Case Note: R (SAVE Britain s Heritage and the Victorian Society) v Sheffield City Council and the University of Sheffield.

Transcription

1 JULY 2013 Planning, Environment & Property Law Newsletter Welcome to the July edition of the Thirty Nine Essex Street Planning, Environmental and Property law newsletter. It has been another busy month for Chambers, and we were delighted to achieve 23 rankings in the recently announced annual Planning Magazine survey of planning lawyers. Chambers is now the third-placed planning set in the country. The members of Thirty Nine Essex Street listed include: Silks: Richard Harwood QC, Tom Hill QC, Gordon Nardell QC, William Norris QC, John Steel QC, James Strachan QC, Stephen Tromans QC and Peter Village QC Juniors: James Burton, Martin Edwards, Simon Edwards, John Pugh-Smith, Andrew Tabachnik, Justine Thornton, Richard Wald and Christiaan Zwart Juniors under 35: Caroline Allen, Catherine Dobson, Rose Grogan, Ned Helme, Philippa Jackson and Daniel Stedman-Jones. Case Note: R (SAVE Britain s Heritage and the Victorian Society) v Sheffield City Council and the University of Sheffield. Members of Thirty Nine Essex Street have been busy this month with 5 barristers from chambers appearing in the High Court and Court of Appeal in a controversial case about the demolition of a listed building. The case concerned a judicial review challenge to listed building consent granted for the demolition of the grade II listed Edwardian Wing of the Former Jessop Hospital in Sheffield to make way for a landmark new engineering faculty building at the University of Sheffield. The challenge was based on an alleged misinterpretation of paragraph 133 of the NPPF (following the Supreme Court decision in Tesco Stores v Dundee City Council [2012] UKSC 13) and on an alleged failure to take into account material obtained by a Freedom of Information Act Request which showed that the planning officers had differing views as to the merits of the scheme. The case is also of interest because the Claimants applied for a Protective Costs Order and an interim injunction on the basis that the claim was an Aarhus claim and so the automatic costs cap and new rules on crossundertakings in damages should apply. The central challenge was the Claimants allegation that the Defendant had misinterpreted paragraph 133 of the NPPF, which states that: where a proposed development will lead to substantial harm to or total loss of significance of a designated heritage asset, local planning authorities should refuse consent, unless it can be demonstrated that the

2 substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss The Claimant argued that the correct interpretation of this passage meant that the Council should not have considered the substantial public benefits for the whole scheme in its analysis under paragraph 133, but instead that it should have only considered the substantial public benefits which were achievable only by demolition. The Council should have considered whether the public benefits of the demolition scheme were so much greater than the public benefits which could have been achieved by a scheme which retained the listed building or its façade so as to justify demolition. In the High Court on 27 th June 2013, Supperstone J dismissed the claim on both grounds. In relation to the NPPF challenge, he held that the Officer s report was not misleading in its analysis under paragraph 133 of the NPPF but he did not directly address the question of interpretation. Aarhus) and so the question was whether it fell under article 9(3) as a challenge to an act or omission which contravened the provisions of national law relating to the environment. At first instance, Supperstone J refused the Claimants application for a PCO on the papers on the grounds that (i) article 9(3) is concerned with acts and omissions by public authorities, not decisions and (ii) the claim did not engage national law relating to the environment. The parties subsequently agreed interim costs positions in the High Court and Court of Appeal so the issue was not debated. However, it is an interesting and important point for another day and is likely to come before the court again in the near future. Richard Harwood QC appeared for the Claimants, Peter Village QC, James Strachan QC and Rose Grogan appeared for the University of Sheffield and Stephen Tromans QC appeared on behalf of Balfour Beatty Construction Limited. The Claimants appealed on the NPPF issue only and permission was refused on the papers on 3 rd July. An urgent oral renewal hearing took place on 4 th July. The Court of Appeal (Sir David Keene and Longmore LJ) held that the officers had in fact addressed the extent of the benefits by complete or partial demolition or retention of the building. Sir David Keene held that the conclusion in the Officers Report was par excellence a matter of planning judgment. The case also raised the issue of the scope of article 9 of the Aarhus Convention in planning cases, and therefore the scope of the new costs capping rules under the CPR. This case did not raise any EIA grounds of challenge (and so did not fall under article 9(2) of 2

