Air Quality

February 22nd, 2018 by James Goudie QC in Planning and Environmental

 In R (Client Earth) No. 3 v SoS for the Environment (2018) EWHC 315 (Admin) Garnham J held (paragraphs 80 and 104) that the DEFRA 2017 Air Quality Plan, in its application to 45 local authority areas, does not contain measures sufficient to ensure substantive compliance with Directive 2008/50/EC and the implementing 2010 English Regulations.

 

Planning Impacts

February 19th, 2018 by James Goudie QC in Planning and Environmental

Limiting carbon emissions in an effort to arrest global warming and climate change is a major policy objective of the government. EU law and national law, in the form of the Climate Change Act 2008, impose challenging national targets to reduce carbon emissions and seek to encourage a shift to utilising renewable sources of energy. That policy objective is also carried into Section 10 of the NPPF, headed “Meeting the challenge of climate change, flooding and coastal change”.

On 18 June 2015 a written ministerial statement (“the Statement”) was made by the SoS for CLG. It set out new considerations touching applications for planning permission for wind turbines.  The Statement included that in specified circumstances LPAs can find for a proposal, if following consultation, they are satisfied it has “addressed” the planning impacts identified by affected local communities and therefore has their backing.  The Statement is a “material consideration” for the purposes of Section 38(6) of the Planning and Compulsory Purchase Act 2004.  It is capable of outweighing policy in the development plan for the area.

In R (Holder) v Gedling Borough Council (2018) EWCA Civ 214 the Appellant challenged the grant by the Council of planning permission for the construction of a wind turbine. The LPA had concluded that the development was in accordance with the guidance in the Statement because the planning impacts were sufficiently “addressed” to sustain the conclusion that the proposal had local backing.

The issue is whether the Council had correctly interpreted the Statement, or whether, as the Appellant contended, a planning impact can be “addressed” only if it is eliminated or resolved. The Court of Appeal held that the Appellant’s contention was wrong and the Council had not misinterpreted the Statement. The Appellant’s contention was contrary to the natural meaning of the language used in the relevant part of the Statement, especially when it is read in the context of the Statement as a whole and in the wider legislative and policy context.

The Lord Chief Justice, delivering the Judgment of the Court, said:-

“21.      The Statement does not provide a test for what is to count as the relevant local community in relation to any particular development. That will depend on the facts of the case and the planning judgment of the local planning authority. …

