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Planning and Environment Case Law Update

Richard Harwood QC, Martin Edwards and Caroline Allen

Based on papers by Stephen Tromans QC, John Pugh-Smith, Justine Thornton, Richard

Wald, Rose Grogan and Ned Helme

PLAN-MAKING

Tesco challenged the decision of the local planning authority to grant planning permission to

a competitor for the development of an out-of-centre superstore which was only 800m from

the local Tesco. Tesco argued that the grant of planning permission was based on a

misunderstanding of one of the policies in the development plan.

Tesco Stores v Dundee City Council [2012] UKSC 13

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1 The particular issue of interpretation before the court was: did “suitable” mean “suitable for the development proposed by the Applicant” (as the Council contended), or “suitable for meeting identified deficiencies in retail provision in the area” (as Tesco contended).

The main issue in the case

was whether it is up to the court to interpret the meaning of policies in the development plan

or whether a local authority may adopt its own interpretation which will be immune from

challenge except on Wednesbury principles.

The Supreme Court held that in principle, policy statements should be interpreted objectively

in accordance with the language used read in its proper context. The meaning of a policy is a

matter for the court to interpret. The application of a particular policy to a particular set of

facts falls within the judgment of the local planning authority and can only be challenged on

the basis of irrationality. Such an error in interpretation would only be material if there was a

real possibility that determination of the application might otherwise have been different.

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Before this case, it was considered settled law that the interpretation of planning policy was

primarily a matter for the decision maker.2Following the Tesco case, there is now scope for

challenges to planning decisions on the grounds that the decision maker has erred by

misinterpreting a relevant policy.

Tesco has since been followed by the Court of Appeal in R (on the application of TW

Logistics) v Tendring District Council and Anglia Maltings (Holdings) Ltd (CA) [2013]

EWCA Civ 9.

The Court granted the application despite the defendant’s argument that it had no jurisdiction

because the challenge was not in accordance with the provisions of s.113 Planning and

Compulsory Purchase Act 2004 (“PCPA 2004”). Lindblom J held that the ouster clause in

s.113(2)

The Manydown Company Ltd v Basingstoke and Deane BC [2012] EWHC977

This case concerns antecedent documents to Development Plan Documents. The claimant

applied for judicial review of the defendant local authority’s decision to promote a site as

available for development. In 2005, the local authority had unsuccessfully promoted the site

for development and in 2006 it suspended its involvement in promoting the site. In 2010, a

housing land availability assessment concluded that the site was likely to be available for

development. The local authority refused to reconsider its decision to cease promoting the

site for development. In 2012, during the process of preparing a core strategy, the council’s

pre-submission draft core strategy set out sites selected for the promotion of development and

the claimant’s site was not included. The pre-submission core strategy was approved for

consultation and the claimant initiated judicial review proceedings.

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2 See R v Derbyshire DC ex parte Woods [1997] JPL 958 3S.113(2) A relevant document must not be questioned in any legal proceedings except in so far as is provided by the following provisions of this section. (3) A person aggrieved by a relevant document may make an application to the High Court on the ground that–

(a) the document is not within the appropriate power; (b) a procedural requirement has not been complied with.

must be interpreted strictly. The pre-submission draft core strategy was not a

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relevant document and the challenge was against two decisions which were antecedent to the

statutory process.

Lindblom J’s approach in this case requires local planning authorities to give careful

consideration to protecting themselves from public law challenges in the earlier stages of

preparing Development Plan documents. Such challenges will inevitably cause delay to the

process. In the Manydown Ltd case itself, the Core Strategy is still in the pre-submission

stages, with further consultation due in Spring 2013.

RSS

The court held that the lawfulness of North Herts’ decision could not be indirectly challenged

by applying to quash the Inspector’s decision. The Inspector did not have jurisdiction to

determine the lawfulness of North Herts’ decision and therefore was required to examine

Stevenage’s core strategy on the basis that North Herts had acted lawfully. Development Plan

R (on the application of Stevenage BC) v SSCLG& North Herts DC [2011] EWHC 3136

This case concerns the impact of the revocation of RSS on the preparation of local plans.

Stevenage BC applied to quash the decision of a planning inspector that its core strategy was

unsound. A large proportion of housing planned under Stevenage’s strategy was to be built in

the neighbouring local authority, North Hertfordshire. When the Secretary of State

announced his decision to revoke RSS, North Hertfordshire decided not to co-operate in

achieving the RSS aim of growth for Stevenage. It planned to submit its core strategy after

RSS had been revoked. The Inspector concluded that because the housing numbers could no

longer be achieved, Stevenage’s core strategy was unsound. Stevenage argued that the

Inspector had erred by finding that North Hertfordshire was entitled to take into account the

revocation of RSS given that the decision in Cala Homes held that it was unlawful for local

authorities to prepare development plan documents to take the planned revocation of RSS

into account.

(4) But the application must be made not later than the end of the period of six weeks starting with the relevant date.

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documents must be in conformity with national policy but there is no requirement that earlier

steps or decisions also have to be in conformity. The relevant date is when the plan is

submitted for examination. The inspector was entitled to take North Herts’ decision into

account and could not lawfully have ignored the impact of the uncertainty caused by such a

decision because the concept of soundness includes practical implementation.

The treatment of co-operation in this case is of significant interest in seeking to understand

how the duty to co-operate created by section 110 of the Localism Act 2011 will operate. The

NPPF also encourages strategic planning across local boundaries. The exact requirements of

the duty in the Localism Act and provision in the NPPF are yet to be defined, and may be a

fruitful source of litigation in the future.

In mid-February 2012, the Secretary of State signed a consent order quashing his decision.

The Secretary of State conceded that he had erred in law by failing to give adequate reasons

when considering the effect that the SEA process should have on the weight to be attached to

the proposed revocation of RSS. So, ultimate success goes to Cala Homes in this protracted

litigation

Barton Farm (consent order)

The Secretary of State rejected the landowner’s application for permission to build 2000

houses on greenfield land at Barton Farm, Winchester, despite the recommendation from the

inspector to grant planning permission. The Secretary of State concluded that it was

premature to grant the application on the grounds that it would undermine local plan making

because the council’s emerging core strategy and consultation needed time to develop.

4. The Secretary of State granted planning permission for Barton Farm in autumn

2012.

4That started with

Arun District Council v SSCLG & Green Lodge Homes LLP (QBD, unreported, 25 January

2013)

R. (on the application of Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 2866 (Admin) and ended with a decision letter granting planning permission upon the basis of a lack of an adequate five year housing and supply.

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Here, a first appeal had rejected a housing proposal for being within a strategic gap and

contrary to the South-East Plan. Following the first Cala case, that decision letter had been

quashed by consent and the appeal remitted to a second inspector. She considered matters

afresh, concluded that Localism Act should be given limited weight because environmental

assessments were still taking place regarding the revocation of RSS and granted consent.

Dismissing the appeal the High Court found no error in the inspector’s reasoning.

R (on the application of Hinds) v Blackpool BC (CA) & Kensington Developments Ltd [2012]

EWCA Civ 466

The claimant applied for permission to apply for judicial review of the local authority’s

decision to grant outline planning permission for a residential development. The resolution to

grant planning permission was made in March 2010 and the decision was published in July

2010. In May 2010, the SSCLG wrote to local planning authorities informing them of the

government’s intention to revoke RSS. The claimant sought permission to apply for judicial

review on the basis that 1) the local authority ought to have referred the application back to

the planning committee in light of the government’s announced change in national planning

policy; and 2) the council had failed to take into account the decision to revoke RSS, which

was a material consideration.

