Month: June 2024

Neutrality Rules – CG Fry

Five years ago today (five years!) I was one of the first to blog about nutrient neutrality – the de facto veto on house building in some areas – in Another Green World: The South Coast Nitrate Crisis  (29 June 2019)

Since then the current Government has achieved nothing by way of legislation to unlock the issue. Instead the public and private sectors have gradually had to work up bespoke or locally strategic solutions and work-arounds.

What now are the two main parties promising in their manifestos?

The Conservative party proposes “abolishing the legacy EU ‘nutrient neutrality’ rules to immediately unlock the building of 100,000 new homes with local consent, with developers required in law to pay a one-off mitigation fee so there is no net additional pollution.”

The Labour party promises to “implement solutions to unlock the building of homes affected by nutrient neutrality without weakening environmental protections.”

In the interests of political neutrality I would describe these as two equally empty promises. No legislative solution will be both fast and environmentally robust. The Conservative attempt to shoehorn a provision into the then Levelling-up and Regeneration Bill last year of course flopped – see my 16 September 2023 blog post NN No. And five years on from Brexit (five years!) it is rather weak still to be pinning this problem on the EU!!

As well as delaying housebuilding, the issue has of course been grossly unfair for many developers and landowners who had obtained planning permission before Natural England had raised nutrient concerns and then find that they cannot achieve reserved matters approval or discharge pre-commencement conditions.

It was hoped by some that the courts might provide a solution to that particular position, by way of the litigation commenced by CG Fry. Unhappily their case was unsuccessful in the High Court – see my 30 June 2023 blog post CG Fry: AA Post PP. Even more unhappily, that ruling has now been upheld in the Court of Appeal (28 June 2024). 

The Court of Appeal held that “the inspector was right to conclude, and the judge to accept, that on their true interpretation regulations 63 and 70 of the Habitats Regulations could require an appropriate assessment to be undertaken at the stage when the discharge of conditions was being considered. This conclusion not only reflects the proper construction of the Habitats Regulations but also accords with the case law, both European and domestic, bearing on this question.”

“What, then, is the correct interpretation of the provisions of the Habitats Regulations with which we are concerned? We must begin with the domestic legislation as it is drafted. Applying normal principles of statutory interpretation, there is nothing in the relevant provisions to exclude the requirement for an appropriate assessment to be undertaken either when reserved matters are being approved or when conditions are being discharged, if the “authorisation” in question is necessary to enable the project to be lawfully implemented.

Given their natural and ordinary meaning, the words of regulation 63 clearly admit that possibility. The obligation imposed on a competent authority by regulation 63 is framed in broad terms. It makes necessary the carrying-out of an “appropriate assessment” before the authority decides to give “any consent, permission or other authorisation” for a plan or project. This formulation is clearly designed to capture a wide range of “authorisations”, of differing kinds; hence the use of the expression “or other authorisation”. It displays the essential purpose of the assessment provisions, which is to avoid any risk of harm to the integrity of a protected site. On a straightforward reading of the language used, having regard to that legislative purpose and to the underlying precautionary principle, the range of authorisations embraced in the provision extends, in our view, beyond the initial stage in the relevant process of decision-making. Any other interpretation would, we think, be incompatible with the words of the provision, inconsistent with the legislative purpose, and inimical to the precautionary principle.

Understood in this way, regulation 63 allows an appropriate assessment to be undertaken when the authority is making the final decision in a sequence authorising the development to proceed. Where that process involves the granting of outline planning permission for the proposed development and the subsequent submission and approval of reserved matters or the discharge of conditions, regulation 63 does not prevent the appropriate assessment of the project being carried out at that later stage as an exercise required before the decision is taken. In principle, it is not too late for such an assessment to be undertaken either when an approval of reserved matters is applied for or when the authority is called upon to discharge “pre-commencement” conditions, whose effect is that development carried out in breach would not be authorised by the planning permission.”

Nor in determining the relevant pre-commencement condition application or application for reserved matters is the decision-maker restricted to considering only the subject matter of the applications themselves, rather than the wider ecological issues.

And the principle applies equally to Ramsar sites as to other sites protected under the Conservation of Habitats Regulations.

I have no insight as to whether CG Fry will apply for permission to appeal to the Supreme Court but, regardless, it is clear that the courts will not be providing even a partial solution to the current crisis any time soon. My eyes turn to the incoming Government – where will we be in another five years I wonder?

Simon Ricketts, 29 June 2024

Personal views, et cetera

I know that some people only read this blog in the hope of references to old music (they regularly tell me that) so obviously here is an extract from the sleeve to Brian Eno’s wonderful 1975 album and everyone of a certain age will remember the theme music to the BBC’s Arena programme taken from it. Repeated references to Five Years in this post will also lead many back to David Bowie’s Ziggy Stardust album. Finally, in the interests of musical neutrality, I would like to point out that I also thought that Dua Lipa was quite good at Glastonbury last night.

