Planning and environmental law update - May 2017
This newsletter is published by the Law Society's Planning and Environmental Law Committee and sent to solicitors with SRA records indicating interests in planning and/or environmental law. For more about the Committee's activities, and to tell us how we can improve our newsletter, please contact us.
A roundup of notable recent policy developments, appointments, practice guidance and other changes.
Supreme Court rules on Paragraph 49
The much-awaited judgment on paragraph 49 of the National Planning Policy Framework (NPPF) has found in favour of the 'narrow view'. The court’s first encounter with the NPPF saw it examine two cases, Hopkins Homes v Suffolk Coastal District Council and Richborough Estates v Cheshire East Borough Council.
The Court of Appeal, when considering these conjoined cases in 2016, had judged that the paragraph 49 phrase 'relevant policies for the supply of housing' should be broadly interpreted. This would include non-housing policies (e.g. greenspace protection) relevant to housing – but not housing-specific. Thus where areas such as Suffolk Coastal District and Cheshire East could not demonstrate a five year housing land supply, policies other than their housing-specific policies could be considered out-of-date and the NPPF presumption in favour of sustainable development would come to the fore.
The Supreme Court overruled the Court of Appeal’s view, asserting that, 'In neither [Suffolk or Cheshire] case is there any reason to treat the shortfall in the particular [housing-specific] policies as rendering out-of-date other parts of the plan which serve a different purpose.'
Air quality plan published
The government has published its draft air quality plan following failure to win a period of grace in the courts. The document focuses on potential measures for reducing nitrogen dioxide from vehicles which are significant in causing many areas of the UK to breach EU limits for air quality. A consultation will run until 15 June but critics are already fuming.
Government retreats on Aylesbury estate
Having intervened on human rights grounds to prevent the London Borough of Southwark from compulsorily purchasing seven blocks on the Aylesbury estate, the Secretary of State for Communities and Local Government will not now defend the Borough's challenge.This allows Southwark a new opportunity to acquire the properties it seeks to enable comprehensive redevelopment of the area.
Environmental costs challenge fast-tracked
The High Court gave government until 11 May to submit its defence to a challenge brought to changes in the cost-capping rules for environmental cases. The challengers - ClientEarth, the RSPB and Friends of the Earth – have a week to respond before a hearing date is set.
Brownfield registers and permission in principle take effect
The government has published guidance on brownfield registers and permission in principle. The relevant register regulations and permission order came into force in April. Solicitors Chris Bowes and Rebecca Roffe have summarised the key points of the new mechanisms.
Committee’s chemical concerns
Parliament’s Environmental Audit Committee published a report on the future of chemicals regulation, post-Brexit. In particular, the committee focused on the difficulties in transposing the 2006 REACH regulation – one which government has admitted is among the more challenging.
It is to assist our own Planning and Environmental Law Committee with such matters as these that we are calling for your assistance – see ‘Committee news’ below.
Rogue landlord faces huge fine
An East London landlord who profited from unlawfully-developed bedsits has been fined £235,000. The properties had been the subject of action by the London Borough of Barking and Dagenham's planning enforcement team. Nearby, in a case addressing some related issues, a tribunal has ruled that planning status is a relevant consideration in applications for rental licences.
Neighbourhood planning bill enacted
Just before parliament's dissolution, the Neighbourhood Planning Bill achieved Royal Assent. Readers will be interested to know that the act removes permitted development rights relating to change of use or demolition of pubs. Other provisions will not come into force for some time – solicitor Martin Goodall offers a sober analysis.
Housing permissions reach record high
New research by Glenigan and the Home Builders Federation found almost 300,000 consents granted in 2016, the highest since their survey began. However, the permissions related to a smaller number of sites than in 2015, indicating a larger average site size. This may relate to other recent research which found that smaller builders were being deterred by the planning process and a report by the Communities and Local Government Select Committee arguing that housing development relied too much on large firms. The Public Accounts Committee also released a report highlighting over-dependence on the private sector as a whole.
Fly-tipping in focus
Defra recorded almost one million instances of fly-tipping in 2015/16, with enforcement action costing local authorities £17 million. Another recent report claims that waste crime, including fly-tipping, costs the legitimate waste management sector around £600 million. The government is conducting a consultation on increasing penalties for some of the relevant offences.