The judge held that while the decision to revoke RSS could be a material consideration even

though it was subsequently held to be ineffective, on the facts of this case the decision had

been made on the basis of local planning strategies and provision of affordable housing. The

revocation of RSS would have had no effect on the planning committee’s decision. The Court

of Appeal dismissed the appeal on the basis that the emerging policy was not a material

consideration for this particular planning application and there was no evidence to show that

the judge had erred in concluding that the government’s emerging policy was not a material

consideration because a material consideration has to be something which is capable of

tipping the balance.

Fox Strategic Land and Property Limited v Secretary of State for Communities and Local

Government & Cheshire East Council [2012] EWHC 444 and [2012] EWCA Civ 1198 (CA).

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The Secretary of State refused an appeal against the refusal of planning permission on the

basis that while the proposed housing development would contribute towards meeting a

shortfall in housing land (and therefore was compliant with the RSS post-Cala Homes), that

benefit was outweighed by the proposal’s conflict with saved development plan policies in

respect of settlement boundaries and restrictions on development in the countryside. His

decision was inconsistent with a previous decision he had made in respect of a similar

development in the same town. In particular, he raised new points such as prematurity and

localism. No explanation was given for the difference in approach. The Secretary of State did

not address the apparent conflict between the two decisions and instead concluded that his

earlier decision carried no weight.

The High Court granted the claimant’s challenge on a number of grounds. First, the Secretary

of State had erred by failing to give weight to his previous decision. The two cases were

concerned with very similar facts and the Secretary of State could not, without giving clear

reasons, determine one appeal in a way that was contradictory to another. No reasons were

given for the Secretary of State’s conclusion in one case that the application conflicted with

spatial policy objectives and in the other that a very similar application did not. Secondly, the

Secretary of State had failed in his earlier decision to mention the “prematurity” argument

and the effect that granting permission would have on the local development framework

process. Finally, the Secretary of State had failed to apply the correct test in PPS7 (loss of

agricultural land). HHJ Gilbart QC also commented that when the Secretary of State is faced

with two appeals relating to similar proposals in the same town, he would significantly

reduce the risk of inconsistent decisions if he heard the appeals together.

The Secretary of State appealed to the Court of Appeal. The Court of Appeal dismissed the

appeal on similar grounds to the High Court. Again, the Court of Appeal stressed the need for

consistency in the planning process and deciding like cases alike. A decision-maker is free to

disagree with a previous decision but he must have regard to that decision and give reasons

for departing from it. However, the Court of Appeal disagreed with the High Court that the

Secretary of State had failed to apply the correct test in PPS7. On reading the decision letter

as a whole it was clear that he had taken the correct approach to the policy and one instance

of a hyperbolic expression was not a ground for quashing the decision. In any event, as the

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judge below held that the approach to PPS7 was not a sufficient reason to quash the decision,

there was no reason to allow the appeal and restore the Secretary of State’s decision5

Environmental Impact Assessment

EIA is an area that continues to generate a significant proportion of environmental law

litigation. This is likely to continue in the near future, although in the medium term it

is possible that the volume of case law will be reduced by amendment to the EIA

Directive.

Proposed amendment to the EIA Directive

The EIA Directive has been in existence for over 25 years and is considered by the

European Commission to be in need of a "comprehensive overhaul". On 26 October

2012 the Commission published a draft Directive proposing various amendments to

the current Directive (2011/92/EU). The most significant are:

.

a. Changing the definition of "project" in Art 1 to make it clear that

demolition works are included.

b. Amending Art 2(3) to introduce an EIA "one-stop shop" to allow for the

coordination of assessment procedures under the EIA Directive and other

EU legislation.

c. Amending Art 4 to streamline the screening procedure and to seek to

enhance the consistency of Member States' approaches to ensure that EIAs

are required only when it is clear that there are significant environmental

impacts.

d. Amending Art 5 with a view to reinforcing the quality of information and

streamlining the EIA process.

5By way of a postscript, the Secretary of State has now issued (February 2013) a “minded to allow” decision upon the basis of a lack of an adequate five year housing land supply.

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e. Amending Art 6(6) with a view to reinforcing the role of environmental

authorities and defining concrete time-frames for the consultation phase on

the environmental report.

f. Significant amendment to Art 8 including: (i) the setting of a requirement

for a time-frame for the conclusion of the EIA procedure; (ii) a

requirement for competent authorities to include in the development

consent itself some items substantiating the decision; (iii) mandatory post-

completion monitoring, but only for projects that will have significant

adverse environmental effects, according to the consultations carried out

and the information gathered (including the environmental report); and (iv)

a requirement that the competent authority verify that the information of

the environmental report is up to date before deciding to grant or refuse

development consent.

g. An amendment to Art 9 to include a description of the monitoring

arrangements in the information provided to the public when development

consent is granted.

h. Various amendments to the Annexes including clarification of and

addition to the Annex III criteria.

The draft Directive will now be considered by the European Parliament and the

Council to be adopted through the co-decision procedure. It is expected to enter into

force in March 2014, depending on the progress of the legislative process.

Test for EIA development

In R (Loader) v SSCLG and others[2012] 3 CMLR 29 the Court of Appeal gave

important guidance on the proper test in screening. It rejected the Appellant’s

suggestion that screening was required in all cases where the effect would influence

the development consent decision (Pill LJ suggesting at [46] that such an approach

would “devalue the entire concept”). In the Court’s view the test to be applied is: “is

this project likely to have significant effects on the environment?” The criteria to be

applied are those set out in the EIA Regulations and judgment is to be exercised by

planning authorities focusing on the circumstances of the particular case. The

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decision-maker must, however, have regard to the precautionary principle and the

degree of uncertainty as to environmental impact at the date of the decision.

Split projects

Two recent cases concerning splitting are of note. The first is Bowen-West v SSCLG

[2012] EWCA Civ 321 in which Laws LJ held that the question whether an

environmental statement for the deposit of low level radioactive waste should have

considered a larger scheme (a future expansion of the landfill in question intended to

be achieved by 2026) within the context of “indirect, secondary or cumulative effects”

(para.4 of Pt I of Sch.4 to the 1999 Regs) was an issue of fact and judgment. He

rejected the Appellant’s contention that the question is one of law and declined to

refer the matter to the ECJ.

The second is R (Burridge) v Breckland DC [2012] EWHC 1102 (Admin) in which

HHJ Waksman QC considered the screening opinion requirements of the 1999

Regulations in the context of a renewable energy facility application which had been

‘split’ into two sites. He considered that Regulation 7 required the authority to

consider the “application before it” and that the “development in question” referred

only to the development in the individual application. His judgment has recently been

challenged in the Court of Appeal on the basis that, although his construction

accorded with domestic principles of construction, a broader purposive construction

of the Regulations focusing on the proper ‘project’ was required under

Marleasingprinciples. It is to be hoped that the Court of Appeal’s (hopefully

imminent) judgment will give some much needed clarity in this tricky area.

Screening directions

With his usual thoroughness, Lindblom J has given guidance on the Secretary of

State’s power of direction under Regulation 4(8) of the 1999 Regulations (now

replaced by Regulation 4(9) of the 2011 Regulations) in Threadneedle Property

Investments v Southwark LBC [2013] Env LR 1. The judge emphasised the

exceptional nature of the power, exceptional not just in the sense that it was reserved

to the SSCLG but also in the sense that he would only use it in an exceptional case.

