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RECORD-BREAKING £1.5M PENALTY FOR “SLUMLORD MILLIONAIRE” WHO BUILT AN ILLEGAL BOXROOM BEDSIT EMPIRE ACROSS NORTH-WEST LONDON

Press Release, London Boroughs of Brent and Harrow, 5th December 2018

A notorious rogue landlord must pay £1,500,000 or spend nine years behind bars after justice caught up with him at Harrow Crown Court last Friday (30 November). The court found that Vispasp Sarkari had flouted planning rules for more than five years – converting properties across Brent and Harrow into substandard flats without planning permission.

Sarkari, 56, of Hawthorne Avenue, Harrow, had been cramming tenants into cramped and dangerous accommodation, charging them extortionate amounts in rent. His criminal enterprise included one property in Brent illegally converted into eight substandard box-room bedsits and four more similarly converted in Harrow.

He defied all planning enforcement warnings by both councils to stop the use of his properties and carried on with his criminal venture, raking in thousands of pounds from people desperate to have a roof over their head.

Cllr Tom Miller, Brent Council’s Cabinet Member for Community Safety, said:

“Slum landlords won’t be tolerated – plain and simple. If you ignore planning laws or leave tenants to languish in poor conditions, then we will find you, we will take action in court, and we will win. Anyone we find flouting planning or exploiting renters will feel a deep hole in their pockets after we’ve taken them to task.”

Sarkari was also separately fined £12,000 and ordered to pay both councils’ costs in full. It’s believed that he may have several further properties across the two boroughs, making him responsible for a significant proportion of illegal flat conversions and HMOs blighting North-West London.

Cllr Keith Ferry, Harrow Council’s cabinet member for planning, said:

“Justice means taking the ill-gotten gains off this slumlord millionaire. This is a man who thought he couldn’t be stopped. He was wrong, and thanks to our joint work with Brent Council, Sarkari’s criminal venture is finished.

But he’s not the only rackrent landlord out there, wrecking lives and ruining our boroughs by running illegal flats and HMOs. My message to the others is this: we’ll never stop, we’ll never give up, and when we catch you, we’ll punish you too.”

Extensive inquiries by both councils established the extent of Mr Sarkari’s criminal activity. Brent also secured a restraint order against Mr Sarkari, which means that he cannot dispose of his assets before the order is paid in full. If he doesn’t pay up, then the Council can force the sale of his properties.

In sentencing Mr Sarkari, Judge Wood described the breaches as “a flagrant abuse of the Town and Country Planning legislation”. She went on to thank everybody involved for their hard work in putting the case forward.

Harrow and Brent were represented by Counsel Mr Edmund Robb of Prospect Law, who said:

The Confiscation Order of almost £1.5 m which has been made in this case represents major recognition by the Crown Court of the personal misery and amenity damage which is caused by blatant and longstanding failures by developers to comply with planning enforcement notices issued by local authorities in London.”

Background Notes:

Mr Sarkari’s criminal lifestyle:

Mr Sarkari is no stranger to the courts. In 2012 a confiscation order under the Proceeds of Crime Act 2002 was made against him for £303,112.00 for exactly the same thing, flouting planning laws. Despite leaving the courts in 2012 with a hefty bill, he continued in the same vein, having no regard for the law, as he continued to flout planning laws and raked in large sums of cash from his unlawful enterprise by continuing to rent out the same properties which were in breach of planning enforcement notices in 2012. He did pay the order made in 2012 in full.

Mr Sarkari also has a string of previous convictions which relate to properties he rented out.

On 6th August 2008 at Harrow Magistrates Court, he was prosecuted for seven fire safety offences relating to a property on High Street, Wealdstone, contrary to the Regulatory Reform (Fire Safety) Order 2005. He was fined £400 for each offence totalling £2,800.00 and ordered to pay costs totalling £7,746.00.

On 22nd September 2009 at Brent Magistrates Court, he was prosecuted under section 179 of the Town & Country Planning Act 1990 for failing to comply with an enforcement notice which related to another property he owned on London Road, Wembley. He was fined £5,000.00 and ordered to pay costs totalling £739.50.

During January 2015, he was prosecuted under regulation 36(4) of the Gas Safety (Installation and Use) Regulations 1998 by the Health & Safety Executive, for gas safety breaches at a property in London Road Wembley. He was fined £10,000.00, was ordered to perform 150 hours community service and was given a 12 month suspended sentence.

On 14th December 2017, he was prosecuted at Willesden Magistrates Court in relation to one of several properties he owns on London Road Wembley, HA9 7ET. This prosecution related to 6 offences for breaches of a selective licence that was issued by Brent Council and the breaches were contrary to section 95(2) of the Housing Act 2004. These breaches included fire safety hazards and a cockroach infestation. The defendant pleaded guilty and was fined £13,400.00 and ordered to pay £1,545.00 in costs.

