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Planning & Environment Law Update

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Cardiff - 12th May 2015

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Planning & Environment Law Update

  1. 1. Planning and Environment Law Update 12th May 2015 Matthew Horton QC, John Steel QC, Richard Harwood QC and Jon Darby
  2. 2. Topics • DECISION MAKING AND FAIRNESS • HERITAGE • GREEN BELT • ENFORCEMENT • WALES CASELAW • PLANNING BILL WALES • COMMUNITY INFRASTRUCTURE LEVY • ENVIRONMENTAL IMPACT ASSESSMENT • STRATEGIC ENVIRONMENTAL ASSESSMENT • NUISANCE
  3. 3. Decision making and fairness SSCLG v Hopkins Developments [2014] EWCA 470 • Inspector dismissing housing appeal on matters including sustainability and character & appearance not formally raised by her as main issues but in contention during inquiry • A developer should test evidence about, or make submissions on, emerging issues SSCLG v Vincente [2014] EWCA 1555 • Procedural conduct at a second hearing where objectors had not been notified of initial hearing. • If objectors know the main points in support of the application that they opposed and have had a reasonable opportunity to put their own points forward then no procedural unfairness
  4. 4. Raising points • No need to warn of issues raised by 3rd parties which parties have been able to comment on: Hopkins • Ecotricity v SoS (aviation objection) • Warn of uncontentious points which trouble decisionmaker: R(Halite Energy) v SoSECC
  5. 5. New points in written representations • New points arising too late for third party representations have been a problem: Philips, Ashley • Carroll v SSCLG • Appeal for change of use B1 to C3 • At the 6 weeks point the appellant said the use was now B8. Later, the appellant provided 2nd application committee report which agreed B8 and no policy objection. Did not mention that the committee had refused that application because of a policy objection.
  6. 6. Carroll the fallout
  7. 7. Recovery of appeals • SSCLG’s practice of recovering all traveller/gypsy site GB appeals: - a breach of Equality Act 2010; and - a breach of Art.6 rights due to delay caused (Moore & Coates).
  8. 8. Heritage Interrelationship between statutory tests s.66/72 Listed Buildings Act and NPPF: • Barnwell [2014] EWCA Civ 137 the standout case. Wind farm that would affect setting of listed buildings. • S.66 (“special regard”)/72 (“special attention”) create a “strong presumption” against grant where harm to setting of listed building/CA – even where harm less than substantial. • NPPF does not displace statutory presumption. • See Forge Field [2014] EWHC 1895 (Admin) for application of Barnwell.
  9. 9. Heritage Conservation Area designations under s.69: • GRA Acquisition [2015] EWHC 76 (Admin) – Oxford Stadium CA. • Single entity, absence of public access and visibility, mundane quality and lack of long life-span not sufficient factors to make decision irrational • R (Silus Investments) v Hounslow LBC [2015] EWHC 358 (Admin) - Chiswick High Road CA • Proposal to demolish locally listed pub • No procedure specified and no statutory obligation to consult; but • Lack of meaningful consultation undertaken by LPA • Developer denied opportunity of being consulted
  10. 10. Historic Environment (Wales) Bill • Consultation and interim protection (with compensation) before listing and scheduling decisions • Heritage partnership agreements • Temporary stop notices • Scheduled monument enforcement notices • Statutory historic environment record • Statutory parks and gardens • No special regard duty to scheduled monuments
  11. 11. Green Belt: its extent Fox Land & Property Ltd v SSCLG [2015] EWCA Civ 298 • Proposals Map not policy but identifies the geographical area to which policies applied; so • It is relevant to a proper understanding and interpretation of policy in the same way as the supporting text. • First instance judge correct to conclude that the fact a green belt policy has lapsed did not mean that the green belt as defined by the proposals map in the local plan had ceased to exist or that other green belt policies had been rendered wholly ineffective.
