Introducing The Planning Court Case Explorer

We understand why many participants – not just local authorities, but statutory consultees and the Planning Inspectorate – are risk averse. Judicial review is expensive, and to lose a judicial review in the courts is bad for the reputation of either [sic]. And judicial reviews can be precedent setting, establishing a new interpretation of the law. We think the proposals set out in the document should remove the risk of judicial review substantially. Most judicial reviews are about imprecise and unclearly worded policies or law. Our plans for an overhaul of planning law to create simple and clear processes and for plans that set out clear requirements and standards will substantially remove the scope for ambiguity and therefore challenge.” (Planning For The Future white paper, paragraph 5.16)

You can’t really contemplate any reform on the planning system without considering the role of the courts in the way that the system works in practice. Plainly where a public body (whether the state or a local authority) acts outside its powers, someone thereby affected needs to have access to an effective remedy, usually an order that renders it to be of no legal effect. Quite apart from the rights and procedures deriving from domestic common law principles, UK has international obligations to maintain such processes under Article 6 of the European Convention on Human Rights and, specifically in relation to access to environmental justice, under the third pillar of the Aarhus Convention. You can’t embark on a new system without a functioning mechanism to ensure that everyone plays by the rules.

Whilst essential as a backstop against abuse of power, the role of the courts in the operation of the planning system does of course need to be kept to a minimum. There are two areas in particular where there has always been scope to reduce the number of unnecessary claims:

1. As mentioned in that passage in the white paper, many (I’m not sure I would say “most”) “judicial reviews are about imprecise and unclearly worded policies or law.” As regards that first area, the aspiration in the white paper (“an overhaul of planning law to create simple and clear processes and for plans that set out clear requirements and standards will substantially remove the scope for ambiguity and therefore challenge”) is worthy but at present purely wishful thinking. We anticipate now a separate “Autumn” consultation into potential changes to EU-derived legislation, with a view to streamlining for instance SEA and EIA processes (no surprise – see e.g. my 4 July 2020 Have We Got Planning Newts For You: Back To Brexit blog post as well as Environment Secretary George Eustice’s 20 July 2020 speech). Of course, EU-derived environmental legislation (although, to be accurate, this is not about the EU – the relevant EU directives in turn implemented wider international treaty obligations) has been at the root of much planning caselaw, but the white paper’s proposals introduce a wide range of fresh tensions and uncertainties into the process – whether that be about the central imposition of housing requirements on local authorities, accelerated routes to development approvals or the proposed shift to a wholly new mechanism for the funding and delivery of affordable housing and infrastructure.

2. Claimants should be discouraged from using litigation simply as a tactic to secure delay or publicity, or in order to have a “low consequences” speculative last throw of the dice. Some steps have been taken to address this in recent years, most importantly the establishment of the Planning Court in March 2014 so that cases could be dealt with more quickly, by specialist judges, by the introduction of a permission stage in relation to section 288 challenges and by tightening the rules on costs protection (see my 22 June 2019 blog post No Time To Be 21: Where Are We With Aarhus Costs Protection?).

The lack of statistics as to the effectiveness of the Planning Court is frustrating. I went into this in my 8 July 2018 blog post The Planning Court and Richard Harwood QC has also recently expressed similar frustrations in the July 2020 39 Essex Chambers planning, environment and property newsletter, How common are High Court planning challenges?

At Town we recently decided to do something about it. Working alongside Landmark Chambers, on 13 August 2020 we unveiled what we call the Planning Court Case Explorer. The Case Explorer brings together, in one dataset, all judgments of the Planning Court after a full hearing, since its establishment in March 2014 to the end of June 2020 quarter by quarter (25 quarters), together with all subsequent appellate judgments. That amounts to 377 judgments by the Planning Court, 105 by the Court of Appeal and 11 by the Supreme Court. The data captured includes the length of time between the decision under challenge and the ruling, parties, judge and subject matter, with a link to the bailii transcript and usually our Town Library summary, and with a variety of search options so as to be able to interrogate the data, by way of clicking into the tables.

Only now, through this data, can it be seen that the average duration between a decision under challenge and the first instance ruling in relation to that decision is 293 days and can the extent of further delay be seen when a case goes to the Court of Appeal (an average of 726 days between the decision and the ruling) or there after to the Supreme Court (1,000 days!). In the context of a six weeks’ deadline for bring the claim in the first place and then the initial permission stage, that 293 days’ figure in my view is not unreasonable. The subsequent delays on appeal are in my view wholly unjustifiable.

Which judge in the High Court has handed down the most rulings? Lang J (69 judgments), followed a long way behind by Holgate J (28). Which Court of Appeal judge in relation to appeals from rulings by the Planning Court? Unsurprisingly Lindblom LJ (56). For each judge there is a list of his or her judgments.

Which are the most frequent parties? The Secretary of State is way ahead of the field, unsurprisingly, with 267 cases. Second, the Royal Borough of Kensington and Chelsea (14 rulings). Third, Gladman Developments Limited (12).

There are limitations to the work – for instance we have not focused on win/lose statistics, given the variety of permutations of outcome, and we have not analysed the much larger number of claims which are sieved out at the permission stage. However, I hope that the analysis is a useful step towards greater transparency.

The work now has additional topicality. The Government is not just proposing to reform the planning system. On 31 July 2020 it launched an “independent panel to look at judicial review”.

As set out in the press statement:

“Specifically, the review will consider:

• Whether the terms of Judicial Review should be written into law

• Whether certain executive decisions should be decided on by judges

• Which grounds and remedies should be available in claims brought against the government

• Any further procedural reforms to Judicial Review, such as timings and the appeal process”

The panel’s detailed terms of reference make for potentially worrying reading in terms of their breadth. Don’t just take that from me – here are two recent posts by Mark Elliott, professor of public law and chair of Cambridge University’s law faculty: Judicial Review Review 1: The Reform Agenda & Its Potential Scope and The Judicial Review Review II: Codifying Judicial Review – Clarification Or Evisceration? The review also needs to be read in the context of the Policy Exchange’s agitations via its Judicial Power Project and most recently its 31 July 2020 document Reforming The Supreme Court (now let’s think about what motivation they might have for that? hmm…). This is all really important stuff – at least as important and potentially far reaching as planning reform, that’s for sure.

The panel comprises:

• Lord Faulks QC – Panel Chair

• Professor Carol Harlow QC

• Vikram Sachdeva QC

• Professor Alan Page

• Celina Colquhoun

• Nick McBride

It is very good to see Celina Colquhoun, as a well-respected and leading planning barrister, on the panel, and I hope that the operation of the Planning Court can perhaps be held out as a useful precedent, with its proactive, relatively quick, case management and judges familiar with our subject area, meaning quicker hearings with, in my view, a greater degree of predictability of outcome. 493 planning cases going to a full hearing (including appeals) in just over six years? That’s not many at all in my view, given the inherent contentious nature of our work and the extent to which there is room for dispute and uncertainty. Despite all the usual gnashing of teeth, isn’t this one aspect of our planning system that is actually working (or at least would be once the Court of Appeal adopts the same approach to timescales as the Planning Court)? In fact, where would we be without regular clarification from the courts as to what the legislation actually means?!

That leads neatly onto a reminder about our free weekly Town Library Planning Court rulings subscription service. The registration page for this and other Town Library updates (e.g. planning appeal decision letters) is here: https://www.townlegal.com/news-and-resources/#the-town-library .

Simon Ricketts, 15 August 2020

Personal views, et cetera

The Planning Court Case Explorer

Have We Got Planning Newts For You: Back To Brexit

Whether dog whistle politics, a dead cat strategy or a jibe at the triturus cristatus, the prime minister’s reference to “newt-counting delays” in his 30 June 2020 speech was no accident:

“Why are we so slow at building homes by comparison with other European countries?

In 2018 we built 2.25 homes per 1000 people

Germany managed 3.6, the Netherlands 3.8, France 6.8

I tell you why – because time is money, and the newt-counting delays in our system are a massive drag on the productivity and the prosperity of this country

and so we will build better and build greener but we will also build faster

and that is why the Chancellor and I have set up Project Speed to scythe through red tape and get things done”

As a literal statement, it is nonsense to blame the operation of the protected species regime in relation to great crested newts for the failure of successive governments to ensure that enough new homes are built in this country. Licensing has in any event already been overhauled – see Innovative Scheme to conserve newts and promote sustainable development is rolled out across England (Natural England, 25 February 2020). See also this BBC piece, Boris Johnson’s newt-counting claim questioned (Roger Harrabin, 3 July 2020).

The underlying messaging that was intended by the statement is of course clear: that there are environmental rules, “red tape”, previously foisted on us by Brussels, unnecessary, holding back development.

To continue with the animal references, this is a topical canard. I had in any event intended this week to sidestep the recent announcements about radical planning reform and go back to the possibly related question as to what is actually likely to happen from 1 January 2021 following the end of the Brexit transition period. My Town colleague Ricky Gama and I gave an online talk on this issue last week as part of the Henry Stewart Conferences course The Planning System. We need to focus again on all this, now that we are less than six months away from….what?

The EU (Withdrawal) Act received Royal Assent on 23 January 2020, amending in various respects the EU (Withdrawal) Act 2018 and giving Parliamentary approval for the withdrawal agreement between the UK and EU that was then completed on 1 February 2020. We left the EU on 31 March 2020 in the sense of no longer being part of its structures, including the European Parliament or European Commission. But we remain subject to EU law until 31 December 2020.

Until 31 December 2020, decisions of the UK government and UK public bodies can still be the subject of complaints to the European Commission and rulings by the European Court of Justice, and we are bound by changes in law and by any rulings of the ECJ by that date.

On 31 December 2020, EU law becomes “retained EU law” and existing rulings of European Court of Justice have binding effect.

However (not to scare the horses but…), from that date Parliament may review, amend or repeal all EU-derived domestic legislation without restriction. The Government can provide regulations as to how the UK courts should interpret retained EU law. The Supreme Court is not bound by any retained EU case law. Ministers can by regulations provide for any other relevant court or tribunal not to be bound (first consulting with the president of the Supreme Court president and other specified senior members of the judiciary). Indeed, the Government is already consulting as to how it might give freedom to lower courts to do this: it is no longer a hypothetical possibility – see Government consultation on lower courts departing from retained EU law (Philip Moser QC, 2 July 2020).

