I mentioned in last week’s blog post that the Government has of course now published its consultation on the environmental outcomes reports system (17 March 2023) which is proposed to replace environmental impact assessment and strategic environmental assessment, as per the enabling provisions in the Levelling-up and Regeneration Bill. Consultation responses are due by 9 June 2023.
This is going to be a fundamental change to our plan-making and decision-making process.
We are going to dive into the detail in a Clubhouse session arranged for 4 pm on 30 March, led by my Town Legal partner Duncan Field, with other panellists including Riki Therivel (Levett-Therivel), Juliette Callaghan and Venessa Thorpe (Trium) and Elin Fradgley (Quod). So that we have an idea of likely numbers and so you receive a reminder when the event starts, do RSVP here.
By way of reminder, Part 6 of the LURB (clauses 138 to 152) sets out the legislative framework for environmental outcomes reports.
The “non-regression” duty set out in clause 142(1) is an important protection:
“The Secretary of State may make EOR regulations only if satisfied that making the regulations will not result in environmental law providing an overall level of environmental protection that is less than that provided by environmental law at the time this Act is passed.”
The consultation paper sets out a number of the issues arising from the present system, all of which I’m sure we can all recognise:
• risk aversion
• loss of focus
• issues with data
Under “risk aversion”, Sullivan LJ is quoted from his 2004 Court of Appeal judgment in Blewett:
“It would be no advantage to anyone concerned […] if Environmental Statements were drafted on a purely “defensive basis” mentioning every possible scrap of information […] Such documents would be a hindrance, not an aid, to sound decision-making by the local planning authority since they would obscure the principal issues with a welter of detail”.
(Personally I would expand the comment: this is the direction that the whole planning system has gone, not just in relation to environmental statements, but the whole gamut of application documents, (particularly design and access statements), planning committee reports and planning permissions themselves often with 50 or more conditions imposed where the permission relates to development of any scale or complexity).
I read the consultation document with a view to summarising the main changes from the current system but can’t improve on this pithy summary by Duncan:
“EORs are expected to act as a translator of technical assessment work and only address performance against outcomes in a concise and publicly accessible way; in doing so EORs will need to identify necessary mitigation and/or compensation.
– The range of possible topics (outcomes) to be covered by EORs is likely to be slimmed down to avoid duplication with other assessments required in the planning process.
– Although Government will maintain a distinction between projects where EORs are always required and projects where they may be required, there should be fewer discretionary decisions around screening due to the inclusion of more directive screening criteria.
– On changes to scoping there seems likely to be less of a focus on scoping outcomes in or out and more of a focus on assessing scoped in outcomes in a proportionate way (so some outcomes may be included but assessed in less detail).
– Outcomes will be measured by reference to data-based indicators, and these will be developed at a national level to ensure consistency.
– The Government acknowledges that there needs to be better alignment between assessments at a strategic (plan) level and those at a project level so that they speak to each other; it is hoped that the focus of EORs on the same outcomes and the application of nationally determined indicators will help with this.
– Guidance on alternatives will be developed to focus assessment on realistic/credible options. However, this will need to include an analysis of the alternatives by reference to the mitigation hierarchy (avoidance-mitigation-compensation).
– There will be a greater emphasis on adaptive management of mitigation and monitoring/enforcement of measures after decisions have been taken.
– There is recognition that there needs to be better access to and collection of environmental data to assist with EORs.”
The Government envisages that an EOR at the project stage under the Town and Country Planning Act would be structured as follows:
• a short introduction (which references the project details in the accompanying Planning Statement)
• a short, high level, summary of how reasonable alternatives and the mitigation hierarchy were considered early in the development of the project
• an assessment of contribution towards achieving an outcome supported by the indicators set out in guidance – this will include
• the residual effects on the environment identified through the underlying technical work, with relevant conclusions in the technical work clearly pinpointed
• the current baseline and relevant trend data, similarly identified
• commentary on levels of uncertainty for that data or indicator set
• proposed mitigation, and
• monitoring proposals
• a summary of the contribution of the cumulative effects of the project as a whole on outcomes and how this relates to the conclusions of any strategic or plan level assessment.
Outcomes (to be consulted upon in coming months), measured by reference to a national data set, will need to be set out for at least the following:
• air quality
• landscape and seascape
• geodiversity, soil and sediment
• noise and vibration
• cultural heritage and archaeology
The idea is promising. The real challenge, not referred to in the consultation paper? How to discourage the sorts of legal challenges which have caused our current processes to be so bloated, whilst ensuring that unjustified assessment short cuts cannot be taken.
The LURB is currently making slow progress through its Lords Committee stage, due to the hundreds of amendments tabled, some of them by the Government, such as (see amendment 412D) the proposed change to the compulsory purchase system that would allow acquiring authorities in some circumstances to seek a direction, when making a compulsory purchase order, disapplying any entitlement to hope value on the part of the land owner. This could have huge implications on the the land promotion and development market – in that the risk of compulsory purchase at an under-value may well prove a significant potential disincentive to development promoters and those funding them. As usual it was a bit chaotic to begin with but we had a good and sparky discussion on the issue on Clubhouse last week, with the basic concept being defended by Shelter’s Venus Galarza, against an array of compulsory purchase surveyors and lawyers (none of whom were objecting to the objective of enabling greater delivery of housing, including affordable housing – rather the way it being done!). Shelter have their own slightly different amendment, amendment 414, narrow than that of the Government. You can hear it all here.
Looking further ahead, we now have a Clubhouse session on the dreaded Infrastructure Levy arranged for 2pm on 19 April, to be led by another of my Town Legal partners, Clare Fielding. If you would like to join the panel for that one do let me know.
You may be returning from that escapist world that is MIPIM and grimacing at the prospect of a week’s worth of emails, or you may be finishing a week of grimacing at all the LinkedIn pics of your colleagues in Ray-Bans. In any event, we now have three developments in relation to the Levelling-up and Regeneration Bill, currently at Committee stage in the House of Lords, sent to test the old saying that a change is a good as a rest…
I’m very grateful for three of my partners, not part of the MIPIM contingent, who have particularly had their eyes on the following:
Government amendment relating to removal of “hope” value in relation to particular categories of CPO
The Government tabled amendments on 13 March 2023 to the Levelling-up and Regeneration Bill that would have significant impacts on landowners. Raj Gupta has written a Compulsory Reading blog post LURB in the Lords – no hope (16 March 2023) on the potentially far-reaching implications. We have arranged a Clubhouse Planning Law Unplanned session at 5 pm on Thursday 23 March to discuss the proposal, led by Raj, Jon Stott, Greg Dickson and other leading specialists. Please RSVP here if you would like to tune in and/or take part in the discussion.
Government consultation on environmental outcomes reports – a new approach to environmental assessment
The Government published its consultation today, 17 March 2023, on the design on its proposed new system of environmental assessment. See the press statement, and consultation document. Duncan Field has set out some initial comments in a LinkedIn post. Again, we are going to arrange a Clubhouse Planning Law Unplanned event, probably for Thursday 30 March but further details will appear shortly.