The law in this area is likely to be addressed again in the upcoming Court of Appeal

judgment in Burridge.

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Concept of ‘consent’

In Case C-121/11 Pro-Braine ASBL and others v Commune de Braine-le-Chateau

(19 April 2012) the Third Chamber of the ECJ held that a definitive decision relating

to the carrying on of operations at an existing landfill site, taken on the basis of a

conditioning plan, pursuant to Article 14(b) of the Landfill Directive (1999/31), does

not constitute a ‘consent' within the meaning of Article 1(2) of the EIA Directive

unless that decision authorises a change to or extension of that installation or site,

through works or interventions involving alterations to its physical aspect, which may

have significant adverse effects on the environment within the meaning of point 13 of

Annex II to the EIA Directive and thus constitute a ‘project' within the meaning of

Article 1(2) of that Directive.

Definition of ‘development’

In the important case of R (Save Woolley Valley Action Group Ltd) v Bath and

North East Somerset Council [2013] Env LR 8 Lang J found that the Council had

erred in law in taking too narrow an approach to the meaning of ‘development’ in

relation to some poultry units. On the basis of that error, the Council had not

addressed itself to the question of whether the units fell within the scope of the EIA

Directive or Regulations. Lang J found that the units were capable of coming under

‘intensive livestock installation’ under the Regulations and, as such, should have

been considered by the Council for an EIA. Of particular interest in this case is Lang

J’s view (see [113]) that the EIA Directive could only be effectively implemented in

the UK if the definition of ‘development’ in section 55 of the TCPA was interpreted

broadly so as to include projects which required an EIA under either the Directive or

the Regulations.

Consultation

In R (Halebank Parish Council) v Halton Borough Council [2012] EWHC 1889

(Admin) HHJ Gilbart QC found that a decision not to extend a consultation period on

an environmental statement amounted to a breach of Article 6 of the EIA Directive

and a legitimate expectation the Parish Council had as to the conduct of the

consultation process.

The role of inspectors

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Judge Keyser QC has drawn attention to the limited role of Inspectors under

Regulation 9(2) of the 1999 EIA Regulations (now Regulation 12(2) of the 2011

Regulations) in Gregory v Welsh Ministers[2013] EWHC 63 (Admin). If on a section

78 appeal there is a question as to whether the application is an EIA application: (i) a

negative screening opinion from the local planning authority is not conclusive of the

issue; and (ii) the Inspector’s role is to ask himself whether the application “may be”

an EIA application; if he answers that in the affirmative he must refer the question to

the Secretary of State and has no jurisdiction to determine the appeal (except by

refusing planning permission) before he receives a screening direction.

Strategic Environmental Assessment

Alternatives

The key decision on alternatives in the last twelve months is Heard v Broadland

District Council [2012] Env LR 23 in which Ouseley J adopted a broad and purposive

approach to the issue under Article 5(1) of the SEA Directive and Regulation 12 of

the SEA Regulations. He found that there was no express requirement in the directive

or regulations for the selection of the preferred option, as distinct from the reasons for

the selection of the alternatives, to be considered, but that “a teleological

interpretation of the directive, to my mind, requires an outline of the reasons for the

selection of a preferred option, if any, even where a number of alternatives are also

still being considered” [69]. He also found that there was no express requirement that

alternatives be appraised to the same level as the preferred option but he considered

that the directive was best interpreted as requiring an equal examination of the

alternatives which it is reasonable to select alongside the preferred option.

Another key case is Cogent Land LLP v Rochford District Council [2013] 1 P&CR 2

which is a good illustration of the fact that SEA is a process in which defects may be

cured. In the Cogent case Singh J was inclined to accept that there had been errors in

the assessment of alternatives at the preferred options stage. However, he found that

an Addendum report which had later been produced was adequate and capable in law

of curing any defects which had arisen.

SEA of local development documents

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The scope of the SEA Directive is governed by Art 2 which provides that “plans and

programmes shall mean plans and programmes … which are subject to preparation

and/or adoption by an authority at national, regional or local level… and which are

required by legislative, regulatory or administrative provisions”. The meaning of

‘required’ in this context has been explained by the ECJ in the recent case of Inter

Environment Brussels ASBL and others v Region of Brussels (C-567/10). The ECJ

rejected an argument that required meant ‘compulsory’ and held that “plans and

programmes whose adoption is regulated by national legislative or regulatory

provisions which determines the competent authority adopting them and the

procedure for preparing them must be regarded as ‘required’ within the meaning and

for the application of Directive 2001/42 and accordingly subject to an assessment on

their environmental effects in the circumstances which it lays down.”

This definition of ‘required’ was applied by the High Court in R (Wakil) v

Hammersmith and Fulham LBC [2013] Env LR 3. In that case there was an issue as

to whether the document was an SPD or a DPD. Neither sort of document is

‘compulsory’ but both are ‘required’ under the ECJ’s definition. On that basis both

come within the definition of ‘plans and programmes’ in Art 2 (and also Regulation

2(1) of the SEA Regulations). On the document at issue in Wakil the High Court

found that, whether it was an SPD or a DPD, it did fall under the description in Reg 5

of the SEA Regulations and so a determination under Reg 9(1) had been required on

whether or not it was likely to have significant environmental effects.

Scottish roads

In Walton v The Scottish Ministers[2012] UKSC 44the Supreme Court considered a

challenge to the Ministers’ decision to authorise a new road. This was a development

consent authorising a project and as such had been subject to EIA. The principle basis

for the appeal was an attempt to bring the project within the SEA Directive on the

basis that a decision to enlarge the project was a modification of the regional transport

strategy, an attempt which was comprehensively rebuffed by Lord Reed at [63]-[70].

For an English audience, the case is of principle interest for Lord Carnwath’s obiter

discussion of discretion after Berkeley at [124]-[140] (discussed at para 10 above).

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DECISION-MAKING: MATERIAL CONSIDERATIONS

R (on the application of Vieira and Saph) v London Borough of Camden &Bozi[2012] EWHC

287

In a neighbour dispute, the interested party erected a conservatory and trellis screen without

planning permission. An application for retrospective planning permission was made. The

local authority consulted the claimant, who objected. Following negotiation, the interested

party re-submitted revised drawings of the trellis, amending the application. Planning

permission was granted but the claimant had not been consulted by the local authority on the

amended application. The claimant claimed breach of legitimate expectations on the basis

that the council’s Statement of Community Involvement, published on its website, provided

that it would consult objectors on revised applications, and that documents and reports would

be available for comment online before they were referred to the members briefing panel.

Finally, the claimant argued that following the revised drawing, the local authority should

have reconsidered whether to determine the application in committee or under delegated

powers.

The court held that there had been a breach of legitimate expectation in respect of all grounds

on the basis that it was unfair to deny the claimant the opportunity to know the precise details

of the application and be given the opportunity to comment on it. It was also prejudicial to the

claimant to be denied the benefit of a re-consideration of how the application should be

determined. The local authority sought to argue that in any event, no relief should be granted

because it was inevitable that planning permission would be granted. The Court rejected this

argument, quashing the planning permission. The grant of permission was not inevitable

because there remained a question of whether the amendments to the scheme made it

acceptable.

R (on the application of Godfrey) v Southwark LBC [2012] EWCA Civ 500

In another case about legitimate expectations, the Court of Appeal considered an appeal

against a decision of the High Court refusing permission to judicially review the grant of

planning permission by a planning authority for mixed use development.