Of course we will go into 2021 with EU environmental law fully domesticated into our own systems. As far as planning law is concerned, the EIA, SEA, protected habitats and species regimes will remain, as already set out in our domestic legislation. But then what?

This Government has given no assurances.

There was previously a requirement in section 16 of the 2018 Act that the Government would maintain environmental principles and take steps to establish overseeing body, by publishing a draft Bill in relation to those matters by the end of 2018

Section 16 set out the relevant environmental principles ie

a) the precautionary principle so far as relating to the environment,

b) the principle of preventative action to avert environmental damage,

c) the principle that environmental damage should as a priority be rectified at source,

d) the polluter pays principle,

e) the principle of sustainable development,

f) the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities,

g) public access to environmental information,

h) public participation in environmental decision-making, and

i) access to justice in relation to environmental matters.

A draft Bill was published by that deadline and its provisions, with some amendments (including a reduced version of that list), are now within the current Environment Bill.

The reduced list of environmental principles (in clause 16(5) of the Bill) is now as follows:

“(a) the principle that environmental protection should be integrated into the making of policies,

(b) the principle of preventative action to avert environmental damage,

(c) the precautionary principle, so far as relating to the environment,

(d) the principle that environmental damage should as a priority be rectified at source, and

(e) the polluter pays principle.”

It no longer includes the principle of “sustainable development” or the last three principles set out in the 2018 Act, which derive from the Aarhus Convention rather than directly from EU law.

Progress on the Bill has been delayed until September 2020 due to Covid-19 (whilst the Government has not chosen, by the 30 June 2020 deadline in the withdrawal agreement, to agree an extension to the 31 December date, which would of course have been possible on exactly the same basis). But in any event Royal Assent would only be the start of a long process of arriving at policy statements so as to deliver on those principles and have up and running a functional Office for Environmental Protection (recruitment for roles within the proposed OEP has not yet commenced).

So any “radical” reform of the planning system is likely to slip in ahead of oversight, in any meaningful way, by this new body or application of the principles that were intended at the time of the 2018 Act to plug the gap post Brexit.

In fact, it’s worse than that. Section 16 of the 2018 Act was repealed by the 2020 Act. There is no longer any duty upon the Government to adopt any particular environmental principles or to establish any independent overseeing body. If the Environment Bill is withdrawn, kicked into the long grass or, by way of amendment, stripped of meaning, there’s nothing to be done, the horse has bolted.

The December 2019 Queen’s Speech said this:

“To protect and improve the environment for future generations, a bill will enshrine in law environmental principles and legally-binding targets, including for air quality. It will also ban the export of polluting plastic waste to countries outside the Organisation for Economic Co-operation and Development and establish a new, world-leading independent regulator in statute.”

By way of political commitment, that’s all there currently is. (NB I think we need to give that “world-leading” epithet a rest – I am trying to think of a recent example where we wouldn’t have been content to swap “world-leading” or “world beating” for, say, “functioning”?).

So from 1 January 2021, what changes might we see to EU-derived environmental law?

It’s pure guess-work, because the Government will not presently be drawn on that subject (which makes the “newt” reference so triggering).

But do you think it was an accident that the last essay in the Policy Exchange publication Planning Anew, just before the tail-wagging endorsement at the end by the Secretary of State, was an essay entitled Environmental Impact Assessment fit for the 21st Century by a William Nicolle and Benedict McAleenan? A flavour:

“To make them fit for the 21st Century, EIAs should focus only on the environmental impacts of development, like natural ecosystems, biodiversity, water, and other components of natural capital. Greater weighting and priority could be given to the most pressing environmental impacts of today, such as biodiversity, given recent evidence of the scale of international and national wildlife decline.

There are several, more subjective facets of EIAs that need to be stripped out, as they dilute this focus and prioritisation of environmental impacts. Landscape aesthetics, for example, should not be included in EIAs, as they are not environmental impacts per se. Policy Exchange has led calls for beauty to be a central factor in the planning system. We applaud this, and have argued for the natural landscape to be the inspiration for architecture, but the EIA should be concerned with what the environmentalist Mark Cocker calls the “more than human”.”

Who are the authors? William Nicolle apparently joined Policy Exchange in 2019, having been a graduate analyst at a utility. Benedict McAleenan is managing partner at “political risk and reputation” firm Helmsley Partners.

The prime minister’s 30 June 2020 “Build, Build, Build” press statement promised a “planning Policy Paper in July setting out our plan for comprehensive reform of England’s seven-decade old planning system, to introduce a new approach that works better for our modern economy and society.”

If changes are proposed to EU-derived environmental laws, please can that be made absolutely clear so that we can have an informed debate. Change and improvement is possible but only where led by the science, not by the think tanks.

After all, any move towards a more zoning-based approach, where the development consenting process is simplified by setting detailed parameters at a plan-making or rule-setting level, will face complications due to the need for strategic environment assessment of any plan or programme required by legislative, regulatory or administrative provisions that sets the framework for subsequent development consents and which is likely to have significant environmental effects – assessment which has become highly prescriptive, particularly in terms of the need to consider, in detail, reasonable alternatives to the selected policy option. Projects which are likely to give rise to significant effects on the environment require environmental impact assessment. It must be shown that plans or projects will not adversely affect defined species of animals or the integrity of defined habitats – with rigorous processes and criteria. Politicians will be bumping up against EU-derived environmental law, and those environmental principles (not yet finalised), at every turn.

Of course, the Government would not have a completely free hand in changing or removing these processes. We are subject to wider international duties, under, for instance the European Convention on Human Rights, the Aarhus Convention, the Paris Agreement (climate), the Espoo Convention (environmental assessment) and the Ramsar Convention (habitats). Trade deals in relation to the export of our goods or services, with the EU and/or other countries and trading blocs, may also require specific commitments.

But, if the Government is moving rapidly towards “comprehensive” reform of the planning system, it’s a fair question to ask: What changes are proposed by this Government to these EU-derived regimes from the end of this year?

Isn’t this the elephant in the room?

Yours faithfully, a newtral observer.

Simon Ricketts, 4 July 2020

Personal views, et cetera

PS Two webinars coming up, free registration, covering the sorts of issues I cover in this blog. Do register and tune in if of interest:

4pm 7 July (hosted jointly by Town Legal and Francis Taylor Building): NSHIPs? The case for residential-led DCOs. I am chairing a discussion between John Rhodes OBE (director, Quod), Bridget Rosewell CBE (Commissioner, National Infrastructure Commission), Gordon Adams (Battersea Power Station), Kathryn Ventham (partner, Barton Willmore) and Michael Humphries QC (Francis Taylor Building). Register here: https://zoom.us/webinar/register/WN_7SoJtOhqQwSJNt0jtmUFVA

5pm 14 July (hosted by Town Legal): Living, Working, Playing – What Does The Covid Period Teach Us? My Town partner Mary Cook is chairing a discussion between Steve Quartermain (Government’s former chief planner, consultant Town Legal), Karen Cook (founding partner, PLP Architecture), Jim Fennell (chief executive, Lichfields), Simon Webb (managing partner, i-transport) and myself. Register here: https://zoom.us/webinar/register/WN_pSbroYIoSRioMXvtDlGP3Q

The great crested newt (courtesy: wikipedia)

Revisiting Burkett: Should The JR Pre-Action Protocol Be Updated?

I have a simple suggestion this week, sparked by thinking about two judicial review cases, almost 20 years apart, both involving challenges to the adequacy of environmental impact assessment processes in relation to particular schemes. In both of them the indefatigable claimant environmental lawyer Richard Buxton was on the winning side. (If anyone asks why developers nowadays routinely spend significant amounts of time and money having their lawyers review draft application and EIA documents, the answer is mostly Richard).

But my suggestion isn’t about EIA, but is about when a potential claimant should notify a defendant authority that it is considered that grounds for a potential challenge have arisen. At the moment, there is no requirement to do that, by way of a letter written in accordance with the Administrative Court’s pre-action protocol, followed by the issue of proceedings, until it is all too late and permission has been issued. This of course is part of what makes judicial review such a powerful tool for objectors to development proposals – the ability to ambush by tripping the council up on a legal point when it’s too late for them to do anything about it. I intend no specific criticism of Richard (in that it’s not a feature at all of either of the cases mentioned in this post) but often only then does the claimant’s lawyer leap out of the bushes with a multi-page “aha and gotcha” letter.

The law was in a hopeless mess 20 years ago. No-one knew whether a claimant was safe to wait to challenge the relevant planning permission once it had been issued, or whether the challenge should be to any earlier decision in the process, for instance the authority’s resolution to approve the application.

The case which put that question to bed was R (Burkett) v London Borough of Hammersmith and Fulham (House of Lords, 23 May 2002).

It involved St George’s Imperial Wharf development in Fulham, “a mixed use development comprising 1,803 residential units (1303 private flats and 500 affordable dwellings in the form of flats and houses), an hotel, class A1 retail, class A3 restaurant, class D community uses, health and fitness club, class B1 offices, public open space and riverside walk, together with associated car parking, landscaping and access road.”

Richard acted for Mrs Burkett, who lived in a ground floor maisonette next to the site. The council resolved to approve the application on 15 September 1999 but before then he had written to the council alleging that the environmental impact assessment being relied upon was deficient. After the resolution he continued to complain but did not issue judicial review proceedings until 6 April 2000. The planning permission was not issued until 12 May 2000.

Why the delay? Well, those were the days. Legal aid for planning-related judicial review proceedings was still available and, having started his work on a pro bono basis, Richard had to wait until the Legal Services Commission had confirmed that legal aid would be granted to Mrs Burkett, on a nil contribution basis (which also gave protection against any adverse costs orders – in the days before any Aarhus protective costs order regime).

The council submitted that the claim was out of time and Richards J at first instance and then the Court of Appeal agreed. Shades of the Dill case I mentioned last week in that it was only the House of Lords that reached the contrary view.

Lord Slynn:

In my opinion, for the reasons given by Lord Steyn, where there is a challenge to the grant itself, time runs from the date of the grant and not from the date of the resolution. It seems to me clear that because someone fails to challenge in time a resolution conditionally authorising the grant of planning permission, that failure does not prevent a challenge to the grant itself if brought in time, i e from the date when the planning permission is granted. I realise that this may cause some difficulties in practice, both for local authorities and for developers, but for the grant not to be capable of challenge, because the resolution has not been challenged in time, seems to me wrongly to restrict the right of the citizen to protect his interests. The relevant legislative provisions do not compel such a result nor do principles of administrative law prevent a challenge to the grant even if the grounds relied on are broadly the same as those which if brought in time would have been relied on to challenge the resolution.”

