M’lud On The Tracks: HS2

Great Bob Dylan album, almost.

This post collects together in one place some of the recent planning, environmental and compulsory purchase litigation in relation to the High Speed Two rail project.

R (Keir) v Natural England (16 April 2021, Lang J; further hearing before Holgate J, 23 April 2021, judgment reserved)

This is the interim injunction granted by Lang J preventing HS2 and its contractors from varying out works at Jones’ Hill Wood, Buckinghamshire, until either the disposal of the claim or a further order.

The claim itself has Natural England as the defendant and seeks to challenge its grant of a licence under the Conservation of Habitats Regulations 2017 in relation to works that may disturb a protected species of bat.

The question as to whether the injunction should be maintained came back to court yesterday, 23 April, before Holgate J, as well as whether permission should be granted in the claim itself, and he has reserved judgment until 2pm on 26 April.

Secretary of State for Transport v Curzon Park Limited (Court of Appeal hearing, 21 and 22 April 2021, judgment reserved)

This was an appeal by the Secretary of State for Transport against a ruling by the Upper Tribunal on 23 January 2020. My Town Legal colleagues Raj Gupta and Paul Arnett have been acting for the first respondent, landowner Curzon Park Limited, instructing James Pereira QC and Caroline Daly. Thank you Paul for this summary:

The case concerns certificates of appropriate alternative development (‘CAADs’) under the Land Compensation Act 1961. A CAAD is a means of applying to the local planning authority to seek a determination as to what the land could have been used for if the CPO scheme did not exist. Its purpose it to identify every description of development for which planning permission could reasonably have been expected to be granted on the valuation date if the land had not been compulsorily purchased. Importantly, subject to a right of appeal, the grant of a CAAD conclusively establishes that the development is what is known as ‘appropriate alternative development’. This is significant as:

• When compensation is assessed it must be assumed that planning permission for that development(s) in the CAAD either was in force at the valuation date or would with certainty be in force at some future date and

• Following reforms in the Localism Act 2001, where there is, at the valuation date, a reasonable expectation of a particular planning permission being granted (disregarding the CPO scheme and CPO) contained in a CAAD it is assumed that the planning permission is in force which converts the reasonable expectation into a certainty.

There are four adjoining sites, each compulsorily acquired by HS2 for the purposes of constructing the Curzon Street HS2 station terminus at Cuzon Street Birmingham – four different landowners and four different valuation dates (i.e. vesting dates under the GVD process). Each landowner applied for a CAAD for mixed use development including purpose-build student accommodation (PBSA). In the real world, the cumulative effects of the proposed adjoining developments (e.g. including but not limited to the proposed quantum and need for PBSA in light of a PBSA need in the local plan) would have been a material planning consideration. However, Birmingham City Council considered each CAAD application in isolation. The Secretary of State argued that they should have considered the other CAAD applications as notional planning applications and, therefore, as material considerations which would have been very likely to result in CAADs issued for smaller scale mixed-used development being issued leading to a lower total compensation award and bill for HS2. The preliminary legal issue to be determined by the Upper Tribunal and now the Court of Appeal is:

Whether, and if so how, in determining an application for a certificate of appropriate alternative development under section 17 LCA 1961 (CAAD) the decision-maker in determining the development for which planning permission could reasonably have been expected to be granted for the purposes of section 14 LCA 1961 may take into account the development of other land where such development is proposed as appropriate alternative development in other CAAD applications made or determined arising from the compulsory acquisition of land for the same underlying scheme’.

The Upper Tribunal had rejected the landowners’ argument that the scheme cancellation assumption (i.e. disregarding the CPO scheme) under the Land Compensation Act 1961 required CAAD applications on other sites to be disregarded. However, critically, the Tribunal agreed with the landowners’ that CAAD applications were not a material planning consideration and that there was no statutory basis for treating them as notional planning applications as the Secretary of State has argued. The Tribunal also disagreed with the Secretary of State that the landowners’ interpretation of the statutory scheme would lead to excessive compensation pointing out that the landowners’ ability to develop their own land in their own interests was taken away when their land was safeguarded for HS2 and from November 2013 when the HS2 scheme was launched until 2018 when the land interests were finally acquired by HS2 any planning permissions for these sites would have been determined in the shadow of the HS2 scheme and safeguarding of the land. The Secretary of State appealed the Upper Tribunal decision and the Court of Appeal granted permission to appeal in July 2020 noting that the appeal raises an important point on the principle of equivalence (i.e. the principle underpinning the CPO Compensation Code) that a landowner should be no worse off but no better off in financial terms after the acquisition than they were before) which may have widespread consequences for the cost of major infrastructure projects.

A judgment from the Court of Appeal (Lewison LJ, Lindblom LJ and Moylan LJ) is expected in the next month or so.

Sarah Green v Information Officer & High Speed Two Limited (First Tier Tribunal, 19 April 2021)

This was an appeal against the refusal by HS2 Limited to disclose, pursuant to the Environmental Information Regulations 2004, information as to the potential effect of its works on chalk aquifers in the Colne Valley. The information requested was as follows:

What risk assessments have taken place, of the potential increased risk to controlled waters as a result of imminent works by HS2 contractors along the Newyears Green bourne and surrounding wetland?

Are any of the risk assessments independent from the developers (HS2) and where are the risk assessment (sic) accessible to the public?

By the time of the hearing before the First Tier Tribunal, three reports had been disclosed, redacted. The Tribunal summarised the issues before it as follows:

“(1) whether HS2 correctly identified the three reports as being the environmental information which Ms Green requested and whether there was further material held which came within the request;

(2) whether at the time of Ms Green’s request the three reports were “still in the course of completion” or comprised “unfinished documents” and, if so, whether the public interest in maintaining the regulation 12(4)(d) exception outweighed that in disclosure;

(3) whether disclosure of those parts of the three reports which have been redacted in reliance on regulation 12(5)(a) would have adversely affected “public safety” and, if so, whether the public interest in maintaining the regulation 12(5)(a) exception outweighed the public interest in their disclosure.”

The Tribunal found, expressing its reasoning in strong terms, that the public interest in disclosure outweighed the public interest in maintaining any exemption.

“The reports in question in this case concern a major infrastructure project which gives rise to substantial and legitimate environmental concerns. They specifically relate to the risks of contamination to the drinking water supplied to up to 3.2 million people resulting from the construction of the HS2 line. This is clearly environmental information of a fundamental nature of great public interest.”

HS2 appeared to be concerned that “if the versions of the reports current in January 2019 were made public they “… could have been used to try and impact work undertaken in finalising the information”.

“It seems to us that such an approach almost entirely negates the possibility of the public having any input on the decision-making process in this kind of case, which goes against a large part of the reason for allowing public access to environmental information.

The suggestion that public officials concerned in making enquiries and freely discussing options to mitigate environmental problems might be discouraged or undermined by early disclosure of their work seems to us rather fanciful and was not supported by any kind of evidence; the case is not comparable in our view to that of senior officials indulging in “blue sky” thinking about policy options. We accept that the material is “highly technical” but we cannot see why a lack of understanding on the part of the public would have any negative impact on HS2’s work; if a member of the public or a pressure group wanted to contribute to the debate in a way that was likely to have any effect on the decision-making process they would no doubt have to engage the services of someone like Dr Talbot, who would be able to enter the debate in a well- informed and helpful way.”

“HS2’s second main point, that the Environment Agency will be approving and supervising everything, does not seem to us of great weight. Of course the Environment Agency is there to act in the public interest in relation to the environment but its involvement cannot be any kind of answer to the need for public knowledge of and involvement in environmental decisions. The EA is itself fallible and should be open to scrutiny. If the public could simply entrust everything to it there would be no need for the EIR.

HS2’s third main point is that if inchoate information is released it could be misleading and they would incur unnecessary expense correcting false impressions. We were not presented with any specific evidence or examples to illustrate how this problem might have been encountered in practice. It does not seem to us a very compelling point.”

R (Maxey) v High Speed 2 Limited (Steyn J, 10 February 2021)

This was an interim ruling in an application for judicial review, made only nine days previously, of the decision by HS2 Limited to extract the protesters that were occupying the tunnel under Euston Square Gardens and alleging a failure to safely manage Euston Square Gardens in a manner compatible with HS2 Limited’s obligations under the European Convention of Human Rights. It followed a rejection of an application by Mr Maxey for an interim injunction and followed an order made requiring him to cease any further tunnelling activity, to provide certain categories of information to HS2 Limited or others and to leave the tunnel safely, with which he had not complied.

At the hearing, Mr Maxey was renewing his “application for orders requiring (a) the cessation of operations to extract the protesters from the tunnel and (b) to implement an exclusion zone. In addition, the Claimant has expanded the interest relief he seeks to include provision forthwith by the Defendant of (a) oxygen monitoring equipment; (b) a hard-wired communication method; (c) food and drinking water for the Claimant and the protesters; and (d) to make arrangements for the removal of human waste from the tunnel.” He was also seeking to overturn the orders against him.

The judge rejected Mr Maxey’s arguments:

While I accept that the Defendant is (or at the very least there is a good argument that the Defendant is) currently under a duty to take all reasonable steps to protect those in the tunnel under the site (including the Claimant) from death or serious injury, on the evidence before me there is no realistic prospect of the Court finding that the Defendant is breaching its duty. In my judgment, the claim for interim relief does not meet the first test.

That suffices to dispose of the interim relief application. But if it were necessary to consider the balance of convenience, I would have to bear in mind the strong public interest in permitting a public authority’s decision (here a decision to proceed with the operation and a decision as to the necessary safeguards) to remain in force pending a final hearing of the application for judicial review, so the party applying for interim relief must make out a strong case for the grant of interim relief. The Claimant has not come close to establishing a strong enough case to justify the Court stopping the operations to remove those who are in the tunnel, given the compelling evidence as to how dangerous it is for them to remain there.”

R (Packham) v Secretary of State for Transport (Court of Appeal, 31 July 2020)

I summarised this case in my 9 January 2021 blog post Judges & Climate Change. It was Chris Packham’s failed challenge to the Government’s decision to continue with the HS2 project following the review carried out by Douglas Oakervee, the grounds considered by the Court of Appeal being “whether the Government erred in law by misunderstanding or ignoring local environmental concerns and failing to examine the environmental effects of HS2 as it ought to have done” and “whether the Government erred in law by failing to take account of the effect of the project on greenhouse gas emissions between now and 2050, in the light of the Government’s obligations under the Paris Agreement and the Climate Change Act 2008”.

R (London Borough of Hillingdon) v Secretary of State for Transport (Court of Appeal, 31 July 2020)

This case was heard consecutively with the Packham appeal. It related to Hillingdon’s challenge to the Secretary of State’s decision to allow (against his inspector’s recommendations) an appeal against Hillingdon’s refusal to grant HS2 Limited’s application for approval, under the Act authorising the relevant stage of the HS2 project, of plans and specifications for proposed works associated with the creation of the Colne Valley Viaduct South Embankment wetland habitat ecological mitigation. HS2 Limited had refused to provide Hillingdon with information so that an assessment could be made as to the effect of the proposed works on archaeological remains, HS2 Limited’s position being that it was “under no obligation to furnish such information and evidence. It says that this is because it will, in due course, conduct relevant investigations itself into the potential impact of the development upon any archaeological remains and take all necessary mitigation and modification steps. HS2 Ltd says that it will do this under a guidance document which forms part of its contract with the Secretary of State for Transport which sets out its obligations as the nominated undertaker for the HS2 Project.”

