inspectorate has reintroduced our error’. The Inspectorate promise to ‘consider an ex gratia compensation scheme for costs carefully complaints and requests for financial caused by its errors including the redetermination compensation received within 6 months of the of appeals following High Court quashings. date of the error or of any subsequent appeal In the 1970s the Inspectorate practice was decision by us related to that error.’ to pay the costs which had been incurred on the Richard Harwood acted for the Claimant in Payne initial appeal hearing or inquiry. This changed in v Secretary of State. the 1980s to the practice of paying the costs of the redetermination rather than the initial hearing. The practice of making ex gratia payments was Complaint to the Aarhus well-known within the planning system although Compliance Committee not publicised until 2009. This system was ended in April 2011 without announcement or A complaint is being submitted to the consultation (merely removing references from Aarhus Compliance Committee in respect of a Good Practice Advice Note 15 Challenges and legislative change introduced by the Legal Aid complaints) with the Inspectorate later saying it and Punishment of Offenders Act 2012 which will would rely on the Parliamentary Ombudsman to prevent a successful claimant in private nuisance settle claims. cases from recovering their ATE premium. The argument is that the change will restrict access to This change prompted two judicial reviews justice. over the costs of redetermining appeals where decisions had been quashed by the Courts prior The communication is submitted by the to April 2011: R(Koumis) v Secretary of State Environmental Law Foundation (ELF), a UK for Communities and Local Government and charity that enables communities and individuals R(Payne) v Secretary of State for Communities to use the law to protect and improve their and Local Government. Both cases were environment. ELF relies upon a national network

2 www.39essex.com2 of specialist environmental lawyers who provide year. The examination process is one of the most initial advice and assistance on a pro bono basis. significant tests of the new system for applications ELF submits that the UK has enacted primary to build nationally significant infrastructure in legislation that will restrict access to justice in England and , introduced by the Planning environmental matters and therefore is contrary to Act 2008. It is the first examination of a nuclear the Aarhus Convention. In particular, s. 46 of the new build project. Legal Aid and the Punishment of Offenders Act Stephen Tromans QC and Justine Thornton 2012 (LASPOA 2012) amends earlier provisions act for EDF. Christiaan Zwart acts for the in the Courts and Legal Services Act 1990 and Environment Agency. provides for a new s 58C which states: “A costs order made in favour of a party to proceedings who has taken out a costs insurance Round 3 of the Bancoult litigation policy may not include provision requiring the challenging the UK government’s payment of an amount in respect of all or part of longstanding policy of exclusion of the premium of the policy, unless such provision former inhabitants of the Chagos is permitted by regulations under subsection (2).” Islands in the Indian Ocean from the island This means that the after-the-event (ATE) insurance which covers: (i) the costs of expenses Judicial review proceedings are challenging such as court fees, expert reports, travel etc, and the decision of former foreign secretary, David (ii) the exposure and risk of paying an opponent’s Miliband MP, to designate a Marine Protected costs can no longer be recovered if a claimant in Area which includes the Claimants former home. legal proceedings is successful in a legal claim. Permission to apply for Judicial review and to cross-examine the UK government officials The Government argues that the ability to named in Wikileaks cables were granted in bring a claim in statutory nuisance under s. 82 August. The JR is likely to be heard in the Environmental Protection Act 1990 is a substitute autumn. This will be the first time a UK higher but this is disputed. court considers Wikileaks material. Stephen Tromans QC is advising ELF pro In addition, lawyers for the Claimants are bono and is Chair of ELF. The complaint is being bringing a related information appeal which submitted by Hugh James as agents for ELF, seeks documents relied upon by the Foreign also acting pro bono (Neil Stockdale and Gareth Office to reach its conclusion that repatriation of Morgan) and supported by Richard Buxton (Paul Chagossians is not practicable. At the beginning Stookes). of September the First Tier Tribunal decided the appeal and ordered that some of that material Public Examination of the proposed (which is still awaited) be disclosed. new nuclear power station at Nigel Pleming QC, Lisa Giovannetti QC and Hinkley Point C draws to a close Richard Wald are instructed by LLP on behalf of the Claimants. Steven Kovats On 21 September the public examination QC is acting for the Secretary of State for the into EDF Energy’s proposals to develop a new Foreign and Commonwealth Office. nuclear power station at Hinkley Point C closed. EDF submitted its application for a Development Consent Order to build and operate Hinkley Point C in October 2011. The Planning Inspectorate is due to report on its recommendation later this www.39essex.com 23 CONTRIBUTORS

Stephen Tromans QC is recognised as a leading practitioner in environmental, energy and planning law. His clients include major utilities and industrial companies in the UK and elsewhere, banks, insurers, Government departments and agencies, local authorities, NGOs and individuals. He has been involved in some of the leading cases in matters such as environmental impact assessment, habitats, nuisance, and waste, in key projects such as proposals for new nuclear power stations, and in high-profile incidents such as the Buncefield explosion and the Trafigura case. To view full CV please click here.