About the Author

Brent Council Press Office – Karen Luke – Karen.Luke@brent.gov.uk 020 8937 1490

Harrow Council Press office – Masooma.sarwar@harrow.gov.uk 020 8420 9361

About Prospect Law Ltd

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

Click here For a PDF of this press release

Please click here to see the Guardian’s coverage of this prosecution

Please click here for the Metro’s coverage

Please click here to see the Daily Mail’s coverage

Please click here to see the Local Government Lawyer’s coverage

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PROSPECT LAW SUCCESSFULLY DEFENDS PLANNING PERMISSION FOR DERBY WASTE INCINERATOR

R (HILL) v. DERBY CITY COUNCIL [2018] EWHC 768 (ADMIN.)

In R (Hill) v Derby City Council, Mr Justice Supperstone considered a claim by a local resident that sought to quash the decision of Derby City Council to grant planning permission for an incinerator to Envirofusion Ltd (represented by Prospect Law).

Background:

Envirofusion is based on the former Hanson Concrete Works, off Alfreton Road, and applied to Derby City Council for permission to test its waste disposal system, which involves heating waste to a temperature of 1,000°C for 18 months.

The plant would process up to 2.75 tonnes of waste per hour, based on a maximum operational running time of up to 100 hours a week. Gases from the process would escape into the outside air up a 22-metre stack, after passing through a filtration system. The waste would then be oxidised to produce molten ash.

The proposals were controversial and attracted more than 450 letters of objection.

Ground of Challenge and Judgment:

Mrs Hill challenged the decision on three grounds:

  • the planning committee report was not made available online,
  • the planning committee report was misleading,
  • the Council did not have regard to material considerations.

Dr Ashley Bowes represented Envirofusion at the High Court hearing. Mr Justice Supperstone accepted his submissions and refused Mrs Hill permission to challenge the Council’s decision. In particular, it was held that:

  • There is no duty to publish a planning committee report online. The obligation within the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 only applies to decisions of a Council’s executive (see paragraph 4 of the judgment).
  • Health and safety matters, such as the risk of fire and explosion, were considered in the grant of the environmental permit. Accordingly, the Committee was entitled to leave those matters for the regulation of the permit (see paragraphs 14 & 15 of the judgment). This issue arises from time-to-time when planning committees determine new or experimental technologies such as fracking.

It is worth remembering the observations of Mr Justice Gilbart in R (Frack Free Balcombe Residents Association) v West Sussex County Council [2014] EWHC 4108 (Admin.) at [100] that “the Planning Authority may in the exercise of its discretion consider that matters of regulatory control could be left to the statutory regulatory authorities to consider”

Entitlement to Costs:

Mrs Hill disputed that Envirofusion were entitled to its costs. Notwithstanding the common practice of the High Court to award the costs of preparing and filing its acknowledgment of service, Mrs Hill argued that Bolton MDC v Secretary of State for the Environment [1995] 1 WLR 1176 is authority for the proposition that only one set of costs would normally be ordered and that further costs would only be granted in exceptional circumstances.

Mr Justice Supperstone rejected that submission, holding in a further judgment that the Bolton rule does not apply to costs incurred preparing an acknowledgment of service. The Judge rejected the submission that the judgment of the House of Lords costs officers in Berkley v Secretary of State for the Environment (21 January 2003), in which it was held that two sets of costs could not be recovered by respondents to applications for permission to appeal, compelled a different conclusion. Mr Justice Supperstone found that an appeal to the House of Lords concerned “a different regime under different circumstances”.

Please click here to see Mr Justice Supperstone’s order on costs

About the Author:

Ashley Bowes is a specialist planning barrister who frequently represents clients in planning inquiries and onto litigation in the courts, including up to the Supreme Court. He is a member of the Attorney General’s C Panel of Junior Counsel to the Crown, in which capacity he represents the UK Government in planning matters.  He is also the General Editor of Sweet & Maxwell’s Journal of Planning & Environment Law and the Author of Oxford University Press’ ‘A Practical Approach to Planning Law’ (14th. Ed.).

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

For a PDF of this blog click here

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HIGH COURT GIVES GUIDANCE ON COSTS OF DEFENDING S.289 TOWN AND COUNTRY PLANNING ACT PROCEEDINGS

In Elghanian v Secretary of State for Housing, Communities and Local Government (heard on 18 April 2018) Mrs Justice Lang considered the costs regime for defending challenges to the validity to enforcement notices.

Background:

The London Borough of Brent (represented by Dr Ashley Bowes of Prospect Law) had succeeded in resisting a challenge by Mr Elghanian, under s. 174 of the Town and Country Planning Act 1990, against two enforcement notices which had been issued against him by the London Borough of Brent (“Brent”). Those appeals were dismissed by an Inspector following an Inquiry and Mr Elghanian applied to appeal the Inspector’s decision under s. 289. Following an oral hearing on 18 April 2018, Mrs Justice Lang refused permission to appeal.

Brent sought the costs it had incurred preparing and filing a skeleton argument, on the basis that the costs of preparing and filing an acknowledgment of service are recoverable from all parties to a judicial review, and, in the absence of such a procedure in s.289 proceedings, the skeleton argument performs the same function. Brent relied upon R (Mount Cook Land Ltd) v Westminster CC [2017] PTSR 1166.

