CASE LAW UPDATE

1. CASE LAW UPDATE PLANNING + ENVIRONMENT LAW HARRIET TOWNSEND 2-3 GRAY’S INN SQUARE

2. 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

3. 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. Council’s 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.

4. 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.

6. 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 appellant’s case. • Appeal allowed, quashing Inspector’s 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.

7. 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. • Inspector’s 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 Gillespieto 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. M&M(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 there’s 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 EA’s and SoS’s 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 SoST&I • [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.