Month: July 2017

Money & Justice: Tribunal Fees, Licensing Fees, Court Costs

Topical issue: what are the legal constraints on the Government and local authorities in setting the fee rates and cost recovery regimes for administrative and court processes?
Claimant and applicant fee rates in particular are seen by the Government as a lever to seek to 
– ensure that users of procedures make a fair contribution to the costs of providing them

– reduce the burden on the public purse and

– winnow out those who are seen as misusing the system. 

This is however a dangerous game, if access to justice is to be maintained in accordance with domestic and international legal principles. How to get it right?
Dove J heard on 19 July the judicial review by RSPB, Friends of the Earth and ClientEarth of the Government’s changes to the cost capping regime regime that applies to JRs relating to environmental law matters. They take the position that the changes breach the Aarhus Convention’s requirement that access to environmental justice must be available, without prohibitive cost. I have previously blogged on the Government’s changes. ClientEarth issued this press release after the hearing but judgment has been reserved. 

I would not be surprised if that set of proceedings did not end up in the Supreme Court. If so, it could be a worthy sequel to two interesting rulings from the Supreme Court in the last couple of weeks in relation to different subject areas but that same underlying theme. 

R (Unison) v Lord Chancellor (Supreme Court, 26 July 2017) concerned a challenge by trade union Unison to the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. The Supreme Court agreed with the claimant that the fee regime for claimants in employment tribunal proceedings and appellants in relation to appeals to the Employment Appeal Tribunal was unlawful because of its effects on access to justice. The full judgment handed down by Lord Reed and supplementary judgment by Lady Hale in relation to discrimination issues are well worth reading. Here are some quotes, which you may care to read with our planning system in mind:
There is a “constitutional right of access to justice: that is to say, access to the courts (and tribunals: R v Secretary of State for the Home Department, Ex p Saleem [2001] 1 WLR 443).” (paragraph 65)
“At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.” (paragraph 68)
“People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them. It is that knowledge which underpins everyday economic and social relations.” (paragraph 71)
“There is however no dispute that the purposes which underlay the making of the Fees Order are legitimate. Fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice. Measures that deter the bringing of frivolous and vexatious cases can also increase the efficiency of the justice system and overall access to justice.” (paragraph 86)
“The Lord Chancellor cannot, however, lawfully impose whatever fees he chooses in order to achieve those purposes. It follows from the authorities cited that the Fees Order will be ultra vires if there is a real risk that persons will effectively be prevented from having access to justice. That will be so because section 42 of the 2007 Act contains no words authorising the prevention of access to the relevant tribunals. That is indeed accepted by the Lord Chancellor. ” (paragraph 87)
“In order for the fees to be lawful, they have to be set at a level that everyone can afford, taking into account the availability of full or partial remission. The evidence now before the court, considered realistically and as a whole, leads to the conclusion that that requirement is not met. In the first place, as the Review Report concludes, “it is clear that there has been a sharp, substantial and sustained fall in the volume of case receipts as a result of the introduction of fees”. While the Review Report fairly states that there is no conclusive evidence that the fees have prevented people from bringing claims, the court does not require conclusive evidence: as the Hillingdon case indicates, it is sufficient in this context if a real risk is demonstrated. The fall in the number of claims has in any event been so sharp, so substantial, and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable.” (paragraph 91)
“The question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world. Fees must therefore be affordable not in a theoretical sense, but in the sense that they can reasonably be afforded. Where households on low to middle incomes can only afford fees by sacrificing the ordinary and reasonable expenditure required to maintain what would generally be regarded as an acceptable standard of living, the fees cannot be regarded as affordable.” (paragraph 93)
“Given the conclusion that the fees imposed by the Fees Order are in practice unaffordable by some people, and that they are so high as in practice to prevent even people who can afford them from pursuing claims for small amounts and non- monetary claims, it follows that the Fees Order imposes limitations on the exercise of EU rights which are disproportionate, and that it is therefore unlawful under EU law.” (paragraph 117)
The previous week the Supreme Court had returned to the difficult and long-running saga of challenges to Westminster City Council’s fees regime for the licensing of sex shops. The case has been an unholy mess for the Council. It had been setting licensing fees at a rate that included its costs of enforcing the licensing scheme against unlicensed third parties running sex shops. The fee was made up of two parts. One part was payable regarding the administration of the application and was non-refundable. Another part (which was considerably larger – £29,435 in 2011/12) was for the management of the licensing regime and was refundable if the application was refused. Licensed shops brought a challenge, arguing that the second element of the fee was in breach of the Provision of Services Regulations 2009 (SI 2009/2999) (which had been made to give effect domestically to EU Directive 2006/123/EC) and that the only fees that the Council could levy related to the administrative costs of processing the relevant applications and monitoring compliance with the terms of the licence by licence holder, rather than fund enforcement against those who didn’t seek or obtain licences. 
Regulation 18 of the 2009 Regulations provides that:
“(2) Authorisation procedures and formalities provided for by a competent authority under an authorisation scheme must not – 

(a) be dissuasive, or

(b) unduly complicate or delay the provision of the service”

“(4) Any charges provided for by a competent authority which applicants may incur under an authorisation scheme must be reasonable and proportionate to the cost of the procedures and formalities under the scheme and must not exceed the cost of those procedures and formalities.”