Lang J had upheld the Secretary of State’s decision but this was overturned by the Court of Appeal:

“The key to this case lies in a careful reading of Schedule 17 and the powers and obligations it imposes upon local authorities and upon HS2 Ltd. In our judgment, the duty to perform an assessment of impact, and possible mitigation and modification measures under Schedule 17, has been imposed by Parliament squarely and exclusively upon the local authority. It cannot be circumvented by the contractor taking it upon itself to conduct some non-statutory investigation into impact. We also conclude that the authority is under no duty to process a request for approval from HS2 Ltd unless it is accompanied by evidence and information adequate and sufficient to enable the authority to perform its statutory duty.”

[Subsequent note: Please also see London Borough of Hillingdon v Secretary of State for Transport (Ouseley J, 13 April 2021), “Hillingdon 2” where on the facts Ouseley J reached a different conclusion, holding that an inspector had not acted unlawfully in determining an appeal without information sought by the council from HS2 Limited as to the lorry routes to be used by construction lorries to and from the HS2 construction sites within its area].

R (Granger-Taylor) v High Speed Two Limited (Jay J, 5 June 2020)

This was a judicial review claim brought by the owner of a listed Georgian building near Regents Park. The property was separated by a large retaining wall, built in 1901, from the perimeter of the existing railway. “It rests approximately 17 metres from the front of the property and the drop from the level of the road to the railway below is approximately 10 metres. Unsurprisingly, given that the substrate is London clay, the wall has suffered periodic movement and shows signs of cracking. The Claimant’s expert says that it is “metastable”.”

The claimant was concerned as to the engineering solution arrived at for that section of the route, which was known as the Three Tunnels design. “This judicial review challenge is directed to the safety of the Three Tunnels design in the specific context of the outbound tunnel travelling so close to the base of the retaining wall. It is contended on the back of expert engineering evidence that this aspect of the design has engendered an engineering challenge which is insurmountable: in the result, the design is inherently dangerous. The risk is of catastrophic collapse of the retaining wall, either during the tunnelling works or subsequently, which would if it arose cause at the very least serious damage to the Claimant’s property. Consequently, the Claimant asserts a breach of section 6 of the Human Rights Act 1998 because her rights under Article 8 and A1P1 of the Convention have been violated.”

The judge boiled the questions down to the following:

has the Claimant demonstrated that she is directly and seriously affected by the implementation of the Three Tunnels design, given the risk of catastrophic collapse identified by Mr Elliff? In my view, that question sub-divides into the following:

(1) should I conclude on all the evidence that the Three Tunnels design is so inherently flawed in the vicinity of the retaining wall that no engineering solution could be found to construct it safely? and

(2) have the Defendants already committed themselves to implement the Three Tunnels design regardless of any further work to be undertaken under Stage 2?

After detailed consideration of expert engineering expert on both sides, the judge rejected the claim.

Anixter Limited v Secretary of State for Transport (Court of Appeal, 30 January 2020)

This was a compulsory purchase case, about whether an owner of four units on the Saltley Business Park in Birmingham, faced with compulsory purchase of one of them, had served counter-notices in time such as to trigger its potential ability to require acquisition of its interests in all four buildings. The court ruled that it had not.

It certainly seems an age since R (HS2 Action Alliance) v Secretary of State for Transport (Supreme Court, 22 January 2014) where in a previous law firm life I acted for the claimant, instructing David Elvin QC and Charlie Banner (now QC). The case concerned whether the publication by the Government of its command paper, “High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps” engaged strategic environmental assessment requirements and whether the hybrid bill procedure would comply with the requirements of the Environmental Impact Assessment Directive (for more on the HS2 hybrid bill procedure, see my 30 July 2016 blog post HS2: The Very Select Committeehttps://simonicity.com/2016/07/30/hs2-the-very-select-committee/). The loss still grates. And in consequence of that ruling…

There’s a slow, slow train comin’.

Simon Ricketts, 24 April 2021

Personal views, et cetera

Thank you to my Town Legal colleague Lida Nguyen for collating a number of these cases.

Our clubhouse Planning Law, Unplanned session at 6pm on 27 April will follow a similar theme, so if you are interested in issues relating to HS2 or in wider questions as to judicial review, interim injunctions, access to information or compulsory purchase compensation, do join us, whether to contribute to the discussion or just listen in. As always, contact me if you would like an invitation to the clubhouse app (which is still iphone only I’m afraid).

Detail from Bob Dylan’s painting Train Tracks

Trent Won, Cil Nil

The community infrastructure levy system, in its application to lay individuals in particular, is monstrous, absurdly over-engineered, often badly administered and unfairly opaque.

Could anyone disagree after reading Lang J’s judgment handed down yesterday in R (Trent) v Hertsmere Borough Council (16 April 2021)? (Or for another example see my 19 January 2019 blog post CIL The Merciless).

Solicitor Alison Trent brought proceedings for judicial review, as a litigant in person, in order to quash a totally unjustified demand notice for £16,389.75 that she received on 21 April 2020 in relation to the construction of a dwelling in Radlett.

Her success represents a loud wake-up call for CIL collecting authorities.

Planning permission was issued on 10 February 2017 for demolition of a house and the construction of a replacement three bedroom dwelling.

Even with a project as simple as this, there is a complicated sequence of notices:

⁃ Under regulation 65(1) of the CIL Regulations 2010 “the collecting authority must issue a liability notice as soon as practicable after the day on which a planning permission first permits development”.

⁃ The person assuming liability for CIL then has to serve an assumption of liability notice and, if appropriate as here, a self build exemption claim form.

⁃ A commencement notice must then be served on the authority before development commences.

When something goes wrong in that sequence, matters invariably get messy.

Here:

⁃ There was no evidence that the necessary liability notice had been sent out in 2017 although a draft was on the council’s computer system.

⁃ Ms Trent had unwittingly jumped the gun by purporting to submit a self build exemption form ahead of planning permission being issued and had failed to submit an assumption of liability notice, both mistakes apparently at least partly due to misleading advice she had received from the authority.

⁃ The development took place and, when the authority realised, it issued a liability notice, demand notice and imposed surcharges for failing to submit an assumption of liability notice (surcharge of £50) and failure to submit a commencement notice to the Council (surcharge of £2,500).

Ms Trent had successfully appealed to the Planning Inspectorate against the imposition of the surcharges. The inspector found that (1) the council had failed to issue a liability notice and therefore she had never been in a position to serve an assumption of liability notice – the 2017 notice had never been served and the 2019 notice was not served “as soon as practicable” after planning permission had been issued – and that (2) the deemed commencement date on the demand notice was incorrect. She had also argued that the notices did not meet procedural formalities but the inspector did not need to consider that issue.

Unbelievably, the authority then issued a replacement demand notice, on 21 April 2020, relying on the 2019 liability notice which the inspector had considered not to be valid!

Ms Trent challenged the issue of that demand notice by way of judicial review, arguing as follows:

“In the light of the Inspector’s findings, and the Council’s material misunderstandings or errors of fact and/or errors of law and/or procedure, the Council’s decision to issue the 2020 demand notice, on the basis that the 2019 liability notice was valid, was manifestly improper and/or irrational and/or unfair and unreasonable.

…the Council’s decision to issue the 2020 demand notice, and to maintain its registration on the Land Charges Register for the Property in respect of the alleged CIL liability, was a breach of the Council’s duty under section 6 of the Human Rights Act 1998 in that it acted in a manner which was incompatible with her Convention rights under Article 1 of Protocol 1 to the European Convention on Human Rights (“ECHR”).”

The judge found as follows (extracts from judgment):

“In my judgment, the Defendant was required to issue and serve statutory notices which complied with the requirements in the CIL Regulations, and to do so in the prescribed sequence. In consequence, the Claimant was not under an obligation to pay the CIL, as required by the 2020 demand notice, unless and until the Defendant had issued and served a valid liability notice, in accordance with regulation 65 of the CIL Regulations.”

“Planning permission was granted on 10 February 2017. So the 2019 liability notice was issued 2 years and 6 months (less 5 days) after the grant of planning permission. I agree with the Inspector that such a long period of time cannot reasonably be described as “as soon as practicable” and this amounted to a breach of the requirement in regulation 65(1). The breach was not waived by the Claimant.

Regulation 65(1) imposes a mandatory requirement without any provision for extensions of time. Time starts to run from the date on which a planning permission first permits development. The phrase “as soon as practicable” gives an authority some flexibility, for example, if the recipients are not readily identifiable or their address known, or if there is an administrative backlog. But in the light of the statutory scheme and its purpose, the expectation must be that any delay would be measured in weeks or months, not years. I consider that the absence of any provision for extensions of time was deliberate, to ensure that authorities comply with the duty in a timely way.”

“In my judgment, it is of fundamental importance to the operation of the statutory scheme that the liability notice is issued and served soon after the grant of planning permission because of the key information it contains about the recipient’s liability to CIL, and the next steps which follow under the scheme. It is not the practice of this Council to provide this information in any other form or at any other time, and I assume that the same applies in other authorities.

I consider that the failure to issue and serve a valid liability notice on the Claimant within the prescribed time period was prejudicial. If the Claimant had received a timely liability notice, in February 2017, it would have alerted her to” the need to apply for exemptions.

In my judgment, as the liability notice is a formal legal document, which imposes a tax liability on the recipient, and places a land charge on the owner’s property, it is of fundamental importance that the recipient is correctly identified by their name. In this case, the liability notice should have been addressed and issued to “Alison Trent”. She should have been identified as the owner of the relevant land. Instead, the Defendant addressed and issued the liability notice to “C/O Alison Trent & Co”. “Alison Trent & Co.” is the Claimant’s business. It has no legal or beneficial interest in No. 40 and does not fall within any of the categories of recipients. I consider that the only plausible explanation for this error was incompetence on the part of the Defendant. As the liability notice was not addressed and issued to the correct person, it is invalid.

The regulations do not contain any provisions to save a non-compliant notice. The Claimant pointed out that this is in contrast to other regulatory schemes such as enfranchisement notices under section 13 of the Leasehold Reform, Housing and Urban Development Act 1993 which may be saved by paragraph 15(1) of Schedule 3.

As a general rule, failure to effect valid service of a liability notice would invalidate a notice. However, in this case, the notice was successfully served on the Claimant, care of the London business address, which was the second of the two addressees she provided on the Land Register. Therefore, despite the failure to serve the Claimant at No. 38 or No. 40, which was in breach of the requirements of the CIL Regulations, I do not consider the failure is of sufficient significance to invalidate the notice.”