Lord Steyn’s reasoning:

“45. First, the context is a rule of court which by operation of a time limit may deprive a citizen of the right to challenge an undoubted abuse of power. And such a challenge may involve not only individual rights but also community interests, as in environmental cases. This is a contextual matter relevant to the interpretation of the rule of court. It weighs in favour of a clear and straightforward interpretation which will yield a readily ascertainable starting date. Entrusting judges with a broad discretionary task of retrospectively assessing when the complaint could first reasonably have been made (as a prelude to deciding whether the application is time barred) is antithetical to the context of a time limit barring judicial review.

46. Secondly, legal policy favours simplicity and certainty rather than complexity and uncertainty. In the interpretation of legislation this factor is a commonplace consideration. In choosing between competing constructions a court may presume, in the absence of contrary indications, that the legislature intended to legislate for a certain and predictable regime. Much will depend on the context. In procedural legislation, primary or subordinate, it must be a primary factor in the interpretative process, notably where the application of the procedural regime may result in the loss of fundamental rights to challenge an unlawful exercise of power. The citizen must know where he stands. And so must the local authority and the developer. For my part this approach is so firmly anchored in domestic law that it is unnecessary, in this case, to seek to reinforce it by reference to the European principle of legal certainty

50. Thirdly, the preparation of a judicial review application, particularly in a town planning matter, is a burdensome task. There is a duty of full and frank disclosure on the applicant: 053/14/57 to RSC Ord 53, r 14. The applicant must present to the court a detailed statement of his grounds, his evidence, his supporting documents in a paginated and indexed bundle, a list of essential reading with relevant passages sidelined, and his legislative sources in a paginated indexed bundle. This is a heavy burden on individuals and, where legal aid is sought, the Legal Services Commission. The Civil Procedure Rules and Practice Direction – Judicial Review Supplementing Part 54 contain similar provisions: see also the Pre-Action Protocol for Judicial Review. An applicant is at risk of having to pay substantial costs which may, for example, result in the loss of his home. These considerations reinforce the view that it is unreasonable to require an applicant to apply for judicial review when the resolution may never take effect. They further reinforce the view that it is unfair to subject a judicial review applicant to the uncertainty of a retrospective decision by a judge as to the date of the triggering of the time limit under the rules of court.

51. For all these reasons I am satisfied that the words “from the date when the grounds for the application first arose” refer to the date when the planning permission was granted. In the case before the House time did not run therefore from the resolution of 15 September 1999 but only from the grant of planning permission on 12 May 2000. It follows that in my view the decisions of Richards J and the Court of Appeal were not correct.”

This remains the legal position. The current time limit provision in the Civil Procedure Rules is as follows:

“Where the application for judicial review relates to a decision made by the Secretary of State or local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose, holding that time runs from the actual grant of planning permission not the resolution to grant“ (CPR 54.5 (5))

Note the reference to “the actual grant of planning permission”. What if the prospective challenge is not to the grant of permission but to another specific procedural step, such as the issue by the Secretary of State of an EIA screening direction, confirming that EIA is not required?

It seems to be accepted that it is not safe to store up challenges to such decisions until permission is issued (although query the precise legal distinction with a committee resolution – might it be that screening is a specific step expressly provided for in legislation?). The question didn’t need to be raised in Richard’s latest success (pending any appeal, at least), in Swire v Secretary of State (Lang J, 22 May 2020), where he acted for an objector to another residential development. Here the dispute was as to whether EIA was required. The council disagreed and issued a negative screening opinion. He applied to the Secretary of State for a screening direction and this was also negative. He then challenged the Secretary of State’s decision to issue that direction.

(Whilst it is nothing to do with the theme of this post, Lang J’s reasons for allowing the challenge are interesting and need to be borne in mind when screening processes are undertaken:

“There was a lack of any expert evidence and risk assessment on the nature of any BSE-related contamination at the Site, and any hazards it might present to human health. The measures which might be required to remediate any such contamination and hazards had not been identified. This was a difficult and novel problem for all parties to address. It was acknowledged by the Council in its screening opinion, acting on the advice of the Environmental Health Practitioner, that specialist advice would be needed to consider the remediation of prions associated with CJD/BSE. Therefore condition 21 merely referred to the requirement that a written method statement for the remediation of land and/or groundwater would have to be agreed by the Council without any party knowing what the remediation for BSE-related infection might comprise. The Defendant adopted the Council’s approach in his screening opinion. But because of the lack of expert evidence, the Defendant was simply not in a position to make an “informed judgment” (per Dyson LJ in Jones, at [39]) as to whether, or to what extent, any proposed remedial measures could or would remediate any BSE-related contamination. It follows that when the Defendant concluded that “he was satisfied that the proposed measures would satisfactorily safeguard and address potential problems of contamination” and that “the proposed measures would safeguard the health of prospective residents of the development”, he was making an assumption that any measures proposed under condition 21 would be successful, without sufficient information to support that assumption. As Pill LJ said in Gillespie, at [41], “the test applied was not the correct one. The error was in the assumption that the investigations and works contemplated in condition VI could be treated, at the time of the screening decision, as having had a successful outcome”. Whilst “not all uncertainties have to be resolved” (per Dyson LJ in Jones at [39]), on the facts this case was not one “where the likely effectiveness of conditions or proposed remedial or ameliorative measures can be predicted with confidence” (per Pill LJ at [34]). As the Site was proposed for residential housing, a higher standard of remediation would be required than if it were intended to adapt it for an industrial use, or merely to decontaminate it and return it to woodland (some sites will never be suitable for residential housing, because of industrial contamination).

Mr Honey relied upon the advice given to the Defendant by the Environment Agency, which advised that conditions requiring risk assessment and remediation proposals would be sufficient to mitigate against potential adverse impact on the groundwater. The Environment Agency previously advised the Council that without conditions “the proposed development poses an unacceptable risk to the environment”. I do not consider that the advice from the Environment Agency justified the approach adopted by the Defendant. It confirmed the view of the Environmental Health Practitioner and the Council that further investigation and assessment was needed. It did not provide the Defendant with any evidence that there was no risk of adverse environmental impacts, nor that mitigating measures had as yet been identified which would satisfactorily overcome any such risk. Moreover, it advised that its remit was limited to the protection of the soil and groundwater, and the impact on human health – crucial to this case – was a matter for the Environmental Health Officer. It was not the Environment Agency’s responsibility to advise the Defendant on the legal requirements for undertaking a screening opinion, in the light of Gillespie and the other authorities, and on my reading of the email, it did not purport to do so.

Finally, I have some concerns about the final paragraph of Mr Carpenter’s email to his manager, dated 6 August 2019, whilst reminding myself that this was not part of the formal decision. He said:


“I acknowledge that this case is quite finely balanced. …I am, however, not convinced by what would be achieved by issuing a positive Screening Direction as all the issues have been thoroughly investigated in detailed studies/assessments submitted as part of the planning application process, other than giving the objectors “another bite of the cherry”.”

Plainly he was mistaken in believing that the issue of BSE contamination had been thoroughly investigated in the reports submitted with the planning application, as they were all completed before the developer became aware that BSE-infected carcasses had previously been disposed of at the Site. If this view informed his decision-making, it was a significant error.

Further, on my reading, he appears to suggest that, in a case where the question whether the proposed development was likely to have significant effects on the environment was “finely balanced”, an EIA would be an unnecessary extra step if the issues were “thoroughly investigated” outside the EIA procedure. However, in Champion Lord Carnwath warned against using analogous procedures instead of EIA as to do so “would subvert the purposes of the EIA Directive for that to be conducted outside the procedural framework (including the environment statement and consultation) set up by the Regulations” (at [45]). In this case, the general public does not have the right to be consulted on the developer’s reserved matters applications under conditions 21 and 22, and so the EIA procedure would provide the only opportunity for local people to be consulted on proposed measures relating to BSE contamination at this Site, as they were not set out in the reports submitted with the planning application. So, contrary to Mr Carpenter’s belief, an EIA procedure would not provide objectors with “another bite of the cherry”.

It is not entirely clear what Mr Carpenter meant by the case being quite “finely balanced” as he did not set out the factors which he found to be in favour of an EIA, but it is important to bear in mind that Lord Carnwath also advised in Champion that “[a]pplication of the precautionary principle, which underlies the EIA Directive, implies that cases of material doubt should generally be resolved in favour of EIA.” (at [51]).

In conclusion, I consider that the Defendant made the same error as in the Gillespie case, and thus his decision that EIA was not required was vitiated by a legal error.”)

Back to my main theme: when should a potential claimant notify a defendant authority that it is considered that grounds for a potential challenge have arisen? This wasn’t the issue in Burkett. Everyone was well aware of the potential claim, it was just a question as to when the proceedings should have been issued. What if Richard had kept quiet until the permission had been issued before raising any legal concerns? What would their lordships have made of that?

At present, that sort of behaviour is not the best way to impress a judge but we see it too often – where a prospective claimant identifies proposed grounds of challenge in a pre-action protocol letter only when the planning permission is finally issued and it is too late for the relevant authority and applicant to rectify the alleged defect, even if the grounds arose from a committee resolution many months previously and could have been dealt with by, for instance, a return to committee if only the point had been raised before the permission was issued and it was too late.

The Administrative Court’s pre-action protocol for judicial review, a “code of good practice” which “contains the steps which parties should generally follow before making a claim for judicial review”, says nothing expressly to discourage that approach, in that it is all at a general level that does not engage with the specific peculiarities of planning processes, where on a major scheme there can be significant delays between a resolution to grant and issue of the permission, due to subsequent negotiations in relation to the section 106 agreement and the possible need to refer the application to the Secretary of State and/or the Mayor of London:

“The aims of the protocol are to enable parties to prospective claims to—

(a) understand and properly identify the issues in dispute in the proposed claim and share information and relevant documents;

(b) make informed decisions as to whether and how to proceed;

(c) try to settle the dispute without proceedings or reduce the issues in dispute;

(d) avoid unnecessary expense and keep down the costs of resolving the dispute; and

(e) support the efficient management of proceedings where litigation cannot be avoided.”