Government consultation on the proposed infrastructure levy
The Government published its consultation today, 17 March 2023, on the design of the proposed infrastructure levy. See the press statement, technical consultation and a February 2023 research paper published alongside it. Clare Fielding will shortly be publishing a Levy-Headed blog post as to the likely implications.
Now to unpack. And let my picture be a warning for you to keep your parents away from the Be Real app.
Defining what is the “project” for the purposes of ascertaining whether environmental impact assessment is required and, if it is, carrying it out appropriately, can be more difficult than one might think.
An application should not be considered in isolation if, in reality, it is an integral part of a more substantial development (Judgment in the case of R v Swale BC ex parte RSPB  1PLR 6). In such cases, the need for Environmental Impact Assessment must be considered in the context of the whole development. In other cases, it is appropriate to establish whether each of the proposed developments could proceed independently (R (Candlish) v Hastings Borough Council  All ER (D) 178 (Jul); Baker v Bath & North East Somerset Council  All ER (D) 169 (Jul)).
The court in Larkfleet referred to the relevant EU legislation and case law, in accordance with which the EIA Regulations were to be interpreted:
“What is in substance and reality a single project cannot be “salami-sliced” into a series of smaller projects, each of which falls below the relevant threshold criteria according to which EIA scrutiny is required”.
In that case, the court found that the construction of the bypass and the carrying out of the residential development were indeed to be treated as separate “projects”:
“Mr Kingston QC, for the Appellant, sought to rely on these passages in support of his submission that SKDC was obliged to assess the proposal for the link road and the proposal for the residential site as a single project. However, in my view the argument is unsustainable. It is clear from the terms of the EIA Directive that just because two sets of proposed works may have a cumulative effect on the environment, this does not make them a single “project” for the purposes of the Directive: the Directive contemplates that they might constitute two potential “projects” but with cumulative effects which need to be assessed. The passages from Ecologistas to which I have referred also contemplate that two sets of proposed works may constitute different projects for the purposes of the Directive. What these passages are directed towards is avoiding a situation in which no EIA scrutiny is undertaken at all. However, if the two proposed sets of words are properly to be assessed as two distinct “projects” which meet the threshold criteria in the Directive, there will be EIA scrutiny of the cumulative effects of the two projects.
It is true that the scrutiny of cumulative effects between two projects may involve less information than if the two sets of works are treated together as one project, and a planning authority should be astute to ensure that a developer has not sliced up what is in reality one project in order to try to make it easier to obtain planning permission for the first part of the project and thereby gain a foot in the door in relation to the remainder. But the EIA Directive and the jurisprudence of the Court of Justice recognise that it is legitimate for different development proposals to be brought forward at different times, even though they may have a degree of interaction, if they are different “projects”, and in my view that is what has happened here as regards the application for permission to build the link road and the later application to develop the residential site.
The EIA Directive is intended to operate in a way which ensures that there is appropriate EIA scrutiny to protect the environment whilst avoiding undue delay in the operation of the planning control system which would be likely to follow if one were to say that all the environmental effects of every related set of works should be definitively examined before any of those sets of works could be allowed to proceed (and the disproportionate interference with the rights of landowners and developers and the public interest in allowing development to take place in appropriate cases which that would involve). Where two or more proposed linked sets of works are in contemplation, which are properly to be regarded as distinct “projects”, the objective of environmental protection is sufficiently secured under the scheme of the Directive by consideration of their cumulative effects, so far as that is reasonably possible, in the EIA scrutiny applicable when permission for the first project (here, the link road) is sought, combined with the requirement for subsequent EIA scrutiny under the Directive for the second and each subsequent project. The adequacy and appropriateness of environmental protection by these means under the EIA Directive are further underwritten by the fact that alternatives will have been assessed at the strategic level through scrutiny of relevant development plans (here, the Core Strategy and Masterplan) from an environmental perspective under the SEA Directive.”
“The most important feature of this case is that there is a strong planning imperative for the construction of the link road as part of the Grantham by-pass which has nothing to do with the development of the residential site. It is clear from the evidence that the residential site could not be granted planning permission unless the link road is constructed, but the converse is not true: there is a strong independent planning need for the construction of the link road (to complete the Grantham by-pass) whether or not the residential site is developed. In the context of this planning rationale, it makes obvious sense to regard the main function of the link road as being to form part of the Grantham by-pass and hence to regard the relevant project as the “construction of a road” (in the terminology in section 10 of Annex II to the EIA Directive). Since the main functional purpose of the link road, as part of the Grantham by-pass, is to provide a new passage for traffic to avoid Grantham this approach to identification of the project is supported by the references to roads and other transportation projects such as railways, tramways and so on in Annex I and Annex II to the EIA Directive as set out above.”
“As to the design connections, given that it is part of SKDC’s local plan that the residential site should be developed for housing (with some community and employment uses as well), it is simple planning good sense that an application should have been made for the link road (as part of the Grantham by-pass) to skirt the site, to avoid jeopardising those discrete planning objectives, and for the link road to include the roundabout and the stub, to avoid extra costs which are foreseeable if the residential site is developed in accordance with the local plan documents.”
“The fact that funding for the construction of the link road will depend to a significant degree on contributions in due course from the developer of the residential site does not lead to the conclusion that they must be regarded as part of a single “project”. The funding arrangements are contingent matters which do not bear on the planning merits of the proposal to construct the link road to complete the Grantham by-pass.”
“As regards the references in the local plan documents and other documentation to the connections between the link road and the residential site proposals, in my view they are just reflections of the points of linkage between the link road and the residential site referred to above. For example, it is unsurprising that in seeking planning permission for the link road LCC should have emphasised not just the desirability of constructing the Grantham by-pass but also how well that project fitted with other aspects of SKDC’s local plan and the other benefits for SKDC’s area which it would bring; and it is unsurprising that in seeking central government funding for the Grantham by-pass LCC should have emphasised both the need for the by-pass to ease traffic congestion in Grantham and also the other wider benefits which would be likely to be associated with its construction.”
“As further support for the identification of the link road as a distinct “project”, I think it is relevant that the applicant for planning permission is LCC, which is the highway authority with responsibility to promote the public interest in relation to the road network. LCC is not a private developer and has no commercial interest in the residential site. This tends to indicate that the two projects are distinct. I also think it is relevant that at the time of the link road application the detail of the proposals for the development of the residential site had not been worked up to the point at which an application for planning permission could be made by Buckminster, and it cannot be said that this was any part of some deliberate plan to “salami-slice” the applications so as to subvert the proper operation of planning controls.”
The case is possibly an unwelcome and no doubt not unusual example of the perverse incentives on local authorities arising from time-limited government funding.
The case concerned a challenge to the grant of planning permission by the council for a road bridge over the Bristol to Birmingham mainline railway north of Ashchurch, Tewkesbury.In March 2019, Tewkesbury has been “awarded Garden Town status for a potential development of up to 10,195 new homes, around 100 ha of employment land, and related infrastructure. This was based on the Tewkesbury Area Draft Concept Masterplan Report (“the Masterplan”), which sets out potential largescale development over an area described as the “North Ashchurch Development Area””.
