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1 Lawyers to the planning & environment industry environment Autumn 2003 contents Town & Country Planning 2 Waste 11 Management Environment 16 Policy Water 18 Miscellaneous 19 We present with our compliments the 49th Edition of the Environment Bulletin which we hope that readers will find helpful and interesting. Quarterly Review In this edition of the Bulletin, we draw particular attention to planning and environmental measures contained in this year's Budget. We highlight two cases which have emphasised the importance of satisfying preconditions before implementing planning permissions, as well as further case law on the topic of environmental impact assessment. We also report on guidance issued by the Environment Agency to assist applicants for pollution prevention and control permits under the Landfill Directive. On a general note, the Planning and Compensation Bill has been returned to Standing Committee in the House of Commons, following the decision to end Crown immunity to planning control. The Bill will now be carried over into the next Parliamentary Session and Royal Assent is expected some time in Also hot off the press is the publication of a report by Professor Richard McCrory of UCL into the need for a separate environmental court or tribunal. We wait to see how DEFRA takes this proposal forward.

2 environment Town & County Planning Consultation on the effects of mineral working The Office of the Deputy Prime Minister (ODPM) has published for consultation a revised draft of its Minerals Policy Statement 2, entitled "Controlling and mitigating the environmental effects of mineral working". The document sets out the principles that should be followed by mineral planning authorities (MPAs) both in preparing development plans and in considering applications for minerals development. In drawing up development plans, MPAs should consider the impacts of mineral working on local residents, the landscape, ecology and wildlife. Methods of controlling the impacts through planning conditions and agreements should be considered. Environmental impact assessments are highlighted as the best means of ensuring that the likely significant environmental effects of a proposed development are identified. The statement also expands on the need for community consultation, and environmental management systems. The two annexes to the statement consider the issues caused by dust and noise. It is intended that this statement will bring together guidance that is currently contained in various mineral planning guidance notes notably MPG11 on noise, and reports on good practice. The ODPM predicts that the adoption and implementation of the statement will have limited cost implications for MPAs and the industry as the environmental impacts of mineral workings are reduced. Environmental impact assessments are... the best means of ensuring that the... environmental effects of a development are identified. Consultation paper on the use of broadband communications in planning The Office of the Deputy Prime Minister has published a consultation paper to consider whether planning regulations should be revised to facilitate the use of broadband communications. "Satellite Dishes and Other Antennas: Consultation on Possible Changes to Planning Regulations" states that currently the provisions of the General Permitted Development Order are in place to protect the environment from large and poorly sited satellite dishes. The ODPM wishes to retain this level of protection. However, the equipment used to deliver broadband services does not fall within the existing permitted development rights for satellite dishes. The consultation paper looks at whether the existing provisions are still appropriate, and also whether permitted development rights should be applied to different types of equipment. Given that the concern of the planning system should be the impact such equipment will have on the environment, the consultation paper considers whether the General Permitted Development Order should allow for the erection of a variety of equipment subject to limits and conditions. The ODPM has also published a similar consultation paper on the question of whether building regulations should be amended to aid the uptake of broadband services. Please contact the Planning and Environment Group for more information. 2

3 Autumn 2003 Prescription of county matters - new regulations The responsibility for dealing with certain planning applications is exceptionally assigned to county councils. The development in question primarily relates to the exploitation of minerals and the like. The full list is set out in Schedule 1 to the Town and Country Planning Act However, there are supplementary regulations which extend the list to other forms of development, namely waste management. These developments are known as "county matters". The list of waste county matters has hitherto been regulated under the Town and Country Planning (Prescription of County Matters) Regulations 1980 but with effect from 28 April 2003, the list has been modified and replaced by the Town and Country Planning (Prescription of County Matters) (England) Regulations 2003 (SI 2003 No 1033). The effect of the new regulations is to expand the descriptions of waste management development, so as to bring those descriptions up to date. The emphasis in the 1980 Regulations was on disposal of waste but activities such as recovery now appear in the list. North West - regional planning guidance published The ODPM has recently published, "Regional Planning