“Where the use of the protocol is appropriate, the court will normally expect all parties to have complied with it in good time before proceedings are issued and will take into account compliance or non-compliance when giving directions for case management of proceedings or when making orders for costs”

My simple suggestion is for the pre-action protocol to be amended so as to advise prospective claimants that they should never “store up” prospective grounds of challenge until the planning permission is issued but make them known to the prospective defendant authority and potential interested parties without unreasonable delay and with the objective of giving the parties to address the grounds (if necessary by corrective administrative steps) before the planning permission is issued and before the authority is thereby functus officio ie before it is too late to undo the administrative step of issuing the permission.

And, if I may have a follow up suggestion, would it be so very difficult for there to be a publicly accessible website which identifies all judicial review proceedings which have been filed (even if the underlying papers are not immediately accessible)? Many agreements in relation to land transactions are conditional upon a planning permission being free from legal challenge. Each day matters in the context of the transaction and given the vagaries of document service, particularly in relation to interested parties, and the risks of relying on checking calls made to the court when large amounts of money are at stake for the client, surely there is a better way?

Simon Ricketts, 30 May 2020

Personal views, et cetera

Stay Alert! A Quick Guide To All Those MHCLG Announcements

On 13 May 2020, MHCLG published:

Guidance: coronavirus planning update

Guidance: Coronavirus compulsory purchase

Guidance: Coronavirus community infrastructure levy

Guidance: construction site working hours Q&A

Guidance: consultation and pre-decision matters

Guidance: plan-making

Guidance: neighbourhood planning

On the same day, the Planning Inspectorate updated its guidance on site visits, hearings, inquiries and events.

On 14 May 2020, the Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 were made and came into force that day. The Regulations were accompanied by an Explanatory Memorandum.

The highlights

Validation and determination of applications for planning permission

No changes have been made to the timescales for determining planning applications. Developers are however encouraged to agree extensions of the period for determination. Local authorities have been urged to give priority to validating urgent COVID-19 related applications for planning permission and associated consents.

Publicising applications for planning permission

Temporary regulations (expiring on 31 December 2020) were made and came into force on 14 May to supplement existing publicity arrangements for planning applications, listed building consent applications and environmental statements for EIA development. There is now flexibility to take other reasonable steps to publicise applications and environmental statements if the usual specific requirements cannot be discharged relating to site notices, neighbour notifications, newspaper publicity or availability of hard copy documents. Steps can include the use of social media and electronic communications and they must be “proportionate to the scale and nature of the development”. Guidance has also been issued on this topic.

Planning Conditions

MHCLG has made it clear that planning conditions should not be a barrier to allowing developers and site operators flexibility around construction site working hours to facilitate safe working. Where only short term or modest increases in working hours are required, LPAs are encouraged to use their discretion to not enforce against a breach of working hours conditions. Where longer term measures or other significant changes are required, applications to amend conditions should be made, which LPAs should prioritise and turn around in 10 days. Requests to work up to 9 pm Monday to Saturday should not be refused without very compelling reasons.

Community infrastructure levy

The existing CIL regulations of course allow charging authorities limited flexibility to defer CIL liability. Amendments will be made to the regulations “in due course” to increase flexibility, but that will still depend upon charging authorities deciding to exercise the new discretion available to them. Authorities will be able to defer payments, temporarily disapply late payment interest and provide a discretion to return interest already charged. However, these changes will only apply to small and medium-sized developers with an annual turnover of less than £45 million. It remains to be seen how this limitation will be addressed in the regulations, for example where a special purpose vehicle, potentially offshore, has assumed liability. The new instalment policies for deferred payments will only apply to chargeable development starting after the changes come into effect, but they are anticipated to apply to “phases“ of the development starting after that date. The announcement on 13 May added that “existing flexibilities and the government’s clear intention to legislate should give authorities confidence to use their enforcement powers with discretion and provide some comfort to developers that, where appropriate, they will not be charged extra for matters that were outside of their control.”

Section 106 planning obligations

Local planning authorities are encouraged to consider the deferral of section 106 obligations, e.g. financial payments. This will require variations to existing section agreements and undertakings. Local planning authorities are encouraged generally to take a “pragmatic and proportionate” approach to the enforcement of section 106 planning obligations

Virtual Committees

These are already enabled, by way of Regulation 5 of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020. MHCLG is working with the Planning Advisory Service (PAS) to provide further practical advice on the way these meetings are managed.

Planning Appeals

PINS issued a further update on 13 May. Site visits are being commenced and PINS is considering whether there are types of cases that can proceed without a site visit. The first digital appeal hearing took place on 11 May as a pilot and PINS is aiming for 20 further examinations, hearings and inquiries in May and June. It is also exploring hybrid options – a mix of in person and by video public/telephone hearings and is considering “social distance” events.

Local Plans

MHCLG is working on ways to address the local plans process in order to meet aspirations to have all local plans in place by 2023. In particular, the use of virtual hearings and written submissions is being considered.

Neighbourhood Plans

Regulation 12 of the Local Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020 prevents any neighbourhood planning referendum from taking place until 6 May 2021. Updated guidance was issued in April allowing neighbourhood plans awaiting referendums to be given significant weight in decision making.

Nationally Significant Infrastructure Projects

The government is working with consenting departments to support the continuation of decision-making to minimise the impact of current restrictions on the consideration of DCO applications and the Planning Inspectorate has updated its guidance.

Compulsory purchase orders

There is now pragmatic advice as to the service of documents. Acquiring authorities are encouraged to allow more time for responses to requests for information about interests in land or submitting objections to CPO. There is also encouragement to authorities to act responsibly regarding business and residential claimants, particularly regarding the timing of vesting orders and payment of compensation, which is particularly relevant when considering evictions. Authorities are reminded of their obligation to make advance payments of compensation in accordance with statutory time limits given cash flow difficulties which claimants may currently face.

Concluding remarks

To my mind, this is all welcome and congratulations are due in particular to the relevant civil servants. Of course, there is more to be resolved, for instance the vexed question of extending time limited planning permissions (see my 4 April 2020 blog post Pause Not Delete: Extending Planning Permissions) as well as the Regulations in relation to CIL, but it is good to see this progress. No wonder MHCLG’s Simon Gallagher was prepared to come on this week’s Have We Got Planning News For You!

Whether by serendipity or, now I think about it, of course, good planning, the RTPI published on 15 May 2020 its research paper Pragmatic and prepared for the Recovery: The planning profession’s rapid response to Covid-19. This last week has been a good start.

Simon Ricketts, 16 May 2020

Personal views, et cetera

(Thank you to Town’s Michael Gallimore and Lida Nguyen for allowing me to draw from a client note prepared earlier this week).

Chickens**t EIA

An interesting example last week of the legal pitfalls should planning permission be granted on the basis of inadequate environmental impact assessment.

Interesting partly because although the messages read straight across to all EIA development, including the glitziest of urban development projects, the specific question arose in a very different context:

Did a local planning authority, when granting planning permission for an intensive poultry-rearing facility, fail to consider the likely effects of odour and dust arising from the disposal of manure?

The basis for the error was a misplaced assumption that certain effects would be controlled by other regulatory processes. That is an issue which potentially arises in various development contexts.

The case is R (Squire) v Shropshire Council (Court of Appeal, 24 May 2019), with Lindblom LJ giving the lead judgment.

For a summary of the case, apologies but I will plug again Town’s “free to subscribe” weekly updating service that covers all Planning Court cases and appeals from the Planning Court. The case is summarised by my colleague Paul Arnett in the latest update.

There is much in the judgment about the proper interpretation of environmental permits under the IPPC regime and the extent to which a local planning authority should impose conditions to control matters which may in theory be controlled by other legislation where the regulator under that legislation (in this case the Environment Agency) has indicated that in practice it would not enforce, but what was particularly interesting to me was Lindblom LJ’s conclusion that at first instance Deputy Judge Rhodri Price Lewis QC “was wrong to conclude that the EIA undertaken for the proposed development – in particular the assessment of the likely effects of odour and dust arising from the storage and spreading of manure – was adequate and lawful.

The “project description” part of the environmental statement explained what was proposed:

In chapter 3, “Description of development”, in the “Project Description”, it explained that “[at] the end of each flock cycle, the buildings are cleaned out and the manure removed … and loaded directly in waiting vehicles, which are sheeted and the manure removed from the site for disposal as a sustainable fertiliser on agricultural land.”

The claimant, Ms Squire, was concerned that the 2,322 tonnes of manure to be produced annually would be disposed of by spreading it on farmland close to residential areas, including farmland not not owned by the prospective operator of the facility, Mr Bower. So how were the potential effects in terms of odour and dust, from these proposals, assessed in the environmental statement?

In its assessment of likely significant effects in the environment, the environmental statement relied significantly on an environmental permit that had been issued by the Environment Agency to Mr Bower to cover the activities proposed on his land.

In chapter 9, “Environmental Management”, under the heading “Assessment”, it acknowledged (in paragraph 9.2) the requirement for “an IPPC permit … administered by the Environment Agency”. It said that “[the] permit must take into account the whole environmental performance of the plant, covering e.g. emissions to air, water and land, generation of waste …”, and also this:

9.2 … As the proposed poultry unit will be controlled under the IPPC permitting regime, the likelihood of significant impact on the environment from the proposed development is negligible due to the strict regime of control.”

On “Odour Management”, it said that “[the] development [has] been assessed as part of the IPPC permit application and deemed acceptable subject to odour control conditions”, and that “[the] site is subject to the IPPC permit conditions which requires emissions from the activities shall be free from odour at levels likely to cause pollution outside the site” (paragraph 9.4). On “Dust”, it said that “[the] results of the DEFRA research project demonstrated that emissions from poultry units in terms of particulate matter reduced to background levels by 100m downwind of … even the highest emitting poultry houses” (paragraph 9.7). On “Manure Disposal”, it said (in paragraph 9.11):

“9.11 The proposed poultry units will operate on a floor litter basis and will generate poultry manure. The manure will be disposed of through use as a sustainable agricultural fertiliser. The [applicant’s] manure management plan is attached to this statement as Appendix 4.”

The “Summary” in paragraph 9.16 said this:

9.16 The operation of the site is subject to the rigorous controls of the Environment Agency’s IPPC permitting regime. The site is required to operate to Best Available Techniques and the conditions of the permit require the site to be free from pollution.”