3 A Quiet Revolution John Pugh-Smith In this month s Newsletter John Pugh- Smith looks at the quiet revolution that is gathering pace in the legislation and other initiatives affecting the variation of Section 106 obligations as the Coalition Government encourages a more pro-active approach towards stalled development. Since 25 th November 1991 Section 106A of the Town and Country Planning Act 1990 has provided for the modification or discharge of planning obligations upon application. Applications to the relevant local planning authority can be made by any person against whom an obligation is enforceable (which would include the successors in title to the original parties to the planning obligation). However, the scope for modification/ discharge has remained limited as the local planning authority may only determine that a modification or discharge should be allowed if either the specific obligation no longer serves a useful purpose, in which event it can be discharged, or, even though the obligation still serves a useful purpose, it can continue to serve that purpose just as well with the modification sought. Accordingly, a broad renegotiation of the planning obligation has never, generally, been achievable although a change in planning circumstances may have rendered certain obligations redundant and therefore suitable for removal. Moreover, under Section 106A, unless agreed by the local planning authority, applicants have had to wait until their Section 106 planning obligation was 5 years old before they could can apply. Although there is a right to appeal unsuccessful applications under Section 106B few appeals have been successful, mainly due to the wide ambit of the useful planning purpose test. Furthermore, on 6th July 2011, in Millgate Development Limited v Wokingham Borough Council [2011] EWCA Civ 1062 the Court of Appeal re-stated the hard-line approach that the law took to planning obligations within that first five year period under Section 106A(1) (a), that they are enforceable as a contract; so unless the local planning authority are prepared to agree a change the covenator is stuck with the terms. There, Millgate s written representations appeal for a small residential development had been allowed but with the Inspector finding that as the Council s requested contributions for off-site leisure, library, education and highways did not meet the test of necessity he attached little weight to Millgate s submitted Undertakings. It should be noted that the Council had simply not submitted evidence in support. Furthermore, the Undertakings had not been made conditional upon the Inspector s findings. Following Millgate s request for the Undertakings to be discharged the Council decided to enforce full compliance. Following the issue of judicial review proceedings it emerged from the Council s evidence that it could no longer justify all the contributions sought as being necessary despite a requirement so to do under the relevant development plan policies. However, the Council had belatedly asserted that it would make a refund of any overpayments. Holding that the exercise under s.106a(1)(a) of the Town & Country Planning Act 1990 did not engage the statutory presumption under s.38(6) of the Planning and Compulsory Purchase Act 2004 to revisit the development plan policy bases of necessity and reasonableness the Court of Appeal agreed with the first instance judge that the Council had needed only to show a useful planning purpose. As it still could that was sufficient and no more rigorous exercise was required. It would also still be open to Millgate, nonetheless, to raise whether the sum claimed under each head came within the 3