  12. 12. Green Belt: inappropriate development by definition Narrow approach in England :Europa Oil [2014] EWCA Civ 825; Lloyd [2014] EWCA Civ 839; Timmins [2015] EWCA Civ 10 • NPPF stand alone document and not PPG2 ‘carry over’ • PPG2 [3.12] approach not carried through i.e. development and change of use can be “appropriate” if still preserves GB openness • Hence material change of use inappropriate unless within an exception. • NPPF para. 89-90 “closed lists” (but see Mitting J in Timmins and query regarding interaction between paras. 81 and 90).
  13. 13. Green Belt: planning balance • No change from PPG2. NPPF 88 “any other harm” means what it says – Redhill [2014] EWCA Civ 1386. • “Other considerations” (non-GB factors) must be included in the weighing exercise • “Sub-threshold” harms that alone would not justify refusal under the NPPF remain material considerations and count against a grant. • However PPW para 4.8.15: • “Inappropriate development should not be granted planning permission except in very exceptional circumstances where other considerations clearly outweigh the harm which such development would do to the Green Belt or green wedge”
  14. 14. Enforcement Ahmed v SSCLG [2014] EWCA Civ 566 • Inspector failed to consider “obvious alternative” of lesser scheme after wrongly concluding he had no power to grant planning permission for the lesser scheme. • Inspector does have the power if the lesser scheme is “part of” the scheme enforced against. Ioannou v SSCLG [2014] EWCA Civ 1432 • Ahmed distinguished. Inspector has no power under ground (f) to bring about deemed permission for scheme which was not in existence at the time of the EN.
  15. 15. Enforcement Jackson v SSCLG [2015] EWHC 20 (Admin) • New regime of planning enforcement orders under ss.171BA –BC is not an exhaustive replacement of the Welwyn principle: (i) positive deception in matters integral to the planning process; (ii) that deception was directly intended to undermine the planning process; (iii) it did undermine that process and; (iv) the wrong-doer would profit directly from the deception if the normal limitation period were to enable him to resist enforcement. • No additional requirement to demonstrate “exceptionality” for case to fall outside s.171B immunity
  16. 16. Wales Caselaw 2015 • Motorways • Wind Farms • Chimneys and • Princes
  17. 17. R. (on the application of Friends of the Earth) v Welsh Ministers [2015] EWHC 776 (Admin) Hickinbottom J • Motorway Plan re M4 Corridor Around Newport • Across Gwent levels – many SSSIs + River Usk SAC • SEA Directive 2001/42 art.5(1): test of "reasonable alternatives" to the implementation of a plan or programme likely to have significant effects on the environment
  18. 18. Review of Cases by the Court • “Although none of the cases [reviewed] concerned Wales, the transposition of the SEA Directive in England (by the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004 No 1633)) is in materially the same terms as the 2004 Regulations for Wales”.
  19. 19. Cases Reviewed • R (Save Historic Newmarket Limited) v Forest Heath District Council [2011] EWHC 606 (Admin) (Collins J) • Heard v Broadland District Council [2012] EWHC 344 (Admin) (Ouseley J) • R (Buckingham County Council and Others) v Secretary of State for Transport [2013] EWHC 481 (Admin) • R (Buckingham County Council and Others) v Secretary of State for Transport [2014] UKSC 3 • R (Chalfont St Peter Parish Council) v Chiltern District Council [2013] EWHC 1877 (Admin) (His Honour Judge Foster) • Ashdown Forest Economic Development LLP v Secretary of State for Communities and Local Government [2014] EWHC 406 (Admin); (§87)
  20. 20. Article 5(1) • Article 5(1) provides: • “Where an environmental assessment is required under article 3(1), an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme and reasonable alternatives, taking into account the objectives and the geographical scope of the plan or programme are identified, described and evaluated. The information to be given for this purpose is referred to in Annex I.”