It Took The Supreme Court A Year To Hand Down Finch So Do Give Me At Least Another Week Or So To Collect My Thoughts

If you thought Hillside was an enigma wrapped in a mystery…

There is much to unpack in R (Finch) v Surrey County Council (Supreme Court, 20 June 2024) as to what it means for those carrying out environmental impact assessment; determining applications and appeals which have been subject to environmental impact assessment, or indeed objecting to such projects. To what extent should “downstream” (and indeed “upstream”) effects of the development applied for be assessed – whether those effects be by way of carbon emissions or otherwise?

Let’s not jump to simplistic conclusions. So far I have only read the case once, armed with a highlighter pen, two cups of Nespresso black coffee, on-line dictionary and a Wispa bar. That was not enough. Reinforcements hopefully by next week. Watch this space.

What you have is two diametrically opposed judgments – the majority judgment by Lord Leggatt, with which Lord Kitchen and Lady Rose agree (and which is now the binding statement of the law) and a dissenting judgment by Lord Sales, with which Lord Richards agrees. 3 – 2. And to quote from Matthew Fraser (who acted in the case for the developer, led by David Elvin KC): “Interesting to think that this claim for judicial review was originally found to be “unarguable” on the papers, and also “unarguable” at the oral renewal hearing, by two different High Court Judges. Permission to bring the claim for judicial review was then granted by the Court of Appeal, but then both the High Court and the Court of Appeal rejected the Claimant’s case (for different reasons).” (NB well done, including for what must have been incredible persistence in the face of judicial adversity in the courts below, to Estelle Dehon KC, Marc Willers KC and Ruchi Parekh, acting for the ultimately successful claimant).

The bare conclusion from the beginning of Lord Legatt’s judgment:

“It is agreed that the project under consideration involves the extraction of oil for commercial purposes for a period estimated at 20 years in quantities sufficient to make an EIA mandatory. It is also agreed that it is not merely likely, but inevitable, that the oil extracted will be sent to refineries and that the refined oil will eventually undergo combustion, which will produce GHG emissions. It is not disputed that these emissions, which can easily be quantified, will have a significant impact on climate. The only issue is whether the combustion emissions are effects of the project at all. It seems to me plain that they are.”

There is the clear dichotomy between the wider role for environmental impact assessment according to the majority judgment, potentially encompassing scope 3 activities (using the GHG Protocol categorisation) – consequences of the activities of the entity occurring from sources not owned or controlled by the entity (and in the case of carbon, usually controlled at a national level) – and the narrower role according to the judgments in the lower courts and according to Lord Sales’ dissenting judgment (“These are all “big picture” issues which a local planning authority such as the Council is simply not in a position to address in any sensible way… Further, it would be constitutionally inappropriate for a local planning authority to assume practical decision-making authority based on its own views regarding scope 3 or downstream emissions and how these should be addressed in a manner which would potentially be in conflict with central Government decision-making and its ability to set national policy.”)

What indeed is the development? Easy question for us planners and planning lawyers? Wait, here comes Lord Leggatt:

“Holgate J also said, at para 110, that “indirect effects” of the proposed development cover “consequences which are less immediate, but they must, nevertheless, be effects which the development itself has on the environment” (emphasis in original). Outside the realms of Kantian metaphysics, there is no such thing as “the development itself” which enjoys some sort of separate noumenal existence. There are only the human activities which constitute the physical development (or “project”, to use the terminology of the EIA Directive).”

(This was the on-line dictionary moment for me I confess).

Lord Sales’ dissenting judgment makes the case for caution (I’m two coffees down at this point so am ready):

“In relation to … the present case to enlist the EIA Directive in the worthy cause of combating climate change, by seeking to press it into service in relation to requiring EIA in respect of downstream or scope 3 greenhouse gas emissions, it is relevant to bear in mind the cautionary words of Lord Bingham of Cornhill in Brown v Stott [2003] 1 AC 681, 703, quoting from Hamlet in relation to the European Convention on Human Rights:

“The Convention is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law. It does not, as is sometimes mistakenly thought, offer relief from ‘The heart-ache and the thousand natural shocks That flesh is heir to.’”.

As Lord Bingham pointed out, that Convention had to be interpreted according to its terms, not in an effort to produce a remedy for every problem which might be identified in a particular situation. So, in the present context, the EIA Directive, interpreted according to its terms, has a valuable role to play in relation to mitigating greenhouse gas emissions associated with projects for which planning permission is sought, but it should not be given an artificially wide interpretation to bring all downstream and scope 3 emissions within its ambit as well. That has not been stipulated in the text of the EIA Directive, is not in line with its purpose and would distort its intended scheme.”