Nigel Pleming QC continues to be instructed in a broad range of environmental cases, by central and local government, private commercial interests, and public interest groups. Chambers & Partners 2012 describes him as “very thorough and knowledgeable” and “an excellent choice to represent clients in high-profile inquiries and judicial reviews”. Recent cases in the public domain have involved challenges to the decision made by the Secretary of State for Transport to lend support to a third runway at Heathrow airport, decisions to grant licences to take oil from deep sites in the North Sea, and (acting on behalf of the Chagos Islanders) the decision by the Secretary of State for Foreign and Commonwealth Affairs to announce a no-take Marine Protection Area in the British Indian Ocean Territory. To view full CV please click here.

Martin Edwards has 30 years’ experience as a planning and environmental lawyer, firstly as a in local government before moving into private practice. He was head of planning and environmental law at Dechert before transferring to the bar in 1995. He has appeared at numerous planning and related inquiries on a wide range of issues for developers, local planning authorities and third parties. His monthly Planning Notes column has now been running for over 20 years in the Estates Gazette and he is an editorial board member and case commentator for the Journal of Planning and Environmental Law. He recently appeared in a College of Law TV programme on the National Planning Policy Framework and will be speaking at two forthcoming CLT conferences on property development and planning issues. To view full CV click here.

Richard Harwood specialises in planning, environmental and public law. His recent Court of Appeal cases include R(SAVE Britain’s Heritage) v Secretary of State, Hirose Electrical v Peak Ingredients, Dale Farm, R(Berky) v Newport CC and Barker v Hambleton DC. Richard was awarded “Environmental/Planning Junior of the Year” at the Chambers Bar Awards 2011. He is the author of Historic Environment Law to be published by the Institute of Art and Law in September 2012. To view full CV please click here.

Justine Thornton specializes in environmental and planning law and is rated by Chambers and Partners as “one of the finest juniors in the field”. Prior to joining 39 Essex Street, she worked forAllen & Overy LLP, Simmons & Simmons and the European Commission Environment Department. Justine is a member of the Attorney-General’s Panel of Counsel, appointed to act for the Government and is appointed as an for the Welsh Assembly. She is (with Richard Wald) General Editor of Thompson’s Encyclopaedia of Environmental Law and a contributor to Tromans on Environmental Impact Assessment Law and Practice. She is Case Law Editor of the Journal of Environmental Law. To view full CV click here.

Christiaan Zwart’s practice includes: all areas of public & private planning, CIL, infrastructure, CPO, environment & energy, development related law, commercial & construction, VAT & direct tax, rating, licensing, related real property, regulatory litigation & judicial review, & also civil fraud. His range reflects his ‘systems analysis’ qualification, & 22 years of property development industry experience, adding particular insight to his legal practice. He was appointed B Panel against “unprecedented” competition. He acts for the Environment Agency at Hinkley Point C Nuclear Power Station DCO application, and regularly acts for housebuilders & developers at all stages & hearings in the planning process, for CLG, DEFRA, & HMRC. To view full CV click here.

Richard Wald specializes in Planning, Environmental and associated areas of JR. He is (with Justine Thornton) General Editor of Thompson’s Encyclopaedia of Environmental Law and a contributor to Tromans on EIA Law and Practice. He was appointed to the AG’s B-Panel of Junior Counsel to the Crown in 2009 and is regularly ranked by the main directories in the areas of Environmental Law and Planning Law. He edited this newsletter. To view full CV click here.

David barnes Chief Executive and Director of Clerking Andrew Poyser Practice Manager [email protected] [email protected] Alastair Davidson Senior Clerk Luke Diebelius Assistant Practice Manager [email protected] [email protected] For further details on Chambers please visit our website: www.39essex.com London 39 Essex Street, London WC2R 3AT Tel: +44 (0)20 7832 1111 Fax: +44 (0)20 7353 3978 Manchester 82 King Street, Manchester M2 4WQ Tel: +44 (0)161 870 0333 Fax: +44 (0)20 7353 3978

Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number 0C360005) with its registered office at 39 Essex Street, London WC2R 3AT. Thirty Nine Essex Street’s members provide legal and advocacy services as independent, self-employed barristers and no entity connected with Thirty Nine Essex Street provides any legal services. Thirty Nine Essex Street (Services) Limited manages the administrative, operational and support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street, London WC2R 3AT.

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