Whilst the inspector could not formally quash the 2019 liability notice, “I would expect a responsible authority to have regard to the Inspector’s findings when deciding upon its next steps.”

The Claimant’s ground of challenge under Article 1 of Protocol 1 to the ECHR turned on the lawfulness of the 2019 liability notice, and the consequent 2020 demand notice, requiring her to pay the CIL as assessed. As I have found that the notices were not valid, it follows that there would be a breach of A1P1 if the Claimant was required to pay the CIL.”

“In conclusion, the Claimant’s claim for judicial review is allowed. The liability notice issued by the Council on 5 August 2019, and the demand notice issued by the Council on 21 April 2020, are invalid for the reasons set out in this judgment, and are to be quashed.”

So there we have it.

Woe betide any collecting authority that delays unreasonably in serving a liability notice (common in my experience) or addresses it incorrectly. The judgment would imply that the authority may lose the right to serve a liability notice at all (and thereby not be entitled to levy any CIL in relation to the development) if it delays unreasonably in serving a liability notice (in this case there was a delay of two and a half years, but in circumstances where the authority’s records had probably, although wrongly, shown that one had already been served). That had not previously been my understanding and it would be extremely risky for a developer to embark on construction in reliance on that approach, rather than (as is often currently the case) chasing down the late notice so that it can go on the merry-go-round of assumption of liability, securing exemptions and serving the commencement notice. But I can foresee arguments being raised in some situations.

And woe betide this Government if its proposed Infrastructure Levy is as unnecessarily complicated as CIL. First, why do we have a self build exemption in the first place? Secondly, given that we do, it should be obvious from the planning application that the development proposed is likely to qualify. Why the need for any forms at all? Under a properly constructed system, there would be no need for these reeling spools of, of, yes, of red tape – there I’ve said it.

Simon Ricketts, 17 April 2021

Personal views, et cetera

PS This week’s clubhouse Planning Law Unplanned session will be a careers special. 6pm, 20 April. As always, message me for more information.

Judges & Climate Change

Over Christmas, I finally read Joshua Rozenberg’s 2020 book Enemies of the People? How Judges Shape Society.

The book examines the tension inevitably faced by judges in interpreting the law, particularly in areas of public controversy (constitutional issues; “right to death”; family; discrimination; religion; privacy; access to justice): when should the application of common law principles (i.e. rules developed over time by the courts through the doctrine of precedent, as to matters not resolved by legislation) and changing expectations in society as to minimum rights that we should enjoy (a question legitimised to some extent, and in relation to some issues, by principles of statutory interpretation required under the Human Rights Act) lead judges to “make” law? And can Parliament prevent the Judiciary from constraining the Executive’s actions and decision making on particular issues, by way of ouster provisions in legislation?

Rozenberg:

“Ultimately, the British constitution relies on a delicate balance between the executive, the legislature and the judiciary: all three powers of the state must demonstrate good judgment if we are to be governed under the rule of law”.

The book is also essential background to the current Faulks review of administrative law (see my 12 September 2020 blog post).

The squeals come from those on the wrong side of rulings (of course with litigation that goes with the territory) or who choose to see the issues in too simplistic terms.

Enemies of the people” was of course the infamous Daily Mail headline following the Supreme Court’s judgment in Miller (no 1). To my mind the press release by campaign group Plan B following R (Friends of the Earth Limited) v Heathrow Airport Limited (Supreme Court, 16 December 2020) was at least as bad:

“**Latest news – the Supreme Court betrays us all with its treasonous reversal of the Court of Appeal’s judgement.**

The next edition of Rozenberg’s book surely needs to include a chapter on environmental and climate change issues. The Supreme Court was not “treasonous”! It is appalling and Trumpian to suggest it.

Heathrow

I do not consider that the Supreme Court’s reversal of the Court of Appeal’s ruling – holding that at the time the Secretary of State for Transport designated the Airports National Policy Statement in June 2018 the emissions reductions targets in the Paris Agreement had not formed part of government policy on climate change – was at all unexpected. Its conclusion was based on a plain, detailed, analysis of the position as at that date. My 7 March 2020 blog post on the Court of Appeal ruling can now be consigned to the scrap heap but I did, perhaps too politely, describe the ruling as “surprising” and say that it was “not obvious to me that the Court of Appeal’s conclusions would be safe against an appeal to the Supreme Court”! The Supreme Court sided with the initial findings of Holgate J and Hickinbottom LJ, sitting as a Divisional Court, at first instance.

Planning Court liaison judge Holgate J has a central role in this developing area of case law, revolving around the application of emissions reduction targets in the Climate Change Act 2008 – both sitting alone and as part of a Divisional Court (Whilst usually High Court cases are presided over by a single judge, in particularly important or complex cases the High Court can choose to sit as a Divisional Court, with a High Court judge and a Court of Appeal judge sitting together).

HS2

Earlier in the year, Court of Appeal, in R (Packham) v Secretary of State (Court of Appeal, 31 July 2020) , upheld the first instance rejection by Holgate J and Coulson LJ (also sitting as a Divisional Court) of Chris Packham’s challenge to the Government’s decision to continue with the HS2 project following the review carried out by Douglas Oakervee.

The Court of Appeal:

“ground 3b is whether the Government erred in law by failing to take account of the effect of the project on greenhouse gas emissions between now and 2050, in the light of the Government’s obligations under the Paris Agreement and the Climate Change Act 2008.”

“In our view it is impossible to infer from the report any failure by the panel to have regard to the Government’s relevant statutory and policy commitments on climate change. And the Government did not demonstrably commit any such error in making its decision. On this point too, we agree with the Divisional Court. There is nothing to show that the Government either ignored or misunderstood the legal implications of proceeding with HS2 for its obligations relating to climate change, including those arising from the Paris Agreement and under the provisions of the Climate Change Act.”

“… the Oakervee review was not an exercise compelled, or even provided for, in any legislation relating to climate change, in any legislation relating to major infrastructure, or in any legislation at all. It finds no place in the arrangements set in place by the Climate Change Act. Nor does it belong to any other statutory scheme, such as the Planning Act, in which the consequences of major infrastructure development for climate change are explicitly provided for as a necessary feature of decision-making. The same goes for the Government’s own decision on the future of HS2.”

Drax

Following a hearing in November 2020, judgment is yet to be handed down by the Court of Appeal in ClientEarth v Secretary of State, where at first instance Holgate J rejected a challenge to the Drax power station DCO.

Horse Hill

Holgate J handed down judgment last month in another climate change case, R (Finch) v Surrey County Council (Holgate J, 21 December 2020).

This was a challenge to a planning permission granted by Surrey County Council to retain two oil wells at Horse Hill, Hookwood, Horley, Surrey and to drill four new wells, for the production of hydrocarbons over a period of 25 years.

The main issue was “whether a developer’s obligation under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017 No. 571) (“the 2017 Regulations”) to provide an environmental statement (“ES”) describing the likely significant effects of a development, both direct and indirect, requires an assessment of the greenhouse gas (“GHG”) emissions resulting from the use of an end product said to have originated from that development.” Should the environmental statement in relation to the project have assessed the greenhouse gases “that would be emitted when the crude oil produced from the site is used by consumers, typically as a fuel for motor vehicles, after having been refined elsewhere.” Was that an indirect effect of the development?

Holgate J:

The UK Government’s fundamental objective in relation to climate change is enshrined in s.1(1) of the Climate Change Act 2008 (“CCA 2008”) which, as amended with effect from 27 June 2019, imposes a duty on the Secretary of State to ensure that the net UK carbon account for 2050 is at least 100% lower than the 1990 baseline. This is generally referred to as “the net zero target“.

It goes without saying that the extraction of crude oil resulting in the supply of fuel will result in GHG emissions when that end product is used. It is common ground that that is addressed by Government policy on climate change and energy, aimed inter alia at reducing the use of hydrocarbons. The issue raised in the present challenge is whether, by virtue of the 2017 Regulations, it was necessary for the planning authority to go further than apply those policies in its decision on whether to grant planning permission for the development, by requiring those GHG emissions to be estimated and assessed as part of the Environmental Impact Assessment (“EIA”) of the development.”

“In my judgment, the fact that the environmental effects of consuming an end product will flow “inevitably” from the use of a raw material in making that product does not provide a legal test for deciding whether they can properly be treated as effects “of the development” on the site where the raw material will be produced for the purposes of exercising planning or land use control over that development. The extraction of a mineral from a site may have environmental consequences remote from that development but which are nevertheless inevitable. Instead, the true legal test is whether an effect on the environment is an effect of the development for which planning permission is sought. An inevitable consequence may occur after a raw material extracted on the relevant site has passed through one or more developments elsewhere which are not the subject of the application for planning permission and which do not form part of the same “project”.

The inevitability that the crude oil to be transported off site will eventually lead to additional GHG emissions when the end product is consumed is simply a response to the defendant’s point that when the oil leaves the site it becomes an indistinguishable part of the international oil market, so that the GHG emissions generated by combustion in vehicles cannot be attributed to any particular oil well or well site. Like the debate between the witness statements as to whether the oil produced on the site would only displace oil production elsewhere or would instead increase overall net consumption, these are forensic arguments about the market consequences of extracting oil at the site which do not address the real legal issues raised by ground 1(a).”

“Although it is not essential to my conclusions on this challenge, I should record in passing that I do not accept the proposition that there are no other measures in place within the UK for assessing and reducing GHG emissions from the combustion of oil products in motor vehicles. The measures include the net zero target in the CCA 2008, and the various matters referred to in [46] to [54] above. The overall responsibility for the economy-wide transition to a low carbon society is the responsibility of the UK Government (Packham at [87]). A range of measures is being pursued to achieve a reduction in the consumption of oil products including road pricing, taxation and future controls on the source of energy which may be used by vehicles. The object of these measures is to reduce substantially the demand for diesel and petrol from UK consumers.

The claimant fairly says that these measures do not affect the consumption of oil products by consumers in other countries. But, on the other hand, the Paris Agreement was signed by many countries throughout the world and it is the responsibility of each such country to determine its contribution to achieving the global target for 2050. Whether these issues are thought to be adequately addressed in other countries, or even in the UK, can provide no guide to the interpretation of our domestic legislation on EIA for the consenting of new development.”

“Essentially, development control and the EIA process are concerned with the use of land for development and the effects of that use. They are not directed at the environmental effects which result from the consumption, or use, of an end product, be it a manufactured article or a commodity such as oil, gas or electricity used as an energy source for conducting other human activities.”

A decision the other way clearly could have had very wide implications – a good example of the boundary between making law and interpreting it.

Campaign groups have of course long used litigation as a means of applying political pressure for change. That is a particular feature of the climate change area, with existing campaign groups such as Friends of the Earth, Greenpeace and ClientEarth, now joined by the likes of Plan B, the Good Law Project and Rights : Community : Action.