But these two quotes do set up the issues nicely. I would draw out these key questions:

  • What now is the necessary scope for a lawful environmental impact assessment process and does Finch have any material bearing on development projects more generally as opposed to those relating to, for instance, the extraction of fossil foils where there is an inevitability as to  “downstream” effects (and where can a decision maker draw the line as to likelihood of downstream effects)?
  • What now is the breadth of the evaluative role of the decision-maker, with which the courts should not interfere?
  • What are the implications of the judgment for the formulation of the “environmental output report” process, which may one day replace environmental impact assessment?

There are already at least three camps with loud voices:

  • Great judgment, far-reaching effect, being the need for climate change to form a more central backdrop to decision-making in relation to particular applications and appeals; or
  • This is a judgment which calls for assessments to cover issues which the decision maker is not in a position to address in a sensible way (according to Lord Sales) and which are properly addressed at a national level; or
  • This is a judgment with narrower implications than people are assuming and which can be addressed in a straight-forward way within environmental impact assessment work where needed.

By next week perhaps I’ll have some tentative answers to those questions. If you are already in one of those three camps, I shall assume you are well ahead of me in your thinking. Respect.

Finally, I have mentioned him already: Mr Justice Holgate. Congratulations on his well-deserved appointment to the Court of Appeal.

Simon Ricketts, 22 June 2024

Personal views, et cetera

10 Reasons Why Planning Lawyers Are So Busy (And Maybe Shouldn’t Be)

The statistics are clearly going in the wrong direction: fewer public sector planning officers (see eg Labour’s pledge to hire 300 planning officers fails to make up for staff exits (FT, 2 June 2024, paywall or free registration) and an increasing number of private sector planning solicitors (The biggest planning law firms 2024 , Planning Resource, June 2024, paywall).

There you have it as to the two overwhelming problems with the current planning system:

  • Stretched public sector resources.
  • An increasingly complex and legalistic regulatory framework.

 I was reflecting on that second element this week at a really great “Planning Question Time” event in Exeter arranged by Carney Sweeney.

I’ve never been one to label all regulation as “red tape”. It’s not “red tape” if it serves a necessary purpose which is justified in the public interest. But this country is increasingly drowning in bureaucracy, and I stand before you as the living embodiment of it.

Town Legal has 12 partners, 28 qualified solicitors in total specialising in planning – and we are not the largest.

When I started as a lawyer in the 1980s I’m not sure there were too many more planning solicitors than that in the whole of the City! I don’t have 1980s figures, but going back just to say 2000-2001 the position in London is set out in the Chambers Directory table below. The largest team by far at that time was Berwin Leighton (now part of BCLP): 4 partners, 16 planning lawyers in total, followed by Denton Wilde Sapte (now Dentons): 3 partners, 13 planning lawyers in total – the bulwark of those firms’ practices at the time being work for their respective clients Tesco and Sainsbury’s. No other firms were in double figures. Now there are 25 firms with more than 10 planning solicitors!

Chambers Directory 2000-2001

Extract from Planning Resource survey, June 2024

According to the Planning Resource survey, the number of private sector planning solicitors increased by 8% just last year! This is not a good thing. 

What on earth is keeping so many planning lawyers busy, even in an environment when the number of planning applications has been falling, and does it have to be this way?

These are some of the issues that keep me constantly busy, most of simply did not exist 20 or 30 years ago:

  1. Advising on the procedural hurdles to amending schemes and the work-arounds to all that case law – Finney, Hillside, Dennis, Fiske and so on.
  2. Advising as to how to keep permissions alive by way of token implementation works, partly a factor of constant issues in relation to viability.
  3. Every aspect of the community infrastructure levy.
  4. Procedurally rigid appeals, many of which could have been avoided, often generated either by members’ refusals against officers’ advice or by unacceptable delays in the application process (see the point as to stretched public sector resources above – including at statutory consultees such as the Environment Agency and Natural England as well as at local authorities).
  5. Resisting (and sometimes promoting) judicial reviews that often turn out to be unsuccessful, partly fuelled by objectors’ expectation that rights have been infringed for which litigation will provide an adequate remedy – and the consequent now increasingly usual and time-consuming task, on more complex or contentious proposals, of carrying out a legal audit of draft application documents and committee reports to minimise legal challenge risk. 
  6. Unnecessarily repetitive negotiations in relation to section 106 agreements through the lack of national standard templates, alongside the widened scope of planning obligations and drafting sophistication that has arisen hand in hand with both item 10 below; the sheer scale of financial commitments now at play, and yes that public sector resourcing issue again, meaning that many authorities are simply not equipped to progress negotiations in a timely way, particularly in relation to more complex projects.
  7. The increasingly labyrinthine complexities of the permitted development rights system. 
  8. Constantly changing legislation and policy and the case law arising from inherent ambiguities in how statutory and/or policy tests are to be applied.
  9. Localism: neighbourhood plans, assets of community value and so on.
  10. Topics that have been shoe-horned into the planning system to deliver on other government objectives eg
  • Embodied carbon – demolition versus refit (no clear national policy yet)
  • Biodiversity net gain (the latest over-engineered statutory regime)
  • The neutralities (nutrients, water, recreational pressure)
  • Building safety and the widening increasingly unclear overlap between the Building Regulations and the planning system.
  • (whispers it) Affordable housing requirements (building market homes doesn’t lead to an additional need for affordable housing – it’s just politically convenient government policy to require it) and contributions to other public services (which successive governments have increasingly chosen to fund in part via developers rather than by way of direct taxation). 