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The Planning and Environmental Law Committee will have a new chair from September: Tim Smith of Berwin Leighton Paisner will succeed Caroline Allen. Tim has been a generous contributor to the work of the Committee, not least in presenting evidence in person on the Neighbourhood Planning Bill to parliament last year. He regularly inputs to the Committee's numerous written submissions, and supports other parts of the Society's work, including on property, civil justice and solicitor judges.
Thanks again to those readers who responded to our newsletter survey (it's not too late to do so!) Eighty-nine per cent of respondents thought that the newsletter was 'quite good' or 'very good'. Only the monthly frequency prompted positive ratings to dip just under 80 per cent. A number of respondents also agreed to help with further feedback and we are in touch with them soon about how we can improve the newsletter and other services for planning and environmental solicitors.
Thanks also to those who responded to our call for volunteers for a Brexit reference group. We will be in touch with those kind souls shortly, and are still keen to hear from others. For more on our approach to Brexit, please see 'Leaving in an orderly fashion - our approach to Brexit.
The Committee submitted its response to the housing white paper consultation at the beginning of May. What will happen to the proposals, never mind responses to them, following the unexpected general election is anyone's guess!
Another consequence of the snap general election is that the Committee's meeting with the government's chief planner, Steve Quartermain, has been postponed. We hope to have Steve join us when the shape of future policy is clarified later in the year.
Finally, interviews of prospective Committee members have been held. We hope to announce the outcome soon!
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The following have recently come into force:
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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.
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In each newsletter we highlight a small number of notable judgments across a range of topical legal points. This month, demolition in the green belt, the fate of a rail freight interchange, and a rights of way dispute over a railway line.
Arnold & Anor v Secretary of State for Communities and Local Government & Anor  EWCA Civ 231
The Court of Appeal considered the case of Mr and Mrs Arnold, owners of Blackheath Cottage, near Guildford. The couple had been served with an enforcement notice after undertaking major works to the cottage which differed from those allowed by lawful development certificates issued by the local planning authority under the General Permitted Development Order (GPDO). The couple appealed the authority’s subsequent order to demolish the resulting dwelling, which the council argued amounted to a new dwelling, inappropriate in the green belt. The inspector found in favour of the council as did the High Court.
Permission was granted to bring the case before the Court of Appeal on only one of four grounds offered: whether the inspector had failed to correctly consider alternatives to the current dwelling, other than demolition. However, Lindblom LJ said that he could not 'find any error of law in the inspector's approach' which had concluded that none of the alternatives suggested would 'overcome the planning harms which he had identified'.
Goodman Logistics Developments (UK) Ltd v Secretary of State for Communities and Local Government & Anor  EWHC 947 (Admin)
The Planning Court has dismissed an appeal by the prospective developer of a strategic rail freight interchange in London’s western green belt. The proposals for development of a 60 hectare site west of Heathrow airport were submitted to Slough Borough Council in 2010 but refused. A delayed appeal followed and finally upheld the council’s decision in 2016. The promoter was granted leave to appeal to the court in November on three grounds.
Goodman’s three grounds related to: the need for such facilities, identified in the National Policy Statement; misapplication of Slough’s 'strategic gap' policy; and NPPF green belt policy. In granting permission to bring the claim, Dove J noted that the first two grounds were weaker than the third. Holgate J, hearing the case, agreed and asserted that even succeeding on the third ground was insufficient to quash the refusal or permission.
The Ramblers Association v Secretary of State for Environment Food And Rural Affairs  EWHC 716
The High Court has dismissed a claim against an inspector’s decision to refuse the addition of a footpath to the county’s 'definitive map'. Nottinghamshire County Council had accepted the application to do so via a Modification Order on appeal – but Network Rail objected. Following an inquiry, the inspector agreed with Network Rail that the path could not have become a right of way or be added to the definitive map.
The Ramblers Association brought the case to the courts on three grounds, objecting to Network Rail’s arguments that it had no authority to designate a right of way across its tracks, that such a move was contrary to its safety obligations, and that pedestrians using the route were committing a criminal offence (trespass other than on the railways usually being a civil matter). However, Dove J upheld Network Rail’s arguments and dismissed the claim.