The Court of Appeal had upheld the claim in 2013 and as a result made repayments totalling £1,189,466 to the licence holders, together with a further £227,779.15 which it paid, it turned out, by mistake. 
However, the Supreme Court overturned that ruling in 2015, finding that the fees regime was basically lawful. There was one aspect which the court referred to the European Court of Justice, namely the way in which the part of the fee which covered wider enforcement costs was paid upfront when the application was made but only repaid if the application was unsuccessful. The European Court confirmed in November 2016 that this aspect of the regime was indeed unlawful. 
The case came back to the Supreme Court with the Council arguing that it was entitled to be paid or repaid the sums it repaid to licence holders in 2013 and the licence holders in turn contending that they are entitled to retain the repayment made to them in full, because it was charged in a way which in part at least had been unlawful. In its judgment dated 19 July 2017 the court basically agreed with the Council that it is entitled to be reimbursed to the extent that it has raised fees lawfully, but it has remitted the case to the Administrative Court to resolve a whole host of complexities that arise from the whole mess, including a number of accounting issues, complications arising where licensees have ceased to exist and the recovery of the monies that the Council had paid by mistake. 
Implications for planning
It may be thought that our planning system currently has the opposite problem: many applicants would be willing to pay higher application fees if the fees enabled authorities to staff up and offer a faster, better, service. The Government went less far than many would have wished when it announced in its February 2017 housing white paper that:
“We will increase nationally set planning fees. Local authorities will be able to increase fees by 20% from July 2017 if they commit to invest the additional fee income in their planning department. We are also minded to allow an increase of a further 20% for those authorities who are delivering the homes their communities need and we will consult further on the detail. Alongside we will keep the resourcing of local authority planning departments, and where fees can be charged, under review.” (para 2.15)
But even that relatively weak and overdue measure has not yet been brought into effect. 
More controversially the white paper indicated that the Government would consult on introducing a fee for applicants submitting planning appeals: “We are interested in views on this approach and in particular whether it is possible to design a fee in such a way that it does not discourage developers, particularly SMEs, from bringing forward legitimate appeals. One option would be for the fee to be capped, for example at a maximum of £2000 for the most expensive route (full inquiry). All fees could be refunded in certain circumstances, such as when an appeal is successful, and there could be lower fees for less complex cases.”

The white paper consultation sought views on: 
“a) how the fee could be designed in such a way that it did not discourage developers, particularly smaller and medium sized firms, from bringing forward legitimate appeals; 

b) the level of the fee and whether it could be refunded in certain circumstances, such as when an appeal is successful; and 

c) whether there could be lower fees for less complex cases.”

This is another area where we await an indication of whether the new ministerial team will take a different approach. Careful note will need to be taken of the Supreme Court’s rulings in Unison and in Heming. 
Finally, court fees continue to increase, most recently, from 26 July 2016, by way of the Civil Proceedings, Family Proceedings and Upper Tribunal Fees (Amendment) Order 2016 . The Order’s explanatory memorandum puts it like this:
“The majority of fees affected by this instrument will be increased by a rate which is above the level of inflation. The Government has decided, in view of the financial circumstances and given the reductions to public spending, that such an increase is necessary in order to make sure that the courts and tribunals are adequately funded and access to justice is protected, in the long term.”
In relation to judicial review, the fee levels are still relatively modest compared to some other court procedures but are still significant sums for some claimants to find, particularly at short notice:
– application for permission to apply £154 (previously £140)

– request to reconsider at a renewal hearing £385 (previously £350)

– to proceed to a full hearing if permission is granted £770, or £385 if reconsideration fee already paid (previously £700 and £350)

There is that tired saying about justice in England being open to all, like the Ritz Hotel. It’s true, save that the Ritz doesn’t close its doors for months on end. The court term ends on Monday 31 July (with the next term starting on 1 October). 
The end of this term marks the end of an era for the Supreme Court: Lords Neuberger and Clarke are retiring (there is an amusing Legalcheek account of their 28 July valedictory speeches) and Lady Hale will become president (only of the Supreme Court unfortunately rather than of the western world). If only we were to see more blogging from the retired judiciary such as that of Sir Henry Brooke. Do read his recent blog post on a truly surreal Tribunal case. 
 Simon Ricketts, 29 July 2017
Personal views, et cetera

Not In My Neighbourhood

To my mind, the problems with neighbourhood plans that I listed in my 19.2.17 blog post haven’t gone away. 

In fact, two changes to the neighbourhood plan process that were switched on from 19 July 2017 by the Neighbourhood Planning Act 2017 (Commencement No. 1) Regulations 2017 will just bring the issues to the boil at an earlier stage:

– section 1 of the 2017 Act gives decision makers a duty to have regard to neighbourhood plans as a material consideration once they have been examined, prior to their having been approved in a neighbourhood referendum or finally made (ie ‘adopted’ in local plan language). 

– section 3 of the 2017 Act requires decision makers to treat a neighbourhood plan as part of the statutory development plan once they have been approved by a referendum (unless the local authority then decides not to make it). 

In the meantime, the last few weeks have seen various rulings from the High Court and decision letters from the Secretary of State that demonstrate the complexities, uncertainties and tensions that are arising. 