Guidance for the North West (RPG 13)". The guidance replaces that which was published in Interestingly, the RPG is introduced as "a regional spatial strategy" (now we know what this is!). Local authorities development plans and local transport plans will be required to be prepared within its context. Key elements of the RPG include: urban renaissance and greater levels of social inclusion, taking into account the decline of many traditional manufacturing and related industries in the region. A first class infrastructure together with quality workforce and transport infrastructure is called for; emphasis is to be placed on the older industrial towns in the region, particularly Greater Manchester and Merseyside; the guidance concentrates on dealing with dereliction, improving errant water quality, managing the fabric of the urban estate and sensitive rural landscapes and the protection of wildlife and the environment generally; the focus for development will be Liverpool and Manchester along with Birkenhead, St Helens, Southport, Ashton under Lyne, Bolton, Bury, Oldham, Rochdale, Stockport and Wigan; a strategic study to consider substantial change to greenbelt is called for. Enforcement notice timescales for partly completed houses - House of Lords judgment As is well known, a breach of planning control involving the establishment or modification of a dwelling house will normally be immune from enforcement after a period of four years. However, the position is different where the dwelling house has only partially been completed. The matter was considered recently by the House of Lords in the case of Sage v Secretary of State & Anor [10 April 2003]. The facts were that an enforcement notice had been served by the Council in 1999 alleging that a dwelling house had been partially erected in 1994 without permission. On appeal to the Secretary of State it was argued that the enforcement notice was out of time in that it had been served outside the four year limit. The appeal was dismissed, the inspector finding that although no further work had been carried out to the building during the four years before the notice, the house remained unfinished and therefore the notice was not out of time. An appeal by Mr Sage to the High Court was successful and that judgment was upheld by the Court of Appeal who held that completion of the building did not need planning permission since it was development within the exception provided for by Section 55 of the 1990 Act. The House of Lords overturned the decision, supporting the planning inspector. They held that the work carried out by way of completing an 3

4 environment continued from p.3 Guidance issued on Regional Spatial Strategies incomplete building would not qualify within the Section 55 exception. The breach of planning control continued all the time that the building was partially completed. Thus, the enforcement notice had not been served out of time. The guidance lists those steps which regional planning bodies should be starting to take now. The Office of the Deputy Prime Minister (ODPM) has published guidance to supplement Planning Policy Guidance PPG11, Regional Planning following the introduction of the new Planning and Compulsory Purchase Bill in December 2002 (which we reported in the last two editions of the Bulletin, Issues 47 and 48). This interim guidance aims to assist regional planning bodies in preparing regional spatial strategies. A revised version of PPG11 will be published later this year. The guidance lists those steps which regional planning bodies should be starting to take now. These include defining areas which may require a sub-regional approach, discussions with other planning authorities and stakeholders as to the way in which regional spatial strategies should be revised and the production of a timetable for the review of regional guidance and strategy. The guidance advises as to style and content of strategies, together with the level of stakeholder involvement required and the need for coordination with other strategies. Mechanisms for delivering the strategies as well as monitoring and implementing them are also outlined. Budget Planning Matters In this year's Budget, the Chancellor Gordon Brown announced three housing-related reviews to help improve both housing supply and mortgage finance in the UK. The Government recognises that key changes will be required in the planning, supply and finance of housing, in light of market failures. In addition, it is accepted that the responsiveness of supply to demand must be increased, and the new Regional Spatial Strategies will need to take account of changes in the housing market. The first review will consider current housing supply in the UK and the issues affecting supply such as competition within, and finance for, the house-building industry, the role of the planning system and sustainable development objectives. Possible areas of Government action are to be identified, including the use of fiscal instruments. The second review will cover the UK fixed rate mortgage market, in particular why this is not particularly popular compared to other European countries and the USA. The third review has been asked to develop a skills and training strategy in an attempt to promote culture change within the planning system, and to remove the reputation of the UK planning system as reactive and regulatory. This review will be based on the Royal Town Planning Institute's own recent structure and education review. 4