Much of this of course is in the public interest and has value. Most schemes which come forward are far more considered and of higher quality than back when I started.

But I do wonder at what cost. 

Here’s an idea for Planning Resource: How about publishing an annual metric, being the ratio of homes and square metres of floorspace delivered in England over the relevant year divided by the number of practising planning solicitors in the private sector? I’m not wanting to do us out of a job. It would just be nice to be more productive…

Lastly, nostalgia for some of us: commentary from the 1994/1995 Chambers Directory. The scary new thing that was direct professional access to the bar! And some names to conjure with – all those names were, and in some cases still are, bright stars in our once little planning law world.

Chambers Directory 1994-1995

Simon Ricketts, 15 June 2024

Personal views, et cetera

New Prisons

Labour announced on 9 June 2024 that, if in power, it would: 

“Take control of the planning process by classifying prisons as being of ‘national importance’ on public safety grounds, so the approval decision is in ministers’ hands.”

It made me smile, given that in practice recent decisions in relation to new prisons have already been in ministers’ hands by way of recovered planning appeals. Labour’s announcement is possibly pointing towards including prisons within the scope of the Planning Act 2008 nationally significant infrastructure projects regime, although it is of course carefully enigmatic.

Securing planning permission for new prisons is slow and difficult, given the usual extent of local objections. Three recent examples:

Proposed new category C prison (up to 67,000 sq m gross external area) within a secure perimeter fence adjacent to HMP Grendon and HMP Springhill, Grendon Underwood, Edgcott

This application was submitted to Buckinghamshire Council for approval in June 2021 and was refused by committee, on officers’ recommendations) in March 202. The Ministry of Justice appealed. An inquiry took place in January and February 2023, lasting for eight days. The appeal was allowed by the Secretary of State, on the inquiry inspector’s recommendation, on 20 January 2024.

I note in passing that the constituency MP, Greg Smith (Conservative), standing again in this election, has described Mr Gove’s decision on his website as “devastating and preposterous”:

“Needless to say, my faith in the whole Planning Inspectorate has now hit absolute zero. Local people said no, Buckinghamshire Council as the planning authority said no, but this potty system has walked all over local wishes. It’s not right.”

Proposed new category B prison (up to 82,555 sq m gross external area) within a secure perimeter fence adjacent to HMP Gartree, Market Harborough

This application was submitted to Harborough District Council in September 2021. It was refused at planning committee against officers’ recommendations in April 2022. The Ministry of Justice appealed. An inquiry took place in October 2022 and the appeal was allowed by the Secretary of State, contrary to the inquiry inspector’s recommendation, on 15 November 2023.

The constituency MP, Neil O’Brien (Conservative), standing again in this election, has been one of the objectors to the proposal.

Proposed new prison adjacent to HMP Garth and HMP Wymott, Leyland, Lancashire

This application was submitted to Chorley Borough Council and was refused, again against officers’ recommendations, in December 2021. Following an inquiry held in July 2022, the Secretary of State determined on 19 January 2023 (unusually) that notwithstanding the inquiry inspector having recommended dismissal, the Secretary of State was minded to allow the appeal, subject to giving the parties the opportunity to provide further evidence on highways matters. He then decided on 6 April 2023 to reopen the inquiry. It reopened in March 2024 and the outcome is awaited.

The constituency MP, Katherine Fletcher (Conservative), standing again in this election, has been one of the objectors to the proposal.

That tension between national politics versus local politics, time and time again.

What’s the answer? I’m not sure that it is to bring new prisons within the Planning Act 2008 regime, as nationally significant infrastructure projects. First, this would be likely to require primary legislation to bring prisons within the definition of “infrastructure” and secondly it is such a procedurally onerous process! Alternatives would be to use the special development order route under section 59 of the Town and Country Planning Act 1990 or to promote the projects as Crown development under section 293D of the 1990 Act. However, whichever the route and whichever the party in government, shall we start with some specific national policy guidance…?

Simon Ricketts, 10 June 2024

Personal views, et cetera