Farnham Neighbourhood Plan
Bewley Homes Limited v Waverley District Council (Lang J, 18 July 2017) 

The claimants, Bewley, Wates and Catesby, were three development companies unhappy that their respective development sites were not allocated for development in the draft Farnham neighbourhood development plan. 
The case illustrates the real difficulties that arise both with grappling with detailed issues during the examination process and seeking to assert, when the report has been published, that the examiner’s reasoning is deficient. 
The claimants’ first line of attack was that the examiner was wrong to conclude that the draft plan complied with the basic condition of being in conformity with the strategic policies of the 2002 local plan. 
Lang J sets the bar very low in terms of the extent of the examiner’s duty to give reasons for the conclusions in his report: “I consider that an Examiner examining a neighbourhood plan is undertaking a function which is narrowly prescribed by statute and he is subject to a limited statutory duty to give reasons. It is distinguishable from the function of an Inspector determining a planning appeal, where the duty to give reasons is expressed in general terms.”
Secondly, she makes clear that the requirement that the neighbourhood plan must be in general conformity with strategic policies in the relevant local plan is pretty loose in practice: “The authorities establish that the phrase “in general conformity” is a flexible test which allows for some differences. The plans do not have to match precisely. It was a matter of planning judgment for the Examiner to decide whether the degree of the differences was such that he could not properly find that “the making of the [plan] was in general conformity with the strategic policies in the development plan”, as required by paragraph 8(2)(e) of Schedule 4B. For that purpose, he was required to consider the plan as a whole.”



The judge found that it was sufficient that the examiner referred to his consideration of Farnham Parish Council’s Basic Conditions Statement, from which it could be taken that he accepted Farnham’s Basic Conditions Statement as the basis for identifying the strategic policies in the Local Plan 2002.
Lang J noted that even if the reasoning had been flawed, in the light of the Court of Appeal’s ruling in DLA Delivery, “the Examiner could lawfully have adopted a different route, holding that the strategic policies restricting housing development had become time-expired in 2006 and were now redundant, and could be disregarded.”
The claimants’ other grounds of challenge arose from detailed evidence and submissions that they had made on issues relating to SANGS land and relating to a landscape study on which a key policy in the draft plan was based. It is clear that the developers had approached both issues in some forensic detail. However, the judge was satisfied with the light-touch way in which the matters had been addressed in the report:

“It was sufficient that the Examiner recorded at paragraphs 2.4, 2.7 and 2.8 that he had considered all the written material submitted to him, together with the discussions at the public hearing, all of which provided him with sufficient information to enable him to reach his conclusions. The main points raised by the Claimants were adequately addressed in the report and the Examiner’s conclusions were made sufficiently clear.”

“The Claimants invited me to infer that the Examiner did not consider the Wates’ material because he did not refer to it. However, given the limited scope of his examination, he was not required to refer specifically to the evidence and representations presented by the Claimants, and the points raised therein. There was a large volume of evidence and these were not principal documents. It was sufficient that the Examiner recorded that he had considered the representations. He also stated at paragraphs 2.4, 2.7 and 2.8 that he had considered all the written material submitted to him, together with the discussions at the public hearing, all of which provided him with sufficient information to enable him to reach his conclusions.”

Faringdon Neighbourhood plan
Hoare v Vale of White Horse District Council (Deputy High Court Judge John Howell QC, 7 July 2017)
Here policy 4.5B in the draft plan sought to safeguard Wicklesham Quarry for employment uses following completion of quarrying and restoration activities on the site and to support such development on it provided that there is a demonstrable need for it, no other suitable site closer to the town centre is available and certain other conditions are met.
The claimant was a local resident objecting to the allocation. 
The court took a similar approach as in Bewley to complaints as to the lack of general conformity with strategic policies in the local plan:


“The phrase “strategic policies” is, like “general conformity”, inherently imprecise, and it is not one in my judgment to which the court should seek to give a spurious degree of precision. Which policies in a development plan warrant that classification will inevitably involve a question of planning judgment that will be framed (but not necessarily exhausted) by the objectives of the particular plan and the policy’s significance in relation to their achievement and to the character, use or development of land in the area to which the plan relates which it seeks to promote or inhibit. The more central or important the policy is in relation to such matters the more likely it will be that it may be a “strategic policy” in that plan. Its identification as “strategic” or as part of the “strategic policies” in that plan may well provide a good indication of its significance. But the fact that it is not so identified does not necessarily mean that it is not a strategic policy and its identification as such does not necessarily mean that it is.”



The claimant also submitted that Policy 4.5B is about a “county matter”, which is a category of “excluded development” that cannot lawfully form part of a neighbourhood plan; and that the District Council erred in treating the quarry as “previously developed land” for the purpose of the NPPF. 
The deputy judge held that the policy was not about a county matter, given that it sought to safeguard the Quarry for employment uses following the completion of quarrying and restoration activities on the site: “The provision which is excluded from a neighbourhood plan is not any provision about any development in respect of land which is the subject of a restoration condition or an aftercare condition. It is any provision about development which “would conflict with or prejudice compliance with” such a condition. There may be operations or uses that can be carried on on such land without doing so. Moreover there is nothing to preclude a neighbourhood development plan making provision about a development that may be carried out on land subject to such conditions but only after they have been complied with. That may in fact be desirable in order to provide guidance about the future use of the land. Thus in my judgment the mere existence of such conditions applicable to an area of land does not mean that no provision about that land may be made in a neighbourhood plan.”



The deputy judge agreed that the council had indeed been wrong to categorise the site as previously developed land, given the restoration condition. However, he did not consider that the error was material to the outcome of the plan and declined to quash the plan on that basis.

 
Not easy to challenge a neighbourhood plan, is it?

