Mending Aarhus

On 1 April 2013 the Government changed the Civil Procedure Rules to introduce a system of automatic costs capping  for judicial reviews in England and Wales in relation to “environmental matters” (a broad definition that embraces many “planning” JRs). This was to seek to comply with the Aarhus Convention’s principle that access to environmental justice should not be prohibitively expensive. However, surprise surprise, in some ways arguably the Government went further than was necessary and in other ways it didn’t go far enough. 
What the system did was to allow claimants to opt for mutual cost capping when bringing a claim. If the claimant ultimately lost, as an individual (however well-resourced) his or her exposure to the successful defendant’s costs would then be capped at £5k and if a company or other body (however well-resourced) its exposure would be capped at £10k. As a quid pro quo, if the claimant won it could only recover up to £35k. The system only applies at first instance – further applications to the court for specific costs protection are required if the case then goes onto the Court of Appeal and beyond to the Supreme Court 
The Government brought in the new system ahead of the CJEU giving judgment in Case C 530/11 European Commission v United Kingdom of Great Britain and Northern Ireland  (13 February 2014). The CJEU did not address the post 1 April 2013 system but found that the previous regime was indeed non-compliant. Whilst the new system has addressed most of the CJEU’s criticisms, there are certainly still gaps, for example the current restriction of automatic cost capping to judicial review rather than statutory challenges (for instance to appeal decisions by the Secretary of State and inspectors) and the way in which automatic cost capping only applies at first instance.  
The Government consulted  in 2015 on proposals to amend the automatic cost capping system, partly to seek to comply with the CJEU ruling and partly to tighten up on the process where it could. Particularly contentious elements included proposing that claimants should submit a schedule of their financial resources when commencing the proceedings so as to allow for argument as to whether the cap should be increased in the particular case, a proposal that cost capping should only be confirmed once a claim had received permission to proceed to a full hearing (ie had been ruled to be arguable) and a proposal to double the standard caps to £10,000 (for individuals) and £20,000 for all other categories of claimant. 
The Government has now published on 18 November 2016 Costs Protection In Environmental Claims, its response to that consultation document. 
It has stepped back from the more contentious proposals. In summary it proposes that the Civil Procedure Rules be amended to:
– extend Aarhus cost capping to statutory challenges engaging EU law based statutes (this would bring to an end the nonsense of the current Venn litigation saga, in which the refusals of first Ouseley J on 15 August 2016  and then Lewison LJ on 3 November 2016  to grant permission for Ms Venn to appeal are worth a read – further background in this Landmark Chambers update).

– give more certainty that there will be costs protection in Court of Appeal cases “where this is necessary to prevent the proceedings from being prohibitively expensive for the claimant”. The Government will invite the Supreme Court to set equivalent rules to apply to appeals that it hears. So not an automatic system for appeals but clearer guidance.  

– refine a definition of “members of the public” who are entitled to Aarhus cost capping. I take this as code for removing the ability for local authority claimants to obtain automatic Aarhus cost capping protection, subject to the outcome of the Aarhus Convention Compliance Committee’s consideration as to whether Hillingdon Council, and other local authorities engaged in the judicial review of the Government’s decision to proceed with HS2, qualify for protection under the Convention (following the ruling  of the Court of Appeal on 11 March 2015 that they do under the Civil Procedure Rules – which may have been drawn unnecessarily widely). 

– allow parties to make applications to reduce or increase the caps in particular cases. The test will be that the costs of proceedings must “neither be subjectively prohibitively expensive (they must not exceed the financial resources of the claimant) nor appear to be objectively unreasonable” (ie that set out by the CJEU in C-260/11 Edwards v Environment Agency  (11 April 2013). To make its case, the claimant would need to “provide information on significant assets, income, liabilities and expenditure. This information would take account of any third-party funding which the claimant had received”. 

– clarify that where there are multiple claimants, a separate cap applies to each claimant (reflecting incidentally the approach recently taken in R (Birchall Gardens LLP and Tarmac Trading Limited) v Hertfordshire County Council  (Holgate J, 4 November 2016)).

The Government does not intend to extend the Aarhus cost capping system to private nuisance cases (the subject of proceedings currently before the European Court of Human Rights: 39714/15 Austin v. UK) or similar non public law cases that raise environmental issues. Nor does it intend to increase the standard caps or to delay cost capping to beyond the permission stage.  
James Maurici QC has prepared a useful comparative table  of the proposals in the consultation paper and those in the response document. 
Whilst the Government seeks to limit the circumstances in which parties can apply to vary costs caps, stressing the risk of costs orders against parties that do so unreasonably, undoubtedly this will lead to additional pre-hearing sparring and uncertainty (which is not to criticise the proposal – it has sometimes been galling to see claimants obtain automatic costs protection at the standard level, when the claimants’ means may be at least equal that of the cash-strapped defendant authority).  
In my view the response document seeks to achieve a sensible and reasonable balance and for that reason will no doubt come under attack from all quarters…

Simon Ricketts 19.11.16
Personal views, et cetera

Devo West Mids

Connecting the dots as to the Government’s policy announcements is never easy for all of us on the outside, trying to work out what they may turn out to mean in practice. 
An evidence session today with the West Midlands Land Commission was a good excuse for me to get to grips, belatedly, with what changes devolution may bring to planning and compulsory purchase in the West Midlands. 