Costs regime for appeals under s.289 proceedings:

The Appellant opposed this application, relying on the rule derived from Bolton MDC v SSE [1995] 1 WLR 1176 that a second respondent in s. 288 planning appeals would “not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he has an interest which requires separate representation“. No such issue or interest was identified by Brent.

Mrs Justice Lang held that “the permission and costs regime for appeals under s. 289 is separate and distinct from judicial reviews and other appeals“. The Court ruled that the Mount Cook costs principle does not apply in such cases. In particular, the Judge held that Bolton remains good law in the specific context of a permission hearing for a s. 289 appeal.

As there was no separate issue which required Brent to be represented at the permission hearing, the Appellant was not ordered to pay Brent’s costs of attendance. However, Mrs Justice Lang also held that Brent was not entitled to the costs it had incurred preparing a skeleton argument.

Appeals under s.288 of the 1990 Act:

A similar procedure applies in the case of appeals under s. 288 of the 1990 Act, which are usually concerned with the grant or dismissal of planning permission. There, any person served with the claim form that wishes to take part in the planning statutory review must also file an AoS. This is followed by consideration of permission on the papers and an oral renewal hearing, where it is also rare to award second respondents their costs.

In contrast, in s. 289 appeals there is an obligatory permission hearing which respondents are entitled, but not required, to attend. There is no provision in the rules for a local planning authority or any other person served with the application to file any pleading.

Harmonisation of s.288 and s.289 regimes:

Mrs Justice Lang considered that it would be desirable to harmonise these different regimes, but that the appropriate means of doing so was by way of amendment to the CPR rather than by piecemeal judicial decision-making. She concluded:

A skeleton argument is not analogous to an acknowledgment of service, in my view. It is part of the preparation for an oral hearing. In an application for permission under section 289 TCPA 1990, it is envisaged that respondents and other persons served will attend the permission hearing, and if successful, a costs award will be made in their favour, unless the Bolton principles apply. To that extent, the regime is more favourable to respondents than judicial review or statutory review under section 288 TCPA 1990. I acknowledge that it is less favourable for local planning authorities who are excluded from a costs award in respect of their written response to the application, as well as attendance at the hearing, by the Bolton principles.” (paragraph 20)

A copy of the judgment can be found here.

About the Author:

Ashley Bowes is a specialist planning barrister who frequently represents clients in planning inquiries and onto litigation in the courts, including up to the Supreme Court. He is a member of the Attorney General’s C Panel of Junior Counsel to the Crown, in which capacity he represents the UK Government in planning matters.  He is also the General Editor of Sweet & Maxwell’s Journal of Planning & Environment Law and the Author of Oxford University Press’ ‘A Practical Approach to Planning Law’ (14th. Ed.).

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

For a PDF of this blog click here

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CUADRILLA FRACKING APPEALS OPEN IN BLACKPOOL

A Public Inquiry into four planning appeals under s.78 of the 1990 Town and Country Planning Act have opened in Blackpool in Lancashire, against the decision of Lancashire County Council to refuse to permit drilling at two well sites in Little Plumpton and Roseacre Wood, hydraulic fracturing those wells and flow-testing the shale gas, and associated monitoring works. The appeals are listed to last for 5 weeks.

They are the first appeals to consider the Government’s shale gas policy, and have all been recovered by the Secretary of State for his personal determination. The appeals have raised a number of interesting, and inevitably controversial, issues.

First, there is the application of the presumption in favour of planning permission contained within paragraph 14 of the National Planning Policy Framework (NPPF). The Appellant argues that because the development plan does not expressly provide for hydrocarbons expressly, in line with the PPG, it must be either absent, silent or out-of-date. However, absence and silence have been interpreted as a high threshold, see Lindblom J in Bloor Homes East Midlands Limited v SSCLG [2014] EWHC 754 (Admin.). As to whether a policy is “out of date” by reference to paragraph 215 NPPF, the Inspector will have to resolve whether a given policy is inconsistent with the corresponding parts of the NPPF.

Second, there is a significant conflict in the expert noise evidence, between whether to use the British Standard for construction and open cast sites, or to use the British Standard for industry and commercial sources of noise – in short whether the drilling and fracturing operation (nearly 2 years) is akin to a construction site or an industrial site. There is also dispute as to the extent to which the WHO Night Noise Guidelines (2009) replace the WHO Community Noise Guidelines (1999) on Lowest Observed Adverse Effect Level (SOAEL) and Significant Observed Adverse Effect Level (LOAEL), or indeed whether LOAEL and SOAEL in WHO Guidelines are targeted to, less intrusive, anonymous (transport) noise, rather than noise with a specific character, as the appeal schemes are said to be.

Third, there is debate as to the weight to attach to the Joint Ministerial Statement on Shale Gas “Shale Gas and Oil Policy” (16 September 2015) (“WMS”). However, that debate may ultimately be somewhat redundant as it appears to be common ground after the first week of cross-examination of the Appellant’s witnesses, that the WMS is not encouraging unsustainable (by reference to the NPPF) shale gas exploration. Thus an exploration project which conflicted with the NPPF judged objectively, as a whole, would not derive any support from the WMS.