Central Milton Keynes Business Neighbourhood Plan

The Secretary of State issued his decision letter on 19 July 2017, granting planning permission to Intu Milton Keynes Limited for extension of the Intu Milton Keynes shopping centre. The application was supported by Milton Keynes Council but had been called in by the previous Secretary of State Greg Clark in November 2015, who indicated that for the purposes of determining the application he wished to be informed as to “the consistency of the application with the development plan for the area including the Central Milton Keynes Business Neighbourhood Plan”.

The Central Milton Keynes Business Neighbourhood Plan was England’s first business neighbourhood plan. Central Milton Keynes Town Council objected to the application. As part of its objections it sought to portray the proposals as contrary to policies of the Neighbourhood Plan seeking to protect semi-public open space in Midsummer Place and seeking to retain Central Milton Keynes’ classic grid pattern.

However, the Secretary of State agreed with his inspector’s conclusion that the application was “in accordance with development plan policies, including those in the Neighbourhood Plan, and is in accordance with the development plan overall”.

The inspector indicated that her finding was “based on a balanced interpretation of Policy CMKAP G3. Had I taken an absolute approach to the policy, the reduction in the quantity of semi-public open space, would have resulted in a breach of the policy. Nevertheless, the proposed development would have been consistent with the development plan as a whole. In the final instance the considerable benefits of the proposal would have been material considerations sufficient to indicate that it should be determined other than in accordance with the development plan”. 



Buckingham Neighbourhood Plan
The Secretary of State declined to follow his inspector’s recommendation and, by his decision letter dated 17 July 2017, refused planning permission to Bellway Homes for a development of 130 dwellings in Buckingham. The inspector concluded that the neighbourhood plan was silent as to the proposed development of the application site. The Secretary of State disagreed:

“the larger housing sites, representing both the acceptable location and level of housing, are specifically identified and allocated in the BNDP. Both larger sites and the smaller windfall sites being confined to within the settlement boundary (HP7). The application site, being both unallocated and outside the settlement boundary, falls within neither category above and, as a consequence, the Secretary of State considers the proposals are not policy compliant. This is a policy conflict to which the Secretary of State attaches very substantial negative weight in view of the Framework policy (paragraphs 183-185) that neighbourhood plans are able to shape and direct sustainable development in their area and that where an application conflicts with a neighbourhood plan, planning permission should not normally be granted (paragraph 198).”

Barnham and Eastergate Neighbourhood Plan & the Walberton Neighbourhood Development Plan
 Yet another application called in so that the Secretary of State could consider whether development proposals (for 400 dwellings as well as commercial development in Fontwell, West Sussex) were consistent with (here two) neighbourhood plans. The Secretary of State granted planning permission, by his decision letter dated 13 July 2017, finding that the proposals were indeed consistent, “subject to careful consideration at the reserved matters stage”. 
In relation to each of these applications, call in by the Secretary of State on neighbourhood plan grounds has been directly responsible for significant delays, of at least 18 months. In each of the applications there has been significant debate, argument and uncertainty as to the meaning of neighbourhood plan policies – perhaps no surprise given the light touch, difficult to challenge, nature of the neighbourhood plans examination process.
Isn’t it time for a proper review of the costs and benefits of the neighbourhood plans system as it is currently operating?
Simon Ricketts, 22 July 2017

Personal views, et cetera

What The EU (Withdrawal) Bill Would Mean For (eg) EIA

So now we have, without any great surprises, what was first to be the Great Repeal Bill, then the Repeal Bill and now is the European Union (Withdrawal) Bill. It comes alongside extensive Explanatory Notes as well as a Memorandum justifying the use of delegated powers in the Bill .
This is a very narrowly defined blog post, asking myself one question: What does the Bill tell us in England about what will happen to EU law based legislation such as the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 once we reach the “exit date” (defined in the Bill as a date to be appointed by a minister but in practice to be 29 March 2019 or earlier, due to service by the Government of its Article 50 notice on 29 March 2017)? I have confined myself to England: there are additional complexities ahead for the devolved administrations. 
The EIA Regulations are EU-derived domestic legislation, as defined in the Bill, deriving as they do from the EIA Directive ie Directive 2011/92/EU as amended in 2014 by Directive 2014/52/EU. 
Clause 2(1) of the Bill provides:
“EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day. ”

So the Regulations will remain in force unchanged post exit day.   
For the avoidance of doubt clause 5(1) provides:
“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.”

So any change to environmental protection that is made following exit date cannot be challenged on the basis that it is contrary to EU law. Legislation excluding say the construction of a specific infrastructure project or type of infrastructure from EIA, or weakening its operation? There would no longer be any recourse to the Court of Justice of the EU (CJEU). But that would be the effect of leaving the EU in any event, so hardly needs to be spelt out. 
(Of course, the Government will need to ensure that any such legislation did not breach other international obligations such as the Espoo Convention and Aarhus Convention – where breaches are far more difficult to challenge by a complainant, whether in the domestic courts or in any international forum)
At present, in interpreting EU-derived legislation, our domestic courts have to apply EU law principles, having regard to decisions of the CJEU. After exit day, this will no longer be the case, in that there will be no requirement to have regard to post exit day decisions. Clause 6(1) provides:
“A court or tribunal

(a)  is not bound by any principles laid down, or any decisions made, on or after exit day by the European Court, and 

(b)  cannot refer any matter to the European Court on or after exit day. ”

