CASE LAW UPDATE

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CASE LAW UPDATE

• PLANNING
• ENVIRONMENT LAW
• HARRIET TOWNSEND
• 2-3 GRAYS INN SQUARE

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Subjects

• Planning
• Plan making
• Designation of National Park
• Local authority decision making
• Consistency in decision making
• Enforcement
• EIA
• It can happen
• Environment
• Waste disposal
• Contaminated land
• The Energy Review consultation

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Plan making

• Wimpey v Tewkesbury BC
• 2007 EWHC 628 (Admin) Williams J
• Plan quashed in part.
• Wimpey argued the Council should exclude two
  housing sites unrealistic to expect development
  within plan period.
• The Council failed to deal with the substance of
  the objection. Held Wednesbury unreasonable.
• NB 51, 66-68 and 70.
• Cummings v Weymouth and Portland DC
• 2007 EWHC 1601 (Admin) HHJ Hickinbottom
• Plan quashed in part
• Claimant objector sought an allocation for
  housing. Objector had assumed drainage of
  objection site not an issue. Councils evidence
  raised it as an issue. Rebuttal evidence
  presented at inquiry not admitted by Inspector.
  Held procedure judged as a whole unfair.
• NB 47-53.

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Designation of National Park

• Meyrick Estate Management v SoSEFRA
• 2007 EWCA Civ 53 JPL 1187 Env LR 26 Chadwick
  LJ ( Wall Lloyd LLJ)
• M managed an estate within the New Forest no
  public access permitted.
• Designation of estate as National Park quashed by
  J. Appeal by SoS dismissed.
• Held Inspector had given too wide a meaning to
  s5(2) of 1949 Act the opportunities they afford
  for open air recreation. These could include
  opportunities in the future but on the facts the
  Inspector had posed himself too loose a test.
• NB 22, 24, 34-35, 40-45.
• Implications of judgment and subsequent
  legislation in NERC 2006 for designation of the
  South Downs National Park ongoing DEFRA
  consultation closed 24-9-07. Inquiry may be
  re-opened

5
Local authority decision making

• R(Ware) v Neath Port Talbot DC and National Grid
• 2007 EWHC 913 JPL 1615 Collins J
• Bias councillors should not be inhibited from
  carrying out their duties by over cautious advice
  on the question of pre-determination. It is
  irrelevant that third parties may complain
  whether to ombudsman or by jr.
• NB 32-34, 43-47.
• R(Mid-Counties Co-op) v Forest of Dean DC and
  Santon Group
• 2007 EWHC 1714 (Admin) 30 EG 133 (CS) Collins
  J
• GDPO Article 22 - Adequacy of reasons for the
  grant of planning permission
• The purpose for giving reasons is to enable an
  interested person to see whether there might be
  grounds to challenge the decision.
• NB 28-30
• Springhall v LB Richmond upon Thames
• 2006 EWCA Civ 19 Auld LJ ( Moore-Bick and
  Peter Gibson LJJ)
• Planning permission granted under delegated
  powers not quashed by Richards J, appeal
  dismissed.
• Scope of ratio of Carlton-Conway considered and
  not extended to the present case - 29-35.

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Consistency in decision making

• Dunster Properties v FSS
• 2007 EWCA Civ 236 Lloyd LJ ( Chadwick LJ,
  Stanley Burnton J)
• 2 different proposals to extend first floor of
  residential premises in CA refused permission,
  appeals dismissed.
• Second Inspector differed from opinion of first
  Inspector over an essential aspect of the
  appellants case.
• Appeal allowed, quashing Inspectors decision for
  lack of reasons.
• NB 13, 17, 21
• Oxford City v SSCLG and One Folly Bridge Ltd
• 2007 EWHC 769 (admin) G Bartlett QC
• An Inspector allowed an enforcement notice appeal
  and granted pp for use of a pontoon as a
  restaurant. The main issue concerned noise and
  disturbance. A WR decision had the year before
  refused permission for similar development on
  these grounds.
• Recognised care needs to be given in addressing
  the conclusions of a previous Inspector but came
  to the view sufficient consideration to the
  decision and adequate reasons were given.
• NB 27-28, 37-38
• Challenge to an enforcement appeal decision
  should be brought under s289 and s288.