Background

The West Midlands Combined Authority  was formally established on 16 June 2016 by virtue of the West Midlands Combined Authority Order 2016 . It comprises 17 local authorities and three LEPs and follows a devolution agreement dated 17 November 2015  .

The WMCA is to be chaired by a directly elected Mayor. The election is due to take place on 4 May 2017. Andy Street is to step down from his job as John Lewis chief executive to stand, as the Conservative candidate. Sion Simon is the Labour candidate. 
The devolution agreement includes the following statements in relation to planning:
“Planning powers will be conferred on the Mayor, to drive housing delivery and improvements in housing stock, and give the same competencies as the HCA.

“The Combined Authority and its constituent authorities will support an ambitious target for the increase in new homes, and will report annually on progress against this target. To ensure delivery of this commitment, the Shadow Board of the Combined Authority and the government agree that: 


    * Existing Local Authority functions, which include compulsory purchase powers, will be conferred concurrently on the Combined Authority to be exercised by the Mayor. These powers, which provide the same competencies as the Home and Community Agency, will enable the Combined Authority to deliver its housing and economic growth strategies. The government will bring forward further proposals for consultation in the New Year and will, as part of that consultation, discuss how they can be applied to support housing, regeneration and growth. 


    * The Homes and Communities Agency and the Combined Authority will work together to develop a joint approach to strategic plans for housing and growth proposals for the area. 


    * The government will work with the Combined Authority to support the West Midlands Land Commission. The West Midlands Land Commission will ensure there is a sufficient, balanced supply of readily available sites for commercial and residential development to meet the demands of a growing West Midlands economy. It will create a comprehensive database of available public and private sector land, identify barriers to its disposal/development, and develop solutions to address those barriers to help the West Midlands meet its goal to deliver a significant number of additional new homes over the next 10 years, and to unlock more land for employment use. The Combined Authority will also be able to use their proposed Land Remediation Fund to support bringing brownfield sites back into use for employment and housing provision”. 

WMCA’s ambitious objectives are set out in its Strategic Economic Plan  and include a “higher level of housebuilding than is currently provided for in development plans”. 
A Scheme for the Mayoral West Midlands Combined Authority was published on 4 July 2016 for a consultation period which closed on 21 August 2016. It seeks equivalent powers to establish mayoral development corporations, with the agreement of the relevant LPAs, as the London Mayor currently has. It also seeks, for its area, the same planning and compulsory purchase powers as the Homes and Communities Agency. 
The West Midlands Land Commission has also been set up, with terms of reference  to consider “what measures could be initiated and undertaken to ensure an improved supply of developable land from both a strategic and regional perspective”. 
WMCA has begun to work on specific strategic sites. It published on 19 October 2016 its Greater Ickneild and Smethwick housing growth prospectus. An application for housing zone status is to be made. (Although – is it just me? – the Government’s housing zones announcement 5 January 2016  is very vague as to the implications of HZ status other than the potential for an element of Government funding). 
Implications
What sort of planning powers WMCA will have to encourage, cajole and coordinate the work of its member authorities? Increased housing numbers will not come without real interventions and a new approach by all involved – in which I very much include the Government. After all:
– the Birmingham City Plan is still on hold following the previous Secretary of State’s 26 May 2016 holding direction as a result of concerns expressed by Sutton Coldfield MP Andrew Mitchell as to the proposed release from the green belt of land for the development of 6,000 homes

– we are still waiting for numerous measures to be fleshed out pursuant to the Housing and Planning Act 2016, including permission in principle and also the enticing mystery that is the concept in section 154 of “planning freedoms schemes”

– there is still no sign of the amended NPPF with its stronger policy support for development on brownfield sites. 