Clause 6(2) makes it clear that a court may do “if it considers it appropriate to do so” but does not have to. So, (1) there will be uncertainty as to whether to bring post exit day CJEU rulings or advocate-general opinions before the domestic court to assist with interpretation (and so in practice they will be trawled out) and (2) CJEU jurisprudence is likely slowly to take a different direction to that of our domestic courts. Not straight-forward!
For a period from the coming into law of the Bill and two years after exit day, the Government will be going through all EU-law derived legislation, with the objective of making it continue to work post Brexit. Clause 7(1) provides:
“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate— 

(a)  any failure of retained EU law to operate effectively, or 


(b)  any other deficiency in retained EU law, 


arising from the withdrawal of the United Kingdom from the EU. “

The justification in the accompanying memorandum: “Retained EU law will contain thousands of failures and deficiencies. This power enables UK ministers and the devolved authorities to make corrections in time for exit to ensure a functioning statute book. ”

Clause 7(6) contains some protections:
“But regulations under this section may not— 

(a)  impose or increase taxation,

(b)  make retrospective provision, 


(c)  create a relevant criminal offence, 


(d)  be made to implement the withdrawal agreement, 


(e)  amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or 


(f)  amend or repeal the Northern Ireland Act 1998 (unless the regulations
 are made by virtue of paragraph 13(b) of Schedule 7 to this Act or are amending or repealing paragraph 38 of Schedule 3 to the Northern Ireland Act 1998 or any provision of that Act which modifies another enactment). “


The memorandum says this by way of example: “The impact of not making such changes would include inadvertently removing environmental protections. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 require an environmental impact assessment of certain applications for planning permission. They refer to “other EEA States” in a number of places, mainly in the context of development likely to have significant transboundary environmental effects. A correction amending the references to “other EEA States” to “EEA States”, would make it clear that the requirement on transboundary consultation continues to function on exit as it does now. This would remove uncertainty and help ensure that an important piece of environmental protection law continues to operate effectively. “

I referred to obligations arising under other international obligations. Clause 8(1) provides:
“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent or remedy any breach, arising from 
the withdrawal of the United Kingdom from the EU, of the international obligations of the United Kingdom.”

The memorandum more generally seeks to justify the breadth of use of delegated ministerial powers under the Bill:
“i. Time: The two year timetable for exit is provided for in Article 50 of the Treaty on the European Union. Therefore, the UK needs to be in a position to control its own laws from March 2019, which is why the UK Government and devolved administrations need to take a power so they can act quickly and flexibly to provide a functioning statute book. The complexity of identifying and making appropriate amendments to the converted and preserved body of law should not be underestimated. There is over 40 years of EU law to consider and amend to ensure that our statute book functions properly on our exit from the EU. According to EUR- Lex, the EU’s legal database, there are currently over 12,000 EU regulations and over 6,000 EU directives in force across the EU.2 We are not yet in a position to set out in primary legislation how each failure and deficiency should be addressed, nor would it be practical to do so…”

“ii. Practicality: The power will be exercised by UK ministers and the devolved authorities, enabling them to make the necessary corrections to the statute book required to make the law function effectively in their own field of expertise and competence. Making all corrections on the face of the Bill, at this stage, would not be practical. 

iii. Flexibility: Many of the potential deficiencies or failures in law arise in areas in which the UK is considering pursuing a negotiated outcome with the EU. The UK must be ready to respond to all eventualities as we negotiate with the EU. Whatever the outcome, the UK Government and devolved authorities, with the appropriate scrutiny by Parliament and the devolved legislatures, must be able to deliver a functioning statute book for day one post-exit.”

So in the case of environmental impact assessment, are we likely to see any early substantive changes? In my view we won’t. What we will see is amendments made so as to seek to ensue that the Regulations still work in legal terms post exit day and there may be arguments as to whether some of those amendments go beyond what is required to achieve that aim. But the substantive changes (which I’m sure will come) will be for a later stage. The explanatory notes to the Bill say this: “The Bill does not aim to make major changes to policy or establish new legal frameworks in the UK beyond those which are necessary to ensure the law continues to function properly from day one. The Government will introduce separate primary legislation to make such policy changes which will establish new legal frameworks.” (para 14). 
This is a commitment that we need to keep the Government to. No changes beyond what is necessary without primary legislation. 

Simon Ricketts, 13.7.17

Personal views, et cetera

Courts Interpret NPPF Paras 14, 133/134, 141 (But Couldn’t It Be Clearer In The First Place?)

The Government’s chief planner Steve Quartermain has confirmed this week that the revised NPPF will be published before the end of the year. To what extent will it reflect the proposed changes set out in the previous Government’s ‘response to consultation’ document that was published alongside the February 2017 housing white paper and to what extent will it take on board any changed political priorities since the June 2017 election or indeed various inherent uncertainties and ambiguities which have continued to occupy the courts?
Paragraph 14
I have previously blogged as to the Supreme Court’s ruling in Suffolk Coastal, which resolved (by way of a judgment of Solomon in which all parties, by operation of unexpected judicial reasoning, both won and lost) the question as to how the paragraph 14 presumption applies where there is no five year supply of housing land. 
The Court of Appeal in Barwood Strategic Land II LLP v East Staffordshire Borough Council (30 June 2017) has now resolved the question as to the presumption in favour of sustainable development applies in the mirror image position, where there is a five year supply and where the plan is not in other respects out of date. 
As in other matters, the NPPF is unclear on the meaning and application of the presumption in favour of sustainable development. Perhaps the presumption is oversold in the ministerial foreword: “Development that is sustainable should go ahead, without delay – a presumption in favour of sustainable development that is the basis for every plan, and every decision.”
Paragraph 14 expresses the presumption as a “golden thread running through both plan-making and decision-taking“, before going on to set out what this means for plan making and decision making. For decision making it means:
” ◦ approving development proposals that accord with the development plan without delay; and

    * where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless: 
– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

– specific policies in this Framework indicate development should be restricted.”

