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Planning and environmental legislation update - March 2017

21 March 2017

News 

A roundup of notable recent policy developments, appointments, practice guidance and other changes.

NPPF in the Supreme Court

The National Planning Policy Framework (NPPF) was the focus of a February Supreme Court case, examining the meaning of its paragraph 49 and the correct interpretation of 'relevant policies for the supply of housing'. Judgement had been reserved on the case of Suffolk Coastal District Council v Hopkins Homes Ltd. Local Government Lawyer examined the issues in advance of the case.

Environmental protections heading for the Brexit?

Following the prime minister's announcement that the UK was likely to leave the EU single market, a new House of Lords' report explored the process of transposing EU law into domestic legislation. The Lords were unconvinced by Defra's responses to their questions, expressing concern that some protections may become ineffective. The Financial Times reported that the Habitats Directive may be repealed.

The Welsh Government recently launched its own 'Brexit plan', arguing for retention of environmental protections.

UK receives final warning on air pollution

The European Commission has issued a 'final warning' to the UK and four other member states over repeated breaches of air pollution limits. The UK's failure to meet standards for nitrogen dioxide and particulate matter, usually from road traffic, has been the subject of repeated legal challenge in recent years. The government has committed to effective action plans by July - previous efforts have been found wanting in the courts.

Transport for London announced a new 'T-charge' on older diesel vehicles to apply from October 2017 in an effort to deal with acute pollution in central London. Problems may persist to the west, however, with parliament's Environmental Audit Commission publishing a critical report on the government's approach to emissions around an expanded Heathrow.

A week earlier, the Commission had presented a more positive overall view of UK environmental protection but noted problems in water quality and marine protection - as well as air quality.

Environmental groups challenge revision to cost cap

ClientEarth, Friends of the Earth and the Royal Society for the Protection of Birds have applied to the High Court for permission to challenge new costs rules introduced by Civil Procedure (Amendment) Rules 2017 . The amendment removes the cost caps of £5,000 and £10,000 for individuals and organisations seeking judicial reviews under the Aarhus Convention. The House of Lords' Secondary Legislation Scrutiny Committee had earlier expressed its concern over the revised rules in a letter to ministers.

Wales Bill enacted

The Wales Bill has become the Wales Act 2017 . The act makes modest changes to infrastructure, energy and marine conservation powers but is more significant for its move towards a 'reserved powers' model of legislative competence. The final document was considered underwhelming by many, including Huw Williams, member of the Law Society's Wales Committee and former member of the Planning and Environmental Committee.

Lords amend Neighbourhood Planning Bill

The House of Lords continues its scrutiny of the Neighbourhood Planning Bill. Former minister Lord Stunnell won a vote on his amendment that 'no regulations shall be made … that would have the effect of preventing a local planning authority from requiring a condition that would otherwise be in conformity with the NPPF'. The amendment may not survive the bill's return to the Commons following third reading on 15 March.

Housing starts reach a recent high

The number of new dwellings started in 2016 was the highest since 2007. This follows two relatively flat years of around 140,000 starts. This period may have led to a levelling-off of recorded completions, which were slightly lower in 2016 than in 2015 due to a fall in housing association and council building.

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In brief

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Committee news

The Planning and Environmental Law Committee will soon be recruiting. The formal process begins this month but we are keen for informal expressions of interest from prospective candidates. This year, with Brexit in prospect, we are particularly keen to bolster our environmental expertise. Please contact us if you'd like to know more.

On 25 April, the Society is hosting the Castle Debate on Environmental Rights under Planning Law. Places are free but must be reserved.

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Legislation

The following regulations have recently come into force:

Consultations

The Planning and Environmental Law Committee regularly responds to official consultations on points of law and technical matters. We may not respond to all the open consultations listed below but if you have input you'd like to share please contact us (mailto:plan.env@lawsociety.org.uk) .

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Case law

In each newsletter we highlight a small number of notable judgments across a range of topical legal points. This month, we highlight a rare case in the Supreme Court, the timing of neighbourhood plans, and the demarcation of responsibilities for waste management permitting.

Homes and Communities Agency v JS Bloor (Wilmslow) Ltd [2017] UKSC 12

The Supreme Court has handed down judgement on a case concerning the award of compensation for land compulsorily purchased. The appellant had bought land subject to a 2002 Compulsory Purchase Order and objected to the compensation offer made. The Upper Tribunal agreed with some of the appellant's arguments and awarded £746,000 (in the context of a claim for £2.6 million and a Homes and Communities Agency offer of £50,000). The Agency took the matter to the Court of Appeal which quashed the decision. However, the Supreme Court upheld the Tribunal's award, noting that its 'application of these complex provisions was exemplary'.

DLA Delivery Ltd, R (On the Application Of) v Lewes District Council [2017] EWCA Civ 58

The Court of Appeal considered the appellant's five grounds, including - perhaps most importantly for other areas in a similar situation - that a neighbourhood plan could not be adopted ahead of a local development plan. This argument was firmly rejected by the Court of Appeal, reinforcing similar judgements in the High Court. The court also dismissed suggestions of bias in the selection of the neighbourhood plan examiner. Lord Justice Lindblom did accept that there had been some shortcomings in the identification of the process for bringing forward a 'Suitable Alternative Natural Greenspace' (SANG) but this was not sufficient reason to block the adoption of the plan.

R v Recycled Materials Supplies Ltd [2017] EWCA Crim 58

Recycled Materials Supplies (RMS) recycles construction and demolition waste. It has permits from both the Environment Agency (EA) and the London Borough of Newham. The latter had successfully prosecuted RMS in the crown court for breaches of its conditions. RMS appealed on the grounds that there could not be dual regulation of the same activity by both the EA and local authority, and that the latter had no right to issue the conditions upon which its prosecution was based. The demarcation of responsibilities was described by the court as 'tortuous' and 'a nightmare' but Lord Justice Gross decided that the appeal should be allowed.