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Enforcement

• FSS v Arun DC and Brown
• 2006 EWCA Civ 1172 2007 1 WLR 523 Auld LJ (
  Sedley, Carnwarth LLJ)
• narrow but important point of construction
  time limit in s171B to enforce against a change
  to use as a single dwellinghouse.
• It is 4 years even if it involves a breach of
  condition eg 49.
• Romer v FSS and Haringey LBC
• 2006 EWHC 3480 (Admin) HHJ Gilbart QC 2007
  JPL 1354
• Second bite enforcement pragmatic approach to
  whether a notice was issued against the same
  development where the earlier notice covered a
  different (neighbouring) site.
• Grendon v SCLG
• 2007 EWCA Civ 746 Chadwick LJ (Thomas LJ). See
  references in Sept Encyc Planning Bulletin!
• Arose from CLU application claiming lawful use of
  Hermits Corner. Renewed (oral) application for
  leave to appeal to CA from decision McCombe J.
• Inspectors decision that must look at physical
  attributes of a building to assess whether it is
  capable of being used as a single dwelling house
  and that Hermits Corner was not capable of being
  so used upheld.
• Wilson v Wychavon DC and SSCLG
• 2007 EWCA Civ 52 JPL 1158 Richards LJ and
  Moses LJ ( Sir Anthony Clark MR)
• An important decision on the exemption given the
  use of a building as a dwelling house from the
  service of a s183 stop notice. There is no such
  exemption for residential use of caravans.
  Analysis of Articles 8 and 14 of the ECHR found
  the reasons for conferring the exemption to be
  cogent.

8
EIA

• R (Catt) v Brighton and Hove CC and Brighton and
  Hove Albion Football Club
• 2007 EWCA Civ 298 JPL 1517 Pill LJ
• Screening opinion held to be lawful
• Distinguishes and applies Gillespie to different
  effect on the particular facts not obliged to
  shut eyes to remedial measures submitted as part
  of the planning proposal. No generalised guidance
  as to when and to what extent it is legitimate to
  do so.
• NB 31-37
• Applied Burkett to screening opinions may await
  grant of planning permission before challenge.
• R (Horner) v Lancashire CC and Castle Cement
• 2007 EWCA Civ 784 Auld LJ ( Sedley and Hughes
  LLJ)
• No screening process undertaken was it Schedule
  2 development?
• This raised questions of law on EIA Regs and, in
  particular the thresholds in Schedule 2 which
  refer to floorspace 23-25 41-47.
• What is the role of BPEO principles in the
  planning process?
• Derbyshire Waste applied. They may be an
  important material consideration but a challenge
  to the grant of pp in reliance on them needs to
  show Wednesbury irrational. 76-79
• Challenge failed

9
It can happen

• North Wiltshire DC v SSCLG
• 2007 EWHC 886 HHJ Gilbart QC
• S38(6) the need for affordable housing
  outweighed conflict with development plan.
• Challenge to decision unsuccessful.
• MM(Land) Ltd v SSCLG
• 2007 EWHC 489 (Admin) HHJ Mole QC
• It is possible to abandon a use sanctioned by
  CLU.

10
Waste disposal

• R(Anti waste) v Environment Agency
• 2007 EWHC 717 (Admin) JPL 1585 Collins J
• EA refused permits to deposit waste in landfill
  sites in Norfolk. Reason overlaid closed cells.
• Held piggybacking can be lawful but not if
  theres a serious risk the new deposit will cause
  pollution from the old cell which lies beneath.
• Meaning of site need not include the closed
  cell beneath.
• R(OSS Group LTD) v EA and DEFRA
• 2007 EWCA Civ 611 JPL 1597 Carnwarth LJ ( MR
  and Kay LJ)
• OSS converted waste lubricating and fuel oil and
  converted it into marketable fuel oil.
• When does material it is acknowledged is waste
  cease to be waste? A search for logical
  coherence in the Luxembourg case law is probably
  doomed to failure. However both EAs and SoSs
  formulation of end of waste test too narrow but
  refused to provide a working test of its own.

11
Contaminated land

• R (National Grid formerly Transco) v
  Environment Agency
• 2007 UKHL 30 (leapfrog appeal from HC) Lords
  Hoffmann, Scott, Walker, Mance, Neuberger
• Land under houses contaminated by coal tar
  deposited by uncertain predecessor to Transco.
• Transco not polluter nor owner of land.
• EA had been successful before Forbes J on basis
  person should include all those who become by
  statute successor to the liabilities of a
  polluter. This is an impossible construction
  per Hoffmann 20.
• It involves redefining rather than interpreting
  the statutory words per Neuberger 36
• No ambiguity in the language justifying reference
  to Hansard.

12
Energy Review

• Greenpeace v SoSTI
• 2007 EWHC 311 (Admin) JPL 1314 Env LR 27
  Sullivan J
• Consultation over Energy Review unlawful.
• Response of Government further consultation in
  parallel with Energy White Paper 2007
• Consultation period May October 2007.