  21. 21. Margin of Discretion • It is in any event clear that that Member States have a significant margin of discretion with regard to how “reasonable alternatives” are identified. (§85)
  22. 22. “Reasonable Alternatives” • “Reasonable alternatives” does not include all possible alternatives: the use of the word “reasonable” clearly and necessarily imports an evaluative judgment as to which alternatives should be included. That evaluation is a matter primarily for the decision-making authority, subject to challenge only on conventional public law grounds. (§88(iv))
  23. 23. When option not a reasonable alternative • The question of whether an option will achieve the objectives is also essentially a matter for the evaluative judgment of the authority, subject of course to challenge on conventional public law grounds. If the authority rationally determines that a particular option will not meet the objectives, that option is not a reasonable alternative and it does not have to be included in the SEA Report or process. (§88(vi))
  24. 24. R. (on the application of Davies) v Carmarthenshire CC [2015] EWHC 230 (Admin) Gilbart J • The proposed turbine would be on the shores of an estuary, directly opposite a boathouse and writing shed which had been occupied by the poet Dylan Thomas, both of which were listed buildings. • The planning officer determined that given the scale and nature of the proposal, the development was considered to be of no more than local importance and would not give rise to any adverse environmental impacts upon the surrounding area. He therefore concluded that the requirements of an environmental impact assessment were not applicable. Screening opinion to like effect. • Planning permission granted by the committee.
  25. 25. “Local effect can be significant” • Decision in screening opinion (‘no EIA required as local effect only”) challenged by JR; • Held: application granted • “The fact that the effects of a wind turbine being constructed within a Special Landscape Area would only be felt locally did not mean that they were not capable of being significant for the purposes of assessing whether an environmental impact assessment was required under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999”.
  26. 26. The Queen (on the application of Jonathan Mark Isherwood Carter) v City and County of Swansea v RWE Innogy UK Limited [2015] EWHC 75 (Admin); Phillips J • Development of a wind farm at Mynydd-y-Gwair common, near Swansea • Numerous errors in the officer report, but test correct in summary section • Including error over the “starting point” – policy not the Development Plan • Held: no error of law as long as correct statutory tests were “had regard to” and overall report was fair and not ‘significantly misleading’
  27. 27. Applying Oxton Farms v. Selby District Council [1997] EWCA Civ 4004; per Judge LJ • “The report by a planning officer to his committee is not and is not intended to provide a disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it. The report is therefore not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing to case up to the jury. • …In my judgement an application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken.”
  28. 28. R. (on the application of Evans) v Attorney General [2015] UKSC 21 • HRH The Prince of Wales private correspondence to Ministers was subject to disclosure under FOIA 2000 • The Freedom of Information Act 2000 s.53 did not entitle an accountable person to issue a certificate to override a court's decision that information should be disclosed simply because he disagreed with its conclusion. Accordingly, the Attorney General had not been entitled to issue a s.53 certificate to override an Upper Tribunal decision that communications between the Prince of Wales and government departments should be disclosed.
  29. 29. Van Ostade v Carmarthenshire CC PAD Chimneys • Listed building Enforcement Notice re five chimney stacks at Maesycrugiau Manor, Carmarthen • uncompleted project - large Edwardian country house to replace previous house destroyed by fire • Serious errors in EN • But as capable of correction on the evidence at the public inquiry • Therefore EN not a nullity, unlike previous EN • Also costs application – stalemate over discussions and prosecution caution – not unreasonable behaviour
  30. 30. Community Infrastructure Levy • Regulation 123 – 6 April 2015 cut off in relation to pooling now passed. – Inventive solutions now required in those authorities which do not have CIL schedules in place
  31. 31. Community Infrastructure Levy • R(oao Hourhope Ltd) v Shropshire Council [2015] EWHC 518 (Admin) – To qualify for reduction in CIL levy under regulation 40(7)(i) a developer has to show that the building is in actual lawful use for the relevant period. • Oxfordshire CC v SoSCLG [2015] EWHC 186 (Admin) – Inspector had not acted irrationally in concluding that some obligations were necessary but their monitoring was not.