NPSs

The Good Law Project had brought legal proceedings seeking to require the Government to review its energy national policy statements to reflect current climate change targets. Whether or not as a result of those proceedings, the Government has now confirmed that it will do exactly that in its Energy white paper, Powering our net zero future (14 December 2020)

“We will complete a review of the existing energy National Policy Statements (NPS), with the aim of designating updated NPS by the end of 2021.

The suite of energy NPS establish the need for new energy infrastructure and set out a framework for the consideration of applications for development consent. We have decided that it is appropriate to review the NPS, to ensure that they reflect the policies set out in this white paper and that we continue to have a planning policy framework which can deliver the investment required to build the infrastructure needed for the transition to net zero. Work on this review will start immediately, with the aim of designating updated NPS by the end of 2021.

This white paper shows that the need for the energy infrastructure set out in energy NPS remains, except in the case of coal-fired generation. While the review is undertaken, the current suite of NPS remain relevant government policy and have effect for the purposes of the Planning Act 2008. They will, therefore, continue to provide a proper basis on which the Planning Inspectorate can examine, and the Secretary of State can make decisions on, applications for development consent. Nothing in this white paper should be construed as setting a limit on the number of development consent orders which may be granted for any type of generating infrastructure set out in the energy NPS. Other restrictions outside the planning regime (in particular the Emissions Performance Standard) mean that no new coal infrastructure projects can come forward.

Following the Supreme Court’s ruling in the Heathrow case, the Good Law Project’s focus immediately turned to the Airports National Policy Statement. On 18 December 2020 a pre-action protocol letter was sent to the Secretary of State for Transport, requesting that he:

“(i) considers whether it is appropriate to review the Airports National Policy Statement on new runway capacity and infrastructure at airports in the South East of England (NPS) pursuant to section 6 of the Planning Act 2008 (PA 2008); and

(ii) considers whether it is appropriate to suspend all or part of the ANPS pursuant to section 11 of the PA 2008”

in the light, amongst other things, of “significant changes in the science and domestic policy on Climate Change” since the designation of the policy statement in June 2018. A response was requested by 18 January 2021.

In the wake of the Heathrow judgment, Plan B was reported as considering bringing a claim in the European Court of Human Rights. That would in my view be an uphill struggle, particularly at this policy setting rather than development consent stage, although of course it is interesting to see how climate change human rights law has been developing – see for example the Dutch Supreme Court judgment in the Urgenda case (the background is set out in my 28 September 2019 blog post Urgent Agenda/Urgenda written after the Dutch Court of Appeal’s ruling in that case, upheld by the Dutch Supreme Court). Based on articles 2 and 8 of the European Convention on Human Rights, the court ordered that the state was to reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990.

The Bingham road-map

I’ll end by quoting again from Rozenberg’s book, where he sets out Lord Bingham’s “road-map” of warning signs which should be heeded by judges who are considering making new law:

1. where reasonable and right-minded citizens have legitimately ordered their affairs on the basis of a certain understanding of the law;

2. where, although a rule of law is seen to be defective, its amendment calls for a detailed legislative code, with qualifications, exceptions and safeguards which cannot feasibly be introduced by judicial decisions;

3. where the question involves an issue of current social policy on which there is no consensus within the community;

4. where an issue is the subject of current legislative activity;

5. where the issue arises in a field far removed from ordinary judicial experience.

Discuss!

Simon Ricketts, 9 January 2021

Personal views, et cetera

Apparent Bias, Unfair Hearings

The continuing to-do about Secretary of State’s admission of “apparent bias” in the Westferry Printworks case got me thinking about other apparent bias cases and the overlap with the right to a fair hearing – basically as an excuse to mention this week’s startling case from the Supreme Court, Serafin v Malkiewicz (Supreme Court, 3 June 2020). All the cases in this bias/unfair hearing area have a gossipy, “you need to have been there”, feel to them, and there are lessons in all of them for all decision-makers.

After all, for all the constant chatter about the rights and wrongs of our planning system, at its very root it needs to be fair, and seen as fair. Aside from a being fundamental principle of our legal system, the right to a fair hearing in front of an independent and impartial decision maker is also given force by way of Article 6 of the European Convention on Human Rights:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”

Serafin v Malkiewicz

Serafin v Malkiewicz is nothing to do with planning law. It concerns a libel action brought by a litigant in person who found himself against not so much the barrister on the other side but against the judge, Jay J (yes, really, non-lawyers, Jay J). He lost, badly. The Supreme Court judgment, by Lord Wilson attaches a schedule of extracts from the hearing in front of Jay J, which make truly excruciating reading – really and truly, an object lesson in how not to preside over any sort of hearing, let alone in relation to a litigant in person for whom English was not his first language. Imagine an inspector behaving in such a way.

The Supreme Court did not treat the issue in the case as one of potential apparent bias but as to whether the hearing had been fair. It referred to the distinction between the two principles, as described by Hildyard J in M&P Enterprises (London) Limited v Norfolk Square (Northern Square (Northern Section) Limited (High Court, 12 October 2018, namely that whereas “the fairness of a trial required objective judicial assessment, the appearance of bias fell to be judged through the eyes of the fair-minded and informed observer”.

… it is far from clear that the observer would consider that the judge had given an appearance of bias. A painstaking reading of the full transcripts of the evidence given over four and a half days strongly suggests that, insofar as the judge evinced prejudice against the claimant, it was the product of his almost immediate conclusion that the claim was hopeless and that the hearing of it represented a disgraceful waste of judicial resources.”

“… when one considers the barrage of hostility towards the claimant’s case, and towards the claimant himself acting in person, fired by the judge in immoderate, ill-tempered and at times offensive language at many different points during the long hearing, one is driven, with profound regret, to uphold the Court of Appeal’s conclusion that he did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and, that, in short, the trial was unfair. Instead of making allowance for the claimant’s appearance in person, the judge harassed and intimidated him in ways which surely would never have occurred if the claimant had been represented. It was ridiculous for the defendants to submit to us that, when placed in context, the judge’s interventions were “wholly justifiable”.”

The Court of Appeal had similarly concluded that the hearing had been unfair but had only concluded that part of the case be heard again. The Supreme Court went further:

“Lord Reed observed during the hearing that a judgment which results from an unfair trial is written in water. An appellate court cannot seize even on parts of it and erect legal conclusions upon them. That is why, whatever its precise meaning, it is so hard to understand the Court of Appeal’s unexplained order that all issues of liability had, in one way or another, been concluded. Had the Court of Appeal first addressed the issue of whether the trial had been unfair, it would have been more likely to recognise that the only proper order was for a retrial. It is no doubt highly desirable that, prior to any retrial, the parties should seek to limit the issues. It is possible that, in the light of what has transpired in the litigation to date, the claimant will agree to narrow the ambit of his claim and/or that the defendants will agree to narrow the ambit of their defences. But that is a matter for them. Conscious of how the justice system has failed both sides, this court, with deep regret, must order a full retrial.”

Porter v Magill

The classic articulation of the apparent bias test is by Lord Hope in Porter v Magill (House of Lords, 13 December 2001): the “question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

Porter v Magill was of course part of the Lady Porter/Westminster City Council “homes for votes” saga. An auditor, John Magill, had been appointed to consider whether “three councillors and three officers had, by wilful misconduct, jointly and severally caused a loss of approximately £31m to the council which they were liable to make good.”

One of the councillors’ grounds of appeal against Mr Magill’s findings of the auditor, John Magill, was on the basis of apparent bias evidenced by the manner in which, ahead of his full inquiry, he had announced his provisional findings:

“A televised announcement was arranged at which the auditor himself appeared and, although he said that his views were provisional, he expressed them in florid language and supported them by reference to the thoroughness of the investigation which he claimed to have carried out. There was a further feature of the event which should have had no place in the middle of a quasi-judicial inquiry. A stack of ring binders on the desk at which the auditor sat bearing the name of his firm for the benefit of the cameras was, ostensibly, under the protection of a security guard: unless it was being implied that the persons under investigation might wish to steal the documents, it is not clear what was the purpose of this posturing.”

The court did not accept that there was apparent bias. In the words of Lord Hope:

“I think that it is plain…that the auditor made an error of judgment when he decided to make his statement in public at a press conference. The main impression which this would have conveyed to the fair-minded observer was that the purpose of this exercise was to attract publicity to himself, and perhaps also to his firm. It was an exercise in self-promotion in which he should not have indulged. But it is quite another matter to conclude from this that there was a real possibility that he was biased…. The auditor’s conduct must be seen in the context of the investigation which he was carrying out, which had generated a great deal of public interest. A statement as to his progress would not have been inappropriate. His error was to make it at a press conference. This created the risk of unfair reporting, but there was nothing in the words he used to indicate that there was a real possibility that he was biased. He was at pains to point out to the press that his findings were provisional. There is no reason to doubt his word on this point, as his subsequent conduct demonstrates. I would hold, looking at the matter objectively, that a real possibility that he was biased has not been demonstrated.”

Broadview Energy

Turning to a case with greater similarities to the Westferry Printworks situation, in Broadview Energy Developments Limited v Secretary of State (Court of Appeal, 22 June 2016) the Court of Appeal deprecated informal lobbying attempts by MPs, in that case Andrea Leadsom MP’s attempts to stop a wind farm scheme, with a conversation in the Commons tea-room and numerous emails from her to the minister, including one referring to her “badgering [him] in the lobby”. Longmore LJ in that case indicated that he “would not endorse that part of the judge’s judgment [at first instance] in which he said that lobbying of Ministers by MPs was part and parcel of the representative role of a constituency MP with its implication that such lobbying was permissible even when the Minister is making a quasi-judicial decision in relation to a controversial planning application. MPs should not, with respect, be in any different position from other interested parties.”

The court’s deprecation fell short of determining that the decision was as a result unlawful. On the specific question of bias:

“Nor do I think it arguable that a well informed observed would consider that there was a real possibility of bias on the part of Mr Hopkins. The well-informed observer would know that it was the responsibility of the relevant Minister to make difficult decisions about controversial projects such as on-shore wind farms. He would also know that sometimes such decisions are, as this one was, finely balanced. He would not think that a Minister’s decision in favour of a vocal body of local objectors supported by their local MP showed any bias against the promoter of the wind farm project. He would accept that the Minister had to make a decision one way or the other and think that the parties should accept the outcome.

Nevertheless the accusation of bias made in this case shows how important the principle is that Ministers making planning decisions should not allow themselves to be lobbied by parties to the planning process or by local MPs. If they do allow it, accusations of bias are all too easily made however unjustified they may be once the proper principles exemplified by Magill v Porter [2002] 2 AC 357 are applied.”

Turning from the position of ministers to that of inspectors:

Turner

Turner v Secretary of State (Court of Appeal, 11 June 2015) was a case where an objector to the proposed redevelopment of the Shell Centre, on London’s south bank, argued that the inquiry inspector had been biased in the way that he had dealt with his case at the inquiry, alleging, as set out in the judgment, that the inspector had curtailed his evidence and submissions and had made adverse procedural rulings.

