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Planning and environmental legislation update - August 2017

8 August 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.  

TCPA’s three score years and 10

It's 70 years to the day since the Town and Country Planning Act 1947 received Royal Assent.

Consultation delayed but guidance goes on

The consultation on assessment of local housing need (and other topics) we trailed in last month's newsletter has been delayed until parliament returns. Meantime, the Department for Communities and Local Government (DCLG) has published requirements on brownfield register standards, simultaneously publishing a range of other guidance updates, including on Permission in Principle.

Government's new plan takes to the air

Department for Environment, Food & Rural Affairs (Defra) published its air quality plan before the end of July, as directed by the High Court. It included the eye-catching proposal to ban the sale of new petrol and diesel cars and vans by 2040. More immediate responsibility for the UK's failures to meet air quality legal limits has been passed to local authorities. They have been tasked with producing initial plans within eight months and final plans by the end of 2018. Defra promises more consultation and a clean air strategy next year.

Jackson reports

Lord Justice Jackson launched his report on fixed recoverable costs at the Law Society's Chancery Lane offices on 31 July. Jackson drew on experience of the Aarhus Convention's fixed costs regime, recommending that this approach be extended to all fast-track cases. He refrained from a proposal to fix costs for cases up to £250,000, as some had anticipated. Instead, he suggested a 'capped costs' approach, drawing on procedures in the Intellectual Property Enterprise Court.

Welcoming the report, Law Society president Joe Egan said: 'Fixed recoverable costs require a fixed process to be workable, as fixed costs do not reduce the work done by solicitors. We hope that the process can be streamlined for cases affected by fixed costs before they’re introduced’.

Putting Aarhus in order

While Lord Justice Jackson drew inspiration from the Aarhus Convention’s fixed costs regime, recent changes to allow variance of those costs have recently been the focus of a High Court case. Judgement had been reserved at the time of writing. However, there is the suggestion that a United Nations body will criticise the UK’s recent changes at its meeting next month.

Gove's ‘green Brexit’ promise

In a speech at the World Wildlife Fund's Living Planet Centre, the secretary of state cast himself as an environmentalist who wanted Britain to be a global leader in environmental protection. He argued that Brexit offered an opportunity for environmental policy ‘insulated from capture by producer interests’, singling out EU failures on diesel emissions, agriculture and fisheries. He raised the prospect of reforming farming subsidies to support better environmental outcomes, promised action on marine plastics, and highlighted the role of the Natural Capital Committee in providing advice on the delayed 25-year environment plan.

The government published a factsheet on environmental protection alongside the recent repeal bill.

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In brief

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Committee news

Current and former members of the committee, along with volunteers on our Brexit reference group, recently participated in a joint workshop on Brexit and environmental law. Incoming chair, Tim Smith, and Paul Stookes from the committee were joined by Huw Williams - a member until last year and still active on the Society's Wales Committee. Thanks also are due to Noel Doran, Ifath Nawaz, Lois Paine, Julie Vaughan from the reference group.

The workshop was a collaboration among the Law Society, Wildlife and Countryside Link, UKELA and the Environmental Law Foundation and was hosted at the Society's offices in Chancery Lane. Output from the day is being reviewed - there'll be more to share soon. If you'd like to contribute to our efforts on Brexit, please contact us.

The committee was recently contacted by a firm – Acclimatise – involved in the EU’s MARCO project. Acclimatise is engaging with the legal profession on how weather and climate-related information and analysis (aka ‘climate services’) can support the legal sector. Its aim is to equip ‘climate service’ suppliers with the insight to better meet the demands of the legal and other sectors, in turn equipping lawyers with the knowledge to both fortify existing advice and open-up new business areas. If you can help, please contact Richard Bater.

Following last month's golf and cycling club tips, this month, we're offering you some holiday reading tips. The committee suggested a number of beach-ready reads, including Lord Justice Jackson's report, the Permission in Principle guidance and the Law Society’s Environmental Law Handbook (half-price for a limited time) - all of which might make you glad not to be spending your time off with them. Other suggestions included The Ragged Trousered Philanthropists (by Robert Tressell), The Maintenance of Headway (by Magnus Mills), and any of the 117 new instalments of Peppa Pig.

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The following have recently come, or are soon to come, into force: 

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Case law

In each newsletter we highlight a small number of notable judgements across a range of topical legal points. This month, the duty to co-operate, buffer allowances and lapse rates, and liability for historic site contamination

St Albans City and District Council, R (On the Application Of) v Secretary of State for Communities and Local Government [2017] EWHC 1751 (Admin)
St Albans City and District Council has seen its challenge to a planning inspector's findings fail. The inspector, examining the council's draft strategic local plan, concluded that the requirements of the ‘duty to co-operate’ had not been met and that the plan should be withdrawn. The council contested this in court but Sir Ross Cranston, sitting as a judge in the High Court, found ‘the inspector did not reach an illogical or irrational conclusion as regards the duty to cooperate over housing’. Richard Butler (Bidwells) considers the case.

Wokingham Borough Council v Secretary of State for Communities and Local Government & Anor [2017] EWHC 1863 (Admin)
A Berkshire council has won its case against an inspector's grant of planning permission for 57 homes. The inspector unlawfully and unfairly applied both a 20 per cent housing land supply buffer and a 10 per cent 'lapse rate' - although he had not mentioned the latter during the appeal, nor allowed the council a reply. Application of the lapse rate had meant the council could not demonstrate a five year housing land supply, leading the inspector to grant permission. That permission has now been quashed. Two of the QCs involved consider the case.

Powys County Council v Price & Anor [2017] EWCA Civ 1133
The Court of Appeal has overturned a High Court ruling that Powys County Council was liable for contamination due to the landfill activities of predecessor authorities. Local government reorganisation in 1996 suggested that liabilities would pass to new authorities but a 2007 National Gas Grid case inspired Powys to challenge the presumption of liability. The council was unsuccessful in the High Court but appealed to the higher court which ruled that the liabilities only arose with Part 2A of the Environmental Protection Act, which took effect in 2001. Thus they had not been transferred from the predecessor authority. Keith Davidson (ELM Law) considers the case.

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