5 Autumn 2003 "Significant part" of a listed building - useful case The High Court has recently ruled that the reference to a "significant part" of a listed building in Planning Policy Guidance Note PPG 15 is concerned with significance in terms of quality rather than volume or proportion. In R (on the application of Sullivan) v Warwick District Council, Mr Sullivan applied for judicial review of a grant of planning permission by Warwick District Council. This permission allowed for the demolition of the south wing of a Grade II listed building. Mr Sullivan argued that both the Council and the developer had wrongly interpreted paragraph 3.15A of PPG 15, which requires that alterations to a listed building which include demolition of a significant part of the building, should only be permitted, once the considerations set out in paragraph 3.19 of PPG 15 have been addressed. These considerations include the condition of the building and the cost of repairing and maintaining it in light of its importance and value, together with the merits of alternative proposals for the site. The High Court agreed that the Council had wrongly applied paragraph 3.15A of PPG 15. The correct interpretation was that consideration should have been given to the content of paragraph 3.19 if the part of a listed building which was to be demolished constituted a significant part of the building in terms of quality. The proportion of the part related to the listed building as a whole was not relevant. The Council's error would normally be fatal to the decision to grant permission. However the court held that even if paragraph 3.15A had been applied properly, the outcome would not have been different. The Court therefore dismissed Mr Sullivan's application. Listed buildings - further case law on the definition of curtilage A further case on the difficult question of the definition of the curtilage of a listed building has recently been decided. In Lowe v (1) First Secretary of State and (2) Tendring District Council, Mr Lowe appealed against a decision of the First Secretary of State by an inspector, under which he upheld an enforcement notice. Mr Lowe claimed that the enforcement notice should be quashed. Mr Lowe owned a Grade II listed building together with a barn, walled gardens and extensive parkland. The subject matter of the enforcement notice was a 1.8 metre high chain link fence which ran along the driveway for some 650 metres. The enforcement notice asserted that this fence had been erected without planning permission and should be removed. Whilst the erection of a fence would normally be permitted development under the General Permitted Development Order 1995, Tendring District Council had decided that this was not the case here, given that the erection of the fence involved development within the curtilage of a listed building. Mr Lowe claimed that the inspector had wrongly considered the curtilage issue. The inspector went further than simply considering whether the fence was within the curtilage of the building, but also looked at whether the fence was a means of surrounding a listed building and the reasons for erecting the fence. The Court, relying on the Court of Appeal decision in Dyer v Dorset County Council, held that the expression "curtilage" is a question of fact and degree. Whilst it is not restricted in size, it must fairly be described as forming part of the enclosure of which the house is part. Whilst this enclosure could include outbuildings and a garden, the court held that it could not possibly cover the whole of the parkland surrounding the house, nor the driveway along which the fence was erected. The inspector's decision was therefore found to be erroneous and was quashed. 5

6 environment Commencement of development before conditions are met is unlawful In the first of two cases reported in this edition of the Bulletin, we describe the courts' recent approach to development commenced before conditions are satisfied, and the response local planning authorities should adopt in dealing with such development. By way of a planning permission and listed building consent granted in 1997, approval was given for the construction of the East London Line, Northern Extension ("ELLX"). The permission had to be implemented by February In the case of R v London Underground Ltd and others ex parte Hammerton, Mr Hammerton sought judicial review of London Underground Limited's refusal to undertake that it would not proceed with the development of ELLX and the demolition of the Bishopsgate Goods Yard. Mr Hammerton claimed that the planning permission and listed building consent had lapsed, in that no material operations had been commenced within five years of the grant of planning permission, or alternatively that those operations which had been commenced were in breach of conditions attached to the permission and consent. Further, Mr Hammerton argued that the listing of parts of the Goods Yard in March 2002 precluded the demolition proposed in relation to other parts of the Goods Yard. The High Court agreed that a number of material operations had commenced within the five year period, and that one condition of the planning permission had not been complied with. On this basis the commencement of development was unlawful. The Court referred to the judgement of Woolf LJ in Whitley v Secretary of Wales (1992), where Woolf LJ held that it would be unlawful to take enforcement action to prevent development proceeding, if the works carried out were sufficient to commence development regardless of whether they were in breach of planning control. The Court took the view in Hammerton that whether enforcement action was reasonable depended upon whether the Bishopsgate Goods Yard was a single building or several structures, given that the Demolition Direction permitted demolition of entire buildings only and not parts of buildings. The court held that this decision was a decision for the planning authorities and not for the court. The court therefore simply made a declaration that the development had been commenced in breach of condition. 6