4 terms of the Undertaking as a partial defence in subsequent civil enforcement proceedings. Though hypothetical, as no sums had actually been paid, the Court also acknowledged that the Council s legal ability to refund any overpaid contributions and that this arose as a subsidiary power under section 111(1) of the Local Government Act However, a Government, anxious to unlocked stalled developments is now trying to soften this approach. First, came the announcement on 13 th August 2012 from the Secretary of State for Communities and Local Government of the release of a Consultation Paper on its proposals to give developers the option to ask councils to renegotiate s106 deals if they were agreed prior to April Secondly, was the setting up of a team of Section 106 brokers, teams of intermediaries that would offer a free-of-charge advice and support service to councils and developers to help kick-start the renegotiation of section 106 agreements. The Ministerial Statement explained that the Communities Secretary was concerned that too much development is being stalled because of economically unrealistic section 106 agreements negotiated between councils and developers at the height of the housing boom. The experts would provide technical expertise to unlock negotiations, act as go-betweens in disputes and would offer access to a range of support services. This initiative led, last Autumn, to the formation of a panel of independent mediators, and, later to the appointment of a project administrator from the Homes and Communities Agency (HCA) and the invitation for submission projects. The HCA and mediator, in turn, can draw upon a panel of expert surveyors to provide valuation appraisal and advice. The first few projects are now underway and dialogues commenced with cautious optimism being expressed as to the ease with which the introduction of an externally funded neutral facilitator can kick start negotiations. Mediation practice and procedure is set out in a Short Guide, endorsed in June 2011 by the (then) Planning Minister, Bob Neill MP, produced by the National Planning Forum ( html) following the completion of its own research project. The Government s response to its Consultation Paper (Renegotiation of Section 106 planning obligations) then led to Town and Country Planning (Modification and Discharge of Planning Obligations) (Amendment) (England) Regulations 2013 which came into operation on 28 th March These Regulations now enable an application under section 106A(1) of the Town and Country Planning Act 1990 (and a subsequent appeal under section 106B) for modification or discharge of a planning obligation dated before 7 th April This change does not affect any planning obligations where the five year period has already expired (which can already be the subject of an application for modification or discharge) or any planning obligations entered into after 6 th April 2010, which will still not be able to be modified or discharged other than by agreement with the local planning authority for a period of five years from the date of the obligation. The cutoff date of 6 th April 2010 reflects the date on which the Community Infrastructure Levy Regulations 2010 came into force, in which Regulation 122 placed on statutory footing the requirement that (from that date onwards) any planning obligations sought by a local planning authority in consideration of the grant of planning permission must be necessary to make the development acceptable in planning terms, directly related 4

5 to the development fairly and reasonably related in scale and kind to the development Further, from 25 th June 2013 until 30 th April 2016, there is the ability to vary affordable housing obligations which, by Section 7 and Schedule 2 of the Growth and Infrastructure Act 2013,have inserted new Sections 106BA, BB and BC into the 1990 Act. These sections introduce a new application and appeal procedure solely for the modification or discharge of planning obligations which relate to the provision of affordable housing on the basis of economic viability. The modified planning obligation must contain provision to ensure that if development is to continue past that time, there will be a reversion to the original affordable housing requirements i.e. those contained in the planning obligation before the first application under section 106BA was made in relation to it. The variation must be to the original requirements to ensure that they will not apply to that part of the development that is commenced in the three year period, and may make such variations as are necessary to ensure their effectiveness. An explanatory guide published by the Department for Communities and Local Government, Section 106 affordable housing requirements review and appeal (April 2013, provides further guidance, including on the presentation and form of appraisal material. land, conflicting policy objectives and rival public and private interests and expectations if resolution through dialogue can continue to be encouraged then, truly, a quiet revolution in our planning process will have started to take place. John Pugh-Smith is one of the DCLG s section 106 brokers. He is currently involved with over-seeing in one of the projects as the appointed mediator. John has been and remains a member of the National Planning Forum s Mediation in Planning Working Party. He represented Millgate Developments in its protracted judicial review proceedings against Wokingham Borough Council. He is also a Design Council Cabe Built Environment Expert. Whether, taken together, these initiatives will deliver, and, in time the level of growth required to win at the polls in May 2015 has yet to be seen. Certainly, it will be determined not just by the willingness and ability of local planning authorities to negotiate but also the realism of developers and funders to respond positively and with the appropriate information for truly informed judgments to be made by all concerned. However, whilst disagreement and conflict are inherent within a process that has to address competing demands on 5