Fourth, the weight to be attached to benefits. Planning permission is sought only for the exploration stage. It is a real possibility that following 6 years of exploration, shale gas is not commercially extractable at the proposed locations and thus the wells are decommissioned and plugged. Therefore, the decision taker can only place weight on the very small number of construction and security jobs that will be created to construct and maintain the wells, and the receipt of knowledge of the commercial viability of extracting shale gas at the locations. Placing weight on the benefits of a wider commercial shale gas industry in the North West is highly unlikely given that this would require at least a further planning application and may not even be a commercial reality.

Without question these appeals are a definitive test for the fledgling shale gas industry in England (readers will know that hydraulic fracturing is not presently permitted in Scotland or Wales). The seven planning barristers appearing in the appeals, including Prospect Law’s Ashley Bowes, reflects the scale of the financial stakes and the importance and complexity of the legal issues under consideration.

 

Prospect Law and Prospect Energy provide a unique combination of legal and technical advisory services for clients involved in energy, infrastructure and natural resource projects in the UK and internationally.

This article is not intended to constitute legal advice and Prospect Law and Prospect Energy accepts no responsibility for loss or damage incurred as a result of reliance on its content. Specific legal advice should be taken in relation to any issues or concerns of readers which are raised by this article.

This article remains the copyright property of Prospect Law and Prospect Energy and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Energy

For a PDF of this blog click here

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PROSPECT INSTRUCTED IN IMPORTANT COURT OF APPEAL CASE AFFECTING DEVELOPERS

Prospect Law’s Edmund Robb recently represented the Royal Borough of Windsor and Maidenhead in an important Court of Appeal planning case affecting the scope of developers’ actions to clear fell trees situated in woodland covered by a Tree Preservation Order (TPO).

The Facts:

The appellant is a developer and the freehold owner of land in Berkshire. Much of the land was covered by a woodland TPO which had been issued by the Local Planning Authority under section 198 of the Town and Country Planning Act 1990 (the 1990 Act). Woodland TPOs are intended to prevent the cutting down of any trees without the consent of the local planning inspector.

In the Spring of 2012, the developer instructed contractors to clear fell some of the protected woodland. This action was contrary to the TPO then in force. A Tree Replacement Notice (TRN) was issued by the Local Planning Authority according to the provisions of sections 206 and 207 of the 1990 Act. The TRN required the replanting of some 1280 trees, in order to compensate for those which had been cut down or otherwise destroyed.

Appeal to the Secretary of State:

The developer submitted an appeal to the Secretary of State under the provisions of section 208 of the 1990 Act. Expert evidence from arboriculturalists was heard on behalf of both the developer and the Local Planning Authority. The developer, citing the mere 27 tree stumps which could be evidenced photographically as having been cut down in the felling operation, argued that the number of trees required by the Authority to be replanted under the terms of the TRN was clearly excessive.

The Council argued that the TRN fairly sought the replacement not only of the woodland’s more mature trees, but also of young and small trees which, although not evidenced by the presence of stumps or other physical material, would clearly have been present as seedlings or saplings within the TPO protected woodland site. The Council relied on Cranston J’s 2010 judgment in the High Court in Palm Developments Limited v Secretary of State for Communities and Local Government [2009] EWHC 220 (Admin), to argue that, for the purposes of a woodland TPO, no limitations exist to the proper definition of what constitutes a “tree”.

The Secretary of State sided with the Local Authority, upholding the TRN on the grounds that the provisions of the 1990 Act are intended to preserve woodland and, therefore, the calculation of the number of replacement trees used by the Authority when compiling the TRN was not unreasonable.

Court of Appeal:

In the High Court, Holgate J had sided with the Secretary of State and the Local Planning Authority and had upheld the Inspector’s Decision Letter which dismissed the developer’s appeal against the TRN. An appeal was subsequently lodged at the Court of Appeal. There were three central questions:

• Can a woodland TRN require the planting of a greater number of trees than the number removed or otherwise destroyed?

It was argued on behalf of the developer that the section 206 duty to replant trees according to a TRN mandated the replacement of any trees that had been destroyed only with “the same number” of trees. In the leading judgment, Sir David Keene accepted, as had the Secretary of State and the Council, that a Local Planning Authority must, in serving a TRN, provide an estimate of the number of trees which had been cut down. It was not lawful to insist through a TRN on the replacement of large numbers of trees that could not have been present in the TPO protected woodland before the clearance works took place.

• Did the Inspector approach the question of how many trees previously existed in a legally acceptable way?

The developer criticised the inclusion of “saplings” in Holgate J’s reasoning in support of the Decision Letter upholding the TRN, arguing that a sapling should not properly be counted as a tree, but rather as a “potential tree” as it had been in paragraph 9 of the Inspector’s Decision Letter. There was also criticism of the Inspector’s use of the term ‘reinstating woodland’. It was argued that this term exposed the Inspectors failure to understand a TRN’s true purpose which is to replace trees that had been unlawfully destroyed.