However, the Environment Agency’s response to consultation had made it clear that “[f]or the avoidance of doubt we we would not control any issues arising from activities outside of the permit installation boundary“.

Lindblom LJ noted the following in relation to the environmental statement:

⁃ it did not identify the third party land on which manure was going to be spread.

⁃ there was no meaningful assessment of the effects of odour and dust from the spreading of manure, either on Mr Bower’s land or on any other farmer’s. “It did not seek to anticipate the content of any future manure management plan, including the fields to which it would relate, or the arrangements that would be undertaken for the storage and spreading of manure. It did not attempt to predict and assess the polluting effects of those activities either on land owned by Mr Bower, or on other land to which the manure management plan would not relate. The Manure Management Report did not venture to assess the effects of the arrangements to which it referred. In short, there was no relevant assessment.”

⁃ “it cannot simply be inferred from the relevant parts of the environmental statement that its authors had concluded that the proposed storage and spreading of manure on farmland was not a potential source of pollution, including odour and dust, with significant effects on the environment, which ought to be addressed in determining the application for planning permission. Those who prepared the environmental statement – and Cymru ADAS Wales, who prepared the Manure Management Report in Appendix 4 – were of course entitled to assume that the Environment Agency would perform its regulatory functions as it should, and as far as they went (see my judgment in Preston New Road Action Group v Secretary of State for Communities and Local Government [2018] Env. L.R. 18, at paragraphs 89 to 93; the judgment of Glidewell L.J. in Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1995] Env. L.R. 37, at p.49; and the judgment of Gilbart J. in Frack Free Balcombe Residents’ Association v West Sussex County Council [2014] EWHC 4108 (Admin), at paragraph 100). The control that would be exerted by the Environment Agency through the environmental permit was clearly a factor they had in mind. However, they did not attempt to relate that control to the spreading of manure on land to which the permit and its conditions would not apply. Nor did they consider whether a gap would exist between the control under the permit and such control as could be exercised through restrictions and requirements imposed in the planning process. The Manure Management Report touched upon measures by which harmful effects on the environment might be reduced. But it did not consider what measures were likely to be applied on third party land, in what form such measures might be imposed as requirements attached to the planning permission – whether by conditions or by a planning obligation under section 106 of the Town and Country Planning Act 1990 – or how effective they were likely to be in reducing the effects of odour and dust.”

⁃ “the future manure management plan to which the planning officer referred in paragraph 6.7.5 of his report was not a substitute for the assessment lacking in the environmental statement. Not only was it yet to come into existence, but even when it did it was only going to relate to the storage and spreading of manure on Mr Bower’s own land, and not to the substantial quantities that were going to have to be disposed of elsewhere.”

The judge concluded:

In my view, therefore, the environmental statement was deficient in its lack of a proper assessment of the environmental impacts of the storage and spreading of manure as an indirect effect of the proposed development. In this respect it was not compliant with the requirements of the EIA Directive and the EIA regulations.”

The judge then considered whether any advice in the report to committee satisfactorily addressed the inadequacies in the environmental statement. There was not. Nothing “went beyond generalities“.

He therefore allowed the appeal – the planning permission had been issued unlawfully.

Before deciding to quash the permission, Lindblom LJ then considered whether under section 31 (2A) of the Senior Courts Act 1981, the permission should not be quashed on the basis that it was highly likely that the council’s decision would have been substantially different had the legal error not occurred. Mr Bower sought to argue that the position had changed because, after the proceedings had been issued, he had entered into a section 106 unilateral undertaking so as to control the effects arising by way of a manure management plan. The judge did not consider that the undertaking saved the permission from being quashed:

The planning obligation itself illustrates some of the uncertainties persisting at the time of the council’s decision. It does not, however, overcome the lack of a proper assessment of the environmental effects of odour and dust in the EIA. There is, in my view, no justification here for withholding an order to quash the planning permission, which will enable the council, when redetermining the application, to ensure that the requirements of the EIA Directive and the EIA regulations are properly complied with“.

The lesson is to make sure that any environmental statement properly assesses all direct and indirect environmental effects that are likely to arise from a development, without reaching unwarranted assumptions that effects will be limited, or that mitigation will be achieved, by way of separate regulatory processes. If the local planning authority considers that the assessment is inadequate it should require further environmental information to be provided (following the procedure set out in regulation 25 of the 2017 Environmental Impact Assessment Regulations). I am surprised that the court was even prepared to consider whether deficiencies were in practice remedied by any analysis in the committee report, and not surprised that the belated decision to enter into a section 106 unilateral undertaking did not save the day.

This is no Chicken Little message that the sky is falling, but Squire is certainly a reminder of the care that is needed, particularly in relation to environmental impact assessment, in order to avoid landing in the unpleasant stuff.

Simon Ricketts, 1 June 2019

Personal views, et cetera

The Office For Environmental Protection

And through it all the Office for Environmental Protection

A lot of love and affection

Whether I’m right or wrong..”

The Secretary of the Environment, Food and Rural Affairs, Michael Gove, presented the draft Environment (Principles and Governance) Bill to Parliament on 19 December 2018.

It is important that we understand the new regime that is proposed and start to form views as to whether it is fit for purpose, given that (1) its provisions will replace the environmental protections currently provided by way of EU law and that (2) it would be unfortunate if any new system were to introduce additional uncertainties, unnecessary requirements or causes of delay. What will the implications be for the English planning system?

Having said that we don’t yet have the full picture.

First, because (following a commitment given by the prime minister in July 2018) this draft Bill is going to be rolled into a wider Environment Bill in 2019 which, according to the draft Bill’s foreword by Michael Gove, “will contain specific measures to drive action on today’s crucial environmental issues: cleaning up our air, restoring and enhancing nature, improving waste management and resource efficiency, and managing our precious water resources better.”

Secondly, because this draft Bill does not yet include the Government’s commitment in the withdrawal agreement to “non regression” from current EU environmental laws (see my 16 November 2018 blog post Big EU News! (Latest CJEU Case on Appropriate Assessment & A Draft Withdrawal Agreement))although of course we wait to see what happens to that agreement, yet to be approved by Parliament.

Thirdly, because the provisions in the draft Bill are a framework for more detail to come forward by way of, for instance, a Government policy statement on environmental principles and a strategy to be prepared by the proposed Office for Environmental Protection setting out how it intends to exercise its functions. More on this later. What this draft Bill does do is discharge the requirement in section 16 of the EU (Withdrawal) Act 2018 for draft legislation to be published setting out the way in which environmental principles will be maintained post-Brexit, and the statutory body that will be established to police them (see my 18 September 2018 blog post Planning, Brexit).

Deal or no deal?

The intention is that this new legal regime should in place ready for when we leave the jurisdiction of EU law. Whilst if we have a withdrawal agreement this will be at the end of any transition period, we could be left with a potential hiatus in the case of a “no deal” Brexit. If there’s no deal there will be more urgently newsworthy issues than the implications of that situation for the environment (it was noteworthy that the publication of the draft Bill last week attracted no real attention from the mainstream media as far as I could see) but this was rightly a matter of concern for the House of Commons Environmental Audit Committee in its report on the Government’s 25 Year Plan for the Environment, to which the Government in its 6 November 2018 Response said this:

Government is confident of leaving the EU with a deal on an implementation period, which the EU has also confirmed it would like to agree. However, we are stepping up preparations within government and Defra to make sure that a new statutory body is in place as soon as is practically achievable in the event of a no deal exit, with the necessary powers to review and, if necessary, take enforcement action in respect of ongoing breaches of environmental law after the jurisdiction of the CJEU has ended. This will mean that the Government will be held accountable as under existing EU law from the day we leave the EU.

As mentioned previously, the EU (Withdrawal) Act will ensure existing EU environmental law continues to have effect in UK law after exit, providing businesses and stakeholders with maximum certainty as we leave the EU. Until the new body is in place, for example, existing mechanisms will continue to apply: the Parliamentary Ombudsman will process complaints about maladministration; and third parties will be able to apply for Judicial Review against government and public authorities.”

The draft Bill

If you click into the draft Bill – and please do because this blog post is not a complete summary – you will see that the draft legislation itself (34 clauses and a schedule) is sandwiched between:

⁃ Michael Gove’s foreword – the first paragraph will give you an idea of the tone:

Leaving the European Union is a once-in-a-lifetime opportunity for this country to help make our planet greener and cleaner, healthier and happier. We are seizing this chance to set a new direction for environmental protection and governance, in line with the government’s ambition to leave our environment in a better state than we inherited it.”

⁃ A long set of explanatory notes which include an explanation of the policy and legal background as well as a detailed commentary on the provisions of the draft Bill, including much by way of statements of what is intended that is absent from the draft Bill itself.

The foreword describes the two main strands of the draft Bill (although in the reverse order to how they are actually dealt with).

Firstly, we will establish a world-leading, statutory and independent environment body: the Office for Environmental Protection (OEP). This body will scrutinise environmental policy and law, investigate complaints, and take action where necessary to make sure environmental law is properly implemented.

Secondly, we will establish a clear set of environmental principles, accompanied by a policy statement to make sure these principles are enshrined in the process of making and developing policies

Definitions

The “environment” can often have a broad meaning.

For instance in the Environmental Impact Assessment Directive the following factors need to be addressed in environmental impact assessment:

“(a) population and human health;
(b) biodiversity, […];
(c) land, soil, water, air and climate;
(d) material assets, cultural heritage and the landscape;

(e) the interaction between the factors referred to in points (a) to (d).”

However, in the draft Bill a much narrower definition is adopted:

“31 (2) Environmental matters are—

(a)  protecting the natural environment from the effects of human activity;

(b)  protecting people from the effects of human activity on the natural environment;

(c)  maintaining, restoring or enhancing the natural environment;

(d)  monitoring, assessing, considering, advising or reporting on anything in paragraphs (a) to (c).”

So this is just about the “natural environment“, defined in clause 30 as

“(a)  wild animals, plants and other living organisms,

(b)  their habitats,

(c)  land, water and air (except buildings or other structures and water or
air inside them),

and the natural systems, cycles and processes through which they interact.”