6 Dawes Hill Paul Stinchcombe QC appeared on behalf of the Daws Hill Neighbourhood Forum in R (Daws Hill Neighbourhood Forum) v Wycombe District Council and others [2013] EWHC 513 (Admin), the first legal challenge made under the neighbourhood planning provisions of the Localism Act The case concerned the proper interpretation of section 61G(5) of the Town and Country Planning Act 1990, inserted into the 1990 Act by Schedule 9 of the 2011 Act. In particular, section 61G(5)(c) contemplates the possibility of a Council deciding that an area specified in an application for designation as a Neighbourhood Area is not an appropriate area to be so designated. The question, however, was for what purposes could a Council so decide and, in particular, whether a Council could lawfully decide to exclude from a designated Neighbourhood Area all of the important development sites within the locality, precisely because they were important development sites? Mr Justice Supperstone held that a Council could so decide, finding as follows: (1) the discretion vested by section 61G(5) in Local Authorities to decide what is an appropriate area to be designated as a Neighbourhood Area was a broad one not a narrow one; within the breadth of this discretion, Local Authorities were entitled to take into account the policy and factual matrix that existed at the time of decision so as to exclude strategic development sites from a Neighbourhood Area; and that Local Authorities were entitled to disregard the character of the locality, so as to be able lawfully to sever strategic development sites from the Neighbourhood Area even if they were of the same character as the Neighbourhood Area. The implications of Mr Justice Supperstone s Judgment for the future of Neighbourhood Planning are clearly profound. In particular, if it is right that a Council is vested with a discretion under section 61G(5) of the Town and Country Planning Act 1990 as wide as Mr Justice Supperstone found it to be, it would appear to be open to any Council to refuse to include any development site in any Neighbourhood Area for a very large number of potential reasons, subject only to a potential challenge on the grounds of Wednesbury unreasonableness. That would place Councils, rather than Neighborhood Forums, in the driving seat of Neighbourhood Planning and empower them to prevent Neighbourhood Forums from seeking to promulgate Neighbourhood Development Plans or Neighbourhood Development Orders over any sites in respect of which the Council wanted exclusive control. The Neighbourhood Forum has been granted permission to appeal under cover of a Protected Costs Order. The appeal is listed to take place in early Project splitting in the Court of Appeal Justine Thornton and Ned Helme appear. May 2013 Justine Thornton and Ned Helme appeared in the Court of Appeal in the case of R (Burridge) v Breckland DC [2013] EWCA Civ 228 which considers the issue of project splitting in the Environmental Impact Assessment Regime. Splitting projects thereby avoiding EIA requirements is prohibited by the EIA Directive. This has presented problems for the domestic EIA regime because the Town and Country 6

7 Planning (Environmental Impact Assessment) Regulations 2011 focus on particular planning applications as opposed to the broader concept of the project. The Court of Appeal has now confirmed that the domestic Regulations must be construed in light of the purpose of the Directive s focus on projects and this could require several planning applications to be screened together. Having found that the planning permissions in question had been granted in breach of the Regulations, the Court was divided on how it should exercise its discretion. Pill LJ held that the permissions should be quashed but Davis LJ and Warren J declined to quash them, given the unusual circumstances of the case. The Appellant is seeking permission to appeal from the Supreme Court as to the principles on which the judiciary should exercise their discretion in EIA cases. EIA and mitigation measures Paul Stinchcombe QC and Richard Harwood QC appeared in R (Karen Treagus) v. Suffolk County Council (and Others) [2013] EWHC 950 (Admin). The case concerned, inter alia, the Council s decision to issue a negative EIA screening decision in respect of an anaerobic digestion plant, for which the Council thereafter granted planning permission, upon the basis of the Environment Agency s consultation response that best available techniques would prevent significant environmental effects from occurring. The question was whether the Council could lawfully so decide without those techniques having been identified. Lord Carlile of Berriew QC, sitting as a deputy, held that the Council had acted lawfully, being reasonably entitled to rely upon the advice of the Environment Agency, a statutory consultee. 7