“The Masterplan expressly recognises that delivery of the northern development plots for Phase 1 development relies on “the provision of a northern link over the main rail line, overcoming severance and completing the link between existing local roads”. It identifies the bridge as one of the “short-term enabling interventions”. The bridge is therefore an essential prerequisite to the delivery of any housing development in the Phase 1 area. It is common ground that the sole purpose of its construction is to facilitate such development.”
“In the normal course of events, one might have expected any application for planning permission to be made only after [progress with the joint core strategy] and the adoption of a local plan, and for TBC to seek permission for the Phase 1 development of which the bridge would form an integral part, including the link road and any other vital transport infrastructure. Instead, the application was made, and granted, for the bridge alone.
[Paul Brown KC, acting for the claimant] told the Court that the bridge is known locally as “the bridge to nowhere,” because after it has been constructed, the temporary haul roads will be removed and there will be no connecting roads on either side, just a bridge in the middle of a field, which will be fenced off. Without a functioning highway unlocking the land within the Phase 1 area on the eastern side of the railway, the bridge will serve no useful purpose.
This unusual state of affairs has arisen because TBC wished to avail itself of funding from the Government which was only available for a limited period. In July 2017, the Government launched a £2.3 billion Housing Infrastructure Fund (“HIF”) in order to support housing delivery through the funding of vital physical infrastructure, such as roads and bridges, with the opportunity to facilitate the development of some 100,000 homes in England. The fund was split into two key areas, namely, forward funding (for larger schemes up to £250 million) and marginal funding (for schemes up to £10 million). The deadline for applications was September 2017.”
“It follows, therefore, that at the time when the application for planning permission for the bridge was considered, there was a clear expectation that the bridge would serve at least 826 houses, to be built within the Phase 1 area on the eastern side of the railway track, and the road infrastructure, including the link road over the bridge, would need to cater for at least that number.
Prior to making the application for planning permission, TBC commissioned an Environmental Impact Assessment Screening Report, for the purpose of determining whether an Environmental Impact Assessment (“EIA”) was required. The Screening Report was produced in May 2020. The Judge quotes relevant extracts at paras 17 to 26 and para 33 of his judgment. The Screening Report noted that the bridge would not be used until future development came forward to make it operational. It recorded that the current proposals identified that the development area was anticipated to provide 826 new houses. Nevertheless it treated the bridge as a stand-alone “project”, to be considered independently from any environmental assessment of the highway and residential elements of the development that it was envisaged the bridge would facilitate. It noted that an assessment of those elements would be carried out in future, as and when it was envisaged that any development under Phase 1 of the Masterplan would be implemented.
The Screening Report recognised that the bridge was Schedule 2 development under the EIA Regulations, but concluded that, looked at in isolation, it was not likely to have significant effects on the environment. It was therefore unnecessary to carry out an EIA.”
There were basically two grounds of challenge to the grant of planning permission, both successful.
I’m not going to consider in detail the first ground (grounds 1 and 2 in the judgment), which was that the officer’s report had advised members to take into account the benefits of the bridge in terms of facilitating the housing development, but not any adverse effects arising from the housing development. Andrews LJ:
“In this particular case, I am satisfied on an appropriately benevolent reading of the [officer’s report] as a whole that the Planning Officer in substance directed the members of the Planning Committee that they could not or must not take account of the harms of the proposed development that the bridge would facilitate. That went beyond mere advice or the expression of a personal view about relevance. Those harms were at least potentially relevant: materiality was a matter for the Committee to determine, and they were being told that they must not consider something to be material which they might otherwise have regarded as material.”
The second ground (ground 3 in the judgment) was that the local planning authority had incorrectly characterised the “project” for EIA purposes as being simply the bridge. You will see the approach that the court took in relation to that matter from the following passages, which I suspect will be widely cited:
“The identity of the “project” for these purposes is not necessarily circumscribed by the ambit of the specific application for planning permission which is under consideration. The objectives of the Directive and the Regulations cannot be circumvented (deliberately or otherwise) by dividing what is in reality a single project into separate parts and treating each of them as a “project” – a process referred to in shorthand as “salami-slicing””.
“In Larkfleet, it was held that a proposed urban extension development and a link road were not a single project because despite the connections between them, there was a “strong planning imperative” for the construction of the link road as part of a town by-pass, which had nothing to do with the proposed development of the residential site. By contrast, in Burridge v Breckland District Council  EWCA Civ 228, (“Burridge”) the Court of Appeal held that a planning application for a biomass renewable energy plant and a planning application for a combined heat and power plant linked to it by an underground gas pipe were a “single project,” on the basis that they were “functionally interdependent and [could] only be regarded as an “integral part” of the same development.”
It follows that the identification of the “project” is based on a fact-specific inquiry. That means other cases, decided on different facts, are only relevant to the limited extent that they indicate the type of factors which might assist in determining whether or not the proposed development is an integral part of a wider project.
Lang J, in her judgment in R(Wingfield) v Canterbury City Council and another  EWHC 1975 (Admin),  JPL 154, (“Wingfield”) stated at  that the question as to what constitutes the “project” is a matter of judgment for the competent planning authority, subject to challenge on grounds of Wednesbury rationality or other public law error. At  she set out a non-exhaustive list of potentially relevant criteria, which serves as a useful aide-memoire. These include whether the sites are owned or promoted by the same person, functional interdependence, and stand-alone projects. In relation to the last of these factors she said:
“where a development is justified on its own merits and would be pursued independently of another development, this may indicate that it constitutes a single individual project that is not an integral part of a more substantial scheme”.
The reverse may also be true, and that reflects the position in this case.”
“There is no reference in the Screening Report to Larkfleet or Burridge, nor to the factors identified in Wingfield. The author did not address the question whether the bridge and the highway that was envisaged to run across it were “functionally interdependent”; nor the question whether building a non-functioning bridge in the middle of a field was justified on its own merits, as a stand-alone project, without regard to the development it facilitated; nor the question whether the application for permission would have been pursued in the absence of the proposed development of Phase 1 of the Masterplan.”
“I reject the proposition that in a case in which the specific development for which permission has been sought clearly forms an integral part of an envisaged wider future development, without which the original development would never take place, there can only be a single “project” for the purposes of the Directive and the Regulations if the contemplated wider development has reached the stage where an application has been made or could be made for planning permission. That proposition appears to me to be antithetic to the approach taken in Rochdale and inherently illogical. The question “is this application part of a larger project?” can still be answered even if planning permission has not yet been sought for the larger project or the details of the larger project have not been finalised.”
“Insofar as the author of the Screening Opinion, and the Development Manager, decided that the “project” must be confined to the bridge because “any future contemplated development could not be [robustly] assessed at the time of the screening decision”, they fell into error by conflating two separate inquiries, namely, “what is the project?” and “what are the environmental impacts of that project?” The difficulty of carrying out any assessment of the impacts of a larger project which is lacking in detail, is a matter which is separate from and irrelevant to the question whether the application under consideration forms an integral part of that larger project.”
“The Phase 1 project may not be easy to define in detail because it is at a relatively early stage, which explains why the Screening Report refers to a “lack of definition”. That may affect the way in which the overall assessment of whether there is a significant impact on the environment is carried out – it would necessarily be based on less concrete information than an assessment at a later stage of the planning process would be. However, in my judgment it cannot affect the answer to the initial question at the screening stage, “is this application part of a larger project”? If and to the extent that TBC treated it as if it did, they fell into error.