Will the WMCA be given CPO powers equivalent to the very wide powers that the HCA has by virtue of section 9 of the Housing and Regeneration Act 2008, or will it at least have a working arrangement with the HCA whereby the HCA will use its powers at the authority’s request? The section 9 power is much wider than LPAs’ normal “planning purposes” CPO power in section 226 of the Town and Country Planning Act 1990 as it can be used to achieve the HCA’s broader objectives as set out in section 2 of the 2008 Act:
“(a) to improve the supply and quality of housing in England, 

(b) to secure the regeneration or development of land or infrastructure in England, 


(c)  to support in other ways the creation, regeneration or development of communities in England or their continued well-being, and 


(d)  to contribute to the achievement of sustainable development and good design in England”

The use, or threat of use, of section 9 as against suitable sites which are not brought forward for development by their owners, might well be effective – particularly when taken with acquiring authorities’ possibly improved position against owners’ “no scheme world” compensation arguments by virtue of clause 22 of the Neighbourhood Planning Bill. 
Interesting also to see the London-style “Mayoral development corporations” proposal in the July Scheme document. But what about possibly developing other London-style structures, including the referral to and potential call-in by the Mayor of applications for strategic schemes?
So many unfinished legislative changes and policy announcements. As E. M. Forster (who died in Coventry – sole tenuous thematic link to blog) might have said: 
only connect
Simon Ricketts 24.10.16
Personal views, et cetera

There Goes The Neighbourhood? Recent Challenges To NDPs

There is still significant legal debate as to what is the proper scope of neighbourhood development plans. This has resulted in a series of cases in which the parish council or neighbourhood forum that has promoted the relevant NDP sits on the sidelines (due to lack of resources) as the borough or district council which has been required to make it finds itself embroiled in significant legal proceedings. 
Can an NDP be made in advance of an up to date local plan?

This question is critical because, if so, there is significant freedom for the NDP to set the local policy agenda on issues (such as housing numbers in the neighbourhood) which might be thought to be more properly the domain of the local plan (whereas if there is an adopted local plan there is the statutory constraint that the NDP must be in “general conformity” with its “strategic policies”). 

To date High Court judges have taken the view that the answer is “yes” but this will come before the Court of Appeal for the first time this coming week, when the claimant’s appeal from the ruling of Foskett J in R (DLA Delivery) v Lewes District Council  (31 July 2015) is heard on 15 and 16 November 2016. Foskett J had taken an equivalent approach to that of Lewis J in R (Gladman Developments Limited) v Aylesbury Vale District Council  (18 December 2014) and Holgate J in Woodcock Holdings v Secretary of State  (1 May 2015). 
Can an NDP require new dwellings to be occupied as a “principal residence”?
This was the main issue before Hickinbottom J (promoted to the Court of Appeal since the hearing) in R (RLT Built Environment Limited) v Cornwall Council  (10 November 2016). This of course concerned the St Ives Neighbourhood Plan’s proposed ban on new dwellings being used as second homes. 
As is so often the case in NDP challenges (see below for more of this) the first line of attack was as to the adequacy of the strategic environmental assessment that had been carried out. The claimant, a local developer, claimed that increasing the amount of market housing for local people to buy was a “reasonable alternative” that should have been assessed. The judge disagreed – as an alternative it was an “obvious non-starter” as it did not achieve the objective of the policy which was to reduce the number of second homes in the area.  
The second line of attack was that the policy would amount to an unjustified interference with the right to a home in Article 8 of the European Convention on Human Rights. The judge held that whilst the right might in theory be interfered with if a resident had to leave the area due to changes in personal circumstances, the interference was proportionate and therefore acceptable. The LPA would also be able to take personal circumstances into account in deciding whether or not to take planning enforcement action. 
Whilst much turned on the local circumstances of the second home honeypot that is St Ives, can one extrapolate to other areas under pressure from second homes, such as parts of London?
When will a plan be quashed on the basis of inadequate strategic environment assessment?
There have been many challenges, whether to decisions to screen out SEA (eg R (Larkfleet Homes Limited) v Rutland County Council  (Court of Appeal, 17 June 2015)) or to the adequacy of the SEA process (most recently in the Cornwall case but before that in for instance in BDW Trading Limited v Cheshire West and Chester Borough Council  (Supperstone J, 9 May 2014)). Until last month, I only knew of one example of an NDP being quashed on the basis of inadequate assessment: the Haddenham Neighbourhood Plan, where Aylesbury Vale District Council consented to judgment  in March 2016 (to the chagrin of the parish council that had promoted the plan). 
So R (Stonegate Homes Limited) v Horsham District Council  (Patterson J, 13 October 2016) is quite something: the Henfield Neighbourhood Plan was quashed by the High Court following a contested hearing on 4 October (Mark Lowe QC acted for the successful claimant, who incidentally also acted for the successful defendant in the Cornwall case two days later on 6 October). The plan favoured residential development to the east of the settlement and, relying on perceived problems with the local road system, no assessment was carried out of the possibility of development to the west, despite a planning appeal having been allowed to the west and a highways reason for refusal having been withdrawn by the LPA following agreement between the appellant and the county council. The plan was quashed on the basis of a flawed assessment of reasonable alternatives within the SEA process as well as on the basis that there was no evidential basis for the examiner of the plan ruling out locations to the west or for the LPA to conclude that the plan met EU law requirements.  
The case is an encouraging example of the SEA Directive fulfilling a necessary role in providing a safeguard against loose or lazy thinking, against the background of a process where examination can be light touch (to put it charitably) and where the legislation has as many holes as a Cornish trawler net when it comes to NDPs, minnows of our plan led system. 