Environmental law” is even narrower, as it is defined as any legislative provision (other than legislation devolved to the Scottish Parliament, Welsh Assembly or, without the Secretary of State’s consent, the Northern Ireland Assembly) that is mainly concerned with an environmental matter and that is not concerned with an excluded matter – excluded matters are:

⁃ greenhouse gas emissions;

⁃ access to information;

⁃ the armed forces, defence or national security;

⁃ taxation, spending or the allocation of resources with government.

The Secretary of State can by regulations specify specific legislative provisions as falling within or outside the definition of “environmental law“.

The explanatory notes to the draft Bill say that, based on these provisions “most parts of legislation concerning the following matters, for example, would normally be considered to constitute environmental law:

⁃ air quality (although not indoor air quality);

⁃ water resources and quality;

⁃ marine, coastal or nature conservation;

⁃ waste management;

⁃ pollution;

⁃ contaminated land.

They go on to assert that the following matters would not normally constitute environmental law:

⁃ forestry;

⁃ flooding;

⁃ navigation;

⁃ town and country planning;

⁃ people’s enjoyment of or access to the natural environment;

⁃ cultural heritage;

⁃ animal welfare or sentience;

⁃ animal or plant health (including medicines and veterinary products);

⁃ health and safety at work.

“”Environmental principles” means the following principles—

(a)  the precautionary principle, so far as relating to the environment,

(b)  the principle of preventative action to avert environmental damage,

(c)  the principle that environmental damage should as a priority be rectified at source,

(d)  the polluter pays principle,

(e)  the principle of sustainable development,

(f)  the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities,

(g)  the principle of public access to environmental information,

(h)  the principle of public participation in environmental decision-making, and

(i)  the principle of access to justice in relation to environmental matters”

What the Secretary of State must do

The draft Bill provides that Secretary of State must prepare a policy statement on environmental principles. “The statement must explain how the environmental principles are to be interpreted and proportionately applied by Ministers of the Crown in making, developing and revising their policies.” It may also explain how ministers, “when interpreting and applying the environmental principles, are to take into account other considerations relevant to their policies.” Ministers must “have regard” to the policy statement “when making, developing or revising policies dealt with by the statement“. Nothing in the statement shall require a minister to take (or to refrain from taking) any action if it “would have no significant environmental benefit” or “would be in any way disproportionate to the environmental benefit“.

Wow! Regardless of how robust or otherwise the policy statement turns out to be, count the get-outs in that last paragraph.

The draft Bill also provides that the Secretary of State must prepare an environmental improvement plan. The first one will be the current document entitled “A green future: our 25 year plan to improve the environment” (11 January 2018). It must be kept under review, with the next to be completed by 31 January 2023 and thereafter at least every five years.

The Office for Environmental Protection

Details of the membership, staffing and functions of this new body are set out in the schedule to the draft Bill.

The Office for Environmental Protection would monitor and report on environmental improvement plans, monitor the implementation of environmental law, and advise on proposed changes to environmental law. It would also have an important enforcement role.

It must prepare a strategy setting out how it intends to exercise its functions, including its complaints and enforcement policy, having regard to “the particular importance of prioritising cases that it considers have or may have national implications, and the importance of prioritising cases—

(a)  that relate to ongoing or recurrent conduct,

(b)  that relate to conduct that the OEP considers may cause (or has caused) significant damage to the natural environment or to human health, or

(c)  that the OEP considers may raise a point of environmental law of general public importance.”

The explanatory notes suggest that individual planning decisions will not be a focus of the OEP’s attention:

The definition of national implications will be for the OEP to determine, but this provision is intended to steer the OEP to act in cases with broader, or more widespread significance, rather than those of primarily local concern. For example, an individual local planning or environmental permitting decision would not normally have national implications, whereas a matter with impacts or consequences which go beyond specific local areas or regions could have.

Anyone except public bodies can raise a complaint with the OEP where a public authority has failed to comply with environmental law. The public authority’s internal complaints procedure must first have been exhausted. The explanatory notes state:

A wide range of bodies including the Environment Agency, Natural England and the Planning Inspectorate, for instance, operate complaints procedures which will apply to their functions concerned with the implementation of environmental law.”

Complaints must be made within a year of the failure complained of, or within three months of when any internal complaints procedure was exhausted. The OEP “may” carry out an investigation if in its view the complaint indicates that the authority has failed to comply with environmental law and “the failure is serious“. It must provide to the authority a report as to whether it considers that the authority has failed to comply with environmental law, its reasoning and recommendations (whether for the authority or generally) in the light of its conclusions. There will be a process of information notices and decision notices. The authority receiving a decision notice must respond within two months or such later timescale is given, setting out whether it agrees with the notice and what steps it intends to take.

There is then a curious clause, clause 25, which deals with enforcement. Within three months of the deadline for the authority responding to the decision notice, the OEP can make an application to the High Court for judicial review. After any such proceedings, the relevant authority must publish a statement “that sets out the steps (if any) it intends to take in light of the outcome of those proceedings“.

So what would these proceedings seek to achieve? A declaration from the court or something more, some kind of enforcing order? Would the authority’s decision that is the subject of the complaint be liable to be quashed? If so, plainly concerns arise that decisions will no longer be able to be safely relied upon by parties where the usual judicial review period has expired – it would be worrying if decisions could be at risk for much longer via this elongated OEP complaints procedure.

Concluding thoughts

Without seeing the rest of what will be in the eventual Environment Bill, and without see the nature of any “non regression” commitment (if indeed it survives the current politics), I’m left feeling entirely unclear what practical role the mechanisms in the draft Bill will really have. There are certainly numerous questions:

⁃ Are the definition of environmental matters and environmental law too narrow?

⁃ Will the policy statement on environmental principles either be too weak or alternatively extend its reach into other regimes, for instance leading to the risk of causing confusion as to the application of principles set out in the National Planning Policy Framework?

⁃ Are there too many get-outs on the part of Government?

⁃ Will the OEP really be able to influence the Government’s approach when it comes to politically contentious issues? The Committee on Climate Change has not been a good precedent.

⁃ Is there confusion as to the role of the OEP when it comes to investigating possible breaches of environmental law, in that surely this is a matter for existing enforcement bodies such as the Environment Agency and for the courts?

And whilst from the explanatory notes the intention appears to be that this regime would not directly affect town and country planning, in reality matters such as environmental impact assessment, strategic environmental assessment and the treatment of protected nature conservation sites are central to the planning process, so it seems to me that unfortunately this isn’t a debate that planners and planning lawyers can ignore.

Simon Ricketts, 22 December 2018

Personal views, et cetera

All About That Base

Good planning relies on good baselines. Determining the correct baseline or fallback position is the vital starting point for determining the effects that a development proposal would have, but is not easy – often involving the need for judgment as to what can be done in any event without planning permission or what the position would be in any event in terms of, for instance air quality, highways movements or the effect on the level of daylight and sunlight that existing properties enjoy.

In Wiltshire Waste Alliance Limited v Secretary of State (Sir Ross Cranston, 10 May 2018), an inspector had granted permission on appeal for the extension of a waste recycling plant.

Before him the company’s case was that if the appeal was dismissed the appeal site would continue to operate pursuant to a series of admittedly complicated planning permissions which, in any event, would allow a significant number of uses. The appeal was advanced on the basis of these “no project” baselines being in existence. No other grounds were advanced for the grant of planning permission. Essentially the claimant’s case against the appeal was that these baseline activities were not in fact permitted under the permissions operating. Further, for practical reasons what was permitted was limited and in any event could not take place.

In his decision letter the inspector had identified that it was crucial to the proper determination of the appeal that the effects of generated HGV traffic on the highway network and air quality were calculated “on a precautionary basis and compared with any planning fall-back position from which realistic baseline positions are drawn. It is established law that for a fall-back position to be taken into account it must be legally possible with respect to existing permitted land uses and also likely to occur on available evidence.”

The planning permission for the existing facility did not include any condition restricting the amount of waste that could be treated, but the application for it had indicated a figure of up to 25,000 tonnes per annum for one area, whereas the fallback position being relied upon by the operator at the appeal had assumed that this could be increased to 75,000 tonnes without the need for planning permission. It argued that the 25,000 figure was no limitation (applying the I’m Your Man case, recently approved of by the Court of Appeal in Lambeth LBC v Secretary of State). The claimant argued that the inspector had not considered whether such an increase in the quantity of material treated would have amounted to a material change of use by way of intensification. Retired High Court judge Sir Ross Cranston accepted the claimant’s argument, but also determined, as had been conceded by the Secretary of State, that the inspector had also wrongly noted that the application document referring to the 25,000 tonnes figure had not been incorporated by reference into the permission. Sir Ross Cranston’s summary of the arguments and reasoning is brief. (In the light of the Lambeth case I don’t see how incorporation by reference of the application document is relevant.)

As well as meaning that the inspector had made a legal error in the way that he had considered the fallback position, the judge accepted that the approach that had been taken “has the potential to infect the conclusions regarding the baseline scenarios” for the purposes of assessment of likely significant environmental effects in the environmental impact assessment.

It is a cautionary tale – ensure that you can justify any fallback or baseline position that you rely upon.

Whilst it didn’t matter for the purposes of the judgment, I assume that the proposal was assessed under the 2011 EIA Regulations. The 2017 Regulations are more prescriptive. EIA now needs to include a “description of the relevant aspects of the current state of the environment (baseline scenario) and an outline of the likely evolution thereof without implementation of the development as far as natural changes from the baseline scenario can be assessed with reasonable effort on the basis of the availability of environmental information and scientific knowledge“.

The more far-reaching and longer-term the effects of a project, the more complex the analysis ends up being, as can be seen from the Secretary of State’s decision dated 10 May 2018 to authorise the development consent order applied for by Transport for London in relation to the proposed Silvertown twin-bore road tunnel under the Thames (a scheme which also was promoted under the previous EIA legislation). The task of analysing what would be the position in terms of issues such as congestion and air quality is complex. There will be much focus on his conclusion on air quality effects in particular, namely that “greater weight needs to be placed on the impact of the Development on the zone [for the Greater Urban London area as a whole] rather than at individual receptors. The Secretary of States therefore places weight on the fact that whilst some receptors will experience a worsening in air quality as a result of the Development, overall the Development should have a beneficial impact on air quality and that the Development is not predicted to delay compliance with the [Air Quality Directive] in the timeframes that the Updated [Air Quality Plan], including the zone plan for the Greater Urban London area, sets out as being the quickest possible time.”