The fact that the Planning Practice Guidance addresses the potential relevance of “other existing or approved developments” and tells local planning authorities that they should always have regard to the possible cumulative effects arising from any existing or approved development, should not be taken as restricting consideration of the impact of larger projects to “existing or approved” developments.
I accept that there was no evidence of any deliberate attempt by TBC to “salami-slice” in the present case. There were cogent justifications provided for hiving off and accelerating the application for the bridge, which had nothing to do with a wish to avoid the impacts of a full EIA assessment. But it does not follow from the fact that the application for the bridge was hived off in that way that its relationship to Phase 1 of the Masterplan, which provided the sole underlying justification for its existence, could be lawfully ignored when deciding on the identity of the “project””
“In conclusion on Ground 3, I am satisfied that TBC did not take a legally correct approach to the decision whether an EIA assessment was required. They never asked themselves the right questions. If and insofar as they justified treating the bridge as a stand-alone “project” by reference to (a) the difficulty of assessing the environmental impacts of the wider project (b) the fact that the Masterplan has no formal planning status or (c) the fact that EIA assessments will be carried out in future as and when Phase 1, or other aspects of it, become the subject of planning applications, they fell into error.”
What are the main implications of the Ashchurch case?
Care is needed in relation to the EIA scoping and screening process for a start, analysing the particular factual situation against this case law.
Clarity is needed as to whether there is any functional interdependence on other proposals – whether the proposals the subject of the planning application would be likely to proceed absent wider proposals – whether it forms an integral part of a larger project (to my mind that remains, as per Larkfleet, a high test, but it needs to be properly considered by the decision maker)
Caution should be exercised – in particular that those matters set out in the final passage I quote above are not relied upon as justification for arriving at a narrow project definition.
As always, this is not an “opening of the floodgates” moment. This was about a piece of infrastructure which only had one potential purpose. It was not, for instance, one parcel of development within a wider development allocation as in Wingfield. What matters is that decision makers should arrive at a reasoned, rational, conclusion as to the extent of the project for the purposes of the EIA Regulations, rather than simply take what is given to them on a plate by way of the planning application.
“If passed, REULRR will effectively sweep away any and all EU laws that the Government hasn’t actively decided to keep.
It does this by:
Repealing EU derived laws by the end of 2023. The government will be able to extend that deadline to 23 June 2026 (the tenth anniversary of the Brexit referendum) but can’t further extend it.
Repealing the principle of supremacy of EU law by the end of 2023. Currently, any EU decision reached before 1 January 2021 is binding on UK courts unless the government departs from it. However, this bill will subjugate all EU law in favour of UK law by default.
Repealing directly effective EU law rights and obligations in UK law by the end of 2023; and
Establishing a new priority rule requiring retained direct EU legislation to be interpreted and applied consistently with domestic legislation.”
She discussed this further at our clubhouse Planning Law Unplanned session last week on the Growth Plan, which Sam Stafford has now trimmed neatly into a 50 Shades of Planning podcast:
You will remember that the European Union Withdrawal Act 2018 had the effect of retaining, post Brexit, EU-derived domestic legislation such as the regulations in relation to environmental impact assessment, strategic environmental impact and conservation of habitats, leaving it to Parliament in due course to determine the extent to which the legislation should subsequently be repealed or amended.
”The REUL [retained EU-derived law] framework established by EUWA, however, was not intended to be maintained indefinitely on the UK statute book and now the Government is in the position to ensure REUL can be revoked, replaced, restated, updated and removed or amended to reduce burdens.”
The Bill now places a firm deadline on that process:
“The Retained EU Law (Revocation and Reform) Bill facilitates the amendment, repeal and replacement of REUL by the end of 2023, and assimilates REUL remaining in force after that date by removing the special EU law features attached to it.”
The end of 2023 deadline can only be extended, to 23 June 2026 “should a lack of parliamentary time, or external factors, hinder progress towards reform of retained EU law prior to the 2023 sunset date.”
Is this of concern?
In short, yes of course. It may be said that the Government is committed to a principle of non-regression from current environmental standards, but given the current political pinball and the lack of relevant ministers with any real experience of the sheer complexity and nuances of what they are dealing with, frankly anything is possible. Campaign groups are certainly on edge: Brexit freedoms bill’ could abolish all pesticide protections, campaigners say (Guardian, 29 September 2022).
To an extent, at a high level, the principle of non-regression is built into the trade and co-operation agreement between the UK and EU which was signed on 30 December 2020 and came into force on 1 May 2021. The UK gave various, at least theoretically, binding commitments in the agreement as to non-regression from environmental levels of protection, which I describe in my 27 December 2020 blog post Brexit & Planning: An Update.
There are also generalised commitments within the Environment Act 2021 (which of course Parliament is always of course at liberty to amend or repeal as it chooses). The Government consulted in May 2022 in relation to its draft environmental principles statement. The statement has not yet been finalised and there is not yet any duty upon ministers to take it into account in their policy making. This may not be until summer 2023 at the earliest! The Office for Environmental Protection (a body established pursuant to the 2021 Act) has criticised the statement for “a relatively limited degree of ambition”. The OEP has similarly criticised as unambitious the Government’s draft environmental targets, also consulted upon pursuant to the 2021 Act.
As against these inchoate commitments to environmental standards, what is going to give in the face of a Government which, according to its Growth Plan, will be “disapplying legacy EU red tape where appropriate” in the investment zones it is proposing, and which proposes a Planning and Infrastructure Bill which will be:
“reducing the burden of environmental assessments
reducing bureaucracy in the consultation process
reforming habitats and species regulations”?
Genuine improvements to the processes are certainly possible. But do we trust the Government to strike an appropriate balance, hurtling towards a self-imposed December 2023 deadline and (at the latest) 2024 general election? In the coming year, most of our environmental legislation, and planning legislation to the extent that it is intertwined, will need to be reviewed, line by line, and, given that most of it is in the form of secondary legislation (and the sheer lack of time – after all the REULRR Bill covers all EU derived legislation!), there will be relatively limited Parliamentary scrutiny of that process. Even with the best of intentions, how is this timescale even going to be possible if we are to avoid a complete bodge-up? We have been treading (often polluted) water for so long and we still have no sense whatsoever of what the long trumpeted “outcomes focused” approach will look like in practice – eg see my 2 April 2022 blog post Is the Nature Recovery Green Paper The Answer? (& If So What Was The Question?)
On a slightly different, although possibly related, note….
Join via this link. If you use the link to RSVP in advance (you don’t have to) you’ll get a reminder when we start – and we can get a feel for likely numbers.
What is needed to calm the nerves all round – on planning, on housing, on environmental protection – is detail. When are we going to get it? HM Treasury announced on 26 September 2022:
“Cabinet Ministers will announce further supply side growth measures in October and early November, including changes to the planning system, business regulations, childcare, immigration, agricultural productivity, and digital infrastructure.”
Always just another month or so to wait, every time.