In determining whether the inspector had acted inappropriately, the Court set out the approach to be followed as follows:

“The notional fair-minded observer would appreciate a number of aspects of the present context: (i) an inspector’s role has a strong inquisitorial dimension, investigating matters in a way which will enable him to report helpfully to the relevant decision-maker, the Secretary of State; with that end in view, it is fair and appropriate for an inspector to seek to focus debate at an inquiry by making interventions to ensure that he is provided with material to assist him in his task; (ii) an inspector has to manage efficiently the conduct of an inquiry within a limited time-frame and involving a range of parties wishing to give evidence, make submissions and participate in cross-examination of witnesses; this may require robust case management in the interests of all participants; (iii) an inspector is entitled to expect, and may legitimately seek to encourage, focused questioning and short and focused answers in the course of cross-examination of witnesses; (iv) the inquiry process provides an inspector with relevant information through a range of media, including written opening statements, examination of plans and the making of detailed closing submissions, as well as through the evidence of witnesses (both by witness statement and orally in cross-examination), and an inspector is expected to have done a good deal of preparation before an inquiry commences and is entitled to seek to focus debate on particular issues in the form which is most likely to provide clarity about what is at stake and assistance for him in writing a report; and (v) as part of his inquiry-management function, and to encourage a focus on what is most likely to assist him in his reporting task, an inspector is entitled to give indications in the course of an inquiry of points which appear to him to be unrealistic or bad and to require concentration on what appear to him to be the real substantive points of contention or where continued debate will be most helpful to him. It is of course possible that an inspector may go too far in robust inquiry management or in closing down debate, so as to give an appearance of bias. But given the expectation that an inspector should be actively managing the inquiry process to ensure that it is efficient, effective and fair to all interested parties, it will be a rare case, as Woolf J observed, in which it is likely that robust inquiry management will be found to have done so.

Another part of the context is the guidance issued by the Planning Inspectorate in the form of “The Inspector’s Code of Conduct”. This sets out principles of conduct for inspectors. Amongst other things, they “should make their decisions and recommendations fairly and in the public interest”; “should not be fettered with pre-determined views and should not judge cases before they have considered the evidence”; “should not be influenced by irrelevant considerations or outside influences when making their decisions and recommendations”; “should avoid unnecessary delay in reaching their decisions and recommendations”; and “should treat each person with dignity and respect”, behaving “at all times with courtesy, patience and understanding, whilst at the same time ensuring that cases are conducted efficiently and effectively.” This guidance is designed to promote best practice. It does not in itself create the standard by which an appearance of bias is to be judged. For example, a lapse in courtesy or patience on the part of an inspector in the course of an inquiry will not in itself give an appearance of bias in the requisite sense. A good deal more than that would be required: cf HCA International Ltd v The Competition and Markets Authority [2015] EWCA Civ 492, in which even a serious element of actual unfairness of treatment of the appellant by the relevant public authority, which misled the appellant at one stage about an aspect of its inquiry, was found not to create an appearance of bias or pre-determination such as to prevent the same personnel in that authority from making a re-determination of matters in contention. (So that we are not misunderstood, and in fairness to the Inspector in the present case, we should add that on the limited evidence which is available we are not persuaded that he behaved discourteously to Mr Turner or anyone else at the inquiry).”

The court dismissed the appeal: “None of the matters relied on by Mr Turner, whether taken individually or together, indicate that there was a real possibility that the Inspector was biased. The Inspector acted properly and without giving any appearance of bias according to the relevant test in Porter v Magill.”

Satnam

Turner was applied in Satnam Millennium Limited v Secretary of State (Sir Duncan Ouseley, 8 October 2019). Satnam challenged the decision by the Secretary of State, on the recommendation of his inspector, to dismiss an appeal in relation a large development proposal in Warrington. Whilst the judge upheld the challenge on other grounds, he rejected a submission that the inspector had showed apparent bias in the way that he conducted the inquiry, as well as the site visit. Again the judgment is a good read as to the facts, particularly paragraphs 112 to 189. Extracts from the PINS manual for inspectors are at paragraphs 190 to 194 and the general legal principles are set out at paragraphs 195 to 206. The judge’s detailed conclusions, in which he rejects the various complaints, are at paragraphs 229 to 254. There are some interesting pointers as to the conduct of hearings and inquiries and as a cheerful point to end on…

Humour is not forbidden:

“The grumbling from Mr Griffiths about a resident giving her evidence in song, followed by the quick interchange over giving evidence in dance and northern humour, rather illustrated my concern about where he was pitching his concern. This was but a moment of light heartedness, essentially initiated by the witness, and briefly responded to by the Inspector. Some Inspectors might have kept silent; but there is nothing in this at all. Not all judges or counsel are humourless automatons either. Although it would avoid some problems if Inspectors were, it could create others at an Inquiry with feelings running high and large numbers of the public attending. This was all very much part of a legitimate judgment about how to run a difficult Inquiry in those venues, with the facilities, and participants there were.”

“I accept that there would have been an impression of familiarity with individuals to whom [the inspector] had spoken on a daily basis, but that does not contrast with how he spoke to the other participants; they were not ignored, their greetings, if any, dismissed. “Banter” is very much in the eye and ear of the beholder. I am not prepared to regard any of it as indicative of possible bias.”

Reading these various cases again, and thinking again about Westferry Printworks, doesn’t so much of this come down to common sense and the facts of each situation rather than the application of any difficult legal concepts? The courts may be surprisingly reluctant at times to intervene (which makes so telling the Serafin ruling, as well as the decision of the government legal department not even to seek to contest Westferry) but decision makers should know what’s not right and, equally importantly, what doesn’t look right.

Simon Ricketts, 6 June 2020

Personal views, et cetera

Trial By Instagram: Privacy & Planning

Photo-sharing social media apps, weaponised by the smartphone camera, are changing our experience and expectations of place. Is the planning system, and the law of private nuisance, keeping up?

The London Evening Standard had a story for our times last night: Please stop ‘influencing’ on our doorsteps, Notting Hill residents tell ‘unapologetic’ Instagrammers.

At a personal level we have all become artists, influencers, curators, with our instant pics, filtered, composed, annotated. Fomo for you = dopamine for me. But zoom out and through endlessly snapping, sharing, liking and commenting, we are of course the product, the hive mind, the crowd source, working for the data mine, adding to the geo-cache, mapping ceaselessly where the sugar is in the city.

In this context, what sells a place? From outside in: a glimpse of the life style, the life, that could be yours. From inside out: unique views out onto a city. The two ugly i words: iconic, instagrammable.

Which all makes the parable of Fearn & others v The Board of Trustees of the Tate Gallery (Mann J, 11 February 2019) so perfect.

On one side, the residents of Neo Bankside, housed from floor to ceiling in glass so as to achieve spectacular views out and having paid no doubt precisely to be able to enjoy that experience.

On the other side, at its closest point 34 metres to the north of Block C of Neo Bankside, the viewing gallery on the tenth floor of the Blavatnik Building extension to Tate Modern, from which visitors also have spectacular views, including, to the south, of those residents in their transparent homes.

Plan A from the judgment (extract)

The people in the glass houses threw an expensive stone at their large neighbour, in the form of proceedings for an injunction to prevent overlooking from the viewing gallery, on the basis that it amounted to a breach of their rights to privacy, both under the law of private nuisance and, if the Trustees of the Tate were to be considered to be a public body, under Article 8 of the European Convention on Human Rights.

What makes the situation particularly unusual is that the full implications of the juxtaposition of the two developments had not been appreciated by anyone, including the local planning authority (the London Borough of Southwark). The Tate proposals went through various design iterations. The judge found:

On the balance of probabilities it is not likely that the planning authority did consider the extent of overlooking. It is more than plausible in all the circumstances that it did not, and I find that it was not given any focused attention by the planning authority.

So far as the developers of Neo Bankside are concerned, there is very little material on which to make a finding as to their awareness of the consequences of the viewing gallery. The developers were plainly aware of the nature of the Blavatnik development from time to time, and I accept Mr Hyslop’s evidence that there was consultation between the two sides. It is plain that the developers were aware of a viewing gallery because concerns were expressed as to the effect the flats would have on the viewing gallery (not the other way round). It is very likely that the developer was aware of the plans for the gallery during the concurrent planning process. However, I do not think that the developer foresaw the level of intrusion alleged by the claimants, and therefore to that extent did not foresee the consequences of its co-operation or its knowledge.

The end result of this analysis is that, so far as relevant, I find that all relevant parties were eventually aware of the viewing gallery in its present form, and aware of its function, but (so far as relevant) they did not think through the consequences of overlooking, and looking into, the flats in Block C.”

Whilst the planning system’s role does not extend to closing off all risks of nuisance actions from those affected by development, it is a shame that the full consequences of the juxtaposition of the viewing gallery and the flats were not appreciated at the time that the application for planning permission was determined so that the issue could have been considered as against Southwark’s planning policies that seek to protect residential amenity and the issue might have been pragmatically nipped in the bud.

One further complication appears to have been that the Neo Bankside development ended up being occupied other than visualised as at when planning permission was granted, with “winter garden balconies” ending up being subsumed as part of residents’ living space. Again, to what extent is it the role of the planning system to foresee issues of privacy and overlooking that may arise in consequence of internal changes such as this?

The judgment sets out the numbers of visitors that use the viewing gallery, potentially as many as 500,000 to 600,000 a year. The Tate has posted notices on the southern gallery asking visitors to respect the privacy of the gallery’s neighbours and has instructed security guards to stop people taking photographs of the flats and occupants. The judgment then describes the activities of the visitors and it is apparent that many take photographs of the flats.

The claimants also rely on reports on social media as demonstrating a photographic and “peering” interest in the flats. They, and Mr May, produced in evidence a large number of photographs from social media, some accompanied by comments, which indicate that people have been to the gallery, noted that one can see into the flats, and commented in such a way as to acknowledge that there was a surprising intrusion into privacy arising as a result of that.

The first batch of postings were all dated in a period shortly after the Mail on Sunday wrote a piece about the issue in 2016. They are 14 Instagram posts which feature various photographs of the interiors of the Block C flats with some reflections on the lack of privacy in the flats. Some juxtapose the sign asking for respect for privacy with the view into the flats themselves; another has the rubric “Invading me some privacy”; another refers to the “Birds eye view directly into the neighbouring apartments. No wandering around in pj’s” with the hashtag (among others) “#noprivacy”. The general impression from that collection of posts, which caused upset to some of the occupants, was that those visitors were interested in peering into the flats when that view was on display.

This was supplemented by investigations into social media carried out by Mr May as part of his expert functions. A member of his firm carried out a check on Instagram and found 124 posts with photographs of Neo Bankside, apparently taken from the viewing gallery, in the period between June 2016 and April 2018. It was estimated by that member that they reached an estimated audience of 38,600, but there is a certain element of intelligent guesswork in that figure. Many of photographs show the interiors of the flats. Judging by their attached comments and hashtags, many of the photographs are taken because of the architectural interest of Block C, or because of the photogenic interest of the subject matter (not always the block by itself), and some comment on the fact that you can see right into the flats. Various conclusions can be drawn from this study, depending on one’s point of interest, but I consider that they support the case of the claimants that part of the interest on the part of at least some posters was in the view of Block C flat interiors from the gallery. For others the interiors are irrelevant, and for yet others it is noted and incidental, but there is a significant discrete interest in what one can see by looking into the flats.”