7 Autumn 2003 Development allowed to proceed despite lapsed planning permission The case of R (on the application of Prokopp) v London Underground Limited followed on from, and related to the same development as, the Hammerton case (which is reported above). The claimant sought an injunction to prevent London Underground Limited ("LUL") from starting to demolish the Bishopsgate Goods Yard. In addition the claimant sought judicial review against Hackney Council and Tower Hamlets Council, challenging their decision not to take enforcement action against LUL even though its planning permission had lapsed. Following the Hammerton decision, in which it was held that development had commenced without compliance with the conditions in the planning permission, the councils indicated they would not take enforcement action, provided that LUL entered into a section 106 agreement by which it consented to be bound by conditions reflecting those in the lapsed planning permission. When LUL sought to start work in reliance on this agreement, the claimant sought and was granted an interim injunction. In seeking judicial review of the councils' actions, the claimant argued that the development now needed a fresh planning permission, and this would require consideration of an environmental impact assessment (an "EIA"). Further, the claimant argued that the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 had not fully implemented the European Directive concerning EIAs, since the Directive permitted a failure to enforce to amount to a development consent which does not require an EIA. Mr Justice Collins allowed the claimant's application, and held that whilst as an individual, the claimant was entitled to obtain an interim injunction to prevent LUL taking irrevocable steps, the claimant could not obtain a permanent injunction. This was the responsibility of the planning authority who should take enforcement action. The judge held that a decision not to take enforcement action did amount to a development consent and it was lawful to allow development to proceed by way of such a decision together with a section 106 agreement containing conditions. However this did not remove the requirement for an EIA, if such was necessary under the Directive. Only where the Directive had been substantially complied with, would permission be granted without an EIA. In the circumstances, the judge acknowledged that an EIA had been carried out in 1993 and there had been limited changes to the nature of the development since then. In fact the only change had been that the viaduct had been listed. It was therefore open to the councils to decide that there had been substantial compliance and no EIA was necessary. However, the judge did hold that the councils had acted wrongly in making the decision not to take enforcement action before all the conditions necessary to deal with the listing and protection of the viaduct were in place. The claimant, LUL and the councils appealed against Mr Justice Collins' decision. The Court of Appeal held that a decision not to take enforcement action did not amount to a development consent within the definition contained in the Directive which would require an EIA. The councils were entitled to decide that it was not expedient to take enforcement action. Further, given that a listed building consent had been obtained in respect of part of the Goods Yard, it would be irrational for the councils to enforce in respect of other parts of the Goods Yard. The Court of Appeal held that such irrationality fell within the public law exception to the principle stated by Woolf LJ in the Whitley case. Therefore, enforcement action was not available in any event to prevent the continued development of ELLX. A decision not to take enforcement action did not amount to a development consent... which would require an EIA. For further information on environmental impact assessments, please contact the Planning and Environment Group 7

8 environment Further case law on the Environmental Impact Assessment Regulations The High Court has held that a procedural error on the part of the planning authority will not always affect the validity of the authority's decision as to whether it had received adequate environmental information to enable it to properly assess the environmental consequences of a planning proposal. The facts of R (on the application of Burkett) v Hammersmith and Fulham London Borough Council were that the Council had granted outline planning permission for a large mixeduse development on a 32 acre site in Fulham. The Council designated matters of design, external appearance and landscaping as reserved matters. The claimant sought judicial review of the grant of permission. She argued that by reserving these matters for later determination, the planning application had lacked the necessary information required before an environmental assessment could be made. Further she claimed that the environmental statement accompanying the planning application had not included a description of the development, nor had it assessed certain important matters. In addition, the Council had failed to include a statement in its decision to