  1. In our view, the natural meaning of the relevant phrase in the last sentence of the Statement is that a local planning authority can find the proposal acceptable if it has sufficiently addressed the planning impacts identified through consultation with the relevant local community to the extent that it can properly conclude, in the exercise of its planning judgment, that the balance of opinion in the local community is likely to be in favour of the proposal.
  2. The more stringent interpretation of the final paragraph of the Statement urged on us …is not tenable. … it would effectively involve reading the word “addressed” to mean “resolved” or “eliminated”. The usual position when considering an application for planning permission is that a range of potential benefits has to be weighed against a range of incommensurable potential detriments. It is rarely the case that it can be said that every potential detriment has been eliminated, as opposed to being mitigated and outweighed by countervailing benefits.
  3. Therefore, in the planning context the natural meaning of “addressed” is “sufficiently addressed”; that is to say, sufficiently addressed by taking into account mitigating factors and countervailing benefits. If the drafters of the Statement had intended the stronger meaning urged …, there is little doubt they would have used appropriate stronger language to make that clear.
  4. Further, Mr Harwood’s proposed interpretation of the Statement impermissibly removes the word “addressed” from the immediate context of the sentence in which it appears. According to the Statement, a planning authority can find a proposal acceptable if they are satisfied that it has addressed the planning impacts identified by the affected local community and therefore has their backing.
  5. A local community will comprise people who are likely to have a range of views in relation to a proposal along a spectrum, perhaps ranging from strong opposition on grounds that can never be assuaged to strong support, with many people somewhere in the middle with views that are capable of being affected by steps taken to mitigate or reduce the impact of a particular proposal on the local area. Some may have made representations to the planning authority in response to the consultation exercise contemplated by the Statement, either in favour of the proposal or against it; but it will often be the case that many members of the local community will not have done so. The planning authority therefore has to make a judgment, taking account of the representations received and assessing the weight and significance of any objections raised, as to where the balance of opinion is likely to lie within the local community as a whole, including its members who have not made representations. Where, for example, issues are raised by some objectors regarding impact on visual amenity – as will almost invariably be the case – the planning authority may take account of the numbers raising that issue (and the numbers not raising it) in the representations received. They may also make an assessment of the seriousness of the visual impact and whether sufficient steps of mitigation or local screening may have been taken so as to minimise the impact to a degree where it can be satisfied that the balance of view within the local community as a whole is to regard the proposed development as acceptable and worthy of their backing.
  6. Assessment of the balance of view within the local community as a whole, including those who do not make representations but who can be presumed to be reasonable members of the public, means that the planning authority will inevitably have to consider whether planning impacts mentioned by some members of the local community have been sufficiently addressed by the proposal. The authority will consider measures, including careful siting and mitigation of impact by screening, and make a judgment about whether they can be satisfied that the balance of view within the local community as a whole is positive. The balance of view in the local community as a whole may well be positive, even though some planning impacts have not been wholly eliminated (but only sufficiently dealt with) and even though some members of the local community may never be persuaded to view the proposed development in a favourable light.
  7. The nature of the assessment to be made by the local planning authority is a strong indication in favour of the interpretation of the last paragraph of the Statement we have set out above and against the interpretation proposed by Mr Harwood. Put another way, the Statement does not elevate those members of the local community who have views which are the most vehemently opposed to a proposal into the arbiters of the view of the local community as a whole.
  8. Our interpretation of the last paragraph of the Statement is also strongly supported by consideration of the wider context of the Statement.
  9. In the opening paragraph of the Statement, the Secretary of State says that it is intended to give local people “the final say” on wind farm applications. In the second paragraph he refers to a limited number of consequential changes to planning guidance, but the main provisions of national policy set out in section 10 of the NPPF are left unaltered. Both these points are significant.
  10. Although the Statement is intended to be additional policy guidance which may well affect planning decisions, it is plainly not intended to be completely at odds with national policy in relation to renewable energy nor with policies in local plans made in conformity with paras. 94 to 96 of the NPPF to promote the use of renewable energy. The appellant does not suggest that it completely supersedes or in some way trumps all other planning guidance. Yet if the Statement were interpreted as proposed by the appellant, then whenever an objector in the local community referred to a negative planning impact from a proposal which could not be completely eliminated (such as is likely to be the position with impact on visual amenity in almost every case involving proposed wind turbine developments in the countryside) the local planning authority would be forced to weigh the Statement against other very weighty factors in national and local policy in favour of the proposal. The likely result would be that in many cases the Statement, as so interpreted, would be outweighed and would be overridden. That would mean that the apparent assurance given by the Secretary of State in the Statement would frequently turn out to be hollow. The Secretary of State cannot have intended that the Statement should have a meaning which would have this result.
  11. Conversely, if the Statement is given the interpretation for which he appellant contends, in many more cases than on our interpretation it will come into conflict with national policy and local policy in favour of renewable energy. In some of that wider range of cases local planning authorities may apply the Statement and treat national policy and local policy as overridden. This would have the effect of undermining national and local policies to a significantly greater degree that the Secretary of State can have intended. It is clear from the second paragraph of the Statement and the absence of any change to section 10 of the NPPF that the Secretary of State intended that the Statement would have a much more modest impact on existing national and local policies than this. The interpretation we favour locates the statement in its proper place in the range of applicable policies.
  12. Further, the language of the transitional provision in the last paragraph of the Statement is in marked contrast to that in the second bullet point, setting out the Secretary of State’s substantive new policy governing future planning applications. For such planning applications, the onus is on an applicant for planning permission, or a local planning authority which proposes to grant permission, to “demonstrate” that the planning impacts identified by affected local communities “have been fully addressed …”; rather than, when the transitional provision applies, the local authority merely having to be “satisfied [the proposal] has addressed the planning impacts”, with the consequence that it has the backing of the local community. This difference in drafting again indicates that the word “addressed” in the transitional provision simply means “sufficiently addressed”, not “eliminated” or “resolved”. The stronger language used in the second bullet point indicates that in relation to planning applications made after the Statement was made, the local planning authority has to be satisfied to a higher level of confidence, as compared with the approach in transitional cases, that its assessment that there is a balance of view in the local community as a whole which is favourable towards the proposal is justified. There remains a judgement to be made which recognises that some objections are not capable of being eliminated altogether.”

