PLANNING, ENVIRONMENT & PROPERTY NEWSLETTER 3 December 2020 INTRODUCTION Jonathan Darby Contents Welcome to the latest edition of our Planning, Environment 1. INTRODUCTION and Property newsletter. In Jonathan Darby what is our final edition before Christmas, we include articles 2. EIA JUDGE BUT NOT JURY: HIGH from James Burton (on the criteria for ensuring COURT SETS CRITERIA FOR ENSURING “appropriate separation” when EIA competent “APPROPRIATE SEPARATION” WHEN authority is also the promoter/developer) and EIA COMPETENT AUTHORITY IS ALSO Stephen Tromans QC (on Old Permissions, Master THE PROMOTER/DEVELOPER Plans and Estoppel). James Burton Should regular readers be in need of a ‘fix’ between now and early January when our next edition arrives 6. FRIENDS REUNITED: OLD PERMISSIONS, in your inboxes, then I commend the following: MASTER PLANS AND ESTOPPEL – THE LAW REVIEWED First, our ongoing webinars, which have continued Stephen Tromans QC apace over the past few months. As a result of which, our online archive hopefully now forms 9. CONTRIBUTORS PLANNING, ENVIRONMENT & PROPERTY 3 December 2020 Page 2 something of a useful resource for those looking considered by the Hon. Mr Justice Holgate in to brush up or reflect on developments. The London Historic Parks and Gardens Trust Claimant archive can be accessed via: v Secretary of State for Housing Communities and www.39essex.com/category/webinars-archive/ Local Government [2020] EWHC 2580 (Admin). The Judge answered them by (a) upholding the UK’s Whilst on the topic of webinars, it’s worth noting transposition of (this aspect of) the EIA Directive, that Series 3 of our ’39 from 39’ webinars is and (b) by setting out practical criteria to achieve scheduled to kick off early in the New Year, with a “appropriate separation”. detailed look at the Environment Bill. Booking will, as usual, be possible via: The practical “appropriate separation” criteria www.39essex.com/category/webinars/ contained in the judgment are relevant to all authorities faced with this not-uncommon Second, various members of chambers have problem, and should be capable of application up also been producing podcasts over the last few and down the country with suitable contextual months, including a number on topical planning, modification. environmental and property issues, which can be accessed here: In the process of arriving at his conclusions, the www.39essex.com/category/podcasts/ judgment does shine a hard light on the differential protection afforded environmental rights in EU law, Third, our news page, which signposts Members’ by comparison with fundamental rights. It is moot recent activity, which frequently includes ‘hot off whether the Environment Bill, presently at Lords the press’ information about cases: Committee stage, and Brexit, will see a material www.39essex.com/category/news/ change in this regard if and when it reaches the statute book. As ever, we hope that you enjoy this edition, and wish you all a very Merry Christmas and Happy Facts New Year. The facts are relatively unusual. They concern the much-debated proposal for the United Kingdom EIA JUDGE BUT NOT Holocaust Memorial (“the Memorial”), the called-in JURY: HIGH COURT public inquiry into which commenced mere days SETS CRITERIA FOR after judgment was handed down on 2 October ENSURING “APPROPRIATE 2020 (and formally closed on 13 November 2020). SEPARATION” WHEN EIA COMPETENT AUTHORITY The Secretary of State for Housing, Communities IS ALSO THE PROMOTER/ and Local Government (“the Secretary of State”) DEVELOPER had applied to the local planning authority, James Burton Westminster City Council (“Westminster”) for planning permission for the Memorial, which was What must an authority that is both the competent to include a Learning Centre, and an entrance authority for the purposes of the EIA regime, pavilion, and be sited at Victoria Tower Gardens, and also the promoter of the development, do on London’s Millbank. to ensure an “appropriate separation” between those “conflicting functions” for the purposes of Given the application site’s proximity to the Palace the EIA Directive?1 And has the UK successfully of Westminster and Westminster Abbey UNESCO transposed those requirements? World Heritage Site, there was no question but that the proposed development was likely to have Those were the questions of general application 1 Directive 2011/92/EU, as amended. PLANNING, ENVIRONMENT & PROPERTY 3 December 2020 Page 3 significant effects on the environment. It was Article 9a of the EIA Directive, which was inserted required to be the subject of EIA. by amendment in 2014, provides as follows: Member States shall ensure that the competent The then-Minister of State for Housing “called in” authority or authorities perform the duties the application pursuant to the power in s. 77 of arising from this Directive in an objective the Town and Country Planning Act 1990, hence manner and do not find themselves in a the decision on the application could only be taken situation giving rise to a conflict of interest. by the Secretary of State or a delegate. Where the