the effect that it had taken the environmental information into consideration as required by Regulation 4(2) of the Town and Country Planning (Environmental Impact Assessment) Regulations The court dismissed the claim, and held that it was for the planning authority in every individual case to decide whether the information provided with an application for outline consent was adequate, and provided sufficient detail of the environmental factors. The claimant's suggestion that design, external appearance and landscaping could never be reserved was disputed. The Council's failure to comply with Regulation 4(2) in making a statement to the effect that the environmental information had been considered, was an error but did not confirm that the relevant details had been ignored. The requirements of Regulation 4(2) had been substantially complied with and there was no prejudice caused to any interested party. Consideration of remedial measures in EIA screening decisions A recent court decision has established that local planning authorities will only need to take remedial measures into consideration in the context of an application for planning permission for development falling within the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the EIA Regulations") where these measures are extensive and their implementation is likely to be complicated. In the case of R (on the application of PPG11 Ltd) and Dorset County Council and Viridor Waste Management Limited (2003) an action group sought an order quashing the decision of Dorset County Council to grant planning permission to Viridor to use a partially working quarry as a landfill site for controlled waste. Viridor's application for planning permission had included an environmental statement and the permission granted included a condition prohibiting the felling of any trees, the clearance of any scrub vegetation and any landfilling before a further habitat survey had been carried out. The action group argued that this grant of planning permission was unlawful in that the requirements of the condition in question should have been carried out as part of the environmental impact assessment prior to the grant of planning permission. The court took the view that in making a screening decision, the extent to which a local planning authority would need to take remedial measures into account depended on the nature of the proposed measures. If these works were to be limited in scope and to be relatively simple to put in place a local planning authority could correctly make the decision that they had taken the proposed measures into account and the project would not have significant adverse effects on the environment. On the facts of the case the court held that expert evidence had indicated that the effects of the proposal on the ecology of the area would be limited and would in any case be met by satisfaction of the condition attached to the planning permission. The court therefore held that Dorset County Council had not taken an unlawful approach to applying the EIA Regulations and that the Council's resolution to grant planning permission was in order. 8

9 Autumn qüé=i~åçë=qêáäìå~ä=ü~ë=êéåéåíäó Éëí~ÄäáëÜÉÇ=íÜ~í=íç=Ü~îÉ=~=êáÖÜí=íç ÅçãéÉåë~íáçå=ìåÇÉê=pÉÅíáçå=NUS=çÑ íüé=qçïå=~åç=`çìåíêó=mä~ååáåö=^åí NVVM=E?íÜÉ=^Åí?F=áå=êÉëéÉÅí=çÑ=~=ëíçé åçíáåéi=çåé=ãìëí=äé=~å=çååìéáéê=çñ ä~åçk==^=êáöüí=íç=ìëé=ä~åç=ïáää=åçí ~ãçìåí=íç=çååìé~íáçå=ìåçéê=péåíáçå NUSI=áåëíÉ~Ç=íÜÉêÉ=ãìëí=ÄÉ=~=êáÖÜí=íç çååìéó=íüé=ä~åç=~åç=íüáë=êáöüí=ãìëí Å~êêó=ëìÑÑáÅáÉåí=éÉêã~åÉåÅÉ=~åÇ ÉñÅäìëáîáíóK== få=íüé=å~ëé=çñ fåíéêå~íáçå~ä=céêêó qê~çéêë=iáãáíéç=î=^çìê=aáëíêáåí=`çìååáä xommpz=fåíéêå~íáçå~ä=céêêó=qê~çéêë ëçìöüí=åçãééåë~íáçå=ìåçéê=péåíáçå NUSK==qÜÉ=`çìåÅáä=Ü~Ç=ëÉêîÉÇ=~=ëíçé åçíáåé=êéèìáêáåö=íüé=åä~áã~åí=íç=éåç=áíë ìëé=çñ=ä~åç=çïåéç=äó=íüé=püçêéü~ã mçêí=^ìíüçêáíó=ñçê=íüé=éìêéçëéë=çñ íê~åëéçêíáåö=äáîéëíçåâ=íç=cê~ååék==qüé Åä~áã~åí=ï~ë=ëç=ÉåíáíäÉÇ=íç=ìëÉ=íÜÉ ä~åç=äó=ï~ó=çñ=íïç=äáåéååé ~ÖêÉÉãÉåíë=ïáíÜ=pÜçêÉÜ~ã=mçêí ^ìíüçêáíók==qüé=ëíçé=åçíáåé=~åç ~ÅÅçãé~åóáåÖ=ÉåÑçêÅÉãÉåí=åçíáÅÉ ïéêé=ä~íéê=èì~ëüéç=äó=íüé=`çìêí=çñ ^ééé~ä=~åç=áå=gìåé=ommm=íüé=åä~áã~åí ëçìöüí=~å=éñíéåëáçå=çñ=íáãé=ñçê ëìäãáííáåö=~=åä~áã=ñçê=åçãééåë~íáçå ~ë=çååìéáéê=çñ=íüé=ä~åç=~ññéåíéç=äó íüé=ëíçé=åçíáåék==qüáë=éñíéåëáçå=çñ íáãé=ï~ë=êéñìëéçk qüé=`çìååáä=~êöìéç=íü~í=íüé=åä~áã~åí ï~ë=åçí=~å=çååìéáéê=~åç=íüéêéñçêé ï~ë=åçí=éåíáíäéç=íç=åçãééåë~íáçå=~åç ÑìêíÜÉêãçêÉ=íÜÉ=ëìÄãáëëáçå=çÑ=~=äÉííÉê Äó=íÜÉ=Åä~áã~åíDë=ëçäáÅáíçêë=ÇìêáåÖ=íÜÉ ééêáçç=~ääçïéç=ñçê=ã~âáåö=åä~áãë=çñ ÅçãéÉåë~íáçå=ÇáÇ=åçí=~ãçìåí=íç=~ Åä~áã=~åÇ=íÜÉêÉÑçêÉ=åç=Åä~áã=Ü~ë=ÄÉÉå ã~çé=áå=íáãék== qüé=i~åçë=qêáäìå~ä=åçåëáçéêéç=äçíü çñ=íüéëé=éçáåíë=~ë=éêéäáãáå~êó=áëëìéë ~åç=~öêééç=ïáíü=íüé=`çìååáä=íü~í=íüé Åä~áã~åí=ï~ë=åçí=~å=çÅÅìéáÉê=çÑ=ä~åÇ Ñçê=íÜÉ=éìêéçëÉë=çÑ=pÉÅíáçå=NUSK==qÜÉ äáåéååé=~öêééãéåíë=öê~åíéç=äó=íüé mçêí=^ìíüçêáíó=íç=íüé=åä~áã~åí=çáç=åçí ÅçåÑÉê=~åó=áåíÉêÉëí=áå=íÜÉ=ä~åÇ=åçê=ÇáÇ íüéó=öê~åí=~å=éñåäìëáîé=êáöüí=íç=ìëé=~ é~êíáåìä~ê=é~êí=çê=é~êíë=çñ=íüé=éçêík råçéê=péåíáçå=nus=çååìé~íáçå=ü~ç=íç ~ãçìåí=íç=ãçêé=íü~å=ìëé=çñ=ä~åçk==cçê ~=ééêëçå=íç=äé=~å=çååìéáéêi=üé=ãìëí Ü~îÉ=~=êáÖÜí=íç=çÅÅìéó=íÜÉ=ä~åÇ=ïáíÜ=~ ÇÉÖêÉÉ=çÑ=éÉêã~åÉåÅÉ=~åÇ=ÉñÅäìëáîáíóK ^ÅÅçêÇáåÖäóI=íÜÉ=qêáÄìå~ä=ÜÉäÇ=íÜ~í=íÜÉ Åä~áã~åí=ÇáÇ=åçí=Ü~îÉ=~=êáÖÜí=íç ÅçãéÉåë~íáçåK lå=íüé=ëéåçåç=áëëìéi=íüé=qêáäìå~ä íççâ=íüé=îáéï=íü~í=íüé=äéííéê=ñêçã=íüé ëçäáåáíçêë=~ëëéêíáåö=íü~í=íüé=åä~áã=ï~ë ÉåíáíäÉÇ=íç=ÅçãéÉåë~íáçåI=ÇáÇ ÅçåëíáíìíÉ=~=Åä~áãK= få=ëçãé=êéëééåíë=íüáë=áë=~=ëìêéêáëáåö àìçöãéåí=~åç=áí=ïáää=äé=áåíéêéëíáåö=íç ëéé=áñ=~å=~ééé~ä=ñçääçïëk==tüéêé=~ ä~ïñìä=äìëáåéëë=áë=çáëêìéíéç=äó=~å ìåä~ïñìä=ëíçé=åçíáåéi=áë=~å=~éé~êéåíäó êéëíêáåíáîé=áåíéêéêéí~íáçå=çñ=çååìé~íáçå êé~ääó=àìëíáñáéç=\ `çãééåë~íáçå=áå=êéëééåí=çñ=ëíçé=åçíáåéë=çåäó=~î~áä~ääé=íç=çååìéáéêë=çñ=i~åç