Simon Ricketts 12.11.16
Personal views, et cetera

The UK Government & Air Quality (ahem)

The saga over the UK government’s non-compliance with air quality standards has casualties: a recent study  estimated that around 40,000 premature deaths are caused per year due to air pollution.


The government has been in breach of the Air Quality Directive  since 1 January 2010, by failing to take measures to ensure defined maximum limits of nitrogen dioxide are not exceeded. Limits are currently exceeded in 38 out of 43 zones in the country (each zone representing a conurbation with a population exceeding 250,000). By way of example, acceptable levels are not expected to be realised in London until 2025. 
The Supreme Court in R (ClientEarth) v Secretary of State  (29 April 2015) made a “mandatory order requiring the Secretary of State to prepare new air quality plans under article 23(1), in accordance with a defined timetable, to end with delivery of the revised plans to the Commission not later than 31 December 2015”. 
The Government purported to comply with the order by way of an announcement on 17 December 2015  the main thrust of which was the introduction of Clean Air Zones in Birmingham, Leeds, Nottingham, Derby and Southampton by 2020, within which zones the most polluting vehicles would be discouraged through charging schemes. 
ClientEarth then embarked on a second set of proceedings, challenging the proposals on two grounds:
– they did not meet the Directive’s requirement that exceedance periods be kept “as short as possible”

– The government “gave disproportionate and unlawful weight to cost and political sensitivity“.

The factual background and law are set out in detail in Nathalie Lieven QC’s skeleton argument for ClientEarth.
In a bad week for the Government Legal Department, the High Court found for the claimant in a robust judgment by Garnham J handed down on 2 November 2016 (ClientEarth (no 2) v Secretary of State).

Some interesting passages:
Para 50: “…I reject any suggestion that the state can have any regard to cost in fixing the target date for compliance or in determining the route by which the compliance can be achieved where one route produces results quicker than another. In those respects the determining consideration has to be the efficacy of the measure in question and not their cost.”
Para 53: “…implicit in the obligation “to ensure” is an obligation to take steps which mean meeting the value limits is not just possible, but likely.”
Para 69: “Whatever the reason for selecting 2020 may have been, however, I am satisfied that the department erred in law in selecting so distant a date. The problem of reducing nitrogen dioxide levels was urgent and the plan to do so should have been aimed at achieving compliance in the shortest possible time, regardless of administrative inconvenience or the costs of making the necessary investigations.”
Para 86: “…In my judgement, the [Air Quality Plan] did not identify measures which would ensure that the exceedance period would be kept as short as possible; instead it identified measures which, if very optimistic forecasts happened to be proved right and emerging data happened to be wrong, might achieve compliance. To adopt a plan based on such assumptions was to breach both the Directive and the Regulations.”
Para 89: “…it seems to me likely that fixing on a more proximate compliance target date and adopting a less optimistic assumption for likely emissions might well mean that CAZs are required in more cities, but ultimately that will depend on the outcome of further modelling.”
The judge’s conclusions are set out in para 95: 
“i)  that the proper construction of Article 23 means that the Secretary of State must aim to achieve compliance by the soonest date possible, that she must choose a route to that objective which reduces exposure as quickly as possible, and that she must take steps which mean meeting the value limits is not just possible, but likely.

ii)  that the Secretary of State fell into error in fixing on a projected compliance date of 2020 (and 2025 for London); 


iii)  that the Secretary of State fell into error by adopting too optimistic a model for future emissions; and 


iv)  that it would be appropriate to make a declaration that the 2015 AQP fails to comply with Article 23(1) of the Directive and Regulation 26(2) of the Air Quality Standards Regulations 2010, and an order quashing the plan. “

Despite what the Daily Mail may think, the judge did not prescribe specific steps for the government to take, rejecting Nathalie Lieven’s examples of “fiscal measures to disincentivise the use of diesel cars and vans, locally targeted scrappage schemes, targeted vehicle retrofitting schemes and measures specifically targeting diesel cars, which she suggested ought to be adopted so as either to make more certain the achievement of the objectives in the Directive or advance the date of compliance“. How the limits are to be complied with is for the government to decide.


For a detailed analysis I recommend David Hart QC’s blog post.

The ruling led to a debate in the House of Commons on 3 November 2016. The minister stated: “We accept the judgment of the court and will now carefully consider it, and our next steps, in detail“. Does “accept” mean no appeal? We shall see. 
What does the ruling mean for planning decisions?
The government’s Planning Practice Guidance has a useful section on air quality.