  32. 32. EIA: screening opinions R(Mouring) v W Berks Council [2014] EWHC 203 (Admin) • JR of pp for 800 sq.m warehouse & offices in AONB • LPA relied on an automated questionnaire for EIA checks. • Failure to consider whether “urban development project” • Quashing of consent following erection of building R(CBRE Lionbrook) v Rugby BC [2014] EWHC 646 (Admin) • JR of retail park development • Proposal altered post screening and no further opinion given • “Where it appears to the relevant planning authority” (Reg 7 of 2011 Regs) gave LPA discretion to judge whether changes called for a fresh opinion and its decision not to require one here was “legally impeccable”
  33. 33. EIA: screening opinions R(Gilbert) v SSCLG & Harborough DC [2014] EWHC 1952 (Admin) • JR of SSCLG’s negative screening direction and LPA’s grant of pp for Bruntingthorpe Proving Ground removing noise limiting condition • The precautionary principle must be considered in the light of the stage of the decision-making process. • LPA reasonably concluded there would be no significant impact on the basis of the evidence at a 4-day enforcement inquiry and a 2- year noise trial (with only 4 breaches of noise conditions). • Screening opinion made clear that cumulative impacts were considered and the reasons for it. • Gilbert makes explicit what for a long time has been implicit in EIA, namely, that consideration of likely significant effects requires a precautionary approach. Appeal dismissed 03.03.15
  34. 34. SEA: business as usual? No Adastral New Town v Suffolk Coastal DC [2015] EWCA Civ 88: • Failure to conduct environmental assessment in first 4 years of plan process found not vitiate entire SEA process • Any prior deficiencies cured by subsequent examination and public consultation Performance Retail Partnership v Eastbourne BC [2014] EWHC 102 (Admin): SEA not vitiated by lack of assessment of a minor modification recommended by Inspector in EiP. Ashdown Forest Economic Development v SSCLG & Wealden DC [2014] EWHC 406 (Admin); Zurich Assurance v Winchester CC [2014] EWHC 758 (Admin) : wide discretion to LPAs in SEA judgments BUT in Satnam Millenium v Warrington BC [2015] EWHC 370 (Admin) claimant succeeded (in part) where a substantive failure to comply with Sched.2 of 2004 Regs. on SEA of proposed LP mods.
  35. 35. Nuisance Lawrence v Fen Tigers [2014] UKSC 13 (1) The fact that a planning authority or other regulator takes the view that an activity is acceptable should not affect private property rights and common law nuisance claims should be available to vindicate those rights. “The grant of planning permission for a particular development does not mean that that development is lawful. All it means is that a bar to the use imposed by planning law, in the public interest, has been removed.” Lord Neuberger at [89]
  36. 36. Nuisance Lawrence v Fen Tigers [2014] UKSC 13 (1) The fact that a planning authority or other regulator takes the view that an activity is acceptable should not affect private property rights and common law nuisance claims should be available to vindicate those rights. “There is no principle that the common law should “march with” a statutory scheme covering similar subject matter. Short of express or implied statutory authority to commit a nuisance ... there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights.” Lord Neuberger at [92], citing with approval Carnwath LJ in Barr v Biffa
  37. 37. Nuisance Lawrence v Fen Tigers [2014] UKSC 13 (2) an award of damages in lieu of an injunction might be the appropriate remedy in cases where the defendant’s nuisance- generating activity has significant public interest dimensions Departure from Shelfer: “a person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the court to sanction his doing so by purchasing his neighbour’s rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be.”
  38. 38. Matthew Horton QC, John Steel QC, Richard Harwood QC and Jon Darby 39 Essex Chambers London & Manchester www.39essex.com • 39 Essex Chambers 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. 39 Essex Chambers‘ members provide legal and advocacy services as independent, self-employed barristers and no entity connected with 39 Essex Chambers provides any legal services. 39 Essex Chambers (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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