First, a reminder about the Town Library weekly Planning Court updates. You can still register for free to receive a weekly summary of all judgments handed down from the Planning Court (and on appeal from the Planning Court) (those following a final hearing that is – wouldn’t it be great to have permission-stage orders as well…?). There is an on-line index that goes back 4 years and our internal index goes back to the creation of the court in 2014.
“The Court of Appeal has upheld the judgment of the High Court on the question of whether it was unlawful for Surrey County Council not to require the environmental impact assessment (“EIA”) for a commercial crude oil extraction project to include an assessment of the impacts of greenhouse gas emissions resulting from the eventual use of the refined products of that oil as fuel.
The High Court had found that, while it was common ground that an environmental statement should assess both the direct and indirect effects of the development for which planning permission was sought that are likely to be significant, “indirect effects” must still be effects which the development itself has on the environment. It noted that the EIA process was concerned with the use of land for development and the effects of that use; it was not directed at the environmental effects which resulted from the use of an end product.
The Court of Appeal agreed that the Council had not acted unlawfully but while the High Court considered that in the circumstances of this case, the assessment of greenhouse gas emissions from the future combustion of refined oil products at the development site was, as a matter of law, incapable of falling within the scope of the EIA for the planning application, the Court of Appeal held that the existence and nature of “indirect” effects would always depend on the particular circumstances of the development under consideration and that establishing what should be included in an environmental statement was for the relevant planning authority. The need for a wider assessment of greenhouse gas emissions may sometimes be appropriate; what needs to be considered is the degree of connection between the development and its putative effects.
In this case, though the project itself was confined to the construction and use of a well site for the commercial extraction of crude oil for onward transport to refineries, the eventual combustion of the refined products of the oil extracted at the site was “inevitable”, not merely “likely” or “possible”. This being so, the Court of Appeal decided that it was for the Council to establish whether, bearing in mind the intermediate stages which would have to occur before combustion could take place, the greenhouse gas emissions which would be generated in that way were properly to be regarded as “indirect” effects of the proposed development. It was not the court’s role in a claim for judicial review to substitute its own view for the planning authority’s on a question of this kind.”
Given that I am not responsible for the summaries, I think I can say that it really is an amazing resource to receive week by week.
Secondly, a reminder about our clubhouse Planning Law Unplanned event happening from 6 to 7.15 pm this Tuesday, 1 March 2022. Did you hear Hashi Mohamed’s radio 4 documentary, Planning, Housing and Politics on 21 February 2022? We thought it would be great to unpack some of the themes, and perhaps some things which weren’t covered, in a longer session. Hashi and some of those who spoke on the programme will be joining us. Do come along to listen or make your views known. Link to app and event here (and there are recordings of many of our recent events available to listen to on the app).
The court has quashed the decision of the Secretary of State (“SST”), against his examining authority’s recommendations, to “grant a development consent order (“DCO”) […] for the construction of a new route 13 km long for the A303 between Amesbury and Berwick Down which would replace the existing surface route. The new road would have a dual instead of a single carriageway and would run in a tunnel 3.3 km long through the Stonehenge part of the Stonehenge, Avebury and Associated Sites World Heritage Site (“WHS”)“. I had written about the SST’s decision to grant the DCO in my 14 November 2020 blog post, Minister Knows Best (It is interesting to look back – all three of the DCO decisions I mentioned in that post have now been quashed, the others being Norfolk Vanguard Windfarm (also by Holgate J, in R (Pearce) v Secretary of State for Business, Energy and Industrial Strategy (18 February 2021) and also in February 2021 the quashing by consent order of the Manston Airport DCO).
The SST’s decision to grant the A303 (Amesbury to Berwick Down) Development Consent Order 2020, to give it its formal title, was challenged on five grounds, some of those with sub-grounds. They were, in full:
(i) The SST failed to apply paragraph 5.124 of the NPSNN (see  above) to 11 non-designated heritage assets;
(ii) The SST failed to consider the effect of the proposal on 14 scheduled ancient monuments (i.e. designated heritage assets);
(iii) The SST failed to consider the effect of the proposal on the setting of the heritage assets, as opposed to its effect on the OUV of the WHS as a whole;
(iv) The SST’s judgment that the proposal would cause less than substantial harm improperly involved the application of a “blanket discount” to the harm caused to individual heritage assets.
Ground 2– lack of evidence to support disagreement with the Panel
“The claimant submits that the SST disagreed with the Panel on the substantial harm issue without there being any proper evidential basis for doing so. Mr. Wolfe QC advances this ground by reference to the SST’s acceptance of the views of IP2 in DL 34, 43, 50 and 80. He submitted that IP2’s representations did not provide the SST with evidence to support his disagreement with the Panel on “substantial harm” in two respects. First, he said that HE only addressed the spatial aspect of the third main issue and did not address harm to individual assets or groups of assets. Second, he submitted that SST had misunderstood IP2’s position: it had never said that the harm would be less than substantial.”
Ground 3 – double-counting of heritage benefits
“The claimant submits that the SST not only took into account the heritage benefits of the scheme as part of the overall balancing exercise required by para. 5.134 of the NPSNN, but also took those matters into account as tempering the level of heritage disbenefit. It is said that this was impermissible double-counting because those heritage benefits were placed in both scales of the same balance.”
Ground 4 – whether the proposal breached the World Heritage Convention
“The claimant contends that the SST’s acceptance that the scheme would cause harm, that is less than substantial harm, to the WHS involved a breach of articles 4 and 5 of the Convention and therefore the SST erred in law in concluding that s.104(4) of PA 2008 was not engaged. It was engaged and so, it is submitted, the presumption in s.104(3) should not have been applied in the decision letter.”
(i) The SST failed to take into account any conflict with Core Policies 58 and 59 of the Wiltshire Plan and with policy 1d of the WHS Management Plan;
(ii) The SST failed to take into account the effect of his conclusion that the proposal would cause less than substantial harm to heritage assets on the business case advanced for the scheme;
(iii) The SST failed to consider alternative schemes in accordance with the World Heritage Convention and common law.
The 39 Essex chambers press statement (this being a case well represented by barristers from that chambers: five of the seven appearing!) summarises the outcome as follows:
“The claim was allowed on two grounds:
· Part of ground 1(iv): that the Minister did not receive a precis of, or any briefing on, heritage impacts where the Examining Authority agreed with Highways England but did not summarise in their report. He therefore could not form any conclusion upon those heritage assets, whether in agreement or disagreement;
· Ground 5(iii): The Examining Authority and the Minister limited their concluded consideration of alternatives to whether an options appraisal had been carried out and whether there was information on alternatives. However, they did not go on to consider the relative merits of the scheme and alternatives, in particular extending the proposed tunnel farther westwards. Mr Justice Holgate considered it was irrational not to have drawn conclusions in relation alternatives, particularly given that third parties had raised them and the Examining Authority had addressed the information about them in its Report. The Judge held that the circumstances were wholly exceptional. In this case the relative merits of the alternative tunnel options compared to the western cutting and portals were an obviously material consideration which the Minister was required to assess and draw conclusions upon.