However Robert McCracken QC’s 6 October 2015 opinion has been widely circulated as somewhat of a lobbying document for Clean Air in London, urging a more restrictive approach. It postulates that:
– because of the government’s breaches of the Air Quality Directive, LPAs have a duty in their decision-making to seek to achieve compliance with the Directive’s limit values

– where a development would cause a breach in the locality, would make significantly worse an existing breach or delay the achievement of compliance with limit values, they must refuse permission

– even where limit values are not exceeded in the locality, LPAs must try to prevent developments from worsening air quality and to achieve best air quality. 

The opinion relies on the CJEU’s ruling in Naturschutz Deutschland v Germany  (1 July 2015), a case about water standards under the EU Water Framework Directive. The conclusions reached in the opinion would now need to be tempered by the High Court’s ruling in the Enderby Wharf cruise liner terminal case, PS by his litigation friend TS v Royal Borough of Greenwich  (Collins J, 3 August 2016), where a claim that the LPA failed to consider and give effect to the need to ensure that air quality standards were met was unsuccessful – particularly as the opinion specifically refers to the cruise liner proposal by way of example and suggests, not borne out by the case, that the permission would only be lawful with a Grampian condition preventing use of the terminal until air quality could be shown to be acceptable. 

However (particularly following the latest ClientEarth ruling), in order to minimise the risk of judicial review, undoubtedly care is needed in relation to the analysis and assessment of any project that is in a location where nitrogen dioxide values are exceeded, would be exceeded as a result of the scheme, or would be significantly increased. There is obviously also a read across to the question of Heathrow expansion…
Simon Ricketts 4.11.16

Personal views, et cetera

Building Homes By CPO

This blog post supplements a 27 October 2016 Planning Futures event  hosted by City University on the role of compulsory purchase in solving the planning crisis.
Any discussion like this needs to be in the context of wider legislative and policy initiatives in relation to the operation of the planning system, of seeking to ensure that development is viable and of the role of the public sector in delivery. There is a risk that it is treated by professionals in a silo as a specialist discipline, rather than as an inherent part of the planning system.
Compulsory purchase is not to be considered lightly. But it shouldn’t be written off as a potential tool in the right circumstances. 
LPAs commonly have various concerns over use of theIr CPO powers – that the process
– is time intensive

– is costly

– can be politically sensitive

– needs specialist experience

– gives rise to compensation liabilities

– should be a last resort. 

Much of this true. However the power in section 226 of the Town and Country Planning Act 1990 is there to be used and there is detailed, relatively up to date (2015), guidance. Whilst the procedure is still not simple (it never will be), substantial improvements are being made to the legislative basis. 
Without the threat of CPO, will some, otherwise suitable, sites come forward? Allocation is not always enough to secure development. Indeed, radical thought: should permission in principle under the Housing and Planning Act 2016 in some circumstances come with the threat of CPO if development doesn’t proceed without good reason? The threat could be made clear by the LPA when placing land on its brownfield land register or in any other allocation intended to lead to permission in principle. 
Compulsory purchase is a tried and tested process with city and town centre retail-led schemes, where there is familiarity with the steps and approach to be taken by LPA hand in hand with its developer partner, with the developer partner meeting costs and compensation liabilities by way of an indemnity agreement. Properly drafted, such agreements can avoid difficulties in relation to the duty to secure best consideration in section 123 of the Local Government Act 1972 (Standard Commercial Property Securities Limited v Glasgow City Council  House of Lords, 16 November 2006) or in relation to public procurement (see my previous Section 123…Go!  blog post for more). 
Nationally Significant Infrastructure projects of course have the benefit of the bespoke DCO process under the Planning Act 2008, under which compulsory powers are routinely secured. 
In contrast, CPOs are not so common for housing-led schemes but there is no fundamental reason why this is so. 
Recent and forthcoming improvements to the compulsory purchase system include:
– Those in the Housing and Planning Act 2016  (eg wider powers to enter and survey land and tightening timescales, including timescales for securing advance payments of compensation)

– The imminent freedom under section 160 of the 2016 Act for NSIPs to include related housing on the same infrastructure development site or close to it, with a 500 homes cap having been consulted upon in October 2015.

– Those in the Neighbourhood Planning Bill  (eg facilitating temporary possession of land, codifying and limiting the no scheme world principle and enabling GLA/TfL acquisition of land for joint purposes – no doubt to be relied upon so as to maximise the potential for housing development unlocked by Crossrail 2 when the Hybrid Bill for that scheme comes forward). 