10 environment Enforcement - partial breach - useful case Enforcement of planning conditions is often difficult where there has been partial breach, especially so if immunity can be claimed after the passage of the requisite breach period. In the recent case of St Anselm Development Co Limited v First Secretary of State & Anor (Administrative Court 16 June 2003) the facts were that planning permission had been issued for 19 car parking spaces. A condition required that the whole of the car parking accommodation should be provided and retained permanently for the accommodation of vehicles of the occupiers and users of the remainder of the building. Five spaces had been the subject of enforcement notices; it had apparently been accepted by the planning authority that the remaining 14 had not been retained for the purpose and that there had been a breach of the planning permission for more than the statutory 10 years, thereby leading to immunity. On appeal against the notices, the planning inspector had dismissed all five and the matter was the subject of a challenge to the High Court. Mr Justice Sullivan rejected the arguments put forward on behalf of the claimants that since the condition had demanded that the whole of the accommodation should be retained for the building and that 14 spaces had been the subject of breach for more than 10 years the whole of the condition had been breached for the requisite period. The claimants argued that on the face of the condition there had been a breach for that period and therefore there should be total immunity against enforcement action. Mr Justice Sullivan concluded that the consequences of accepting this argument were undesirable in planning terms and against common since it was clear that there was no intention that a breach in respect of one or more spaces should represent a breach of the whole condition. The judge therefore interpreted the condition in a purposive way to focus on the circumstances in which the condition was broken. It was decided that it was proper to review the matter in respect of each parking space. Whilst 14 were immune from enforcement, that did not prevent the remaining five being the subject of ongoing control. The case may well be helpful in other circumstances of partial breach. It may also remind planning authorities of the importance of anticipating this sort of difficulty. It is for consideration whether the condition should not have referred to each of the car parking spaces rather than "the whole". Further Parliamentary Statement on town centre planning policy Further to the Caborn statement issued in 1999 and the case of Wandsworth London Borough Council v Secretary of State and Tesco which we reported on in the last edition of the Bulletin (Issue no. 48) the government has issued additional guidance on town centre planning policy. This guidance confirms the approach taken in a number of recent Inspectorate decisions on retail development that although need may be expressed in both quantitative and qualitative terms, greater weight will be given to the establishment of quantitative need. In addition, where both convenience and comparison goods are proposed to be sold, quantitative need must be demonstrated for both types of goods. In some cases, retailers have sought to argue that regeneration should be included as part of the need case. The government has now conclusively stated that this is an incorrect approach, and neither regeneration nor additional employment opportunities can be used as indicators of retail need - these aspects are merely material considerations. In terms of the sequential test, the Statement reinforces that retailers must demonstrate flexibility and realism in the format, design and scale of their developments, and the government will wish to see evidence that consideration has been given to more efficient design and layout, greater use of multi-storey developments, more efficient car parking provision and mixed-use developments. 10

11 Autumn 2003 Enforcement action in connection with Listed Buildings In the case of Braun v Secretary of State for Transport, Local Government and the Regions the Court had to consider whether the owner of a listed building could be required to undertake works to remedy breaches of listed building control which had been incurred by a previous owner. The facts were that the Council had served an enforcement notice in relation to unauthorised works to a listed building. Mr Braun appealed on the basis that the damage to the building had been caused by a previous owners' works, rather than his works. The Court held that enforcement under the Planning (Listed Buildings and Conservation Areas) Act could be taken for unauthorised works, regardless of when the works occurred and who undertook them, however, in this particular case the enforcement notice only related to Mr Braun's works and did not encompass the earlier unauthorised works. Waste Management Criteria for technical competence - new regulations The government has recently introduced modified standards of qualifications required of a person to manage activities controlled by a waste management licence. Hitherto these have been controlled by the Waste Management Licensing Regulations For England, those regulations are now modified, with effect from 1 April 2003 by a new schedule of technical competence, inserted by the Waste Management Licensing (Amendment) (England) Regulations 2003 SI 2003 No 595. Corresponding provisions for Wales are