8 CONTRIBUTORS Paul Stinchcombe QC has built up a substantial practice in planning, public and environmental law before becoming an MP in When in the House of Commons Paul served on the Home Affairs Select Committee, the Joint Committee on Human Rights, and the Joint Committee on House of Lords Reform. Since returning to the Bar in May 2005, Paul rapidly re-built his practice and was elevated to Queen s Counsel within 6 years. Paul s recent cases include resisting major infrastructure proposals, promoting large-scale development, leading planning, local government and human rights cases, and multi-million pound compensation claims. View full CV at John Pugh-Smith, MA, FSA, CEDR Accredited Mediator, practises in the fields of planning and environmental law with related local government and parliamentary work for both the private and public sectors. Much of his work is project and appeal related with a particular workload at present in strategic and retirement housing developments. He is the originating author and editor of Neighbours and the Law (now at 5th edition, 2009) co-author of Archaeology in Law, a General Editor of Shackleton on the Law of Meetings (now at 12th edition, 2011), joint editor of Property, Planning and Compensation Reports (all published by Sweet & Maxwell) and a General Editor and chapter author of Environmental Law (for Oxford University Press) (now at 2nd edition, 2009). John also practises as a mediator in a wider range of areas. He is a committee member of the Bar Council s ADRC and a founding member of the Planning Mediation Group of the RICS. He has been and remains extensively involved in variousinitiatives to use mediation to resolve a wider range of pu blic law issues including as one of the mediator on the DCLG/HCA s joint panel of Section 106 brokers. He is also one of the Design Council/Cabe s Built Environment Experts. View full CV at Caroline Allen regularly appears at inquiries and hearings on behalf of developers, local authorities and objectors in relation to a wide range of planning matters including waste, compulsory purchase, highways and green belt development. Recent cases include Smout v (1) Welsh Ministers (2) Wrexham CBC [2011] EWCA Civ 1750 with Richard Harwood. View full CV at Catherine Dobson has experience of planning inquiries on a range of matters, including several inquiries into the grant of permission to construct wind farms. Whilst assisting her pupil supervisor, Richard Wald, Catherine gained particular knowledge of the regulatory regime governing waste storage and disposal, including prosecutions for offences under the Environmental Protection Act. Catherine was recently instructed to challenge a decision to grant planning permission for the construction of a residential development in Southwark. She also recently assisted in a case concerning the status of the Coalition Government s proposal to introduce a presumption in favour of sustainable development as a material consideration for the purposes of section 70 of the Town and Country Planning Act View full CV at Rose Grogan has experience of a wide range of environmental and planning matters. Rose s experience includes judicial review, planning inquiries and criminal matters in the planning sphere and under the Environmental Protection Act She has also been involved in compulsory purchase appeals and compensation claims, including an appeal to the Supreme Court. She recently acted as junior counsel to Peter Village QC and James Strachan QC in a judicial review claim concerning the demolition of a listed building. She has also been instructed in judicial review claims and statutory appeals in the planning sphere for claimants and defendants in matters spanning consultation issues, flooding policy and Environmental Impact Assessment. Rose also recently acted for a rule 6 party in a 3 week planning inquiry concerning the change of use of a grade II* listed former cinema. View full CV at David Barnes Chief Executive and Director of Clerking Michael Kaplan Senior Clerk david.barnes@39essex.com michael.kaplan@39essex.com Alastair Davidson Senior Clerk Andrew Poyser Practice Manager alastair.davidson@39essex.com andrew.poyser@39essex.com For further details on Chambers please visit our website: London 39 Essex Street, London WC2R 3AT Tel: +44 (0) Fax: +44 (0) Manchester 82 King Street, Manchester M2 4WQ Tel: +44 (0) Fax: +44 (0) Singapore Maxwell Chambers, 32 Maxwell Road, #02-16, Singapore Tel: +(65) Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number 0C360005) with its registered office at 39 Essex Street, London WC2R 3AT. Thirty Nine Essex Street s members provide legal and advocacy services as independent, self-employed barristers and no entity connected with Thirty Nine Essex Street provides any legal services. Thirty Nine Essex Street (Services) Limited manages the administrative, operational and support functions of Chambers and is a company incorporated in England and Wales (company number ) with its registered office at 39 Essex Street, London WC2R 3AT. 8