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The site had been a district centre providing community facilities, including a freestanding

community hall of around 400m2. In 2002, the Council prepared a planning brief relating to

the site which made it clear that any developer would be expected to improve the site’s

community facilities or create new infrastructure, which may include building a new

community hall on the site. In 2007 the council adopted a UDP which identified the uses for

the site as a community centre and health centre. Planning permission was granted by the

Council in 2010 for redevelopment of the site, which included a community centre of around

124 m2 contained within the Health Centre.

Local residents challenged the grant of permission on a number of grounds, and the Court of

Appeal’s judgment concentrates on the fourth ground that there was a substantive legitimate

expectation that better and larger facilities would be provided. The appellant argued that

previous consultation between the Council and local community, combined with the terms of

the planning brief, had given rise to a substantive legitimate expectation that any grant of

planning permission would include a freestanding community hall at least as large as the

existing hall on site.

The Court of Appeal held that a rigorous standard is to be applied when a substantive

legitimate expectation is claimed on the basis of a representation or promise by a public

authority. The duty of public authorities to exercise powers in the public interest must be kept

in mind. Only when, in the court's view, to fail to give effect to the promise would be so

unfair as to amount to an abuse of power, should it override other considerations. Further an

earlier approach of the local planning authority to an issue, even if amounting to a planning

policy, cannot have primacy over the statutory duty of the council to assess the current

situation. The Court of Appeal placed significant weight on the Council’s duty under s. 70(2)

TCPA 1990 and s.38(6) PCPA 2004 to determine an application in accordance with the

development plan unless other material considerations indicate otherwise. The UDP policy

did not require a particular size of provision for community facilities and the Council was

required to assess current needs.

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What clearly emerges from this decision is thata local authority had a statutory duty to take

into account all material considerations and existing circumstances at the time of the

decisions and that the statutory duty will not be discharged lawfully if one consideration

could in law prevail over the duty to have regard to other considerations. Whilst local

residents have an expectation that consideration would be given to particular matters, the

expectation does not extend to give legal primacy to that expectation. It is unlikely that a

substantive legitimate expectation of a particular outcome (i.e. the terms of planning

permission, conditions to be attached to a planning permission, or whether permission will in

principle be granted for a particular type of redevelopment) will be established based on

previous planning briefs, planning policies, or discussions with the planning authority.

The Supreme Court held that as a custodian of public funds, the local authority is entitled to

have regard to the cost to the public of its actions. Section 97 requires a local authority to

consider whether revocation is “expedient” and it is entitled to take into account material

considerations when coming to a view. Where one of the effects of the decision is the liability

to pay compensation, it is difficult to see why consideration of the financial effects should be

Health and Safety Executive v Wolverhampton City Council [2012] UKSC 34

The question in this case was whether, in considering whether to revoke or modify a planning

permission under s.97 TCPA 1990, a local authority is entitled to take into account the

compensation that it would or might have to pay under s.107 TCPA 1990.

The local authority had refused to revoke a planning permission to a developer for the

erection of four blocks of student accommodation in close proximity to a liquefied petroleum

gas facility. The Health and Safety Executive asked the local authority to revoke planning

permission but the local authority refused, giving one reason as the compensation it would be

liable to pay under s.107 TCPA 1990. The Health and Safety Executive applied for judicial

review and the Court of Appeal held that the decision was unlawful and the local authority

ought to reconsider. The Court of Appeal was divided on the issue of whether compensation

is capable of being a material consideration.

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excluded. There was no requirement that the assessment of whether to exercise powers under

s.97 should be limited to planning considerations.

This case clarifies the previously contradictory cases from lower courts on the question of

whether compensation under s.107 is capable of being a material consideration.

CHANGE OF USE

Hertfordshire CC v SSCLG [2012] EWCA Civ 1473

This case concerned intensification of use constituting a material change of use.A scrap metal

yard had been operated under an extant planning permission since 1972. The County Council

considered that the substantial increase in throughput and the erection of buildings had

constituted a material change of use and issued enforcement notices concerning the increased

noise, dust, vehicles and new buildings. Upholding the Inspector’s decision the Court

considered that he had applied the right test, namely, whether the material change of use had

changed the character of that use.In assessing whether there had been a change of character in

the use, the impact of the use on other premises was a relevant factor. It was necessary to

consider both what was happening on the land and its impact off the land when deciding

whether the character of the use had changed; and although the inspector's reasoning about

throughput and extraneous factors was questionable those matters should have been identified

in the enforcement notices in order for the local authority to rely on them.

This case reached the national media as it concerned a challenge to the grant of planning and

listed building consent of a property constructed in the late 1890s by Sir Arthur Conan Doyle.

The Interested Party had used the property as a hotel, but since then it had stood vacant for

several years. It applied for planning permission to divide up the property into separate

dwellings. An individual, Mr Norris, subsequently applied for planning permission to change

the property into a single dwelling house. The Council's planning officer informed the

planning committee of Mr Norris’ application, but nonetheless it decided to grant planning

R (on the application of Gibson) v Waverly Borough Council [2012] EWHC 1472

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permission on the basis that its proposed development would not result in harm justifying

refusal in the public interest. Mr Norris' application for planning permission was later

granted.

Allowing the application Cranston Jdrew attention to the statutory mandate to have regard to

the preservation of heritage assets. He found that national planning policies seek the optimum

viable use for a building, which includes a consideration of what the optimum viable use is in

the interests of the asset’s long term conservation, not simply its optimum use. He held that

the optimum use and optimum viable use was as a single dwelling (albeit that it was not the

most profitable use), and, crucially, that the planning officer should have referred the matter

back to the committee following the grant of Mr Norris’s planning application; for that was a

new material consideration which should have been taken into account.

An appeal by the developer to the Court of Appeal was dismissed.

Sheila Tara Moore v SSCLG and Suffolk Coastal DC [2012] EWCA Civ 1202

This case concerned whether using a dwelling for commercial holiday lettings could amount

to a material change of use. The property had been used for large parties of people instead of

being let to single households. The Court of Appeal held, unsurprisingly, that this would be a

question of fact and degree in each case and the answer would depend on the particular

characteristics of the use as holiday accommodation.

APPEALS & LITIGATION

In Ashley, the claimant objected to a housing development on the grounds of noise and loss of

amenity to the neighbouring houses. Planning permission was refused on the basis of the

noise considerations and the matter proceeded to an appeal by way of written representations.

The claimant was invited to provide written comments by a certain date after which point he

Ashley v SSCLG & LB Greenwich & Taylor Wimpey (CA) [2012] EWCA Civ 547

18

was informed that no further representations could be made. On the last day before the

deadline for representations, the appellant developer submitted detailed expert evidence on

the noise issue. No copy was provided to the claimant and no prior notice of the report was

given. The Inspector concluded that there was no objection to the expert evidence and that it

adequately addressed the issue of noise and granted the appeal.

The claimant challenged the decision on the basis of procedural unfairness. The Developer

resisted the challenge on the basis that all the claimant had to do was attend the council’s

offices the day after the deadline, see the report and then apply to make further

representations.

At first instance, the challenge failed but the Court of Appeal allowed the appeal. The Court

of Appeal found that there was no duty incumbent on the claimant to attend the council’s

offices. He did not attend the offices on the basis that the deadline had passed and he did not

think there was much point. Further, he was not aware that the expert evidence had been

submitted. The claimant had not had a fair crack of the whip because he had been denied the

opportunity to comment on the expert evidence. Lord Justice Pill expressed the view that the

Planning Inspectorate’s guidance on written representations should be revised to prevent this

sort of unfairness occurring in the future by an overly strict approach to deadlines.