The Court rejected other grounds of challenge holding:
· There was no failure to consider whether certain archaeological sites were of national importance;
· The effects on certain individual scheduled monuments had been considered;
· The examining authority and the Minister had considered the effect on scheduled monuments and other heritage assets in addition to the World Heritage Site;
· The Minister had correctly understood Historic England’s advice;
· Discussing the recent Court of Appeal judgment in Bramshill the judge considered that in some cases a decision maker could consider the harm and benefits to a particular heritage asset before deciding whether there was net harm to it and that harm could be assessed for different purposes in different parts of guidance. In Stonehenge the court held that there had been no improper double counting or consideration;
· Articles 4 and 5 of the World Heritage Convention confers obligations on member states towards World Heritage Sites. The Court considered that the Convention does not impose an absolute requirement of protection, but that a balance can be drawn against harm and public benefits.
· The Minister had also lawfully considered the development plan, the World Heritage Site Management Plan and the business case.”
For those who may misunderstand the supervisory role of the courts, there was this warning from Holgate J:
“Plainly, this is a scheme about which strongly divergent opinions are held. It is therefore necessary to refer to what was said by the Divisional Court in R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government  PTSR 553 at :- “It is important to emphasise at the outset what this case is and is not about. Judicial review is the means of ensuring that public bodies act within the limits of their legal powers and in accordance with the relevant procedures and legal principles governing the exercise of their decision-making functions. The role of the court in judicial review is concerned with resolving questions of law. The court is not responsible for making political, social, or economic choices. Those decisions, and those choices, are ones that Parliament has entrusted to ministers and other public bodies. The choices may be matters of legitimate public debate, but they are not matters for the court to determine. The Court is only concerned with the legal issues raised by the claimant as to whether the defendant has acted unlawfully.”
The present judgment can only decide whether the decision to grant the DCO was lawful or unlawful. It would therefore be wrong for the outcome of this judgment to be treated as either approving or disapproving the project. That is not the court’s function.”
I thought it might be interesting to pick out some of the passages where Holgate J sets out his reasoning for finding the decision to have been unlawful:
“Here, the SST did receive a precis of the ES [environmental statement] and HIA [heritage impact assessment] in so far as the Panel addressed those documents in its report. But the SST did not receive a precis of, or any briefing on, the parts of those documents relating to impacts on heritage assets which the Panel accepted but did not summarise in its reports. This gap is not filled by relying upon the views of IP2 in the Examination because, understandably, they did not see it as being necessary for them to provide a precis of the work on heritage impacts in the ES and in the HIA. Mr Wolfe QC is therefore right to say that the SST did not take into account the appraisal in the ES and HIA of those additional assets, and therefore did not form any conclusion upon the impacts upon their significance, whether in agreement or disagreement.
In my judgment this involved a material error of law. The precise number of assets involved has not been given, but it is undoubtedly large. Mr Wolfe QC pointed to some significant matters. To take one example, IP1 assessed some of the impacts on assets and asset groupings not mentioned by the Panel as slight adverse and others as neutral or beneficial. We have no evidence as to what officials thought about those assessments. More pertinently, the decision letter drafted by officials (which was not materially different from the final document – see  above) was completely silent about those assessments. The draft decision letter did not say that they had been considered and were accepted, or otherwise. The court was not shown anything in the decision letter, or the briefing, which could be said to summarise such matters. In these circumstances, the SST was not given legally sufficient material to be able lawfully to carry out the “heritage” balancing exercise required by paragraph 5.134 of the NPSNN and the overall balancing exercise required by s.104 of the PA 2008. In those balancing exercises the SST was obliged to take into account the impacts on the significance of all designated heritage assets affected so that they were weighed, without, of course, having to give reasons which went through all of them one by one.”
Ground 5 (iii)
“The focus of the claimant’s oral submissions was that the defendant failed to consider the relative merits of two alternative schemes for addressing the harm resulting from the western cutting and portal, firstly, to cover approximately 800m of the cutting and secondly, to extend the bored tunnel so that the two portals are located outside the western boundary of the WHS.”
“The relevant circumstances of the present case are wholly exceptional. In this case the relative merits of the alternative tunnel options compared to the western cutting and portals were an obviously material consideration which the SST was required to assess. It was irrational not to do so. This was not merely a relevant consideration which the SST could choose whether or not to take into account. I reach this conclusion for a number of reasons, the cumulative effect of which I judge to be overwhelming. “
Holgate J goes on to set out in detail nine reasons on which he relies (see paragraphs 278 to 288 of the judgment).
The Secretary of State has an uneasy summer ahead: whether or not he seeks permission to appeal, is this a scheme he is still wedded to, cheek by jowl with his transport decarbonisation plan and promised review of the National Networks NPS? Awkwardly, the prime minister had only recently referred to the project in his 15 July 2021 levelling up speech as “critical and overdue”.
Can you make a u-turn on a trunk road?
Simon Ricketts, 30 July 2021
Personal views, et cetera
We will be discussing the case on clubhouse on 10 August (link here), our regular Planning Law, Unplanned panellist Victoria Hutton having appeared for the successful claimant. However, this coming Tuesday, 3 August 2021, our topic will be ££ affordable workspace in section 106 agreements: Why? how?££ led by my Town Legal colleague Lucy Morton and leading economist Ellie Evans (Volterra) plus other special guests. Join us! Link here.
All eyes on the Queen’s Speech on 11 May 2021. Was there to be a narrowing down of previous options; a reflection on the consultation process; a programme set out of further work to be carried out ahead of the proposed Planning Bill, perhaps some new thinking following longer reflection?
“Laws to modernise the planning system, so that more homes can be built, will be brought forward…”
Turning to the background notes, there is literally nothing in the section on the proposed Planning Bill could not have been written back at the time of the white paper in August 2020 or that gives any indication as to ministers’ current thinking.
“The purpose of the Bill is to:
● Create a simpler, faster and more modern planning system to replace the currentone that dates back to 1947, and ensuring we no longer remain tied to procedures designed for the last century.
● Ensure homes and infrastructure – like schools and hospitals – can be deliveredmore quickly across England.
● Transform our planning system from a slow document-based one to a more efficient and easier to use digital and map-based service, allowing more active public engagement in the development of their local area.
● Help deliver vital infrastructure whilst helping to protect and enhance the environment by introducing quicker, simpler frameworks for funding infrastructure and assessing environmental impacts and opportunities.
The main benefits of the Bill would be:
● Providing more certainty for communities and developers, particularly smaller developers, about what is permitted where, through clear land allocations in local plans and stronger rules on design.
● Simpler, faster procedures for producing local development plans, approving major schemes, assessing environmental impacts and negotiating affordable housing and infrastructure contributions from development.
Establishing a framework which focuses on positive outcomes, such as environmental opportunities and better designed places.
● Digitising a system to make it more visual and easier for local people to meaningfully engage with.
The main elements of the Bill are:
● Changing local plans so that they provide more certainty over the type, scale and design of development permitted on different categories of land.
● Significantly decrease the time it takes for developments to go through the planning system.
● Replacing the existing systems for funding affordable housing and infrastructure from development with a new more predictable and more transparent levy.
● Using post-Brexit freedoms to simplify and enhance the framework for environmental assessments for developments.
● Reforming the framework for locally led development corporations to ensure local areas have access to appropriate delivery vehicles to support growth and regeneration.