to be found in the Waste Management Licensing (Amendment) (Wales) Regulations 2003 SI 2003 No 780 (W.91). These regulations also came into force on 1 April. These qualifications must be obtained if the holder of a waste management licence is to be considered a fit and proper person, as is required by section 74 of the Environmental Protection Act The qualifications are granted by the Waste Management Industry Training and Advisory Board (WAMITAB). The new Regulations reflect changes to the system of WAMITAB certificates, and replace regulation 4 of the Waste Management Licensing Regulations 1994 which previously governed the requirement for qualifications for a licence holder. A list of all those waste facilities whose management must hold WAMITAB certificates is provided in a new Schedule 1A to the 1994 Regulations, together with the appropriate range of certificates for each facility. South East publish draft Waste Strategy The South East Regional Assembly has recently published its draft regional waste management strategy, "No Time to Waste" for consultation. The strategy comments that the South East produces about 29 million tonnes of waste a year (4 million tonnes imported to the region from London). There is an expectation of growth to nearly 35 million tonnes by The strategy is intended to cover the period of up to 2016, but with more general policies extending to Its preferred option is to exceed UK and European targets for the use and recovery of waste. The Assembly appears to favour locating smaller waste facilities, including recycling and composting plants, close to areas of demand and there is a proposal that there should be relaxation of normal Green Belt constraints to facilitate the selection of a sufficient number of suitable sites. It is clear that such policy will confront UK Government's well established Green Belt strategies and it will be interesting to see how the debate develops. If you require any further information on the Regional Waste Management Strategy, please contact the Planning and Environment Group. 11

12 environment Guidance issued in relation to PPC permits for landfill The Environment Agency has recently issued two regulatory guidance notes relating to the landfill directive, designed to assist landfill operators applying for pollution prevention and control (PPC permits). Landfill Directive Regulatory Guidance Note 16 (RGN16) explains how to identify the area or "installation" to be covered by an application for a permit for an existing landfill site. PPC aims to cover the whole installation rather than individual processes or activities. For example, in relation to an existing operational landfill, the installation will include closed areas where the risk management measures taken in relation to closed areas are essential to the mitigation of the environmental risks arising from the operational areas. The Environment Agency expect RGN16 to be particularly helpful to operators planning groundwater protection measures. The onus will be on the operator to demonstrate that the overall impact of the installation on groundwater will be acceptable in the long term. Where a risk assessment reveals that existing areas of an installation are giving rise to discharges to groundwater, it may still be possible for the Agency to issue a PPC permit, providing the operator can demonstrate that mitigation measures will reduce the discharge and also that the ongoing land filling operation will not result in any of those substances listed in the Groundwater Regulations 1998 entering and polluting the groundwater. All decisions regarding the extent of installations will be site specific and operators are strongly advised to discuss their proposals with Agency staff before they submit any PPC application. RGN17 provides the Agency's guidance on the approach to the ban on landfilling of whole used tyres and shredded used tyres, which is imposed by the Landfill (England and Wales) Regulation The guidance explains the policy to be adopted in respect of both new and existing landfills, explains the proper approach to the definition of tyres and shredded used tyres. It also provides reference material which explains how the landfill regulations control the use of whole used tyres as engineering material in landfills. The onus will be on the operator to demonstrate that the... impact of the installation on groundwater will be acceptable. Discharging liquid waste underground constitutes landfill In the case of Blackland Park Exploration Limited v the Environment Agency (2003) the Court recently held that within the Landfill (England and Wales) Regulations 2002, the discharge of liquid waste arising from oil production into underground strata would constitute landfill. Blackland Park owned and operated an on-shore oil field, whereby oil mixed with water was pumped to the surface and then separated into oil, gas and water. The oil was then stored for transportation off site, the gas was flared and the water was reinjected into the ground. The site also imported liquid waste from other sites and injected this into the ground as well. The Environment Agency notified Blackland Park that the site fell within the definition of a landfill under the 2002 Regulations; "a waste disposal site for the deposit of the waste onto or into the land", and had been classified as a landfill for hazardous waste. Blackland Park accepted that the imported liquid waste was hazardous waste, but disputed that the site was landfill. Blackland Park argued that the reinjection of liquid waste did not fall within the objectives of the Landfill Directive (Council Directive 1999/31/EC) and the 2002 Regulations. With reference to the definition of landfill (given above), the word "deposit" did not cover the discharge of liquid waste into deep underground strata. Instead the activity should be regulated by means 12