The question that has exercised the courts in a series of cases is whether the presumption applies outside these specific instances, for example even where a scheme is contrary to an up to date plan. 

Lindblom LJ first sets out how judges should approach questions of policy interpretation, referring back to his first instance judgment in Bloor Homes East Midlands Ltd. v Secretary of State for Communities and Local Government (19 March 2014): 
“Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context.”
He refers to his statement having been “underscored” by the Supreme Court in Suffolk Coastal where they set out that “the interpretation of policy will be suitable, in principle, for legal analysis – though only to a degree that depends on the context and content of the policy in question.”
Lindblom LJ followed the approach taken by Holgate J in Trustees of the Barker Mill Estates v Test Valley Borough Council (25 November 2016) in finding that is no freestanding presumption in favour of sustainable development outside para 14. 
Of course that is not to say that, as long as paragraph 14 is correctly interpreted, applicants cannot pray in aid other matters (factors where the development would accord with other policies in the NPPF) as material considerations, to overcome the presumption. It was a shame that (because in this case the judge was found to have misinterpreted paragraph 14) Lindblom LJ did not find it necessary expressly to put right some curious reasoning of the first instance judge, Green J, as to the operation of the statutory presumption in favour of the development plan set out in section 38(6) of the Planning and Compulsory Purchase Act 2004. In his judgment Green J tries to box in the exercise of a decision maker’s discretion with odd passages such as this:
“Insofar therefore as paragraph [14] permits of a residual discretion it must be recognised that the outcome arrived at by the operation of paragraph [14] should carry considerable gravitational pull. It should yield only as an exception to the norm where there exists objective and substantial reasons which can be readily demonstrated to a high degree of probative value and which takes into account the particular reasons why a development has been found to collide with the Local Plan. I should add however (see paragraph [54] below) that I express no concluded view on exactly how exceptional “exceptional” actually is; this being an issue better explored in a case where that issue truly arises.”

Whilst not specifically tackling this approach, Lindblom LJ pointedly follows the Supreme Court in Suffolk Coastal and Holgate J in Barker Mill with a warning against excessive legalism in matters of policy interpretation:

“I would, however, stress the need for the court to adopt, if it can, a simple approach in cases such as this. Excessive legalism has no place in the planning system, or in proceedings before the Planning Court, or in subsequent appeals to this court. The court should always resist over-complication of concepts that are basically simple. Planning decision-making is far from being a mechanical, or quasi-mathematical activity. It is essentially a flexible process, not rigid or formulaic. It involves, largely, an exercise of planning judgment, in which the decision-maker must understand relevant national and local policy correctly and apply it lawfully to the particular facts and circumstances of the case in hand, in accordance with the requirements of the statutory scheme. The duties imposed by section 70(2) of the 1990 Act and section 38(6) of the 2004 Act leave with the decision-maker a wide discretion. The making of a planning decision is, therefore, quite different from the adjudication by a court on an issue of law (see paragraphs 8 to 14, 22 and 35 above). I would endorse, and emphasize, the observations to the same effect made by Holgate J. in paragraphs 140 to 143 of his judgment in Trustees of the Barker Mill Estates.”

Paragraphs 133/134

What is the extent of the setting of a listed building for the purposes of assessment of harm?

In Steer v Secretary of State (Lang J, 22 June 2017) the main issue was treatment by an appeal inspector of the impact that proposals in Allestree, Derbyshire, for residential development and associated development would have on the landscape character of the area and heritage assets, namely Kedleston Hall (a grade 1 listed building), Kedleston Park (a grade 1 listed park), Kedleston Conservation Area, Kedleston Hotel and Quarndon Conservation Area. The Council, Historic England, the National Trust and others had opposed the appeals on the basis that whilst the proposed development was at some distance from, and would not be visible from the assets, there were historic and social/economic connections between the areas which meant that the appeal site was properly to be regarded as within the setting of the listed hall and park. 
The definition of ‘setting’ in the glossary to the NPPF is unspecific: “The surroundings in which a heritage asset is experienced. Its extent is not fixed and may change as the asset and its surroundings evolve.”
Lang J concluded that the inspector adopted an unlawfully narrow approach when determining whether the appeal site was part of the setting of Kedleston Hall and misdirected himself that a visual connection was necessary or determinative, in addition to the evidence of a historical connection.
The judge found that the inspector’s “focus was upon identifying a visual connection, and assessing the proposal’s impact upon it. The historic social and economic connections were set to one side in this exercise.”
“The evidence was that the appeal site was part of the setting of the Hall because it had formed part of the estate, managed historically as an economic and social entity, and it remained in its historic agricultural use, with hedges and mature trees characterising the field boundaries. From the Hall and the Park, the surrounding rural context was important in preserving a sense of a parkland landscape at the centre of a managed rural estate, rather than in a suburban context. The site was on the primary visitor route to the Hall and Park and so visitors would experience the historical narrative, and the concentric influence of the Hall on its landscape, as they traversed the agricultural estate, then entered the enclosed, designed park and gardens, enjoying the drama of anticipation as a great English country house was revealed to them.”
In reaching her conclusion it is interesting to see the reliance that Lang J places on Historic England’s good practice guide on the setting of heritage assets. 