Keene J rejected this argument, stating that although the Inspector had considered the standard planting density of trees which the Council had used when it had compiled the TRN in the first place, this was not to say that he had failed to consider the number of trees that had actually existed prior to the removal works. It was held that the Inspector had heard and clearly commented on some of the evidence which had been deployed by the Authority’s arboriculturalist to (conservatively) calculate the number of trees that may have been present on the site before the clearance works took place and thus the number of trees that needed replanting.

The meaning of ‘trees’:

The final issue was the 1990 Act’s interpretation of what properly constitutes a “tree” and “trees”. The 1990 Act does not offer a definition, and the developer argued that the Inspector’s willingness to count “seedlings” and “saplings” when estimating the number of trees that had been present on the land prior to the clear felling was an error of law.

In reaching his decision, Keene endorsed the judgment of Cranston J in the Palm Developments, case. Cranston J had concluded that, in general, a tree should be regarded as a tree for the purposes of a TPO throughout all the stages of its life cycle. Counting seedlings, saplings and young trees in general as “trees” that benefited from the protection afforded by a woodland TPO (and thus which could be required to be replanted through the service of a TRN), would assist in upholding a woodland TPO’s purpose which was, not least, the natural growth and regeneration of protected woodland over long periods of time.

Conclusion:

The Court of Appeal dismissed the developer’s appeal.

The case has obvious implications for Local Planning Authorities when considering the number of trees to require developers to replant through the service of a TRN.

The case is important for developers because it demonstrates that the Courts are likely to take a robust approach to the requirements of TRNs and, provided an estimate is given by the Local Planning Authority when the TRN is compiled of the number of trees that may have been present within a TPO protected woodland site, these can fairly be said to have included young trees. Since these are generally present in considerable numbers throughout, developers are likely to end up being required to replant large numbers of young trees that (they may feel) may never have been physically “felled”, but which may have been removed in other ways.

Prospect Law and Prospect Energy provide a unique combination of legal and technical advisory services for clients involved in energy, infrastructure and natural resources projects in the UK and internationally.

For more information, please contact Edward de la Billiere on 07930 397531, or by email on: info@prospectlaw.co.uk.

(see Distinctive Properties (Ascot) Ltd v Secretary of State for Communities and Local Government and the Royal Borough of Windsor and Maidenhead [2015] EWCA Civ 1250).

For a PDF of this blog click here

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A STEP CLOSER TO FRACKING?

Britain has moved a step closer to ‘Fracking’ with the news that a decision to block the extraction of Shale Gas in South Lancashire could now be overturned by the Secretary of State.

Although a local planning inspector at Lancashire County Council will still hear the Energy firm’s appeal in February as per the usual course in planning appeals, they will now only have the power to compile a report and forward suggestions. A final decision will instead lie in the hands of Greg Clark, the Secretary of State for the Department for Communities and Local Government, who has chosen to depart from the usual process because the prospect of extracting Shale Gas is a matter of “major importance having more than local significance”.

This follows Mr Clark’s September decision to afford himself a final say over planning appeals concerning Shale Gas, as s.62A of the Town and Country Planning Act 1990 allows him to do.

In June of this year, Cuadrilla’s applications to instigate ‘Fracking’ at two sites, Roseacre Wood and Little Plumpton, were rejected by Lancashire County Council’s Development Control Committee, with nine from the fourteen strong committee rejecting the proposals on the grounds that the sight of Fracking operations and the noise arising from them would cause an ‘unacceptable adverse impact” on the rural setting that was to host them.

As we previously reported, central government have appeared keen to promote ‘Fracking’ despite indications that support for the technique has reached an all time low. Moreover, with opposition to the extraction of Shale Gas often heard at local levels, the significance of this development cannot be underestimated. Groups such as Friends of the Earth have been quick to voice concerns that this development will help to sideline local opinions.

Prospect Law and Prospect Energy provide a unique combination of legal and technical advisory services for clients involved in energy, infrastructure and natural resources projects in the UK and internationally.

For more information, please contact Edmund Robb on 07930 397531, or by email on: er@prospectlaw.co.uk.

For a PDF of this blog click here

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CUADRILLA’S FRACKING APPLICATIONS REFUSED BY LANCASHIRE COUNTY COUNCIL

Ashley Bowes, Prospect Law

For nearly a year and a half Lancashire County Council Development Control Committee heard extensive evidence from its own officers, the public and the applicant at a series of public hearings concerning two planning applications. Cuadrilla had sought permission for the construction and operation of four wells, drilled from a single large well-pad, with each well being subjected to hydraulic fracturing (fracking). The operation was expected to run 24 hours a day with fracking occurring for two months, followed by a three month initial period to test the flow of hydrocarbons (gas) and then 18-24 months of extended flow testing. They represented the largest appraisal of fracking in the UK.

The first site, at Roseacre Wood, was recommended for refusal on the grounds of its transport impact. The second site, at Preston New Road, although initially also recommended for refusal, was subsequently recommended for approval following further noise evidence from the applicant.