Welsh Ministers v RWE Npower Renewables [2012] EWCA Civ 311

RWE sought permission for a wind farm. The Countryside Council for Wales said that the

impact on peat bog habitat was significant whereas the Environmental Statement from RWE

said there was no significant impact. The Countryside Council for Wales failed to attend the

Inquiry and its concern about the conclusions in the Environmental Statement was not put to

RWE’s experts. The Inspector recommended refusal of planning permission on the basis that

there was an unacceptable risk of harm to the peat habitat that was sufficient to justify the

refusal of the proposal, which was confirmed by the Welsh Ministers.

19

In the High Court, RWE’s appeal was allowed on the basis that the Inspector failed to give

reasons for his conclusion on the effects on the peat bog habitat and that by failing to raise his

concern with RWE’s experts, there had been procedural unfairness. The decision was

overturned in the Court of Appeal. It was held that the Inspector was concerned with whether

the harm or risk of harm was sufficient to justify refusal. He was not bound to accept the

unchallenged expert evidence before him and was entitled to make his own planning

judgment. The background of the decision had to be taken into account when assessing

whether the reasons were adequate, RWE was aware of the issues and the importance of the

peat bog habitat. The Court of Appeal also held that there was no procedural unfairness.6

The claimant argued that the court had a duty to read the provisions of the statute in

accordance with the EU law principle of effectiveness and/or the claimant’s right to a fair

trial under article 6 ECHR. In confirming the decision of the High Court that it did not have

jurisdiction because the application was made out of time, the Court of Appeal held that the

wording of the statute was clear that time started to run on the date of adoption. The

Barker v Hambleton DC [2012] EWCA Civ 610

The Court of Appeal confirmed the principle in Hinde v Rugby BC and SSCLS [2011] EWHC

3684 that time to challenge under s.113 PCPA 2004 begins on the date of adoption of

theDevelopment Plan document.

In this case, the DPD was adopted on 21 December 2010 and time expired on 1 February

2011. In the afternoon of 1 February 2011, the applicant posted an application to quash part

of the Allocations DPD under the door of Leeds Court Centre. The application was sealed by

the court on 2 February 2011. The council’s Adoption Statement stated that an application

could be made within six weeks of 31 December 2010, in order to give people more time

over the holidays.

6 This case was applied in the recent case of Macarthur and others v SSCLG, King’s Lynn & West Norfolk Borough Council, E.ON Climate & Renewables UK Developments Ltd, Res UK & Ireland Ltd[2013] EWHC 3 where it was held that Inspectors are not generally under a duty to give reasons for accepting or rejecting expert evidence and that the inspector was not required to record or summarise what an expert had said in his written an oral evidence. The requirement to give reasons had been satisfied because there was no doubt as to what the Inspector had decided and why.

20

applicant’s right of access to the court had not been infringed because there was no

impairment of the very essence of his right of access. Similarly the EU principle of

effectiveness had not been broken. There was no reason why the claimant could not bring an

application within the time specified and the limit of 6 weeks was in any event a reasonable

one.

Permission to appeal to the Supreme Court was sought by the claimant and refused.7

Following Uniplex (UK) Ltd v NHS Business Services Authority [2010] PTSR 1377, the

requirement for promptness in bringing judicial review proceedings under rule 54(4) Civil

Procedure Rules

R (Berky) v Newport City Council [2012] EWCA Civ 378

8

In this case the Local Authority granted planning permission for the erection of a supermarket

and restoration of a former social club despite officers’ recommendation that the scheme did

not comply with retail policies and was on an out-of-centre site. The decision to grant

planning permission was made on 26 January 2011 and on 21 April 2011 the claimant

was held to be unlawful in cases concerned with EU law because it

contravened the principle of effectiveness. This has had a direct impact on domestic planning

cases because if the claimant can find an EU point (for example, EIA), the requirement for

promptness falls away and an application can be made on the last day before the 3 month

time limit expires (see e.g. R (U & Partners (East Anglia) Ltd) v The Broads Authority [2011]

EWHC 1824 (Admin)).

7See also: Lukaszewski v District Court in Torun, Poland [2012] UKSC 20. This is case from the extradition field and

is mentioned because it has the potential to impact on the recent line of cases about time limits and the absolute bar to

proceedings brought out of time in respect of planning appeals. The Supreme Court held in this case that in the

context of human rights cases the short statutory time limits for extradition appeals could be extended in exceptional

circumstances notwithstanding the clear wording of the statute. This case was raised in the grounds of appeal in

Barker but the point may be re-opened in another case in the future. 8(1) The claim form must be filed – (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose.

21

instructed solicitors, grounds of judicial review were filed on 26 April 2011, the Tuesday

after the Easter Monday Bank Holiday. The grounds included the decision not to require EIA

and the reasons for not following officers’ advice. The claimant failed at first instance

following a rolled-up hearing and appealed to the Court of Appeal.

The Court of Appeal addressed a number of important issues, including time limits for

judicial review proceedings. First, it held that the three month time period starts to run the

day after the grounds for the decision arise, therefore time ran from the 27 January 2011 and

expired on 26 April 2011. The claim was therefore brought just in time and in would have

been in time anyway because the day preceding it was a bank holiday.

The Court of Appeal addressed (obiter) the issue of timing more generally. It held that

promptness does not apply in respect of European law points raised in judicial reviews.

However, where there are mixed grounds of European and domestic law, promptness may

still apply to domestic grounds. The judges’ reasoning on this point does not reveal a clear

answer to the issue. Carnwath LJ held that the domestic grounds had not been brought

promptly whereas Sir Richard Buxton disagreed. The final judge, Moore-Bick LJ, did not

address the point in detail but said that he agreed that there was no reason that domestic law

and Community law challenges could not be subject to different time limits but that he agreed

that this case was not the right forum for resolving the issue. Berky will not be the last word

on timing. The court was further split on the issue of whether the court could decline relief on

the basis of undue delay for Community law points. The majority, Moore-Bick and Sir

Richard Buxton held that Uniplex did apply to the s.31(6) Senior Courts Act 1981 discretion

to refuse relief on the grounds of “undue delay” in making an application for Judicial

Review).

R (on the application of Macrae) v Herefordshire County Council & John Heath [2012]

EWCA Civ 457

Around the same time as Berky, Macraecame before the Court of Appeal. It touches on the

application of promptness to judicial review claims which raise purely domestic points.

22

The case concerned the duty to give summary reasons for granting planning permission. In

this case, the planning committee resolved to grant planning permission despite a

recommendation to refuse by the planning officer. The judge at first instance held that the

reasons given were inadequate because they referred back to a planning report which

recommended refusal of the application. The judge nonetheless declined to grant permission

to apply for judicial review on the basis that the application (brought within a few days of the

expiry of the 3 month time limit) had not been brought promptly.

The Court of Appeal upheld the claimant’s appeal against the judge’s refusal to grant

permission on the basis that the judicial review time limit could not be viewed in isolation of

the issue before the court. The Court of Appeal described the reasons for the grant as

“puzzling” and concluded that they left the claimant in the dark as to why the decision had

been made. The Court of Appeal held that the lapse of time caused no prejudice and that

permission should have been granted. The Court of Appeal allowed the claim and granted a

declaration that the summary reasons were inadequate. Although this was a victory for the

claimant, the Court of Appeal side-stepped the issue of whether promptness is still a feature

of domestic law following Uniplex.