Paragraph 141

Hayes v City of York Council (Kerr J, 9 June 2017) concerned a planning permission granted by York Council for the construction of a visitor centre at the base of the motte at Clifford’s Tower in York and the installation of a new staircase and tower floor, with walkways, balustrading, a roof deck with a café and other restoration works. A car park next to the site is to be removed. The project includes archaeological works and disturbance to buried artefacts. 

The case concerned the meaning of paragraph 141 of the NPPF, which states that where heritage assets are lost or partly lost, local planning authorities and developers should make archaeological records publicly available, but “the ability to record evidence of our past should not be a factor in deciding whether such loss should be permitted”. 
The challenge was brought by a member of the council. One of his complaints was that the council had taken account of a legally irrelevant factor, namely the ability to record evidence of the past.
Kerr J reviewed the more detailed national heritage policies that preceded the NPPF and the way in which the precise wording changed and finally was summarised in, and replaced by, the NPPF:

“The codification exercise which created the NPPF delivered commendable brevity, at the price (well worth paying) of replacing detailed exposition with general policy statements that can be Delphic, as in this instance.”

He turned to paragraph 141:
“The difficulty arises from the wording in the last sentence: “the ability to record evidence shall not be a factor in deciding …”. Those words do express, as a matter of language, what appears in conventional public law parlance to be the exclusion of a material consideration. Read literally, those words say not only that the ability to record evidence cannot be the sole justification for the harm; it cannot even contribute to the justification for the harm.”
Kerr J had real difficulty with this literal reading:
“Why should the preservation of information about an asset not be weighed in the balance along with other factors in favour of a development that harms a heritage asset? The harm is attenuated by the preservation of information and making it publicly available, which enhances and better reveals the significance of the harmed asset and hence its positive contribution to the locality and to our heritage.”

“This difficulty can only be overcome, in my judgment, once it is recognised that a non sequitur crept in when PPS 5 replaced PPS 16, and then found its way into the language of NPPF paragraph 141. In my judgment, the last sentence of that paragraph only makes good sense if interpreted so that the words “should not be a factor” are taken to bear the meaning “should not be a decisive factor”, in deciding whether the harm to the asset should be permitted.

I appreciate that, even allowing for the fact that the NPPF is a policy document and not a statutory provision, this interpretation stands uneasily with the actual words of the last sentence of the paragraph. But unless the paragraph is interpreted in that way, it would be very difficult to apply in a coherent manner.”

Kerr J rejected paragraph 141’s “literal interpretation in favour of a sensible and liberal construction of the paragraph in its proper historical context“.
Wider thoughts

So, three recent examples of the way in which the courts embark upon interpreting policy (whether national or local) and its application, consistent of course with the Supreme Court’s approach in Tesco Stores Limited v Dundee City Council (21 March 2012) that “policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context. 

That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780 per Lord Hoffmann). Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.”
Despite the reference to interpreting policies “objectively”, it will be seen that the courts will draw upon context, previous gestations of guidance and extraneous guidance documents to assist them. Sometimes, as in Hayes, the strict meaning of words will be stretched in a way that potentially leads to uncertainty. 
A broader approach to the interpretation of development consents by reference to extraneous documents than has traditionally been the case was signalled by the Supreme Court in Trump International Golf Club Scotland Limited v the Scottish Ministers (16 December 2015):
“When the court is concerned with the interpretation of words in a condition in a public document such as a section 36 consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. Whether the court may also look at other documents that are connected with the application for the consent or are referred to in the consent will depend on the circumstances of the case, in particular the wording of the document that it is interpreting. Other documents may be relevant if they are incorporated into the consent by reference (as in condition 7 set out in para 38 below) or there is an ambiguity in the consent, which can be resolved, for example, by considering the application for consent.”
To my mind, this all takes us into dangerous territory. Isn’t the public, or a purchaser of a development site, entitled to take words as meaning what they say. The courts are having to step in and complete the gaps left by inadequate drafting. Whilst its focus is a long way away from planning law, Lord Sumption’s speech The Supreme Court and the Interpretation of Contracts given at Keble College Oxford on 8 May 2017 is a thought-provoking read. One of the concluding passages:
“It is I think time to reassert the primacy of language in the interpretation of contracts. It is true that language is a flexible instrument. But let us not overstate its flexibility. Language, properly used, should speak for itself and it usually does. The more precise the words used and the more elaborate the drafting, the less likely it is that the surrounding circumstances will add anything useful. I do not therefore accept that the flexibility of language is a proper basis for treating the surrounding circumstances as an independent source from which to discover the parties’ objective intentions.”
I agree! Let’s aspire to use words precisely, whether in the drafting of policies, permissions or indeed agreements, rather than relying on the courts as a slow, expensive and unpredictable backstop. And given their broad effect, surely policies ought to be written even more carefully than contracts?
Simon Ricketts, 8 July 2017
Personal views, et cetera
Image by Rob Cowan.

Crossrail 2, Where Are You?

We’ve got some work to do now. 
George Osborne’s March 2016 budget indicated that the then Government would be “investing in the infrastructure that will deliver economic growth for the next generation” by a number of measures, including “securing London’s future infrastructure by giving the green light for Crossrail 2 to proceed. The government will provide £80 million to develop the project with the aim of bringing forward a Hybrid Bill this Parliament”. 