The judge’s conclusions on the level of intrusion were as follows:

(a) A very significant number of visitors display an interest in the interiors of the flats which is more than a fleeting or passing interest. That is displayed either by a degree of peering or study, with or without photography, and very occasionally with binoculars.

(b) Occupants of the flats would be aware of their exposure to that degree of intrusion.

(c) The intrusion is a material intrusion into the privacy of the living accommodation, using the word “privacy” in its everyday meaning and not pre-judging any legal privacy questions that arise.

(d) The intrusion is greater, and of a different order, from what would be the case if the flats were overlooked by windows, either residential or commercial. Windows in residential or commercial premises obviously afford a view (as do the windows lower down in the Blavatnik Building) but the normal use of those windows would not give rise to the same level of study of, or interest in, the interiors of the flats. Unlike a viewing gallery, their primary (or sole) purpose is not to view.

(e) What I have said above applies to the upper three flats in this case. It applies to a much lesser extent to flat 1301, because that is rather lower down the building and the views into the living accommodation are significantly less, and to that extent the gallery is significantly less oppressive in relation to that flat
.”

It is interesting that the judge does not comment as to whether what is done with the photographs taken, frequently uploaded and shared on social media, adds to the degree of intrusion.

After detailed legal analysis, the judge rejected the Article 8 claim on the basis that the Board of Trustees of the Tate Gallery is not exercising functions of a public nature.

He also rejected the claim in nuisance, but again after interesting analysis:

1. He finds that as a matter of principle there are situations where the law of nuisance can protect privacy, at least in a private home, both under traditional common law but also by giving effect to Article 8 by extending existing causes of action.

2. “That does not mean, of course, that all overlooking becomes a nuisance. Whether anything is an invasion of privacy depends on whether, and to what extent, there is a legitimate expectation of privacy. That inquiry is likely to be closely related to the sort of inquiry that has to take place in a nuisance case into whether a landowner’s use of land is, in all the circumstances and having regard to the locality, unreasonable to the extent of being a nuisance…”

3. The planning process is not by itself a sufficient mechanism for protecting against infringement of all privacy rights.

4. “The question is whether the Tate Modern, in operating the viewing gallery as it does, is making an unreasonable use of its land, bearing in mind the nature of that use, the locality in which it takes place, and bearing in mind that the victim is expected to have to put up with some give and take appropriate to modern society and the locale. Although there is an overall assessment to be made in order to comply with the tests referred to above, I shall approach the question by first breaking the consideration down into three elements – location, the use of the defendant’s property and the nature and use of the claimants’ properties.”

5. Tate’s legal submissions sought to place reliance on the fact that planning permission had been granted, drawing upon a statement by Lord Carnwath in Lawrence v Fen Tigers (Supreme Court, 26 February 2014):

“...a planning permission may be relevant in two distinct ways: (i) It may provide evidence of the relative importance, in so far as it is relevant, of the permitted activity as part of the pattern of uses in the area; (ii) Where a relevant planning permission (or a related section 106 agreement) includes a detailed, and carefully considered, framework of conditions governing the acceptable limits of a noise use, they may provide a useful starting point or benchmark for the court’s consideration of the same issues.”

6. In this case however the planning permission “provides little or no assistance…The level of consideration given to the overlooking, if there was any at all, is not apparent from the evidence that was placed before me.

7. Nor were the planning policies for the area relevant as they did not “really engage with the important factors which have to be considered in considering a nuisance claim“.

8. “The other way in which Lord Carnwath suggested that the planning permission might be relevant is in providing evidence of the relative importance of the activity to the area. Since the planning permission in this case did not really address the viewing gallery, as opposed to the building as a whole, it is not possible to draw any conclusions from it as to the views of the planning authority on this point, so the permission is of no evidential use here either.”

9. The character of the locality is a significant relevant factor:

“The locality is, as appears above, a part of urban south London used for a mixture of residential, cultural, tourist and commercial purposes. That usage, thus described, does not say much about the privacy of high-rise glass-walled residential buildings. However, the significant factor is that is an inner city urban environment, with a significant amount of tourist activity. An occupier in that environment can expect rather less privacy than perhaps a rural occupier might. Anyone who lives in an inner city can expect to live quite cheek by jowl with neighbours. That is implicitly acknowledged by the claimants when they say they do not object to the fact that they are overlooked from the windows of the Blavatnik Building.”

Planning policies for the area “are of little or no assistance in determining what the current nature of the locality is. If they reflect the current usage, then they are irrelevant and add nothing. If they reflect a desire to move the area along to a different usage then they reflect the aspirations of the planners, but they do not affect what the nature of the locality should be treated as being for the purposes of the law of nuisance. In Fen Tigers the Supreme Court considered the question of whether the grant of planning permission could be taken to affect the character of a neighbourhood, and rejected the suggestion that that could be the case. The Justices considered the proposition that it might affect the character of the neighbourhood if it covered a large area but not a small area, and rejected that too (see eg Lord Neuberger at paras 86-88). If an actual planning decision cannot affect the character of the locality for the purposes of the law of nuisance, then the aspirations of a local authority for an area, as expounded in a local plan, should not be able to do it either. It therefore seems to me that the plans for the area do not bear on the character of the locality in this case.

Second, if I am wrong about that, then even if (as seems to be the case) there is an emphasis on cultural matters, and the benefits of a vibrant Tate Modern, it does not seem to me that that leads to the conclusion that this is an area in which a viewing platform should necessarily be actually expected in that context.

Third, while such generalised planning matters might be capable of resolving a conflict between a residential use and a cultural use (at least so far as planning is concerned), they do not assist in resolving the question of a conflict between a viewing platform (which is a particular subset of the cultural activities of the Tate Modern) and some residential accommodation.

10. The operation of a viewing gallery is not an inherently objectionable activity in the neighbourhood.

11. Turning to what it is that the claimants complain about:

They complain that their everyday life in the flats is on view because of the nature of the view. The nature of the view is the complete (or largely complete) view that one has of the living accommodation from the viewing gallery. It is that that is commented in one or two the Instagram postings. That arises (obviously) because of the complete glass walls of the living accommodation. I have considered whether the claimants would have had had a complaint if they had lived in flats designed with more wall and less window. If the owner/occupier/developer of such a flat would still have a complaint in nuisance, then so must the claimants. If he/she would not then I have to consider whether the claimants in this case would nonetheless have a cause of action themselves, arising out of the glass construction.”

The claimants would not have a nuisance claim if they lived in flats with more wall and less window.

The developers in building the flats, and the claimants as successors in title who chose to buy the flats, have created or submitted themselves to a sensitivity to privacy which is greater than would the case of a less-glassed design. It would be wrong to allow this self-induced incentive to gaze, and to infringe privacy, and self-induced exposure to the outside world, to create a liability in nuisance. Other architectural designs would have reduced the invasion of privacy to levels which should be tolerated; that is the appropriate measure in my view. If the claimants have a design which raises the privacy invasion then they have created their own sensitivity and will have to tolerate what the design has created. I remind myself that the first designs for these flats did have some privacy protection built in.

In making that determination I am not indulging in any criticism of the claimants or the developers; nor am I criticising the architectural design. I am aware that is no part of the law of nuisance to discourage architectural adventure. However, the architectural style in this case (including the more striking design of the block as a whole) has the consequence of an increased exposure to the outside world for all the reasons contained in this judgment. That should not be allowed to alter the balance which would otherwise exist.”

The winter gardens also have to be considered. A very material part of the perceived intrusion into privacy comes from the fact that the occupiers can be viewed in the winter gardens, which they treat as an extension of their living accommodation. Furthermore, the glass of the winter gardens allows a view to the glass of the internal double-glazed door, which in turn allows a further view into the living accommodation.

Those areas were not originally intended as part of the living accommodation. The planning documents make clear that they were conceived as a form of internal balconies, which the occupiers could enjoy as an additional amenity to their living accommodation. The experts both agreed on that. That is why the areas were single glazed, and not double glazed. The flooring was also intended to be different, to reflect that. They were not intended to be heated, though the developers did actually extend the under-floor heating into them. Had the occupiers operated their flats in that way then in my view they could have expected less privacy in respect of that part of their flats – one does not expect so much privacy in a balcony, even one as high as these. I agree with Mr Rhodes’ evidence to that effect.

In that respect, too, the owners and occupiers of the flat have created their own additional sensitivity to the inward gaze. They have moved more of their living activities into a quasi-balcony area and provided more to look at. Had they not done that, there would have been less worth looking at – less to attract the eye – and fewer living activities to be intruded upon. It is true that to a degree there would still have been a view through the winter gardens and through the double-glazed doors, and to that extent the privacy of the living accommodation would still have been compromised by something more usual (extensive glass doors giving on to a balcony-equivalent) but the whole package would have been a less sensitive one.”

12. Remedial steps could be taken, for instance by lowering solar blinds, installing privacy film or installing net curtains.

Recommendations for further reading

In true online tradition, if you liked this post [in fact whether or not you liked it] you will like Barbara Rich’s beautiful and reflective 15 February 2019 blog post Curtains For The Zeitgeist.

Simon Ricketts, 2 March 2019

Personal views, et cetera

NIMBY v YIMBY

“Good Grief… anything but address the elephant… the illogical Nimbys” (comment on my last blog post, received via twitter)
I’ve been struggling with “not in my back yard” for a while, almost as bad as the “elephant in the room”.
The Times reported this week a speech by Shelter’s Polly Neate: “Ugly new homes breed nimbys, builders told“.
Canada’s Globe and Mail tells us “Margaret Atwood is a NIMBY – and so are most of us“.

It got me wondering when we all started this absurd Americanised name calling. Wikipedia identifies its first use as in 1980, corroborating a google ngram viewer search which traced its published use back to 1980…

These searches are addictive by the way…


The next morning I was sitting on the train to work, reading John Grindrod’s Outskirts book (buy it) and turned the page to find this passage…


So the derogatory phrase was created by the PR department of a chemical company responsible for the Love Canal pollution scandal that practically singlehandedly led to modern US environmental law in relation to land contamination. Smell a rat?

When someone is objecting to or protesting about something happening in their area, how tempting is it to disregard the objection by labelling it as “nimby” but it’s an ugly blunderbuss of an expression. What if the objection or protest is justified? Who is going to stand up for an area if it isn’t those who live there? Was Jane Jacobs a nimby then? Why does the European Convention on Human Rights protect rights to property (paragraph 1 of the 1st protocol) and to private and family life (article 8)?
The answer is in the respective qualifications to those rights:
– nothing in the right to property “shall impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest”

– the right to private and family life is subject to such interference “as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Of course we know where the finger is being legitimately pointed when people are called out as nimbys – at those who are motivated by overly selfish motives – tranquility and wealth for the few, regardless of the wider public interest. However, are attitudes in fact changing when it comes to housing? A February 2017 report by the National Housing Federation, Demise of the NIMBY: changing attitudes to building new homes, would appear to suggest so.
Predictably, ministers have been on the bandwagon:

Sajid Javid in his speech to Conservative party conference in 2016:

“Everyone agrees we need to build more homes.  