The scene was therefore set for a tense development control meeting on 23-24 June. On 24 June a motion to refuse the application was moved and seconded but, following an adjournment, was defeated on the Chairman’s casting vote. It emerged that in the adjournment the Council received telephone advice from David Manley QC to the effect that the Council would be acting unreasonably to refuse the application and would expose itself to costs at appeal. A subsequent motion was passed to make that legal advice public.

In response to which, Friends of the Earth sought advice from Richard Harwood QC and the Preston New Road Action Group sought advice from Ashley Bowes. Both barristers’ advice concluded that there were grounds to refuse the application on the evidence before the Committee.

At its reconvened meeting on 29 June, a motion to refuse the application was passed on Ashley Bowes’ suggested reasons, which read as follows:

“The development would cause an unacceptable adverse impact on the landscape, arising from the drilling equipment, noise mitigation equipment, storage plant, flare stacks and other associated development. The combined effect would result in an adverse urbanising effect on the open and rural character of the landscape and visual amenity of local residents contrary to policies DM2 Lancashire Waste and Minerals Plan and Policy EP11 Fylde Local Plan.”

“The development would cause an unacceptable noise impact resulting in a detrimental impact on the amenity of local residents which could not be adequately controlled by condition contrary to policies DM2 Lancashire Waste and Minerals Plan and Policy EP27 Fylde Local Plan.”

Cuadrilla has six months in which to decide whether to appeal. If Cuadrilla does choose to appeal against the refusals a public inquiry is highly likely, at which the Inspector will have to grapple with the competing expert evidence (especially on noise impact).

It is also likely that any appeal will be recovered by the Secretary of State for determination, in order to give a determinative policy steer for future applications.

Reacting to the decision the UK Onshore Oil and Gas urged the Government to take a “strategic review” of how the planning system deals with these applications. However, the Prime Minister appeared not to signal any imminent change to the system, responding at Prime Minister’s Questions on 1 July that: “those decisions must be made by local authorities in the proper way, under the planning regime we have”.

 

Introduction to Prospect Law and Ashley Bowes

Prospect Law Ltd is an energy specialist UK law firm which is based in London and the Midlands. Prospect Energy Ltd is its sister company providing technical expertise. The two firms provide advice on energy development projects and energy related litigation concerning shale gas, nuclear and renewable energy schemes for clients in the UK and internationally.

Ashley Bowes is a barrister who specialises in planning and environmental law matters at planning appeals and in statutory challenges and judicial review cases in the High Court. He is involved in energy related development projects around the UK.

 

For a PDF of this article click here

For more information, please contact Edmund Robb on 07930 397531, or by email on: er@prospectlaw.co.uk.

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RENEWABLES INDUSTRY NEWS – JUNE 2015

Onshore Wind – Closure of the RO early for Onshore Wind

In a written ministerial statement of 18 June, the Secretary of State for Energy and Climate Change Amber Rudd MP set forth the Government’s intentions to end subsidies for onshore wind. The statement sets out the department’s plans to introduce primary legislation to close the Renewables Obligation to onshore wind projects as of 1 April 2016 (a year earlier than planned), whilst leaving details of how the Contracts for Difference and the Feed-in Tariff schemes will be dealt with for a later announcement. Included in the statement was a mention of grace periods for projects that already have planning consent, an accepted grid connection offer, and evidence of land rights, albeit only for projects that had these in place as of 18 June 2015. This was followed up by debates in both the House of Commons and the House of Lords on 22 June indicating both that support under the Contracts for Difference and the Feed-in Tariff were also under review.

PEL Note: Given the manifesto commitment of the Conservatives in regards to onshore wind this will not have come as a shock to many, although to have an announcement with very little detail, but that sets the deadline for the grace period criteria to that day, is potentially damaging to investor confidence. The lack of detail confirming the FIT and CfD scheme is certainly disappointing, although in the House of Commons on 22 June Amber Rudd MP did say “I said in my statement that, in respect of contracts for difference, we would be implementing the terms of our manifesto.” This appears to be a clear indication that the CfD budget may exclude onshore wind. The fate of onshore wind under the feed-in tariff is still unknown, but the outlook is not good. Many stories are already circulating about possible legal challenges following this announcement.

PLL Note: Whilst Prospect Law does not often directly comment in this update, this announcement has led to a number of rumours of legal challenges appearing in the press, rumoured to being brought by parties ranging from the Scottish Government through to developers. Previous challenges against sudden and/or retrospective changes to the RO/FIT schemes have all been based on changes to be introduced by secondary legislation following the release of a consultation. The difference here is that the Government is proposing using primary legislation, passed directly by Parliament, to achieve its ends, which is likely more difficult to challenge owing to Parliamentary sovereignty. Whilst we have yet to look at this in great detail, given the devastation the statement alone has had on the sector, even before any firm proposals or draft legislation is put forward, the statement itself may be open to legal challenge as a ‘decision’, especially if the final legislation does not cover projects that have been shelved owing to the announcement. The possibility of applying for a declaration of incompatibility and taking the case to the European Court of Human Rights (as a breach of the right to peaceful enjoyment of possessions, contrary to Article 1 of the first protocol, as established in earlier challenges against unlawful changes to the subsidy schemes brought by us) as an arguable route to a claim for damages remains open to consideration, given that a mere declaration of incompatibility cannot be a suitable remedy for any financial losses incurred.