competent authority is also the There was no challenge to the decision to “call in” developer, Member States shall at least (a point that the judgment suggests told against implement, within their organisation of the claimant). administrative competences, an appropriate separation between conflicting functions Westminster itself resolved that it would have when performing the duties arising from this refused the application had it been left to it for Directive. determination. Member States had until 16 May 2017 for The Secretary of State had decided that the transposition. The UK sought to do so through current Minister of State for Housing would Regulation 64 of the EIA Regulations, under the determine the application, having received a heading “objectivity and bias”: report from the appointed Planning Inspector. Reasons would have to be given for the decision 1) Where an authority or the Secretary of State ultimately reached, whether to refuse or grant has a duty under these Regulations, they permission, and, by dint of the Regulation 26(2) must perform that duty in an objective of the Town and Country Planning (Environmental manner and so as not to find themselves in a Impact Assessment) Regulations 2017 (“the EIA situation giving rise to conflict of interest. Regulations”), the Minster would have to express his “reasoned conclusion” on “the significant 2) Where an authority, or the Secretary of effects of the proposed development on the State, is bringing forward a proposal for environment”. development and that authority or the Secretary of State, as appropriate, will The “handling arrangements” put in place within also be responsible for determining its the Ministry for determination of the application own proposal, the relevant authority or the were, in summary, that Ministers or officials who Secretary of State must make appropriate had previously made public pronouncements administrative arrangements to ensure or have responsibility for the promotion or the that there is a functional separation, delivery of the Memorial were to be excluded from when performing any duty under these the decision-making process on the planning Regulations, between the persons bringing application. forward a proposal for development and the persons responsible for determining that The challenge proposal. The claimant forswore any argument based on predetermination or bias. Its primary attack was Resolution of the questions of general a direct assault on the UK’s transposition into application and the all-important criteria for English law of the requirements of Article 9a of the achieving “appropriate separation” EIA Directive. The Claimant’s contention was that Regulation 64(2) failed to properly transpose the second limb of Article 9a. No issue was raised with regard to PLANNING, ENVIRONMENT & PROPERTY 3 December 2020 Page 4 the transposition of the first limb of Article 9a. independence and objectivity summarised by the Advocate General in Commission v Poland Case On that first, and key, issue, Holgate J rejected the C-530/16: challenge. [AG 31] “From the general perspective, the Court has already stated that ‘in relation to a The Judge accepted the submission made for public body, the term “independence” normally the Secretary of State that the most analogous means a status which ensures that the body case for the purposes of the requirement for concerned can act completely freely, without “appropriate separation between conflicting taking any instructions or being put under functions” was Department of the Environment any pressure’. Thus, independence entails, in for Northern Ireland v Seaport Case C-474/10, essence, that the body in question be insulated concerning Directive 2001/42/EC for the from other entities whose action may be assessment of the environmental effects of plans driven by other kinds of interests than those and programmes (the Strategic Environmental pursued by that body. To that effect, the body Assessment (“SEA”) Directive). Just as the SEA must enjoy a number of concrete guarantees Directive did not require the setting up of an of independence that protect it against undue entirely independent body for consultation by the interferences that could prevent it from carrying authority promoting a plan or programme, where out its tasks and fulfilling its mission.” the consultee was a part of that promoting body, so too Article 9a of the EIA Directive. In Seaport [AG 35] “It is nonetheless clear that the the CJEU had accepted that functional separation minimum guarantee applicable to any within the Department would be satisfied by the independent administrative authority worthy of internal group responsible for acting as consultee that name is decision-making independence: having real autonomy, and its own administrative in the sense of being able to adopt impartial and human resources (however, no detail was decisions in individual cases, free from the given about those aspects). Moreover, although interference of any other entities that have the context for the decision was whether potentially conflicting aims or interests.