ENFORCEMENT

The Claimant applied for judicial review of a decision of the magistrates’ court to re-open his

conviction for breach of an enforcement notice. The Local Authority and the Claimant had

been negotiating in the run up to proceedings in the Magistrates’ Court and had agreed that

the Claimant could retain part of the extensions to his property which had been the subject of

the enforcement notice. The Claimant was notified of the hearing in the Magistrates’ Court

the day before it was due to take place and, after calling the court, was under the impression

that he did not have to attend because there would be an adjournment. The hearing went

ahead and the Claimant was convicted and sentenced in his absence. He was fined the

R (on the application of Manorgale Ltd) v Thames Magistrates Court and Hackney London

Borough Council (Unreported, 22 January 2013)

23

maximum £20,000 fine. The Claimant applied to the Magistrates’ Court under s.142

Magistrates’ Court Act 19809

The Divisional Court held that this reasoning had been flawed. A Magistrates’ Court did have

the power to re-open the case if it was in the interests of justice to do so and the right of

appeal to the Crown Court did not allow for the Crown Court to correct a substantial

procedural error. The Divisional Court declined to exercise its discretion to direct the

Magistrates’ Court to re-open the conviction, because there was no substantial dispute of fact

between the parties and the suggestion that there may be legal argument by the appellant was

not evidenced. However, the sentence would be re-opened because when sentencing the

Court had failed to take into account the question of financial benefit under s.179(9) TCPA

1990.

to re-open the case but the application was refused on the

ground that the Magistrate’s Court did not want to act as an appellate court, that the matter

should go to the Crown Court and that it only had power to re-open the case if it had made a

mistake.

10 The Claimant was entitled to make the argument that he had not benefitted

financially from the breach of planning control.

Oxfordshire County Council v Wyatt Brothers (Oxford) Ltd & Others (CA) (unreported,

7 December 2012)

This case is an example of the full might of the courts’ power when it comes to breaches of

planning control. The defendants were sent to prison for a consistent failure to comply with

enforcement notices and an injunction requiring their company to remove unlawfully

deposited waste from the company’s site. The defendants were directors of the company and

there was evidence that the company had received over £1 million for the waste during the

1990s.

9s.180(1) A magistrates' court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so, and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make. 10 179(9)In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.

24

The Local Authority was granted an injunction, which was not complied with and contempt

of court proceedings were initiated. The Defendants, who were both over 70, received

suspended sentences of 4 months and six months imprisonment. They had one year to comply

with the injunction and remove the waste, which they failed to do. The sentences were

activated and both defendants were sent to prison. The sentence was upheld on appeal on the

basis that there was no alternative but to send the defendants to prison.

Doncaster Metropolitan Borough Council v AC and Others [2013] EWHC 45

The Local Authority applied for an injunction against the defendants, who owned and

occupied a green belt site outside Doncaster and who had been living there without planning

permission for some years. The defendants argued that they had no alternative pitches to go

to and granting an injunction would have a detrimental effect on their children and be a

disproportionate interference with their rights, and their children’s rights under article 8

ECHR.

HHJ Richard Salter QC reviewed the authorities and reminded himself that, following South

Cambridgeshire DC v Gammell[2005] EWCA Civ 1429, injunctive relief is unlikely unless

properly thought to be proportionate to the breach of planning control that has taken place. A

key consideration in the balancing exercise was the best interests of the Claimants’ children

and the Claimants’ and their families’ article 8 ECHR rights. It was a drastic step to require

six families to move from their home. However, this had to be balanced against the fact that

the claimants’ occupation of the site had always been unlawful.

The judge granted the application, reasoning that against the background of three and a half

years’ unlawful use of the site, there was a real risk that the planning system and criminal law

would be brought into serious disrepute if the court were to hold that the grant of an

injunction would be disproportionate because of the interference with the claimants’ and their

children’s rights. It would not be correct to give only limited weight to a local authority’s

decision and the requirements of the criminal law.

25

Localism Act 2011: Planning Enforcement Orders

The new enforcement provisions, contained in Chapter 5 Localism Act 2011 came into force

in the last year. These provisions include new powers for the enforcement of concealed

breaches of planning control after the normal time limit for enforcement has expired. Under

s.124 Localism Act 2011, a new s.171BA of the TCPA 1990 is inserted, allowing local

planning authorities to apply to the magistrate’s court for a Planning Enforcement Order

(“PEO”). An application for a PEO may be made up to 6 months after “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” and this section applies

notwithstanding the usual time limits in s.171B. A PEO entitles the local authority to take

enforcement action at any time within an “enforcement year”, defined as beginning 22 days

after the court’s decision to make the order is given.

A magistrate’s court may make a PEO in relation to an apparent breach of planning only if it

is satisfied on the balance of probabilities that the breach has been deliberately concealed by

any person or persons and the court must consider the making of a PEO to be just in all the

circumstances. The meaning of “deliberately concealed” is not defined, and is very likely to

be the source of future litigation.

The Localism Act also inserts new provisions into the TCPA 1990 relating to: twin-tracking

of applications for retrospective planning permission with enforcement appeals on the

grounds that permission ought to have been granted; assurances by a local authority that a

person is not at risk of being prosecuted in connection with the enforcement notice or certain

matters relating to the enforcement notice; increased powers to LPAs in relation to

advertisements, graffiti and fly posting. There is also an increase in the maximum fine for a

breach of condition notice.

Environmental Update

Nuisance

26

2. The most significant case of the year was the Court of Appeal’s decision in Barr v

Biffa [2012] EWCA Civ 312 in which CarnwathLJ (as he was then) made clear that

nuisance is to be assessed according to the traditional 19th century principles (no

absolute standard; assess by the character of neighbourhood) as opposed to any new

21st century approach whereby nuisance is considered in the context of statutory

regulation of the site. In addition the Judge’s assessment that an environmental

permit is not strategic enough to change the character of the area is noteworthy.

3. Whilst the legal principles may be clearer there are still practical problems associated

with resolving group litigation cost effectively. Technical modelling appears to be

assuming a greater importance in this respect. Anslow v Norton [2012] EWHC 2610

was the first case post Barr and Biffa. The judgment marks a new chapter in the story

on quantum of damage awards by providing for a range of awards assessed according

to odour modelling which had been done to establish the likely odour impact on a

range of Claimants.

4. The decision of the Supreme Court in Coventry v Lawrence [2012]1 WLR 2127 is

awaited and could herald another significant development in nuisance law about the

relevance of planning permission for an activity which is alleged to give rise to a

nuisance.

5. In the parallel field of statutory nuisance, challenges continue to the drafting of

abatement notices despite the plethora of previous cases, and the Administrative Court

in R (Fullers Farming Limited) v. Milton Keynes Council [2012] Env LR 17 is

another in the line which rejects legalistic points of challenge (in this case the failure

to specify whether the odour nuisance in question was prejudicial to health or simply

a nuisance).

Environmental permitting

6. The case of London Borough of Newham v John Knights (ABP) Limited is an

interesting case study in enforcement under the Environmental Permitting

Regulations. The company were prosecuted for alleged breaches of an environmental

permit and in particular the odour conditions. The company ran an abuse of process

argument that a Planning Inspector and not the Criminal Courts should consider

complex matters like BAT for odour control. The abuse argument was rejected. The

27

company was convicted and fined £120,000, plus £68,000 costs, plus compensation

orders of £250 each to affected residents. This is the largest fine yet obtained by a

local authority under the environmental permitting regime (the second largest being

the £75,000 imposed on the same company in February 2011).