There have been rumours that the Treasury or Department for Transport subsequently have not yet been convinced of the business case but, whatever the reason (the twin challenges of Brexit and the need to devote resources to Northern Ireland to prop up a new born minority government? Politics = events, dear boy, events), the project’s absence from the Conservatives’ 2017 manifesto and subsequently from the Queen’s Speech on 21 June has been hugely disappointing. 
Perhaps given Mr Osborne’s new job it is no surprise that on the day of the Commons debate on the Queen’s Speech, 29 June, the London Evening Standard set out its concern in a strongly written editorial, but the points are surely well made. 
Delay to the project would have a series of harmful consequences:
– Postponement of the commuting benefits and congestion relief that it will bring. Given the need to provide additional capacity at Euston ready for the opening of HS2 in 2033, it is time critical (see City am’s 28 June 2017 piece).
– Loss of the opportunities that it will open up for additional housing and employment development around stations on the route, including opportunities for Transport for London to explore the possibilities for land value capture mechanisms. The Crossrail 2 Growth Commission confirmed in its 2016 report that the project could unlock 200,000 additional homes and 200,000 additional jobs. Without Crossrail 2, how will further housing come forward at the scale that is needed? In this uncertain period, are key sites going to lie fallow or developed at less than the scale that could be achieved with better rail connectivity?

– The unnecessary cost of delay, estimated by Crossrail 2 managing director Michele Dix at £2bn a year.

– Extended blight that will be caused along its current route, safeguarded in 2015 and shown on this interactive map.

– The uncertainty that has now been created for the impending replacement London Plan, the first draft of which we will see in November. The implications of Crossrail 2 are so significant that might the Mayor have to publish “with and without Crossrail 2” draft policies? How can the likely effects of the plan be properly assessed with such a question mark over Crossrail 2? 

The Mayor commenced consultation on 26 June 2017 in relation to his Mayor of London Community Infrastructure Levy 2 Preliminary Draft Charging Schedule (MCIL2 PDCS). MCIL1, which was adopted on 1 April 2012, was directed towards funding Crossrail 1. MCIL2 is directed towards funding Crossrail 2 and the Mayor intends for it to be adopted in April 2019. 

The proposed per sq m rates are £80 for band 1, £60 for band 2 and £25 for band 3, save that in central London and the Isle of Dogs, the rates for office, retail and hotel uses will be £185 for offices, £165 for retail and £140 for hotel uses.
 
Central London. 


Isle of Dogs

The Mayor’s supporting information says this about the current funding position for Crossrail:
“Since the 2016 Budget, Transport for London, the Greater London Authority and the Government have been working to develop a funding package for the project as part of the development of a strategic outline business case. The London contribution to the costs of Crossrail consists of four funding sources: 

    * Crossrail 2 net operating surplus – i.e. the net impact of Crossrail 2 on TfL’s rail revenues 


    * over station development – proceeds from development of land and property initially required for construction (development related with Crossrail 2 will pay Mayoral CIL 2 on the same basis other developments) 


    * a Business Rate Supplement (BRS) (once the current BRS repays Crossrail 1 related debt) 


    * a Mayoral Community Infrastructure Levy (MCIL2).”


MCIL2 is intended to meet approximately 15% of the project’s costs. What if Crossrail 2 does not go ahead? The document states:

“Negotiations on the Crossrail 2 scheme are still underway and there is no agreed funding package at present. However, MCIL2 does need to be brought forward now to avoid a charging gap at the end of Crossrail 1 construction and to allow for early funding of the Crossrail 2 scheme. Should no funding deal be achievable, the Mayor will be able to apply the MCIL2 proceeds to fund other strategic transport projects for which there is a significant funding gap.”
Crossrail 2 is also a key strand of the Mayor’s draft transport strategy published on 21 June 2017: “It
 will enable London’s highly productive economy to continue to grow by helping 270,000 more people get into the centre in the morning peak. It will thereby support 200,000 new jobs, as well as unlocking 200,000 additional new homes – more than 30 per cent of them outside London”

So what is happening behind the scenes? Will Crossrail 2 emerge in a leaner form? A City am story on 26 June asserts (denied by Crossrail 2) that a revised business case provided to the Government in March had dropped the proposed station at Kings Road Chelsea (the subject of a vociferous celebrity-backed campaign) and that possible stations at Turnpike Lane and Balham have been replaced by Wood Green and Tooting Broadway options respectively. The continued speculation without any real information, isn’t helping anybody.

What political weight, if any, does the National Infrastructure Commission still have? George Osborne (him again) established the NIC in October 2015 to “determine Britain’s infrastructure priorities and hold governments to account for their delivery” and appointed Lord Andrew Adonis as its chairman. NIC’s support of Crossrail 2 was hugely influential in the lead up to that March 2016 announcement. It set out on 26 June 2017 its top 12 infrastructure priorities, with Crossrail 2 featuring strongly: “The Government should by the end of 2017 publish a plan, agreed with the Mayor of London, for the funding and phased construction of Crossrail 2, and for securing the necessary parliamentary consent, taking account of the recommendations in the NIC’s Transport for a World City report.”
If this stasis goes on much longer I may even start to get nostalgic about all of those photos of George Osborne in high vis and hard hat…
Simon Ricketts, 1 July 2017

Personal views, et cetera