 

Onshore Wind – Changes to Planning Regime

In a further written ministerial statement of 18 June, the Secretary of State for Communities and Local Government Greg Clark MP set out the Government’s intentions to impose new requirements for local planning authorities to consider when determining applications for onshore wind developments. These proposals, which take effect from the date of the statement, require that consent only be given when the development is in an area identified on the local plan as being suitable for wind development and when the planning impacts have been fully addressed and it therefore has the backing of the local community. For applications already in the system only the requirement to have addressed the planning impacts and to have the backing of the community will be required.

PEL Note: This story was somewhat overshadowed by the announcement regarding subsidies, however it could be even more important for onshore wind developers. The details of the updated guidance have not been released, however whilst the requirement for councils to have agreed (and approved) areas for wind development could prove difficult this could give potential investors useful information before money is spent – assuming such areas do materialise on local plans. The real concern seems to be the obligation for the project to have ‘the backing of the local community’ and the uncertainty as to just how easy it may be for a small group of local opposition to torpedo a project. It is not unusual, even when all local concerns have been diligently addressed, for there to be a few people who just do not want the project to go ahead, and if these individuals are allowed to prevent development the industry could have a serious problem.

 

Contracts for Difference – Consultation Response re Negative Pricing Released

On 29 June DECC released the Government response to the 9 March 2015 consultation on updates to the standard CfD contract terms. Alongside this the commissioned report on the likelihood of negative pricing events is also published. Owing to the state aid requirement the proposals regarding negative pricing (i.e. not paying generators if there is a 6+ hour negative pricing period) will be implemented, but with a promise to engage with the industry further. The negative pricing report gives low estimates for the probability of such events, with a conservative estimate of 0.5% of generation given for a ‘high renewables’ scenario.

PEL Note: The main area of interest in this response is likely to be the negative pricing issue, with the rest being small technical changes. The addition of a clause to the CfD contract stating that payments will not be made on generation occurring during a 6+ hour adds a risk to CfD generators that is difficult to quantify and price, however the published report gives relatively good news on the magnitude of this risk. It is worth noting that energy storage, interconnectors between countries and an increase in smart grids (that may also back onto an increase in the number of electric cars on the road) will all have a mitigating effect on the negative pricing risk. Whilst energy storage and interconnector projects are expected to go forward as planned, any curtailment of this type of investment will lead to this risk increasing and so is worth monitoring.

 

Capacity Market – 2015 Auction Parameters Published

On 29 June DECC published the letter to National Grid setting the parameters for the 2016 Capacity Market auction. Derating factors for interconnectors are also given as the scheme opens up to bids from such installations. The letter also sets out the parameters of the first Transitional Arrangement auction, which specifically targets demand-side response bidders.

PEL Note: Aside from the introduction of interconnectors, the December 2015 Capacity Market auction looks as if it is going to be similar to the first carried out at the end of 2014.

 

For a PDF of the June 2015 update, click here

If you would like to find out more about any of the points raised in this newsletter please contact us at updates@prospectenergy.co.uk or call us on +44 (0)20 3427 5955.

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COSTS UPDATE FOR ENVIRONMENTAL LITIGATION

 

Ashley Bowes, Prospect Law

Developers, environmental groups and community organisations promoting or challenging shale gas/fracking or renewable energy schemes through the planning process should be aware of the caps on costs that may apply in applications for judicial review.

The 1998 Aarhus Convention requires that access to environmental justice is not “prohibitively expensive”.

A Claimant for judicial review after 1 April 2013 which concerns  an environmental  matter  may choose to  subject the claim to the cost caps in Civil Procedure Rules 45.41 to 45.43. The caps will apply where the Claimant indicates that it  wishes the caps to apply by simply ticking the appropriate box on the claim form.

The effect of the caps is that individual Claimants cannot be ordered to pay more than £5,000 to other parties should they lose; and commercial entities and not for profit organisations cannot be ordered to pay more than £10,000 should they lose. And both types of Claimant cannot recover more than £35,000 if they win. The figures include VAT and disbursements.

The caps are likely to be attractive to environmental groups and community groups challenging planning decisions. Developers and commercial organisations challenging decisions are less likely to be interested in the caps.

Where developers and commercial organisations wish to join a judicial review as an interested party in order to oppose a challenge to a planning decision, the cost caps are likely to prevent the developer or commercial organisation recovering costs in excess of the cap from an unsuccessful Claimant.

A Defendant in a judicial review (usually a government department or local authority) may dispute whether the Aarhus Convention applies when completing the Acknowledgement of Service, but:

  • If the Court decides the claim is an Aarhus Convention claim it will make an order for costs against the Defendant on the indemnity basis (i.e. a higher level of the Claimant’s costs will be recovered).
  • If the Court decides the claim is not an Aarhus Convention claim it will normally make no order for costs (.i.e. there is no penalty for the Claimant).
  • Given this unattractive costs regime together with the Venn judgment (see below), there is only likely to be a limited number of cases where a challenge as to whether the matter is within the scope of the Aarhus Convention is going to be worthwhile.