7. In R(oao European Metal Recycling Ltd) v Environment Agency [2012] EWHC

2361 (Admin)) the Administrative Court quashed a suspension notice on the basis the

Environment Agency failed to specify in the notice the steps by which the operator

was to eliminate a risk of serious pollution by noise.

Environmental judicial review

Intensity of review

8. The courts have tended to adopt a relatively “hands off” deferential approach to

environmental decision makers like the Environment Agency and Natural England,

interfering only where the decision-maker can be shown to have acted irrationally in

the traditional Wednesburysense. However Lang J in R (Manchester Ship Canal Co

Ltd & Peel Holdings Ltd) v Environment Agency[2012] EWHC 1643 took an

interventionist approach to the interpretation of the Environment Agency’s flood

defence policies. The Environment Agency has permission to appeal on the basis the

Court’s approach was too interventionist.

9. In Bowen West v Sec of State [2012] EWCA Civ 321 Laws LJ declined to rule on an

argument that the Courts should adopt a more intensive scrutiny to questions of

European law which often arise in environmental judicial review. Nonetheless the

point remains pertinent given the prevalence of EU law in environmental law.

Discretion

10. The case of Berkeley v Sec of State remains the high point for Claimants seeking to

argue that the Court has no discretion not to quash a defective environmental decision.

Lord Carnwath has however been mounting a steady campaign to limit its boundaries,

the latest expression of which is inWalton v The Scottish Ministers [2012] UKSC 44

at [124]-[140]. The Courts will scrutinise the nature of the breach and the statutory

context in deciding how to exercise their discretion.

Promptness

28

11. It has been a central requirement of Judicial Review that a claim should be filed

promptly and in any event not later than 3 months after the grounds to make the claim

first arose. Following C-406/08 Uniplex; R. (Buglife) v Medway Council and R (U

& Partners (East Anglia) Ltd) v The Broads Authority,it is clear that promptness is

disapplied in environmental cases which raise EU law. However, the Court of

Appeal’s decision in Berky v Newport City Council[2012] EWCA Civ378 is now the

leading case in the domestic context albeit that all the observations on promptness

were strictly obiter and each Judge took a different view on whether and how Uniplex

applied in the purely domestic context. It remains to be seen how long it remains the

position that there are different timing requirements for making a claim according to

whether the claim raises matters of EU law or not.

Costs in discontinued and compromised claims

12. The default position had been that in the absence of a clear view as to how the

litigation would have resolved itself there would be no order to costs (the Boxall

guidance). However the number of instances in subsequent cases in which claimants

were deprived of their costs led some to question the default rule. The more nuanced

position is apparent in Court of Appeal’s decision in M v London Borough of

Croydon [2012] EWCA Civ 595 in which the Court emphasised that the general rule

is that the successful party is entitled to his costs, so the defendant would need to

justify another order but also emphasising that the Court is not in a good position to

ascertain who might have won and on what terms where a matter settles as opposed to

where a case is heard.

Costs protection

13. Costs and funding can raise significant practical obstacles for claimants who are often

interest groups or local residents. As a consequence, environmental judicial review is

leading the way in developing jurisprudence on costs protection, drive in large part by

the Arhus Convention. The Courts have also led the way and it is now difficult for

defendants in environmental judicial reviews to resist some form of PCO. The issue is

often the terms of the Protective Costs Order. The main issue which has occupied the

domestic Courts in recent times is whether the Aarhus requirement that litigation is

not “prohibitively expensive” is to be decided on an 'objective' basis (by reference to

29

the average citizen) or on a 'subjective' basis (ie the Claimant in question).The

position is uncertain.

14. Further developments in costs jurisprudence are likely. The European Commission

has commenced infraction proceedings against UK in respect of costs in

environmental JR cases under the PP Directive. The Supreme Court referred the

question of costs to the European Court in the case of C-260/11 Edwards v

Environment Agencyand judgment is awaited.

15. Meanwhile, the Ministry of Justice has proposed a costs regime for judicial review

cases falling within the scope of the Aarhus Convention and the EU Public

Participation Directive. A PCO would limit the liability of a claimant to pay a

defendant’s costs to £5,000, and £10,000 in the case of an organisation. It would limit

the liability of a defendant to pay the claimant’s costs to £35,000.

Consultation

16. R (Friends of the Earth& Others) v Secretary of State for Energy and Climate

Change[2012] EWCA Civ 28, is authority for the proposition that, exceptionally, a

challenge to a potential decision can be brought during a consultation period on the

decision. The Ministry of Justice Consultation Paper entitled “Judicial Review

Proposals for Reform” Ministry of Justice, Consultation Paper CP25/2012 is arousing

a great deal of concern among environmental groups.

References to the European Court

17. Our domestic judiciary are reluctant to refer cases to the European Court. Despite the

prevalence of EU law in environmental law only 10 cases were referred from 2007 to

2012. Two are currently pending before the European Court – R (Edwards) v

Environment Agencyand Fish Legal v The Information Commissioner, United

Utilities, Yorkshire Water and Southern Water which was referred in 2012.

18. Where given, the judiciary’s reasons for refusing an application to refer demonstrate a

variety of reactions ranging from irritation to rewriting the constitutional relationship

between the EU and domestic Courts (Lord Brown in Morge characterising the

European Court as an unhelpful assistant to the Supreme Court). During the course

of 2012 (in the face of repeated applications for a reference from Richard Buxton

Solicitors) there have however been indications that the Judiciary consider it prudent

30

(maybe to avoid a Kobler v Austria damages claim) to better explain their reasons for

refusing references. The reasons given by the Supreme Court in Bowen West for

refusing the application for a reference are fulsome in comparison with earlier cases.

Administrative decision making and expert evidence and reasons

19. Inspectors, who are experts in their own right, are finding it tricky to know how much

they need to explain the view they take of expert evidence before them. The Courts

also appear to be finding it difficult. In Macarthur v Secretary of State for

Communities and Local Government[2013] EWHC 3 (Admin) Lang J made clear

that she thought the Court of Appeal in RWE v N Powerhad got it wrong with the

consequence that ‘an unsuccessful party will usually not know, in any detail, why the

evidence of an expert has been accepted or rejected by the Inspector and therefore will

not be able to discern whether the Inspector has correctly understood and applied the

evidence of the expert’. She was however bound to follow the Court of Appeal and

did so. It looks like this issue has further to run.

Transfrontier shipment of waste

20. R v Ezeemo [2012] EWCA Crim2064,saw the Court of Appeal consider the

Transfrontier Shipment of Waste regime11for the third time12

21. In short, the three cases establish the following about the regime: 1) the criminal

offence of transporting hazardous waste to a country that is not a member of the

OECD is one of strict liability and is not ultra vires the EU parent Regulation or

disproportionate. 2) Art 36 of the EU Reg(exports for recovery to non OECD

countries is prohibited ) contains 2 simple but key concepts a) waste must be destined

for recovery b) export is the action of waste leaving the EU. 3) Waste can be destined

in 12 months. The

Court decisions arose from the large scale high profile prosecutions by the Agency in

relation to the shipping of televisions and paper to Africa and South Korea. Whilst the

prosecutions have been hugely expensive for the Agency and the fines low, the

Agency will nonetheless be pleased that all defendants pleaded guilty or changed their

plea over the course of 18 months as the Court of Appeal successively rejected their

defences.