We have seen recently how assumptions as to air quality levels can be proved wrong in ways that are unexpected, such as the VW emissions scandal that threw into question the degree to which air quality levels would improve as newer vehicles replaced older ones on the road, or ways which are possibly less unexpected, such as the Government’s delayed compliance with the Air Quality Directive.

Accurate analysis is of course equally necessary with more routine non-EIA projects: that is, accurate analysis both in the relevant technical assessment, whatever it may be, and accurate analysis by the decision maker in taking it into account in reaching a decision. R (Rainbird) v London Borough of Tower Hamlets (Deputy Judge John Howell QC, 28 March 2018) was a recent example of a planning permission being quashed (that the council had granted to itself for an affordable housing development) because of incorrect conclusions being drawn from a report on sunlight and daylight issues, that in itself was held to be significantly misleading in a number of respects, both in relation to the relevant baseline position and in its analysis of compliance with the relevant BRE guidelines that had been incorporated into the council’s local plan. However, every case inevitably turns on its own facts and, as the judge identified, the threshold for challenge is high:

⁃ Baroness Hale in Morge v Hampshire County Council (Supreme Court, 19 January 2011: “reports obviously have to be clear and full enough to enable [members] to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves

⁃ Lindblom LJ in Mansell v Tonbridge and Malling Borough Council(Court of Appeal, 8 September 2017): “The question for the court will always be whether, on a fair reading of his report as a whole, the officer has significantly misled the members on a matter bearing upon their decision, and the error goes uncorrected before the decision is made. Minor mistakes may be excused. It is only if the advice is such as to misdirect the members in a serious way—for example, by failing to draw their attention to considerations material to their decision or bringing into account considerations that are immaterial, or misinforming them about relevant facts, or providing them with a false understanding of relevant planning policy—that the court will be able to conclude that their decision was rendered unlawful by the advice they were given.


Where the line is drawn between an officer’s advice that is significantly or seriously misleading—misleading in a material way—and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact.., or has plainly misdirected the members as to the meaning of a relevant policy… There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law…. But unless there is some distinct and material defect in the officer’s advice, the court will not interfere
.”

⁃ Section 31 (2A) of the Senior Courts Act 1981 provides that the High Court “must refuse to grant relief on an application for judicial review…if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred” unless it is appropriate to disregard this “for reasons of exceptional public interest.”

Simon Ricketts, 12 May 2018

Personal views, et cetera

EU Court Ruling: Ignore Mitigation Measures In Habitats Screening

POW, indeed. The People Over Wind ruling (Court of Justice of the EU, 12 April 2018) is short but striking.

The issue is an important one. There are two steps that a decision maker must follow in determining whether a plan or project is likely to affect a Special Area of Conservation under the Habitats Directive or a Special Protection Area under the Birds Directive (given domestic effect by the Conservation of Habitats and Species Regulations 2017).

The first step is what is commonly called “screening”, although it is not a formal procedural process as there is with EIA. At this stage the question is whether the plan or project is likely to have a significant effect on an SAC or SPA (either alone or in combination with other plans or projects). “Likelihood” is a low threshold – as summarised in People Over Wind:

In the light, in particular, of the precautionary principle, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned“.

If the risk of a significant effect can be excluded at this stage, no further work is required under the Birds or Habitats Directive.

If the risk of a significant effect cannot be excluded, “appropriate assessment” is required to determine that the plan or project will not adversely affect the integrity of the SAC or SPA. If the answer at this stage is other than that it will not, the plan or project is in problems as there are only limited circumstances which would then allow it still to proceed.

Screening out the need for appropriate assessment is important to promoters of plans and projects:

⁃ it reduces the amount of work, time and cost spent, particularly in relation to smaller schemes if the screening stage can be relatively standardised for similar types of development (for instance residential developments in the vicinity of SPAs such as the Thames Basin Heaths).

⁃ paragraph 119 of the NPPF provides that the “presumption in favour of sustainable development (paragraph 14) does not apply where development requiring appropriate assessment under the Birds or Habitats Directives is being considered, planned or determined.” (This is carried over into paragraph 174 of the draft revised NPPF).

The English courts have long taken the position that proposed mitigation measures can be taken into account at the screening stage. Indeed Sullivan J’s ruling almost exactly ten years ago in R (on the application of Hart District Council) v Secretary of State for Communities and Local Government (Sullivan J, 1 May 2008) was crucial in establishing the practicality of local authorities relying on the funding or provision of Suitable Alternative Natural Greenspace (SANGS) rather than requiring appropriate assessment in relation to each housing project that might lead to an increase in people wishing to use the nearby SPA for recreational purposes. He held that there was no reason why a commitment to provide mitigation in the form of SANGs could not be taken into account at screening stage:

…if the competent authority is satisfied at the screening stage that the proponents of a project have fully recognised, assessed and reported the effects, and have incorporated appropriate mitigation measures into the project, there is no reason why they should ignore such measures when deciding whether an appropriate assessment is necessary. Under Regulation 48(2), the competent authority may ask the proponent of a plan or project for more information about the plan or project, including any proposed mitigation, not merely for the purposes of carrying out an appropriate assessment, but also in order to determine whether an appropriate assessment is required in the first place. If for any reason the competent authority is still not satisfied, then it will require an appropriate assessment. As a matter of common sense, anything which encourages the proponents of plans and projects to incorporate mitigation measures at the earliest possible stage in the evolution of their plan or project is surely to be encouraged“.

That has remained the domestic law, as can be seen in R (Champion) v North Norfolk District Council (Supreme Court, 22 July 2015), where the reason why the permission was quashed was that at the screening stage the mitigation measures relied upon had not been fully identified.

However, the European Court of Justice has now driven somewhat of a bulldozer through this approach in its ruling this month in relation to a reference from the Irish High Court in relation to proceedings which had been brought by the People Over Wind campaign group and campaigner Peter Sweetman (not his first visit to the Luxembourg court, see Sweetman v. An Bord Pleanala (CJEU, 11 April 2013)) to seek to quash permission for a project to lay a cable connecting a wind farm to the electricity grid, potentially affecting rivers constituting a habitat for the “Nore pearl mussel”. According to the judgment, the consultants’ screening report for the project concluded as follows:

“a)      In the absence of protective measures, there is potential for the release of suspended solids into waterbodies along the proposed route, including directional drilling locations

b)      With regards to [the Nore pearl mussel], if the construction of the proposed cable works was to result in the release of silt or pollutants such as concrete into the pearl mussel population area of river through the pathway of smaller streams or rivers, there would be a negative impact on the pearl mussel population. Sedimentation of gravels can prevent sufficient water flow through the gravels, starving juvenile [Nore pearl mussels] of oxygen.’

18      It is apparent from the file before the Court that ‘protective measures’ were also analysed by that report.

19      Subsequently, on the basis of that report, the following recommendation was drawn up for Coillte by the ‘programme manager’:

As set out in detail in the … appropriate assessment screening report, on the basis of the findings of that report and in light of the best scientific knowledge, the grid connection works will not have a significant effect on the relevant European sites in light of the conservation objectives of the European sites, alone or in combination with the Cullenagh wind farm and other plans or projects, and an appropriate assessment is not required. This conclusion was reached on the basis of the distance between the proposed Cullenagh grid connection and the European sites, and the protective measures that have been built into the works design of the project.’”

The Irish High Court referred the following question to the European Court of Justice for a preliminary ruling:

“Whether, or in what circumstances, mitigation measures can be considered when carrying out screening for appropriate assessment under Article 6(3) of the Habitats Directive?’”

Even for the CJEU the resulting judgment is brief.

…it is settled case-law that Article 6(3) of the Habitats Directive makes the requirement for an appropriate assessment of the implications of a plan or project conditional on there being a probability or a risk that the plan or project in question will have a significant effect on the site concerned. In the light, in particular, of the precautionary principle, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned (judgment of 26 May 2011, Commission v Belgium, C‑538/09, EU:C:2011:349, paragraph 39 and the case-law cited). The assessment of that risk must be made in the light inter alia of the characteristics and specific environmental conditions of the site concerned by such a plan or project (see, to that effect, judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 45 and the case-law cited).”

35      As the applicants in the main proceedings and the Commission submit, the fact that, as the referring court has observed, measures intended to avoid or reduce the harmful effects of a plan or project on the site concerned are taken into consideration when determining whether it is necessary to carry out an appropriate assessment presupposes that it is likely that the site is affected significantly and that, consequently, such an assessment should be carried out.

36      That conclusion is supported by the fact that a full and precise analysis of the measures capable of avoiding or reducing any significant effects on the site concerned must be carried out not at the screening stage, but specifically at the stage of the appropriate assessment.

37      Taking account of such measures at the screening stage would be liable to compromise the practical effect of the Habitats Directive in general, and the assessment stage in particular, as the latter stage would be deprived of its purpose and there would be a risk of circumvention of that stage, which constitutes, however, an essential safeguard provided for by the directive.

38      In that regard, the Court’s case-law emphasises the fact that the assessment carried out under Article 6(3) of the Habitats Directive may not have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on the protected site concerned (judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 50 and the case-law cited).”

It is a frustrating judgment. There are so many unasked and unanswered questions arising from it, for instance:

1. Why does reference to mitigation measures presuppose that without the measures there is likely to be a significant effect?

2. Why is it assumed that there can be no certainty as to the effectiveness of proposed mitigation measures?

3. Why is there no dividing line between mitigation on the one hand and avoidance/reduction on the other (a distinction raised by Sullivan J in Hart, where he didn’t necessarily accept that the SANGs mechanism amounted to mitigation as opposed to avoiding effects in the first place) and where is the dividing line between mitigation and components of the project itself? If an inherent part of the project (say soundproof walls) also serves a mitigation function, surely it is not to be ignored. In which case, what is included in the project and what is mitigation that is not an integral or inherent part of the project is a crucial question.

It is going to be interesting to see how UK practice adapts in relation to the ruling and how soon the issue comes before the courts. Will attempts be made to distinguish it (that is possible) or will plan and project promoters take a more cautious approach of proceeding more frequently to appropriate assessment? Will this be the sort of issue where, post- Brexit, the domestic courts will begin to take an increasingly differing stance to Luxembourg?

