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Planning and environmental legislation update - September 2017

18 September 2017


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

Brexit bunfight

The EU (Withdrawal) Bill's second reading in parliament generated the expected extensive controversy and coverage. Predictably, environment concerns did not feature particularly highly. Nevertheless, the Environmental Policy Forum - among others - has highlighted concerns about the risks to environmental objectives, while UKELA highlighted the risk to international obligations.

Welsh and Scottish environment ministers recently met over concerns that Brexit will centralise powers in Westminster.

In more positive news, government proposals for post-Brexit civil justice cooperation with the EU were described as 'a step in the right direction' by the Law Society.

Welsh environment round-up

Recent weeks have seen a flurry of news, including the Welsh Government's publication of its first natural resources policy. Its priorities are: delivery of nature-based solutions; increasing renewable energy and resource efficiency; and a place-based approach.

August also saw Wales achieve its ambitious recycling target ahead of time, putting it third in the world (less encouragingly, a recent study suggested that only 9 per cent of global plastic waste has been recycled since the 1950s).

In less positive news for Wales, the International Union for Conservation of Nature (IUCN) World Commission on Protected Areas has raised concerns about possible planning reforms, warning that they could endanger the status of national parks and Areas of Outstanding Natural Beauty.

Finally, the Welsh Climate Change, Environment and Rural Affairs Committee published 'Turning the tide?', its report on marine protected area management. It suggested that marine wildlife is at risk from government's lack of will and funding.


The Department for Environment, Food and Rural Affairs (Defra) published a delayed draft of the UK's Aarhus National Implementation Report 2017 - as a 'tracked changes' Microsoft Word document. The document was not mentioned on Defra's regular website and offered only a two week consultation window.
The document does not refer to February's changes to Civil Procedure Rules on fixed costs, nor to the pending legal challenge to them. Indeed, it suggests that the old fixed cost rules still apply. Judgement on the legal challenge is expected imminently
Defra's report was drafted for submission to a meeting of the Aarhus Convention's parties this month. It was anticipated that the UK's performance in complying with the Convention would be criticised.

Houses are going up

Government reports that house building starts in England were the highest since 2008 in the year to June 2017, at 165,000. This is still lower than in the years before 2008, however, and short of the rate government needs to realise its manifesto promise of million new homes between 2015 and 2020 (and 1.5 million by 2022).

The process of identifying sufficient land for new homes may be given a boost if ideas in a new consultation are implemented. DCLG's proposals for a standardised method for calculating housing need would compel 156 local authorities to increase their allocations by an average of 35 per cent.

Despite regular impressions to the contrary, England's greenbelt shrank by 0.05% in 2016/17, slightly less than in the preceding year. It has shrunk by 1% since 1997 and still represents one eighth of England's land area.

Across the border, the Welsh Government published updated information on housing land availability, showing 19/25 local planning authorities unable to demonstrate a five year housing land supply in 2016.

In brief



Committee news

New committee chair Tim Smith (BLP) begins his three-year tenure in September, as does new committee member Sadia Hussain (London Borough of Southwark). Among other things, Tim will lead a session on 'planning issues for conveyancers' at this year's national property law conference on 11 October. We'll surely find Sadia something to do too...
The Law Society, with many others, put its name to a 'Motion of Regret' tabled by Lord Marks in the House of Lords. The motion expresses the House's regret at the changes made by government to the Civil Procedure (Amendment) Rules 2017 - and which are the subject of the above-mentioned legal challenge connected with the Aarhus Convention.


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

The Flood and Coastal Erosion Committee for Wales Regulations 2017

These Regulations make provision for the Flood and Coastal Erosion Committee for Wales, established under section 26B(1) of the Flood and Water Management Act 2010. The Committee is an independent advisory body to the Welsh Ministers and Welsh risk management authorities on matters relating to flood and coastal erosion risk management.

Case law

In each newsletter we highlight a small number of notable judgements across a range of topical legal points. This month we have conjoined cases ourselves - using Simon Ricketts' expert analysis of both in one article.

The court quashed the Secretary of State's refusal of permission for 184 homes in Cheshire. The application had been approved on appeal but then re-examined and refused due to conditions relating to the use of local labour and materials. The judge over-ruled the Secretary of State's view that these conditions were unenforceable, noting an absence of evidence.

In this case the court again quashed the Secretary of State's decision (this time a permission). It was accepted he had wrongly determined that a key policy of the local plan was out of date and the permission had wrongly treated the requirements of the Ashdown Forest's Special Protection Area and Special Area of Conservation.