The rules have, not surprisingly, generated satellite litigation, which has added some clarity to the application of the rules in practice:

  • The rules only apply to claims for judicial review. They do not apply therefore to statutory appeals of planning decisions (s.288/289 Town and Country Planning Act 1990 and s.113 Planning and Compulsory Purchase Act 2004) see: Venn v SSCLG [2014] EWCA Civ. 1539.
  • The rules will apply to almost any judicial review of a planning decision (see Sullivan LJ in Venn at [15]-[18]).
  • Multiple claimants (such as unincorporated action groups) could benefit from a single £5,000 cap provided they all pursue the same case (otherwise it might be appropriate to cap each case at £5,000) see: R (Botley Action Group) v Eastleigh BC [2014] EWHC 4388 (Admin.) per Collins J at [125].

Practical points for Claimants are:

  • Use individual Claimants where possible.
  • Raise the costs matter in pre-action correspondence.
  • Provide full reasons why the Aarhus Convention should apply within the claim form.
  • If not a judicial review claim, consider applying for a Protective Costs Order applying the Corner House [2005] EWCA Civ. 192 criteria.

Practical points for Defendants or developers whose planning permission is being challenged and who are thinking about joining the judicial review as an interested party are:

  • Take a realistic view (will the litigation cost more than £5,000 – £10,000 to defend?).
  • Is it worth a hearing with negative cost consequences to dispute it?
  • Remember the £35,000 cap on a successful Claimant’s recovery.

 

Introduction to Prospect Law and Ashley Bowes

Prospect Law Ltd is an energy specialist UK law firm which is based in London and the Midlands. Prospect Energy Ltd is its sister company providing technical expertise. The two firms provide advice on energy development projects and energy related litigation concerning shale gas, nuclear and renewable energy schemes for clients in the UK and internationally.

Ashley Bowes is a barrister who specialises in planning and environmental law matters at planning appeals and in statutory challenges and judicial review cases in the High Court. He is involved in energy related development projects around the UK.

For a PDF of the article click here

 

For more information, please contact Edmund Robb on 07930 397531, or by email on: er@prospectlaw.co.uk.

 

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UPDATED PLANNING GUIDANCE ANNOUNCED FOR ONSHORE WIND PROJECTS RAISES NEW CONCERNS FOR INVESTORS FOLLOWING DECC’S ANNOUNCEMENT ON RO SUPPORT DATED 18 JUNE 2015

 

On 18 June 2015 the Secretary of State for Communities and Local Government gave a written ministerial statement to the House of Commons (link 1 below) stating their intentions regarding updates to the planning regime for onshore wind developments. This statement was somewhat overshadowed by the announcement concerning the withdrawal of support for onshore wind under the Renewables Obligation, also announced yesterday.

Following the Queen’s Speech, the Government stated on its website (link 2 below) that in relation to onshore wind development there would be contained within the Energy Bill:

• legislative changes to remove the need for the Secretary of State’s consent for any large onshore wind farms (over 50 megawatts), and

• changes to the national planning policy framework (NPPF) to give effect to the Conservative manifesto commitment that local communities should have the final say on planning applications for wind farms.

It is worth noting the fact that it was stated these changes would not impact on the planning regime in Scotland and Northern Ireland.

As a result of the written statement by Greg Clark MP yesterday, we now have some indication of what such changes to the NPPF will be. It is also stated that these will come into effect immediately (i.e. on 18 June 2015). The statement says:

“When determining planning applications for wind energy developments involving one or more wind turbines, local planning authorities should only grant planning permission if:

• the development site is in an area identified as suitable for wind energy development in a local or neighbourhood plan; and

• following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.”

It is clear that these new requirements are particularly onerous on onshore wind developers, with areas designated as ‘suitable for wind’ having to be decided and declared before any application can realistically be considered for approval.

It is unclear how much local opposition would be required to derail the prospects of a project obtaining planning permission. However, the problem is that it appears that fully addressing any concerns may not be enough, and that if there is any local opposition at all this could be fatal to such an application.

Whilst the requirement for the development site to be in an area identified as ‘suitable’ is not a requirement for projects already in the planning system (assuming a local development plan does not show such suitable areas), the second requirement above is still required for any decisions on such projects taken from yesterday onwards.

An interesting question is whether changing the guidance to be applied once a project is caught up in the process will survive a legal challenge. Given the investment at risk it would be no surprise for such a challenge to arise in the near future.

Links

(1)
http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150618/wmstext/150618m0001.htm#15061882000002

(2)
https://www.gov.uk/government/publications/queens-speech-2015-what-it-means-for-you/queens-speech-2015-what-it-means-for-you

 

For a PDF of this article, click here

For more information, please contact Edmund Robb on 07930 397531, or by email on: er@prospectlaw.co.uk.