Territorial extent and application
● The Bill will extend to the whole of the UK, however the majority of provisions will apply to England.”
In my view there can only be two possible reasons for this “no news” approach:
1. The Government may not yet have reached the necessary decisions – for instance as to how many zoning categories there will be, whether all land will be zoned or just parts of areas; or how this Infrastructure Levy will work. Quite possible. But come on! Nine months, and nothing?
2. Alternatively, the Government may not yet ready to take the political flak from its own that any specific proposals will attract. Despite the lack of any new information the reaction was surprisingly hostile, and even amongst the development industry I only hear at best muted, hedged and qualified support for elements of the white paper: are many politicians or business leaders prepared to be the cheer-leaders for these changes when, inevitably, the going gets politically tough? This will need a plan.
The only “new” element that caught my eye was that the long-flagged proposal to reform environmental assessment processes will now be within the Bill. It is another area where an announcement is overdue. Environment minister George Eustice indicated in his 20 July 2020 speech:
“Later this autumn we will be launching a new consultation on changing our approach to environmental assessment and mitigation in the planning system.”
The consultation never happened. Whether the legislation will indeed not only simplify but “enhance the EU derived framework of environmental assessments for developments” partly depends on what happens with a separate proposal within the forthcoming Judicial Review Bill:
“Giving the courts the power to suspend quashing orders in Judicial Review cases, so as to allow defects to be remedied. This will enable the courts to have more flexibility in Judicial Review cases. This may help ensure that, for example, a large infrastructure project is not delayed because an impact assessment has not been properly done”
I hope we are not now faced with a Bill that is either a fait accompli, given the various areas which genuinely need a great deal more work and engagement, or (as likely) an empty legislative shell, leaving the difficult work for secondary legislation in due course.
Incidentally, as a topical reminder that how the system is operated is as important as how is how it is structured, in the same week as the traditional parading of the Government’s forthcoming legislative programme, we have seen yet another example of the delays to the system that are caused when the Government intervenes in relation to planning applications: the ministerial decision on 13 May 2021 to approve the Whitechapel Bell Foundry application called in on 22 January 2020. Almost 16 months’ unnecessary delay, not to mention much unnecessary cost. Never mind new laws: how much could be achieved by the Secretary of State simply deciding not to call in applications or recover appeals!
But I will leave more detailed commentary on that decision, and on the Secretary of State’s enigmatic subsequent statement on twitter this afternoon, until next week’s thrilling blog post.
Simon Ricketts, 15 May 2021
Personal views, et cetera
This Tuesday we held a #PlanningLawUnplanned Queen’s Speech Clubhouse session. If you attended I hope you found it useful. This Tuesday we’re going to run an essential session about the Clubhouse app itself and how to get the most out of it. All will become clear! Do join us (iphone invitation here if you are not yet a member).
This post focuses on the relevance of the provisions of the UK-EU trade and cooperation agreement (“T&CA”) (provisional agreement subject to ratification, 25 December 2020) to the future of the English town and planning system.
The prime minister’s 24 December 2020 statement contained the following passages of particular note:
“We will be able to set our own standards, to innovate in the way that we want, to originate new frameworks for the sectors in which this country leads the world, from biosciences to financial services, artificial intelligence and beyond.
We will be able to decide how and where we are going to stimulate new jobs and new hope.
With freeports and new green industrial zones.
We will be able to cherish our landscape and our environment in the way we choose.”
I will leave discussion as to “freeports and new green industrial zones” for another day, interesting as it is to see these references in big picture soundbites. Instead, I want to consider whether, in relation to the environment, we will indeed be able to “set our own standards” and “to cherish our landscape and our environment in the way we choose”.
In that time of pre- planning white paper speculation I noted that reform to the planning system was likely to be predicated on reform to environmental law on environmental impact assessment, strategic environmental assessment and conservation of habitats and species:
“…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.”
I noted that it would be open to the Government to make changes to EU-derived environmental law from 1 January 2021. 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.”
Now we have seen the detail of the T&CA, we know what constraints the Government will be under. The main areas of interest start, as far as we are concerned, around page 203:
As for setting our “own standards”, see Article 7.2, on non-regression:
“2. A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its environmental levels of protection or its climate level of protection below the levels that are in place at the end of the transition period, including by failing to effectively enforce its environmental law or climate level of protection.
3. The Parties recognise that each Party retains the right to exercise reasonable discretion and to make bona fide decisions regarding the allocation of environmental enforcement resources with respect to other environmental law and climate policies determined to have higher priorities, provided that the exercise of that discretion, and those decisions, are not inconsistent with its obligations under this Chapter”
“Environmental levels of protection” means “the levels of protection provided overall in a Party’s law which have the purpose of protecting the environment, including the prevention of a danger to human life or health from environmental impacts, including in each of the following areas:
(a) industrial emissions;
(b) air emissions and air quality;
(c) nature and biodiversity conservation;
(d) waste management;
(e) the protection and preservation of the aquatic environment;
(f) the protection and preservation of the marine environment;
(g) the prevention, reduction and elimination of risks to human health or the environment arising from the production, use, release or disposal of chemical substances; or
(h) the management of impacts on the environment from agricultural or food production, notably through the use of antibiotics and decontaminants.”
“Climate level of protection” means “the level of protection with respect to emissions and removals of greenhouse gases and the phase-out of ozone depleting substances. With regard to greenhouse gases, this means:
(a) for the Union, the 40 % economy-wide 2030 target, including the Union’s system of carbon pricing;
(b) for the United Kingdom, the United Kingdom’s economy-wide share of this 2030 target, including the United Kingdom’s system of carbon pricing.”
Article 7.4, environmental and climate change principles:
“1. Taking into account the fact that the Union and the United Kingdom share a common biosphere in respect of cross-border pollution, each Party commits to respecting the internationally recognised environmental principles to which it has committed, such as in the Rio Declaration on Environment and Development, adopted at Rio de Janeiro on 14 June 1992 (the “1992 Rio Declaration on Environment and Development”) and in multilateral environmental agreements, including in the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992 (the “UNFCCC”) and the and the Convention on Biological Diversity, done at Rio de Janeiro on 5 June 1992 (the “Convention on Biological Diversity”), in particular:
(a) the principle that environmental protection should be integrated into the making of policies, including through impact assessments;
(b) the principle of preventative action to avert environmental damage;
(c) the precautionary approach referred to in Article 1.2(2) [Right to regulate, precautionary approach and scientific and technical information];
(d) the principle that environmental damage should as a priority be rectified at source; and
(e) the polluter pays principle.
2. The Parties reaffirm their respective commitments to procedures for evaluating the likely impact of a proposed activity on the environment, and where specified projects, plans and programmes are likely to have significant environmental, including health, effects, this includes an environmental impact assessment or a strategic environmental assessment, as appropriate.
3. These procedures shall comprise, where appropriate and in accordance with a Party’s laws, the determination of the scope of an environmental report and its preparation, the carrying out of public participation and consultations and the taking into account of the environmental report and the results of the public participation and consultations in the consented project, or adopted plan or programme.