There is a potentially wider question, as to whether the same “ignore mitigation” principle will begin to infect the EIA process where, again, the relevance of proposed mitigation measures at screening stage has long been accepted (see eg Gillespie v Secretary of State for Transport Local Government and the Regions(Court of Appeal, 27 March 2003)).

There is no reference to the EIA Directive in People Over Wind but it will be one to watch. It would be quite a step, given that the EIA Regulations specifically require that a negative screening opinion or direction should “state any features of the proposed development and measures envisaged to avoid, or prevent what might otherwise have been significant adverse effects on the environment“!

Lastly, on the subject of screening under the Habitats and Birds Directives, R (Mynnydd y Gwynt Limited) v Secretary of State (Court of Appeal, 22 February 2018) is another recent case worth reading, which demonstrates the difficulties of challenging any decision by a competent authority that appropriate assessment is required. The claimant, promoting a wind farm by way of a DCO, was perhaps entitled to feel rather sore. National Resources Wales had first taken the view that appropriate assessment was not required but then changed its position, saying that more information was required. The examiner was on balance satisfied but in the light of NRW’s concerns advised the Secretary of State that she might decide that an appropriate assessment was necessary, which indeed in due course she did. Back to the drawing board.

The Secretary of State’s determination was challenged, alleging that she had erred by:

“1)  Requiring certainty in relation to each element of the data, instead of using the available information and making a reasoned judgement, always taking the precautionary approach.

2)  Reaching an inconsistent conclusion about the in-combination level of risk to the red kite population in this SPA to those reached in relation to other Mid-Wales windfarm proposals.

3)  Not referencing or showing that she had considered the Appellant’s December 2014 response to NRW’s concerns about survey methodology

The court rejected the challenge:

For this appeal to succeed, it must be shown that the judge was wrong not to have concluded that the Secretary of State’s decision was unlawful on Wednesbury principles – that she had taken account of irrelevant matters or failed to take account of relevant matters, or that her decision was so unreasonable that no reasonable authority could have made it.

For my part, I am not persuaded that the Secretary of State’s decision was unlawful, nor that the judge’s careful review of the decision was wrong. The Secretary of State was required to exercise a judgement at the junction between two important social objectives – renewable energy and species protection. She was faced with a conflict of views between her statutory conservation adviser and her examiner. She asked for further assistance: NRW responded, the Appellant did not. I accept that the Secretary of State might have been persuaded by the arguments that found favour with the examiner, but in the overall circumstances I consider that she was entitled to accept the advice of NRW and conclude that she did not have the information necessary to enable her to grant the application.”

Whilst it may be frustrating for clients and professional teams alike, these cases demonstrate the care that needs to go into the promotion strategy for any scheme (including the definition of the project itself) where there is a potential impact on an SAC or SPA, and the importance of resolving matters with the relevant conservation bodies – as well as the degree of scientific work required, which often feels like an endless search to prove a negative which may ultimately be unprovable. Mitigation or not, life isn’t as certain as the legislation requires it to be.

I just wish I understood the rationale for that People Over Wind ruling. If you do I would be delighted to hear it.

Simon Ricketts, 20 April 2018

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

The New EIA Regulations

Well the Government cut it fine but the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 were finally laid before Parliament on 19 April 2017 and will come into force on 16 May 2017, along with equivalent regulations in relation to infrastructure planning, water resourceselectricity works, marine works, and land drainage improvement works.
The regulations give effect in England to the EU’s Directive 2014/52/EU on the assessment of the effects of certain public and private projects on the environment, which was required to be brought into force by member states by that magic 16 May 2017 date. 
My 8.10.16 blog post summarises the main implications of the Directive and expresses some doubt as to whether the Government would meet the deadline. I’m glad that the deadline has been achieved, as inconsistency between EU and domestic requirements as to environmental impact assessment would have made a difficult area, already full of legal trip hazards, even more precarious to navigate.  
The new regulations apply to all EIA development projects unless before 16 May 2016:
– an environmental statement has been submitted;

– a request for a screening opinion or direction has been submitted (in which case the screening is carried out under the 2011 regulations but any EIA will be under the new regime); or

– a request for a scoping opinion or direction has been submitted. 

The changes introduced by the new Regulations are not unduly onerous (and have been flagged by way of the 2014 amending directive for some time now) but there is still a small window for those scheme promoters who would prefer to work to the previous 2011 Regulations. I can see that even small changes in required methodologies may give rise to complications on multi-stage projects where it would be easier, for consistency and to avoid re-doing work, for further environmental statements to continue to address the 2011 rather than 2017 requirements. 
So what are the changes? Colleagues have prepared a black-lined version for internal Town purposes that shows all of the changes as between the 2011 and 2017 versions, which has been invaluable in working through the detail. There has been a lot of tweaking and necessary updating but the main substantive changes are as follows:
Reg 4(2) – there are now express references to assessment needing to include effects on human health, biodiversity, land and climate. 
Reg 4(4) – significant effects to be assessed include “the expected significant effects arising from the vulnerability of the proposed development to major accidents or disasters that are relevant to that development”. 
Reg 4(5) – “The relevant local planning authority or the Secretary of State must ensure that they have, or have access as necessary to, sufficient expertise to examine the environmental statement”. 
Reg 6 – additional information is now required in requests for screening opinions.
Reg 6(6) – LPA can agree to extend response to screening opinion request beyond the current three weeks period to up to 90 days and can extend the period further in exceptional circumstances if it gives reasons and the date when the delayed determination is now expected. 
Reg 7(5) – equivalent extended deadlines for the Secretary of State in relation to requests for screening directions. 
Reg 18(4)(a) – an environmental statement “must be based on the most recent scoping opinion or direction issued (so far as the proposed development remains materially the same as the proposed development that was subject to that opinion or direction.” (Currently there is no requirement for an environmental statement to take on board all of conclusions of the scoping opinion or direction).  
Reg 18(4)(c) – an environmental statement must “be prepared, taking into account the results of any relevant UK environmental assessment, which are reasonably available to the person preparing the environmental statement, with a view to avoiding duplication of assessment”. 
Reg 18(5) – “In order to ensure the completeness and quality of the environmental statement— 
* (a)  the developer must ensure that the environmental statement is prepared by competent experts; and

* (b)  the environmental statement must be accompanied by a statement from the developer outlining the relevant expertise or qualifications of such experts.”

Reg 19(6) – EIA application must not be determined until at least 30 days (was previously 14 days) after copies of the environmental statement were served on consultation bodies.

Reg 20(2)(f) – the LPA must make the environmental statement available online for at least that 30 day period. 
Reg 26 – the decision maker must reach a “reasoned conclusion on the significant effects of the proposed development on the environment”, taking into account their examination of the environmental information submitted and, where appropriate the decision maker’s “own supplementary examination”, “integrate that conclusion into the decision” and “if planning permission or supplementary consent is to be granted, consider whether it is appropriate to impose monitoring measures”. 
Reg 26(4) – “In cases where no statutory timescale is in place the decision of the relevant authority or the Secretary of State, as the case may be, must be taken within a reasonable period of time, taking into account the nature and complexity of the proposed development, from the date on which the relevant authority or the Secretary of State has been provided with the environmental information”.
Reg 27 – where there has to be both an EIA and a Habitats Regulations assessment, the two must be co-ordinated. 
Reg 29 – where planning permission is granted for EIA development, the decision must set out the reasoned conclusion of the decision maker on the significant effects of the development on the environment, any conditions which relate to the likely significant effects of the development on the environment, any measures envisaged to avoid, prevent, reduce and, if possible, offset likely significant adverse effects on the environment and any monitoring measures considered appropriate. 
Reg 30(1)(b) – the consultation bodies are to be informed of the decision in respect of any EIA application. 
Reg 30(1)(d)(iii) – information must be available for public inspection as to the results of consultations undertaken and information gathered.
Reg 35 – “planning authorities in the exercise of their enforcement functions, must have regard to the need to secure compliance with the requirements and objectives of the Directive.”
Reg 64 – objectivity and bias:
“(1) Where an authority or the Secretary of State has a duty under these Regulations, they must perform that duty in an objective manner and so as not to find themselves in a situation giving rise to a conflict of interest. 
(2) Where an authority, or the Secretary of State, is bringing forward a proposal for development and that authority or the Secretary of State, as appropriate, will also be responsible for determining its own proposal, the relevant authority or the Secretary of State must make appropriate administrative arrangements to ensure that there is a functional separation, when performing any duty under these Regulations, between the persons bringing forward a proposal for development and the persons responsible for determining that proposal.”

Schedule 2 – the threshold for industrial estate development projects is reduced from 5 hectares to 0.5 hectares. 
Schedule 3, para 3 – more detail as to the types and characteristics of potential impacts to be taken into account in screening Schedule 2 development. 
Schedule 4, para 1 – more detail as to the necessary description of the development in an environmental statement. 
Schedule 4, para 2 – the environmental statement must include a “description of the reasonable alternatives (for example in terms of development design, technology, location, size and scale) studied by the developer, which are relevant to the proposed project and its specific characteristics, and an indication of the main reasons for selecting the chosen option, including a comparison of the environmental effects” (in place of the more lax “outline of the main alternatives studied by the applicant or appellant and an indication of the main reasons for the choice made, taking into account the environmental effects”). 
Schedule 4, para 3 – it must also include a “description of the relevant aspects of the current state of the environment (baseline scenario) and an outline of the likely evolution thereof without implementation of the development as far as natural changes from the baseline scenario can be assessed with reasonable effort on the basis of the availability of environmental information and scientific knowledge.”
Schedule 4, para 10 – it must also include a “reference list detailing the sources used for the descriptions and assessments included in the environmental statement”. 
The explanatory memorandum published with the regulations states that there “are around 500 – 600 environmental statements submitted each year in England through the planning system, representing about 0.1% of all planning applications. There are between 10 – 20 applications for a development consent order under the nationally significant infrastructure planning regime subject to EIA each year”. 
Much of the work of a planning lawyer these days to seek to ensure that environmental impact assessment processes are carried out in a legally correct manner so as not to lead to the unnecessary risk of legal challenge. The new regulations will do nothing to reduce that risk – indeed, particular care will need to be taken in relation to these new requirements. Red pens at the ready…
Simon Ricketts 29.4.17
Personal views, et cetera

(with special thanks to Town colleagues, Spencer Tewis-Allen and Rebecca Craig).