 

 

Environmental Information

January 29th, 2018 by James Goudie QC in Planning and Environmental

Regulation 12(5)(a) of the Environmental Information Regulations 2004 is a qualified exception from disclosure requirements on the ground of adverse effect upon public safety. In Natural England v Information Commissioner, EA/2017/0160, with respect to culling of badgers, the FTT, on 24 January 2018, stated:-

“66.    Natural England’s case as to the law was largely accepted by the other parties.  We also accept that: the term “public safety” in the EIRs should be read as importing the concept of “public security” referred to in the Aarhus Convention and the Directive.  We accept that, in principle, harm or an increased risk of harm to one person or their property could engage the exception and that there is no additional requirement for there to be widespread disorder and chaos.  We find, however, that the placement of “public safety” in a composite exception in the EIRs which also includes international relations, defence and national security must also be accorded some significance. Read more »

 

Fracking

January 15th, 2018 by James Goudie QC in Planning and Environmental

Did the DoS for CLJ err in law in granting planning permission for exploration works to test the feasibility of extracting shale gas by the process of hydraulic fracturing – commonly known as “fracking” – at two sites in Lancashire? That was the basic question in Frackman v SoS for CLJ (2018) EWCA Civ 9.

The Court of Appeal said that the case did not raise any novel or controversial point of law. Nor had there been any error of law.  A reference to the CJEU was refused.  The SoS had not misconstrued or misapplied Policy.  Nor were his decisions vitiated by procedural unfairness.  Also dismissed, distinguishing Application by Friends of the Earth for Judicial Review (2017) NICA 41, were complaints that he had failed to heed relevant EU principles, that he had failed to act in accordance with environmental impact principles, and that he had failed to apply “the precautionary principle”. Read more »

 

Reasons

December 6th, 2017 by admin in Planning and Environmental

In Dover District Council v CPRE Kent [2017] UKSC 79 the Supreme Court reviewed various statutory rules relating to the provision of reasons for planning decisions, observing that these rules are to be found in subordinate legislation and that it is hard to detect a coherent approach to their development. The three main categories of planning decision are: (i) decisions of Secretaries of State and inspectors, (ii) decisions by local planning authorities in connection with planning permission, and (iii) decisions, at any level, on applications for EIA development. Read more »

 

New Towns

December 5th, 2017 by James Goudie QC in Planning and Environmental

CLG is consulting on draft Local Authority Oversight Regulations under the New Towns Act 1981 which would enable in England the creation, via a strong evidence basis and further Statutory Instruments, of locally led New Town Development Corporations, where local areas consider that they will be an effective vehicle for new garden towns and cities. The consultation period is only 4 weeks, from 4 December 2017 until 2 January 2018.

 

Neighbourhood Development Plans (Ndps)

December 1st, 2017 by James Goudie QC in Planning and Environmental

R (Oyston Estates Ltd) v Fylde Borough Council and St Anne’s-on-the-Sea Town Council (2017) EWHC 3086 (Admin) is concerned with time limits for a judicial review of a NDP. The concept of an NDP was introduced into the law by provisions in The Localism Act 2011, inserting the relevant provisions into the Planning and Compulsory Purchase Act 2004 (the 2004 Act) and the Town and Country Planning Act 1990 (the 1990 Act). The making of the NDP was initiated by the Town Council in April 2013 under Section 38A(1) of the 2004 Act. Read more »

 

Planning obligations

October 27th, 2017 by James Goudie QC in Planning and Environmental

Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited (2017) UKSC 66 raised an important question of planning law. A planning authority foresees and plans for significant growth in its area. Major investment in transport infrastructure is required to accommodate the aggregate of the planned development. The planning authority seeks to achieve this investment by adopting a policy in its development plan which in substance requires developers to enter into planning obligations with it to make financial contributions to the pooled fund to be spent on the infrastructure, including interventions at places where a particular development has only a trivial impact. Is such a policy within the existing powers of the planning authority under current planning legislation? Read more »

 

Direct Action: Natural Justice

October 12th, 2017 by James Goudie QC in Planning and Environmental

A local planning authority has power to take direct action. This is pursuant to Section 178 of the Town and Country Planning Act 1990 (“the TCPA”).  That empowers the LPA to enter land and take the steps required by an enforcement notice once the period for compliance with the notice has expired. Read more »

 

Residential Parking Permit

May 15th, 2017 by James Goudie QC in Planning and Environmental

A requirement in a planning permission that a property developer enter into an obligation that future occupiers of a building would not apply for a residential parking permit is not capable of being a planning obligation under Section 106 of TCPA 1990. Use of the highway for parking was not use of land in which the person making the agreement was interested.  (However, it was legally valid under a Greater London Council (General Powers) Act.)  So held in R (Khodari) v Kensington & Chelsea RLBC (2017) EWCA Civ 333.