11EU Regulation 1013/2006 and UK TFS Regulations (2007) 12The other cases are KV &Othrs v R [2011] EWCA Crim 2342 and R v Ideal Paper Co [2011] EWCA Crim 3237

31

for foreign parts long before it gets anywhere near the English/Welsh docks but it is a

question of fact to determine when it is ‘destined’ for another country. 4) The breadth

of activities caught by the regime is wide – anyone involved in the transport of waste

(by road, rail, sea) from point of origin where waste is collected/stored to the point it

is delivered to the foreign country. 5) Whether household waste has become paper

waste is a question of fact for the jury. There appears to be a de minimis threshold for

‘contamination’ by other materials but this is a question of fact (but the CA thought

the EA should produce guidance).

Habitats

Multiple authorities

22. Cornwall Waste Forum St Denis Branch v SSCLG [2012] Env LR 34 is an

important decision on the allocation of responsibilities under the Habitats regime

between the SSCLG and the Environment Agency. The case concerned a planning

permission for a waste incinerator which had been granted on appeal following a local

inquiry. The planning inspectorate had indicated that the Inspector would consider as

part of his remit whether an appropriate assessment under the Habitats Regulations

was needed. However, the Inspector had instead accepted the views of the EA, which

indicated that it would grant a permit for the scheme as it considered that there could

not be any adverse effects, so that appropriate assessment was not required. At first

instance the planning permission was quashed, the High Court accepting that C had a

legitimate expectation that the SSCLG would address whether an appropriate

assessment was required and would act as the competent authority in undertaking it.

The SSCLG appealed. Allowing the appeal, Carnwath LJ considered there to be three

reasons why the LE argument did not avail CWF: (i) the SSCLG was the relevant

competent authority and could not be bound by PINS or the Inspector to an election

under Reg 65(2) or to the form of his decision; (ii) the representations made had not

been binding; and (iii) the debate about responsibility under the Directive was of no

practical significance since whether or not he was decision-maker under the Habitats

Directive, he was entitled to rely on expert guidance from EA (and Natural England).

It would only be if their guidance was flawed that his decision would be open to

challenge. CWF had asserted that it was arguable that EA’s guidance was unlawful

32

but had not challenged it, thus providing no basis for sending the decision back to the

SSCLG for reconsideration.

IROPI

23. Elliott v SSCLG [2013] Env LR 5 concerned a challenge to the proposed “makeover”

of Crystal Palace Park. There were five grounds of challenge, the fourth of which

concerned bats and raised issues relating to “imperative reasons of overriding public

interest” for the purposes of Regulation 62 of the Habitats Regulations. The Inspector

had raised an issue as to whether the planned makeover might constitute IROPI but

had not decided the point. The SSCLG did not spell out that he had considered IROPI

but Keith J held that he must have done so. The point of wider interest in the case

concerns Keith J’s assessment of the Claimant’s contention that the need to raise

funds for a development could not as a matter of Community law constitute

exceptional circumstances forming the basis of an IROPI. Keith J noted the passage in

Solvay v Region Wallonne(C-182/10) where the ECJ stated at [76]-[77] that “[w]orks

intended for the location or expansion of an undertaking [will] only in exceptional

circumstances” satisfy the condition that the development “must be of such

importance that it can be weighed up against [the] directive’s objective of the

conservation of natural habitats …”. But he went on to find that “you cannot get from

that that if a particular feature of a set of proposals was included only because it

would provide some of the funding for the development as a whole, and if it happened

to be that aspect of the development which would have an impact on the conservation

of natural habitats, there cannot have been imperative reasons of overriding public

interest for permitting the development”. The Claimant therefore failed on the habitats

ground and also failed on the other grounds. There is an outstanding appeal to the

Court of Appeal including on the IROPI issue.

Other Areas - Case Digest

24. Freedom of Information: Birkett v DEFRA [2011] EWCA Civ 1606, a public

authority that holds environmental information for the purposes of the Environmental

Information Regulations 2004, and on a request for information made pursuant to the

Regulations refuses to give disclosure and states its reliance upon one of the permitted

exceptions in accordance with Reg.14(3), may then rely as of right upon a different

exception or exceptions in proceedings before the Information Commissioner and/or

33

the First-Tier Tribunal (General Regulatory Chamber) (Information Rights) so long as

the new or additional exceptions are set out within the notice of appeal, or response to

a notice of appeal.

25. IPPC directive

26.

- themeaning of sows in subheading 6.6(c) of Annex 1 Møllerv.

HaderslevKommune(Case C-585/10). The expression ‘places for sows’, in

subheading 6.6(c) of Annex I to Directive 96/61, has to be interpreted as meaning that

it includes places for gilts.

Waste: Scope of duty of care

27.

. The Administrative Court has provided guidance on the

scope of the Duty of Care for Waste imposed by virtue of section 34 of the

Environmental Protection Act 1990. See Mountpace Ltd v Haringey London

Borough Council[2012] EWHC 698 (Admin)

Liability of parent for actions of subsidiary

28.

Chandler v Cape plc[2012] EWCA Civ

525.In appropriate circumstances the law may impose on a parent company

responsibility for the health and safety of its subsidiary’s employees. Those

circumstances include a situation where, as in the present case: (1) the businesses of

the parent and subsidiary are in a relevant respect the same; (2) the parent has, or

ought to have, superior knowledge on some relevant aspect of health and safety in the

particular industry; (3) the subsidiary’s system of work is unsafe as the parent

company knew or ought to have known; and (4) the parent knew or ought to have

foreseen that the subsidiary or its employees would rely on it using that superior

knowledge for the employee’s protection.

Contaminated Land

29.

The Administrative Court has granted a declaration that a grant of

planning permission was unlawful because of failure to address contaminated land

issues R. (on the application of Gawthorpe) v Sedgemoor DC[2012] EWHC 2020

(Admin)

EU emissions trading and aviationCase C-366/10, Air Transport Association of

America et al. v. Secretary of State for Energy and Climate Change, the European

Court upheld the validity of the application of EU emissions trading to passenger

aircraft. The decision repays careful attention on various fronts, in particular the close

analysis of the relevance of international agreements and public international law

generally to the approach in considering Directives. In the event, no incompatibility

34

was found between Directive 2008/01 and the international material, in particular the

EU/US “Open Skies” Bilateral Agreement signed in Washington DC in 2007. The

key point was that the EU ETS scheme was (a) non-discriminatory and (b) was not in

the nature of an obligatory levy, duty, tax, fee or charge.

30. Rylands& Fletcher and fire

31.

: The Court of Appeal has handed down an important

judgment considering the application of the rule in Rylands v Fletcher to cases

involving the escape of fire. See Mark Stannard (t/a Wyvern Tyres v Gore [2012]

EWCA Civ 1248.

UK in breach of Urban Waste Water Treatment Directive

32.

. The CJEU has found the

UK to be in breach of its obligations under the Urban Waste water Directive (91/271).

Commission v United Kingdom (Case C-301/10)

UK Compliance with the Air Quality Framework Directive

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

In March 2013 the

Supreme Court will hear the case of R(oaoClientEarth) v Secretary of State for

Environment Food and Rural Affairs (UKSC 2012/0179). The issue arising is

whether, as regards areas where compliance with nitrogen dioxide limits set out in

Directive 2008/50/EC (the Air Quality Directive) cannot be achieved by 1 January

2010, the Air Quality Directive requires the Respondent to prepare an air quality plan

which demonstrates compliance by 1 January 2015.