4. For the purposes of this Chapter, insofar as targets are provided for in a Party’s environmental law in the areas listed in Article 7.1 [Definitions], they are included in a Party’s environmental levels of protection at the end of the transition period. These targets include those whose attainment is envisaged for a date that is subsequent to the end of the transition period. This paragraph shall also apply to ozone depleting substances.
5. The Parties shall continue to strive to increase their respective environmental levels of protection or their respective climate level of protection referred to in this Chapter.”
Article 7.5, enforcement:
“Party shall, in accordance with its law, ensure that:
(a) domestic authorities competent to enforce the relevant law with regard to environment and climate give due consideration to alleged violations of such law that come to their attention; those authorities shall have adequate and effective remedies available to them, including injunctive relief as well as proportionate and dissuasive sanctions, if appropriate; and
(b) national administrative or judicial proceedings are available to natural and legal persons with a sufficient interest to bring actions against violations of such law and to seek effective remedies, including injunctive relief, and that the proceedings are not prohibitively costly and are conducted in a fair, equitable and transparent way.”
Disputes between the EU and UK as to whether one party is in breach of these provisions (in a way which affects trade or investment) may be referred (by the EU or the UK alone, not by individuals) to a panel of experts, whose determination is not binding. Breaches can feed into negotiations as to rebalancing of the obligations as between the parties over time (the agreement is to be reviewed every five years and can indeed be terminated by either party on 12 months’ notice) or can lead to a party imposing tariffs (to be reviewed via arbitration). (Compliance with climate change targets in the Paris agreement is more tightly controlled, given Article COMPROV 5 on page 405, one of the limited number of “essential measures” in the agreement, breach of which can lead to suspension or termination of the agreement).
The Article 7 provisions provide some limited comfort as to non-regression from agreed minimum environmental principles, whilst allowing the parties latitude to achieve those principles by differing means. However, this in reality leaves us dependent on the EU crying foul if the UK is considered to be in breach (not particularly practical and ultimately not legally binding). No longer can we as individuals complain direct to the European Commission or litigate as to breaches in our domestic courts (or indeed request our domestic courts to refer issues to the European Court of Justice).
The UK Government intends to replace the role of the Commission, in receiving and and acting upon complaints, with a new quango, the Office For Environmental Protection. The establishment of the OEP is dependent upon the Environment Bill passing into law and for work then to be done in establishing a set of environmental principles and priorities to guide its work. The Bill hasn’t yet cleared its final Commons stages. In one sign of progress, there is now a potential chair for the organisation: Dame Glenys Stacey selected as preferred Chair for Office for Environmental Protection (DEFRA press statement, 9 December 2020). There is also a current appointment process for non-executive directors (closing date for applications: 12 January 2021). However, there is still going to be a lengthy period where there simply is no practical safety net in the event of regression by the UK government from minimum environmental principles.
As I said in my July blog post: “…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?”
The proposals within the planning white paper are indeed dependent on a changed system for strategic environmental assessment and environmental impact assessment. Otherwise the proposed timescales for plan-making and decision-making would be unachievable, as would the idea for granting large development consents routinely by way of growth area allocations in local plans.
Environment minister George Eustice indicated that there would definitely be reform, in his 20 July 2020 speech on environmental recovery:
“Later this autumn we will be launching a new consultation on changing our approach to environmental assessment and mitigation in the planning system. If we can front-load ecological considerations in the planning development process, we can protect more of what is precious.
We can set out which habitats and species will always be off-limit, so everyone knows where they stand. And we can add to that list where we want better protection for species that are characteristic of our country and critical to our ecosystems that the EU has sometimes overlooked– things like water voles, red squirrels, adders and pine martens. We want everyone to be able to access an accurate, centralised body of data on species populations so that taking nature into account is the first, speedy step to an application.”
Did you miss the consultation? No, of course not. These promised announcements are like vapour trails. The government is no doubt drilling down to a greater level of detail as to its reforms to the planning system but there is silence as to what changes are intended to existing systems of environmental protection.
Eustice gave a few clues as to what the direction of change might be:
“Now EU environmental law always has good intentions but there are also negative consequences to attempting to legislate for these matters at a supranational level. It tends to lead to a culture of perpetual legal jeopardy where national governments can become reluctant to try new things or make new commitments for fear of irreversible and unpredictable legal risks. This in turn creates a culture where there are frankly too many lawyers and not enough scientists and too many reports but not enough action.
So, as we chart a new course for our approach to protecting the environment, we can retain the features that worked and change the features that didn’t. We should recognise that the environment and our ecosystems are a complex web of interactions that mankind will never fully understand let alone manage. We should re-balance the way we approach policy development with more focus on science and technical knowledge and less time fretting about legal risks of doing something new or innovative. We should have fewer reports that say nothing new – but more new ideas that we should actually try.
And we should be willing to try new approaches safe in the knowledge that we have the power to change things again if a policy idea fails. Our targets framework should give us a clear set of objectives to work to but to meet those targets our approach to policy development must be agile or iterative and must create the space for more experimentation and innovation.
If we are to protect species and habitats and also deliver biodiversity net gain, we need to properly understand the science to inform these crucial decisions. And we should ask ourselves whether the current processes are as effective or efficient as they could be.
Is there sufficient access to data and knowledge to know which species should be assessed? If we had better more up to date data about things such as flood risk, habitats, species, and air quality could we design plans for sustainable new projects and developments more effectively and efficiently than we do now? Do we have enough focus on improvements at a landscape scale? Do Local Authorities adopt a consistent approach to the screening process through Environmental Impact Assessment? Do they have the capability to engage over the lifetime of a project?”
I think we can all suggest areas for improvement, but it’s not easy to propose amended procedures that achieve the necessary objectives. Part of the effectiveness of say EIA or SEA has been down to its legal rigour. Where is the balance to be drawn? Personally, judging by the significant changes that the government is consulting upon in another area previously the domain of EU law – public procurement – I do expect to see some radical proposals, that we will all need to reflect upon.
⁃ It is obviously good news that we have an agreed form of T&CA, subject to ratification by Parliament shortly.
⁃ It is good news to see the high level environmental protections contained within it (and of course they do constrain, albeit to a sensible extent, our ability to “set our own standards”).
⁃ It is concerning to be entering a period from 1 January 2021 when we will have no practical legal protection against UK regression from the environmental principles which previously applied to the UK by way of EU directives to which it was previously a party.
⁃ It is concerning to see the slow progress of the Environment Bill, given the work that then has to be done before the proposed OEP is a functional entity.
⁃ It is concerning that we still do not have the promised consultation as to possible changes to EU-derived environmental law, which was due to be published in Autumn 2020.
It’s really important that any amended system of EIA, SEA and HRA works properly. There are undoubtedly improvements to be made to processes, but also pitfalls to avoid. At the moment the debate is still only at the “motherhood is good” stage.
We have arranged a joint webinar with Keating Chambers at 5.30 pm on 5 January 2021 to examine the practical issues and to be ready to feed in our thoughts. I hope you can join (from Keating) Charlie Banner QC and (from Town Legal) Steve Quartermain CBE, Duncan Field, Safiyah Islam and me – free registration here: https://us02web.zoom.us/webinar/register/WN_VCsYkhQcSzOm2uqDxN-w8A .
“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”
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?!
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