The Act and Bill were both preceded by detailed consultation papers, in March 2015  and March 2016  respectively. 
The changes are for a reason – because the Government wishes to see the powers used!
I assume that there is also appetite from private sector developers willing to partner with LPAs through the process, where significant sites can be unlocked as a result. 
Other bodies of course have CPO powers that can be used to bring about more homes, for instance the Homes and Communities Agency’s wide powers in section 9 of the Housing and Regeneration Act 2008, as well as the Mayor of London and his Mayoral Development Corporations. There is also the intriguing power in clause 48(1) of the HS2 Bill  :
“If the Secretary of State considers, having regard to the relevant development
plan, that the construction or operation of Phase One of High Speed 2 gives rise
 to the opportunity for regeneration or development of any land, the Secretary 5 of State may acquire the land compulsorily”
Obviously there are still pitfalls in the CPO process. I referred to some of them in a recent blog post, Regeneration X: Failed CPOs  since when we have had the Seaton Carew decision letter  dated 13 October 2016 , where the Secretary of State rejected a CPO on the ground that a planning permission (for a community and leisure based project) not rooted in planning policy was not a sufficient basis for use of section 226. Whilst there will always need to be a compelling case in the public interest to justify compulsory purchase, are the Aylesbury Estate and Seaton Carew instances of where the tests are being applied too strictly, or perhaps even an indication that the legislation and guidance should be reviewed again to assess whether the bar is in fact set too high?
More generally, shouldn’t more encouragement (and funding) be given by Government for the use of compulsory purchase to deliver housing sites, whether this is either by way of 
– LPAs either acting for themselves where they have access to funding, or backed by private sector developer partners, to deliver specific schemes or 

– the HCA and other bodies with regeneration CPO powers looking to assemble sites and bring them to market?

Although it seems not to be a popular idea with Government so far, let’s also not forget the potential for expanding by legislation the scope of the DCO process to encompass the very largest urban extension and new settlement proposals. 

Simon Ricketts 28.10.16
Personal views, et cetera

Noise Annoys

We’ve surely got to find better solutions to the conflicts arising between residents (in both new and existing homes) and noise generating or noise sensitive uses. Otherwise we will kill those activities that make cities what they are and an important element what attracts people to live in them in the first place: nightclubs; cinemas; music and sports venues; recording studios. 
Noise arises in the planning system in various ways:
– Effect of proposals on existing noise-sensitive uses

– Effect of proposals that will bring sensitive receptors near to noisy operations whose activities may over time be curtailed

– Effect of proposals for noisy activities on sensitive receptors


Effect of proposals on existing noise-sensitive uses
It has been a bad week or so for noise-sensitive uses:
London
R (Grand Central Sound Studios Limited) v Westminster City Council (Patterson J, 20 October 2016). The claimant operates eight recording studios from a building in central London, a use sensitive to noise and vibration. It unsuccessfully challenged, alleging (basically) irrationality and inconsistency of approach, Westminster City Council’s decision to grant planning permission for the residential conversion of an adjacent office building.
It was always going to be an uphill struggle once planning permission had been granted. Contrast with the well-publicised battle that has been fought by Air Studios in Hampstead against a nearby super-basement proposal. 
Manchester
The Secretary of State for Transport has approved proposals for the Trafford Centre extension to the Manchester Metrolink in the face of reported objections from the studios where Coronation Street is filmed. Paragraph 11 of the 13 October 2016 decision letter:
“The Secretary of State notes that the main effects of the … proposals due to noise and vibration would be on the production of “Coronation Street” at the ITV Trafford Wharf Studios due to construction noise, wheel squeal on the tight bend near the studios, and groundborne noise as a result of vibration from the trams. He accepts that construction noise should be able to be controlled through the Code of Construction Practice (“CoCP”); that occurrences of wheel squeal could be reduced by changing the wheel profile of trams, by control of the track gauge at the bend and by the use of a vehicle-mounted friction modification system; and that the effects of groundborne noise could, if necessary, be reduced by use of a “floating track slab” design in the vicinity of the studios. The Secretary of State accordingly agrees with the Inspector that these matters would be adequately addressed through the imposition and enforcement of planning conditions … which should ensure that measures are taken to avoid exceedances of the “just acceptable” noise levels specified by ITV

Effect of proposals that will bring sensitive receptors (people) near to noisy operations whose activities may over time be curtailed
Such as nightclubs…

Obar Camden Limited v London Borough of Camden  (Stewart J, 8 September 2015) was the successful challenge by the Camden nightclub Koko of a planning permission granted by Camden Council for a mixed use redevelopment of the adjoining public house. Koko was concerned that the presence of residents next door would jeopardise the future of the venue due to the risk of noise complaints. In contrast to the Grand Central Sound Studios case, the court accepted that the decision was irrational and also that the noise condition imposed was legally flawed:

“The tenor of the [officer’s report] is that so long as the noise consultant’s mitigation measures were implemented, this would require further details of those particular mitigation measures, then the proposed residential use would not “result in increase noise and complaints which may result in harm to the future operation of the neighbouring businesses.” This was not accurate. Therefore the overall effect of the report in relation to noise significantly misled the Committee about material matters which were left uncorrected at the meeting before the relevant decision was taken”
The claimant’s noise consultant “Mr Vivian’s report in effect says that the conditions cannot possibly fulfil the aims they seek to achieve. There is no evidence from [the defendant]. The court would not expect a detailed technical response and would not become involved in such a merits based argument. However there is nothing apart from the fact that the conditions were drafted by [the defendant’s] officers, to refute any of the points made by Mr Vivian. A brief witness statement setting out in summary form why issue was taken with Mr Vivian’s conclusions may well have been sufficient. Nevertheless the court is in effect left with a detailed and systematic witness statement alleging irrationality and nothing of real substance to begin to counteract it. Therefore in my judgment [the claimant] succeeds on this ground also.”

The Eileen House development in south London, near to the Ministry of Sound nightclub, was the previous cause celebre, called in by the previous Mayor of London and approved in 2014 after lengthy negotiations leading to:

– reportedly, a novel form of deed of easement being entered into by the owners of Eileen House allowing noise from the nightclub to pass over the Eileen House developments so that incoming residents would not be able to object to it

– condition 19 attached to the 7 January 2014 planning permission requiring flats to be adequately insulated against noise from the nightclub

– paragraphs 11 to 13 of Schedule 2 of the 6 January 2014 section 106 agreement  requiring noise mitigation measures to be kept in place and for incoming residents to be told about the noise from the nightclub. 

“Agent of Change”
The Eileen House approach could be seen as a domestic example of the Australian “agent of change” principle – that where development takes place near to noisy activities, it is for the developer to manage the impact of the change (see Music Venue Trust  for more information, or this detailed paper  from a 2014 noise conference held in Melbourne). 
Sadiq Khan has embraced the concept, reportedly  intending to introduce it into policy. His statement was made in the context of the problems faced by the Curzon cinema in Mayfair, being faced with complaints from incoming residents to newly converted flats in its building. Its problems arise from its tenancy position, unable to control the nature of its neighbours, and the difficulties of retrofitting soundproofing of its activities into a listed building. 
Whilst a Labour attempt  to introduce the concept into the Housing and Planning Bill failed, the Government did of course from 6 April 2016 introduce a further prior approval requirement into the office to residential permitted development right: a requirement to provide details as to the “impacts of noise from commercial premises on the intended occupiers of the development”. 
Effect of proposals for noisy activities on sensitive receptors
More traditionally, the introduction of noisy activities into residential areas has always led to disputes. We have recently seen a surge in popularity in outdoor music events, leading to a surge in popularity in related litigation, which often turns on collateral challenges to the lawfulness of temporarily closing off the relevant open area for a commercial event. 
The recent challenge to north London’s Wireless Festival, Friends of Finsbury Park v London Borough of Haringey  (Supperstone J, 22 June 2016) , was a case in point, along with Save Battersea Park’s recent litigation in relation to the holding of Formula E racing in Battersea Park and ongoing disputes in relation to events on Clapham Common.  
and beyond planning…
As with the Curzon cinema case, noise issues are not confined to the planning system – there is often an overlap with licensing and with private law, including landlord and tenant matters and the law of nuisance. The law of nuisance is beyond this blog’s pay grade but the key legal authority is undoubtedly Coventry v Lawrence  (Supreme Court, 22 July 2015), a case about noise from a motor sports track in Suffolk. The case considers, amongst other things, the relevance of how long the noise complained of has been generated (as to whether rights by prescription can be obtained after 20 years), the relevance of whether the activities have the benefit of planning permission, the relevance of whether the complainant has come new to the situation and the availability of injunctions. Worth reading in a quiet moment….
Final bars 
The Government’s planning guidance at present as to the treatment of noise in the planning system is useful eg paragraphs 123, 109 and 111 of the NPPF., the noise section in the Government’s Planning Practice Guidance  and its earlier Noise Policy Statement for England. However, whether at national or at local/city level, isn’t it time now for more a more explicit articulation of the agent of change principle – with a view to maintaining city living as a sound proposition? 
Simon Ricketts 22.10.16
Personal views, et cetera

Airports & Courts

The Government’s long awaited decision on airport expansion in the south east, following its interim 10 December 2015 statement, finally seems imminent. A Guardian 9 October 2016 story speculates that the decision will be taken at a cabinet meeting on 17 October (presumably meaning an announcement the following day) and that Heathrow will be favoured, in which case, according to an Independent story the same day, Gatwick will pursue expansion in any event.
New Civil Engineer on the hand speculates that both Heathrow and Gatwick will get the go ahead:
“It is believed that the announcement will be made on 18 October, with government giving the green light to a third runway at Heathrow immediately and also allowing Gatwick to expand with a second runway within the next five years.