But too many of us object to them being built next to us.  

We’ve got to change that attitude.  

So my message today is very clear: it’s time to get building.

He doesn’t use the “n” word but the reporting of the speech picks up the signalling, because the word is so populist – we all know (or think we know) what it means:
Sajid Javid declares war on ‘Nimbys’ who stand in the way of badly-needed new homes (The Independent)

Sajid Javid attacks ‘nimbyism’ as he calls for 1m new homes (BBC website)

Gavin Barwell was more direct in his speech to the CPRE on 20 February 2017:
“…there are some people who claim the CPRE is merely a respectable front for nimbyism – that behind your public objectives is a private and unrelenting refusal to accept any kind of new development in rural areas.

Of course I know that’s nonsense.

You recognise that well-designed new settlements in sustainable locations can take the pressure off the green belt and you have an unparalleled legacy in influencing the planning system, particularly in the years after the war.

Your vision for garden cities, towns and villages has been adopted by the government. So has your preference for community-design, with extra power and resources for local areas to make this happen.

So now you have got the government behind your ideas I would challenge you to go a step further and prove your detractors wrong.

Support local communities in their quest for good design and actively seek out and champion the best-designed developments – so no one can say your words are not backed up by deeds.”

Is the CPRE a nimby organisation? Well it is certainly depressing to see that members have at their disposal on the CPRE website a copy-and-paste draft letter of objection.
Note the passage in the draft letter that suggests that the objector should draw where relevant on any relevant neighbourhood plan. The Government is of course anxious to distance neighbourhood plans from neighbourhood protectionism. For instance, this is John Howell MP speaking in a debate on neighbourhood planning on 3 July 2017 about those who promote neighbourhood plans:
“I should say at this point that in the main we are not talking about communities who are anti-development; we are talking of communities who want to embrace new housing for the long-term sake of their communities and to ensure that facilities such as pubs and sports clubs do not fall into disuse. They also want new housing above all to cater for younger people and families. There is nothing for the Government to fear here about being in the world of the nimby; neighbourhood plans have allocated some 10% more housing than it was originally suggested they should provide by their district or borough councils. From that point of view, they have been a great success.

This is an assertion which is difficult to square with experience. Time and again development is being delayed or thwarted by neighbourhood plans that have been made following the most light touch of examination procedures. 

Yimbyism is of course the self-referential counter-balance to anti-housing development interests. 

London YIMBY’s report “Yes In My Back Yard: How To End The Housing Crisis, Boost The Economy And Win More Votes was published by the Adam Smith Institute in August 2017. It is disappointing that their proposed solutions would entail further disruptive legislative change (not going to happen) and don’t to me at least (disclosure, I’m presumably part of the problem as one of the “armies of planning lawyers and consultants” on which “billions of pounds” are apparently spent, referred to in the report) seem to be practical in the sense of delivering a simpler, more effective, fairer system:
We propose three policies that would hand power back to residents; ways of solving the housing crisis that will also win political parties votes. Each would make a huge difference alone; together they could have a transformative effect on the housing situation in Britain: 

    1. Allowing individual streets to vote on giving themselves permitted development rights, to build upwards to a maximum of six storeys and take up more of their plots. 


    2. Allowing local parishes to ‘green’ their green belts, by developing ugly or low amenity sections of green belt, and getting other benefits for the community in turn. 

3. Devolving some planning laws to the new city-region mayors including the Mayor of London. Cities could then decide for themselves if they want to expand and grow and permit extra housing, or maintain their current size and character.”

It’s a new movement, originating a couple of years ago in San Francisco but gaining real traction. The New York Times reported in July on its second annual conference: California Today: A Spreading ‘Yimby’ Movement.
Yimbyism is good to see, as long it remains positive and is genuinely springing from communities rather than political activists. But we really need to avoid getting entrenched in “brexiteer”/”remoaner” style tribalism. As with Brexit, the underlying public policy issues are complex and often down to difficult political choices to be made against an impossibly complex economic, environmental and legal background. In a climate where simple messages, right or wrong, have greater potency to influence democracy than ever via social media and elements of the traditional media (and certainly greater potency than what the scorned “experts” may say) the message as to the need for housing and for essential infrastructure must be as clear and non-partisan as possible but at the same time we must treat those with opposing views with respect, winning the intellectual argument with the evidence. How to go about winning hearts and minds? There’s a lot of good sense in Shelter’s March 2015 report Addressing Our Housing Shortage: Engaging the Silent Majority. Labelling people as selfish and insular isn’t going to win any argument. QRED*

*quod referendum erat demonstratum

Simon Ricketts, 2 September 2017
Personal views, et cetera

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

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

– reduce the burden on the public purse and

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

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

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

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

(a) be dissuasive, or

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

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

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

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

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

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

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

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

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

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

Money For Nothing? CPO Compensation Reform, Land Value Capture

To what extent might the state choose to tax land owners, through reducing their compensation entitlement, in order to facilitate the provision of housing or infrastructure, rather than subsidise that provision through more general tax raising? How can the state capture land value gains created by its own infrastructure provision, or due to its own strategic planning for development?
These questions are central to a number of current areas of public policy thinking, including:
– Using compulsory purchase 
– Land auctions and land value capture charges
– Benchmark land values in viability appraisal
– CIL reform
There are some confluences arising in this area between current Conservative party thinking, other political parties, Transport for London and Shelter to name but a few. I’m not sure that land owner interests have yet joined all the dots. Developers may wish to partner more closely and regularly with local authorities with compulsory purchase powers, but in other situations should also be aware of the risks ahead for their businesses if additional costs are not sufficiently predictable as to come off the land price or if they cause land owners simply to hold rather than sell. 
Using compulsory purchase

Compulsory purchase is already a practical mechanism for securing land where there is a compelling case in the public interest for interfering with private property rights. Of course it isn’t easy, and will never be. The power is draconian. The necessary procedural safeguards to protect against its abuse make for a slow, procedurally technical process and for uncertain outcomes.

Another disincentive for local authorities can be the significant compensation costs payable, given the fundamental principle that the land owner is entitled to what the value of his interest would have been were it not for the compulsory acquisition (the ‘equivalence’ principle). Even where compensation liability is being underwritten by a developer partner, the extent of compensation is:
– likely to affect whether the project is viable after all; and
– not ascertainable until all parties are too far in to back out due to the leisurely pace at which a compensation figure is determined (both pre- and post-reference to the Lands Tribunal, aka Lands Chamber of the Upper Tribunal). 
The Conservative manifesto, published on 17 May 2017, refers to compulsory purchase in this one paragraph:
“We will enter into new Council Housing Deals with ambitious, pro-development, local authorities to help them build more social housing. We will work with them to improve their capability and capacity to develop more good homes, as well as providing them with significant low-cost capital funding. In doing so, we will build new fix-term social houses, which will be sold privately after ten to fifteen years with an automatic Right to Buy for tenants, the proceeds of which will be recycled into further homes. We will reform Compulsory Purchase Orders to make them easier and less expensive for councils to use and to make it easier to determine the true market value of sites”

I am guessing that what is planned goes further than making the current system work better. Changes are being considered which would enable in some circumstances greater use of compulsory purchase and, in some circumstances, acquisition at lower values than the equivalence principle would suggest. 
The February 2017 Housing White Paper says this:
“2.43 Compulsory purchase law gives local authorities extensive powers to assemble land for development. Through the Housing and Planning Act 2016 and the Neighbourhood Planning Bill currently in Parliament we are reforming compulsory purchase to make the process clearer, fairer, and faster, while retaining proper protections for landowners. Local planning authorities should now think about how they can use these powers to promote development, which is particularly important in areas of high housing need. 

2.44 We propose to encourage more active use of compulsory purchase powers to promote development on stalled sites for housing. The Government will prepare new guidance to local planning authorities following separate consultation, encouraging the use of their compulsory purchase powers to support the build out of stalled sites. We will investigate whether auctions, following possession of the land, are sufficient to establish an unambiguous value for the purposes of compensation payable to the claimant, where the local authority has used their compulsory purchase powers to acquire the land.

2.45 [ ]

2.46 We will keep compulsory purchase under review and welcome any representations for how it can be reformed further to support development.”
Note the references to encouraging the use of compulsory purchase where development has stalled, and investigating the use of auctions to establish land value (more on that later in this blog post).
Revealingly, in the week before the publication of the manifesto there was a press release with this passage in its “notes to editors”:
“To further incentivise councils to build, the Conservatives also intend to reform compulsory purchase rules to allow councils to buy brownfield land and pocket sites more cheaply. At the moment, councils must purchase land at “market value”, which includes the price with planning permission, irrespective of whether it has it or not. As a result, there has been a more than 100% increase in the price of land relative to GDP over the last 20 years and the price of land for housing has diverged considerably from agricultural land in the last fifty years. Between 1959 and 2017, agricultural land has doubled in value in real terms from £4,300 per acre to £8,900 per acre, while land for planning permission has increased by 1,200%, from £107,000 to just over £1,450,000. Local authorities therefore very rarely use their CPO powers for social housing, leaving derelict buildings in town centres, unused pocket sites and industrial sites remain undeveloped.
I’m guessing at the following policy strands for a future Conservative government from these various statements:
1. Further encouragement for use of CPO powers in the right circumstances, including particular encouragement where a “Council Housing Deal” is in place (guaranteeing social housing with a fixed-term right to buy for tenants) and possibly where private sector development is shown to have stalled (link this and the “delivery” elements of the Housing White Paper and this could be quite a stick to wield).
2. Further process reform likely.
3. Reform likely of the process for determining the compensation price to be paid, so that (1) figures are known earlier on, (2) the land auctions model is followed (see later in this blog post) to determine values in appropriate circumstances and (if those ‘notes to editors’ are to believed) (3) in some circumstances authorities will be able to acquire land for less than it is worth (possibly ruling out hope value unless planning permission or a certificate of appropriate alternative development under section 17 of the Land Compensation Act 1961, has actually been obtained). 
The last point (still speculation) has caused consternation and excitement in equal measure. The principle of equivalence is at stake, but equally this opens up the prospect of securing land for development at an undervalue so as to achieve affordable housing at no cost to the state. Money for nothing (unless you are the land owner). Shelter for example have been lobbying for a similar approach. Their May 2017 paper Financing the infrastructure and new homes of the future: the case for enabling acquiring authorities to purchase land for strategic development under a special CPO compensation code May 2017 lobbies for Government to:

enable acquiring authorities to purchase land for strategic development under a special CPO compensation code. This would involve three changes:

1)  An amendment to the National Planning Policy Framework to allow planning authorities to designate land for strategic development; 

2)  An amendment to Section 14 of the 1961 Land Compensation Act to disregard prospective planning permissions on land designated for strategic development; 


3)  An amendment to Section 17 of the 1961 Land Compensation Act to restrict the use of certificates of alternative development on land designated for strategic development.”

