post

PROSPECT LAW’S DR ASHLEY BOWES AUTHORS OXFORD UNIVERSITY PRESS’ A PRACTICAL APPROACH TO PLANNING LAW (14th ed.)

We are pleased to announce that Prospect Law’s Dr Ashley Bowes has authored the latest edition of Oxford University Press’ A Practical Approach to Planning Law.

Currently in its fourteenth incarnation, A Practical Approach to Planning Law is intended as an authoritative and reliable resource for all those working in the area, providing a comprehensive and systematic account of the principles and practice of planning law.

It has been extensively revised and updated to include full coverage of recent structural changes in the area, including the Neighbourhood Planning Act 2017, the Housing and Planning Act 2016, and the Infrastructure Act 2015.

It also covers new case law from the Supreme Court and Court of Appeal that have shaped the field since the previous edition.

Clearly written and accessible, A Practical Approach to Planning Law provides a step-by-step guide to planning law and practice.

About the Author

Ashley Bowes is a barrister specialising in all aspects of planning, property, licensing and local government law. He is ranked as a leading practitioner by Chambers & Partners, the Legal 500 and by ‘Planning’ magazine. Ashley has experience of acting for developers and planning authorities at public inquiries, and has acted for both claimants and defendants at all stages of planning litigation, including to the Supreme Court. He was shortlisted by Chambers & Partners as Environment/Planning Junior of the Year 2018 and 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 his areas of specialism. Ashley 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, as well as a contributor to Butterworths’ Planning Law Service and to the Routledge Handbook of Comparative Planning Law. In 2019, Ashley was co-opted to the Planning & Environment Bar Association Committee.

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

post

PLANNING LAW: A BRIEF ANALYSIS OF RECENT DEVELOPMENTS

Rosewell Review of Planning Inquiries Published

On 12 February 2019, the Government published the report of Bridget Rosewell OBE, further to her review of the planning appeal system.

The Report makes a series of thoroughly sensible recommendations, across all stages of the appeal process, which have been received well by practitioners, including:

Submission to Start Date

  • Streamlining the validation process by introducing pro-forma documentation that can be electronically checked.
  • A Reform of statements of case, through use of pro-formas as well as greater engagement and precision.
  • Streamlining the process for determining a mode of appeal.
  • Faster issuing of the start letter identifying the inspector with responsibility for the appeal.

Start Date to Inquiry

  • A senior inspector should lead on the date and venue of the inquiry (identified as a present source of delay). There is a suggestion for greater consultation and flexibility by permitting the appellant to contribute to the cost of the venue.
  • Statements of common ground should be more informative and produced earlier (policed by the inspector).
  • Greater pre-inquiry management (telephone conferences are strongly encouraged).
  • Greater use of round table procedures and topic based approaches to inquires.
  • Greater accessibility to information through the online portal.
  • The possible use of transcription technology
  • Inspectors are advised to manage cross-examination effectively, reporting inappropriate behaviour to professional bodies.

Can Privacy from Overlooking be Protected by the Tort of Nuisance?

In Fearn v Board of Trustees of Tate Gallery, the neighbours to the Tate Gallery sought an injunction to restrain the use of its viewing gallery.

Amongst the interesting issues in the case, Man J addressed whether overlooking could form the basis a claim in nuisance, finding that the law of nuisance is capable of ”protecting privacy rights from overlooking in an appropriate case”, and noting that whether it does or not would depend on whether there is “a legitimate expectation of privacy”, having regard to locality.

Interestingly, Mann J rejected the submission that the planning process by itself “is a sufficient mechanism for protecting against infringement of all privacy rights…”. Indeed, in the instant case, the Judge found that overlooking did not appear to have been considered within the planning process and so provided “little or no assistance” to resolving the nuisance claim.

Accordingly, this judgment may give rise to claims in nuisance, further to the conclusion of a planning process, where neighbouring landowners remain aggrieved by an impact of overlooking on the enjoyment of their land.

Yet another CJEU Habitats ruling: Holohan v An Bord Pleanála

On 7 November 2018 the CJEU gave judgment in Holohan, a  case concerning a proposed ring road around Kilkenny in south-east Ireland. The proposed route will cross rivers which form part of a Special Area of Conservation.  The CJEU decided, at [40], that:

“… an ‘appropriate assessment’ must, on the one hand, catalogue the entirety of habitat types and species for which a site is protected, and, on the other, identify and examine both the implications of the proposed project for the species present on that site, and for which that site has not been listed, and the implications for habitat types and species to be found outside the boundaries of that site, provided that those implications are liable to affect the conservation objectives of the site.”

The judgment appears to interpret the EU Environmental Directives more onerously, so as to mean that in addition to assessing the impact on habitat types and species for which the site is protected, appropriate assessments must also consider other habitat types and species which happen to be present on the site, and those outside the boundaries of the site which might also be affected.

Scope of section 73 of Town and Country Planning Act 1990 reconsidered

It is well established that the grant of an application under s.73 of the 1990 Act results in a fresh and stand-alone grant of planning permission (see London Borough of Lambeth v Secretary of State for Communities and Local Government). The power under s.73 has been held to mean:

“[a power] impose different conditions upon a new planning permission, but only they are conditions which the council lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application…”.

The decision in R (Vue Entertainment Ltd) v City of York Council appeared to suggest a nuance to that test, as follows:

“… it is not open to the council to vary conditions if the variation means that the grant (and one has therefore to look at the precise terms of grant) are themselves varied.”.

Most recently, in Finney v Welsh Ministers, Sir Wyn Williams considered that observation and held that:

“… a variation pursuant to section 73 can be lawful notwithstanding that it may necessitate a variation to the terms of the planning permission which preceded the section 73 application.”

Accordingly, there is no hard-edged rule that a local authority (or inspector) may not grant an application under section 73, if it would result in a variation to the terms of the planning permission. The test is simply whether the fresh grant of permission which results from s.73 would amount to “… fundamental alteration of the proposal put forward in the original application”.

About the Author

Ashley Bowes was called to the Bar as a Prince of Wales scholar by Gray’s Inn. He holds a doctorate in law and specialises in Planning, Property, Environmental and Public law. He is the Assistant Editor of Sweet and Maxwell’s Journal of Planning and Environment Law and a contributor to Moore and Purdue’s A Practical Approach to Planning Law (13th ed.). Ashley Bowes has appeared in the recently created specialist Planning Court within the High Court, and has wide experience of Public Inquiry work covering planning and enforcement appeals, local plans, village greens, common land and rights of way.

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

post

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

post

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

post

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

post

THE IMPLICATIONS OF BRENT LONDON BOROUGH COUNCIL v SANJAY SHAH & OTHERS

Prospect have won a landmark ruling on the availability of confiscation proceedings brought under the Proceeds of Crime Act 2002 to convictions for offences involving rogue landlords running overcrowded, unsafe and insanitary Houses in Multiple Occupation under sections 95(2) and 234(3) of the Housing Act 2004.

The attached article by Edmund Robb examines the implications of this ruling in the context of the availability of confiscation pursuant to the Proceeds of Crime Act 2002 in relation to various criminal offences under the Housing Act 2004

Copyright © 2018 by Prospect Law Ltd

All rights reserved. No part of this article may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of Prospect Law Ltd.

Edmund Robb (er@prospectlaw.co.uk) is a public law specialist barrister at Prospect Law with wide experience of planning, environmental and local government case work at public inquiries and at all levels in the Courts.

post

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

post

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

post

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

post

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.