Gatwick’s 30-year agreement with local authorities not to expand is due to expire in 2019.

It is also understood that government will urge Birmingham airport to advance its proposals for an additional runway.”

Whatever the timing and content of the announcement, two things are sure:

1. The process of turning the announcement into reality will be a slow and complex process. The Government confirmed in its 10 December 2015 statement that the DCO rather than Hybrid Bill process would be used. The first step will be an Airports national policy statement to form the policy basis for a DCO application or applications to be made in due course. Once the announcement is made I will cover in a future blog post the potential complexities, which would be acute were both Heathrow and Gatwick to proceed, in terms of the coordination required between competing promoters, but equally difficult if only one airport is favoured leaving the other to object, challenge and seek to promote its own proposals independently. 

2. There will inevitably be litigation at each administrative step of the process, particularly ahead of the formal submission of any DCO application (because any challenges to that process, once it is underway, can only be brought once it has concluded). The litigation will be entangled with (1) ongoing issues as to the Government’s non-compliance with the EU Air Quality Directive (2) a slowly changing basis over coming years as to the extent to which UK environmental laws are underpinned by EU legislation (3) continuing efforts by the Government to speed up the judicial review process and discourage unmeritorious claims. 

Aside from the potential for the airport operators themselves to resort to litigation in response to the forthcoming decision, a number of campaign groups have also made their positions clear. For instance: 
– Teddington Action Group has restated on 11 October its threat of judicial review should one of the two Heathrow options be chosen, alleging bias on the part of the chair of the Airports Commission, Sir Howard Davies.
– Gatwick Area Conservation Campaign has written to the Secretary of State for Transport on 4 August 2016 threatening judicial review, referring to John Steel QC having advised that “there are a number of potential grounds able to be considered which are sound, including that a decision to choose Gatwick as the location for additional runway capacity in the South East, if based on political expediency, would be irrational”. They assert that they expect to be supported by “two County Councils and seven Borough and District Councils” as well as a number of MPs. 


Of course, resorting to the courts to try to stop airport expansion is nothing new. For instance:
R (Hillingdon LBC) v Secretary of State for Transport  (Carnwath LJ, 26 March 2010) – the challenge by various local authorities to the Government’s 2009 decision (abandoned following the 2010 General Election) to proceed with a third runway at Heathrow. 
R (Sanders) v Airports Commission and Secretary of State for Transport  (Patterson J, 2 December 2013) – Stop Stansted Expansion’s unsuccessful challenge to Airport Commission’s sift criteria on which its shortlist was to be based, again alleging bias on the part of a member of the Commission.

R (Stop Stansted Expansion) v Secretary of State for Transport  (Sir Thayn Forbes, 13 March 2009) – the same group’s unsuccessful challenge to the Secretary of State’s decision in 2009 to allow planning appeals increasing the cap on passenger numbers to 35m per annum (a cap which Stansted Airport’s owner MAG is currently planning to apply to increase, according to a Telegraph September 2016 piece ).

R (Griffin) v London Borough of Newham  (Court of Appeal, 20 January 2011) – Fight The Flights’ unsuccessful challenge to Newham Council’s 2009 decision to increase the number of permitted flights to up to 120,000 per annum (since when of course the Secretary of State has now allowed a planning appeal for expansion of the airport in a decision letter dated 27 July 2016).

RSPB and Lydd Airport Action Group v Secretary of State and London Ashford Lydd Airport  (Ouseley J, 16 May 2014) – unsuccessful challenges to the Secretary of State’s 2013 decision to allow a planning appeal for expansion of London Ashford Airport at Lydd. 

– R (Barraud) v CAA (2015), an unsuccessful challenge by campaign group Gatwick Absolutely NOT, again advised by John Steel QC, to the Civil Aviation Authority’s decision to implement airspace changes, on the basis of lack of consultation, referred to in a 39 Essex chambers update, where an appeal to the Court of Appeal appears to be in abeyance according to the campaign group’s website.

 This list should be depressing for all of us. From one perspective, these cases, largely unsuccessful in achieving anything but delaying projects (and perhaps unnecessarily raising the hopes of those asked to crowdfund the appointed lawyers) demonstrate the dead hand of the judicial review process on controversial decision and projects. How can we make progress with any real pace when political sclerosis is then followed by years of public law litigation? On the other hand, how can we balance economic, environmental and transportation priorities in a way that does not lead to entrenched opposition and allegations of inconsistency? And, taboo question, are some projects so huge and so political that the unwritten legal burden of proof on the part of a claimant becomes almost impossibly high? Establishment of the Davies Commission was a valiant attempt to de-politicise what was always going to be a controversial process. Unfortunately we are back where we always were: mired in politics, lawyers at hand. 

Simon Ricketts 15.10.16
Personal views, et cetera