The Waste Enforcement (England and Wales) Regulations 2018, SI 2018/369, enhances powers to tackle illegal activity at waste sites. It gives waste regulation authorities and waste collection authorities in England and Wales the power by notice to require waste from a site to be removed where it has been unlawfully kept or disposed of, including waste that was initially lawfully deposited. It also gives the Environment Agency and Natural Resource Body for Wales the power, by notice or by application to Court for an order, to restrict access and the importation of waste to premises.

The instrument inserts new Sections 59ZB and 59ZC into the Environmental Protection Act 1990, allowing waste regulation authorities and waste collections authorities (defined in Section 30 of that Act) to issue a notice on the occupier or owner of land to remove unlawfully kept or disposed of waste and to take specified step to eliminate or reduce the consequences of the unlawful keeping or disposal of waste. The new Sections supplement existing powers in Sections 59 and 59ZA of that Act. Read more »

Hargrave House Ltd v Highbury Corner Magistrates Court and Islington Council (2018) EWHC 279 (Admin) was an application for judicial review concerning the construction of the word “repair” in an enforcement order (EN) issued by a planning authority against a developer who was in breach of planning regulations. Section 173 of the Town and Country Planning Act 1990 relates to the contents and effect of an EN.  Section 179 deals with offences where an EN is not complied with.

Cheema-Grubb J said:-

“23.    … Words have meanings in their context.  The meaning of even a familiar word will vary according to when it is used. In the context of a notice requiring the claimant to remedy a breach of planning regulations what repairs are necessary will depend on the extent of the breach. …”

“27.    … I have no hesitation in concluding that the meaning of the word “repair” in the EN is sufficiently clear for the purposes of a criminal enactment …

28. 28. There is no definition of repairs within the TCPA scheme. This must be because the draughtsman and Parliament considered it unnecessary for further definition to be provided. Repair is an ordinary English word. Its meaning is context specific. In the context of an EN issued because of a breach of planning procedure common sense indicates that the only repair that will satisfy the notice will be one that makes good the activity that has led to the breach….”

“30.    In context, the terms of the EN were crystal clear. … finding that ‘Repair’ encompassed rebuilding two walls, if necessary. There was no lack of specificity …”

 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.

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. Read more »

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 »

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 »

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 »

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.

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 »

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 »