Shelter’s delight at the references in the Conservatives’ recent policy announcements is plain to see from their subsequent 16 May 2017 blog post Compulsory purchase and council homes – a new direction for housing policy?
Do the Conservatives really intend such a radical market intervention, or do they misunderstand how the compensation system currently works? The reference in the press release’s “notes to editors” that “councils must purchase land at “market value”, which includes the price with planning permission, irrespective of whether it has it or not” is of course wrong. The prospect of planning permission for development in the “no scheme world” is taken into account in arriving at a valuation but the existence of a planning permission is never assumed. 

However logically necessary the concept is, the “no scheme world” (or “Pointe Gourde”) rule been much criticised for being difficult to apply in practice. Its complexities were most recently explored by the Supreme Court in Homes & Communities Agency v JS Bloor (Wilmslow) Ltd  (22 February 2017), where Lord Carnwath said this:
The rule has given rise to substantial controversy and difficulty in practice. In Waters v Welsh Development Agency [2004] 1 WLR 1304; [2004] UKHL 19, para 2 (“Waters”), Lord Nicholls of Birkenhead spoke of the law as “fraught with complexity and obscurity”. In a report in 2003 the Law Commission conducted a detailed review of the history of the rule and the relevant jurisprudence, and made recommendations for the replacement of the existing rules by a comprehensive statutory code…”

Lord Carnwath had himself of course chaired that review. Too late for the litigants in Bloor, now finally, by virtue of section 32 of the Neighbourhood Planning Act 2017  (which introduces new sections 6A to E into the Land Compensation Act 1961) we have a codified version of the “no scheme world” rule. (The compulsory purchase provisions within the 2017 Act are well summarised by David Elvin QC in a paper  to the 2017 PEBA conference). 

New section 6E has refined the rule so that it is now more difficult for claimants to rely on increases in value of their land created by the transport project for which the land has been acquired, where regeneration or redevelopment was part of the justification for the transport project. 
The big question is whether a more radical manipulation of the “no scheme world” rule might be possible, even if it parted from the principle of equivalence. After all, if land for development could be secured at little more than agricultural value…?
It would be mightily difficult, indeed controversial to the extent of potentially being counter-productive, if land is to be acquired without prolonged legal wrangling. If in the real world your land has hope value for another form of development, why should that be ignored? However, in fact it’s not legally impossible.
Article 1 of the protocol to the European Convention on Human Rights states as follows:
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

(Incidentally, the Conservative manifesto confirms: “We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes. We will remain signatories to the European Convention on Human Rights for the duration of the next parliament.“)
The European Court of Human Rights interprets Article 1 of the protocol so as to require compensation to be paid in relation to the confiscation of property. In Lithgow v UK  (European Court of Human Rights, 8 July 1986), a case arising from Labour’s nationalisation of various industries under the Aircraft and Shipbuilding Industries Act 1977, the court said:
“The Court further accepts the Commission’s conclusion as to the standard of compensation: the taking of property without payment of an amount reasonably related to its value would normally constitute a disproportionate interference which could not be considered justifiable under Article 1 (P1-1). Article 1 (P1-1) does not, however, guarantee a right to full compensation in all circumstances, since legitimate objectives of “public interest”, such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value”.


Whilst a distinction was drawn in the case between state nationalisation of industries and the compulsory purchase of property, the same basic principles apply. It is clear from this and other cases that individual states are given a margin of appreciation to determine what is in the public interest. For example:
Sporrong and Lönnroth v. Sweden  (22 September 1982) (a case about longterm blight caused by ‘zonal expropriation permits’)
 “…the Court must determine whether a fair balance was struck between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights…
James v UK  (21 February 1986) (a challenge brought by the trustees of the estate of the Duke of Westminster to leasehold enfranchisement under Leasehold Reform Act 1967):
“Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken… Here as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation.” The Court went on to find that the aim of the Leasehold Reform Act 1967, namely greater social justice in the sphere of housing, was a legitimate aim in the public interest



Similarly, in theory a mechanism might be arrived at which in some way disentitled land owners in some circumstances from achieving a full market value for their land. But the circumstances would need to be carefully circumscribed and the reaction of most land owners would be to fight rather than one of flight. 
It is not as if compulsory purchase compensation is presently particularly generous, even with the additional loss payments (capped, even for owner-occupiers, at the lesser of 10% of the compensation payable and £100,000) that were introduced by the Planning and Compulsory Purchase Act 2004 specifically to sweeten the pill for land owners and make compulsory purchase less contentious! Do we really want more uncertain situations such has arisen at the Aylesbury Estate, with the Secretary of State rejecting  a CPO made by the London Borough of Southwark, on the basis of the prejudice that would be caused to leaseholders by the inadequate level of compensation payable to them, and now reportedly  having consented to judgment following a challenge by the council, such that all concerned now face a re-opened inquiry?
Furthermore, if these amended compensation principles are only to apply to, for example, Council Housing Deals, how will dispossessed owners be able to recover their property, or further compensation, if the land ends up not being used for the restricted purposes for which the land was taken?
Lastly, that manifesto reference to making it “easier to determine the true market value of sites”. Does this suggest a simplification of compensation principles? Or an overhaul of the timescales for determining compensation liability? Transport for London have recently suggested (in the paper referred to in the next section of this blog post) that the Government might make “the process of acquiring land through compulsory acquisition more transparent by:

* Introducing an independent valuation panel to determine the market value of the land based on the ‘no scheme’ principle set out in the Neighbourhood Planning Bill 2016 

* Establishing (early in the land acquisition process) an objective and transparent evidence base on alternative development potential in the absence of the scheme, for such a panel to determine ‘no scheme’ market values, for instance through the use of a modified section 17 certificate”.
Land auctions, land value capture charges

The passage quoted earlier from the Housing White Paper refers to “auctions”. Academic Tim Leunig has been promoting  the idea of “community land auctions” for a long time and indeed the idea was toyed with in the early years of the coalition government, whilst to a number of us it seemed naive in its assumption as to how planning actually works:
“The council first asks all landowners to name the price at which they are willing to sell their land. By naming a price, the landowner gives the council the right to buy the land for 18 months at that price. The council then writes a development plan. As now, they will take into account the suitability of the land offered for development, but will also consider the price of the land, and the likely financial return to the council.”
Transport for London has more recently been promoting a more sophisticated “development rights auction model” as a method of capturing land value increases created by transport infrastructure improvements. Their 20 February 2017 land value capture report , summarises it as follows:
“For zones with high development potential (particularly for housing) with multiple landowners, the Government, TfL and the GLA should consider the development rights auction model (DRAM), a new land value capture mechanism. 

The key features of the development rights auction model are: 

* The integrated planning and consenting of land use and density in a defined zone around a major new transport facility, in parallel with the planning of the transport scheme 
* The introduction of a periodic development rights auction, in which development rights over land put forward (voluntarily) by landowners are auctioned in assembled packages to a competitive field of developers. Gains above a reserve price are shared between the participating landowners and the planning/auctioning authority. No development taxes (such as CILs or s106 payments) are payable under this scheme. All non-operational but developable public sector-owned land within the zone is entered into the auction as part of a standard public sector land pooling arrangement 

* The introduction of a high zonal CIL for those landowners who wish to self- develop rather than participate in the auction 

* The use of reformed compulsory purchase order (CPO) powers (following successful passage of the Neighbourhood Planning Bill 2016) to deal with holdout problems that threaten to stall development, together with further consideration of other options as discussed in the report”.
The Government’s 8 March 2017 budget announcements included a memorandum of understanding  entered into with the GLA, that says this:
“At Budget 2016, the government invited Transport for London (TfL) to bring forward proposals for financing infrastructure projects from land value uplift. 

The government has agreed to establish a joint taskforce bringing together the GLA, TfL, London Councils, HM Treasury, Department for Transport (DfT) and Department for Communities and Local Government (DCLG) to explore the options for piloting a Development Rights Auction Model (DRAM) on a major infrastructure project in London.

Should a pilot of DRAM be agreed, it will be jointly evaluated by London and the government to review its effectiveness and determine whether a similar model could be applied to other infrastructure projects.”


I can’t presently relate the DRAM initiative to the reference in the Housing White Paper (quoted above) to establishing land value via auctions in CPO situations, following possession. What on earth is that a reference to?
TfL’s February 2017 paper has various other more radical policy suggestions to capture infrastructure-related land value increases, including changes to SDLT, to retention of business rates and a new “land value capture charge” This would “capture a proportion of the premium paid to landowners by new purchasers or tenants of residential property for access to new transport facilities“. (Shall we call a tax a tax though, folks?). 
There is also a current RTPI research project The Use of Alternative Land Value Capture Mechanisms to Deliver Housing in England and Wales.
Benchmark land values in viability appraisal

One of the most contentious issues in relation to developers’ project viability appraisals (carried out for the purposes of seeking to agree reductions in the scale of section 106 affordable housing and other obligations) is the benchmark land value that should be applied as a cost input. Clearly it should not be the actual market value (which would lead to circularity) but equally it should not be just the existing use value (EUV), which would not reflect reality and would result in schemes being assumed to be viable when in reality they would not be because the land would not be made available at the assumed benchmark value. 
The 2012 RICS guidance, Financial Viability In Planning  , advises that it is appropriate to take into account alternative use value (AUV):
“Site Value should equate to the market value subject to the following assumption: that the value has regard to development plan polices and all other material planning considerations and disregards that which is contrary to the development plan.”
As summarised in my 1.12.16 blog post  , the London Mayor is seeking to move away from accepting AUV, preferring an “EUV+” approach, ie existing use value “plus premium”, with the methodology for calculating the premium left undefined, and therefore a recipe for continuing debate. 
In practice, surely any attempt to pitch EUV+ at less than AUV is equivalent to restricting the application of the “no scheme world” rule – a policy intervention to apply that shortfall for public purposes. Except that with viability negotiations, it could of course lead to development simply not proceeding. Is there then a stalled scheme and grounds for compulsory purchase? The extent to which this sort of economic intervention is acceptable needs to be carefully limited and defined. 
CIL reform

There have been rumours that the reason why the Government parked in February any response to the CIL review team’s report was that the new ministerial team had started to think about whether in fact any replacement for CIL should encapsulate land value concepts (memories of the planning gain supplement anyone?). There is certainly no mention of CIL in the Conservative manifesto. Certainly the policy priorities as between CIL and affordable housing need to be reconsidered. 

If we weren’t in such dire straits, we could of course go back to a position where the state invested in social housing and funded public services without weighing the costs so heavily on land owners and developers. In the meantime, over the next five years we’ll definitely see answers emerge to those questions I posed back at the beginning of this overlong post. 
Simon Ricketts 20.5.17

Personal views, et cetera