13 Autumn 2003 of a discharge consent under the Water Resources Act In response, the Environment Agency argued that landfill was not limited to surface waste, and the definition of landfill allowed for the deposit of waste "into" land. This therefore covered underground deposits and the activities covered by Blackland Park. The Court agreed with the Environment Agency, and held that any deposit into an underground cavity constituted landfill. The fact that liquid waste was injected deep underground made no difference and amounted to a "deposit into land". It was held to be clear that Blackland Park were operating a waste disposal site, rather than the discharge to groundwater being incidental to another activity on the site. Delay to implementation of Animal By-Products Regulation The EU Animal By-Products Regulation came into force on 1 May 2003 and is directly applicable to member states. The Regulation defines animal byproducts by reference to three categories. In the UK, the Animal By- Products Regulations 2003 SI 2003 No 1484 came into force on 1 July 2003 and give effect to those parts of the Regulation relating to the first and second categories. In addition to companies handling animal byproducts, companies storing, transporting, treating and disposing of such waste are required to obtain an authorisation from DEFRA. Category 1 material includes the carcasses of potentially BSE infected animals. Category 2 covers waste water from slaughter houses, any products of animal origin including residues of veterinary drugs and any animal byproducts imported from outside the EU. It is expected that implementation of the Regulation will take some time, and DEFRA will issue general approvals to those premises which are already approved to handle animal byproducts allowing them to continue until 1 January 2004 or such time as their approval is revoked or replaced, whichever is the earlier. These approvals can be viewed on DEFRA's website. The UK Regulations also provide for premises such as tanneries and incinerators which are currently uncontrolled to continue to operate providing they apply for approval before 1 October necessary changes for the management of Category 3 material; retail waste and food manufacturing waste. Previously businesses handling such material have not needed to separate animal by-product waste and therefore problems were anticipated with achieving compliance immediately. Under the transitional measures, businesses will have time to put arrangements into place to ensure compliance. This category will include animal by-products such as raw meat from butchers' shops, pre-cooked foods containing meat or fresh byproducts from fish. Catering waste covers all waste food originating in restaurants and other catering facilities including household kitchens. Category 3 animal by-products must be collected, transported and identified in accordance with Article 7 of the Regulation. They must therefore be labelled "not for human consumption" and transported in sealed packaging or leak proof containers. Disposal must be by incineration or rendering. This method of treatment must be used from the end of May 2003 when the statutory instrument is brought into force. Catering waste is not generally covered by the Regulation, and is therefore permitted to go to landfill. Alternatively, it may be treated in a composting or biogas plant. The European Commission has granted a transitional period until the end of 2005 to implement the 13

14 environment DEFRA review of waste permits DEFRA has established a project team to review the requirements of the Waste Framework Directive and other EU legislation for waste permits. The project team will seek to establish a regime in the UK to implement these requirements but also to meet the needs of the public, the environment and industry whilst minimising the burden on environmental agencies and industry. The objective of the review is to establish a single permit which will encompass the requirements of all the different EU directives and UK legislation. The review aims to standardise relevant considerations in granting permits for different activities and also to allow for proportionate and incremental enforcement measures. To date, three work packages have been issued covering risk based regulation, ties of regulatory extent and exemptions. Responses are invited by 1 August Environment Agency reveal dramatic fall in hazardous landfills The Environment Agency has recently revealed that they expect that 90% of hazardous waste landfills will have to be closed soon, as a result of the impact of the Landfill Directive. The directive and its corresponding UK Regulations required landfill operators to submit their conditioning plans by Summer These plans revealed the extent to which the receipt of hazardous waste is to be resisted. The Agency reports that merchant landfills will fall from 182 this year to just 14 in The Thames and Welsh regions will have no hazardous landfills at all. Sir John Harmon, the Chairman of the Agency recently expressed concern about the situation and particularly drew attention to the problem of hazardous waste fly tipping. The industry have also expressed considerable pessimism about the situation and the Agency are bound to be concerned about the enforcement consequences of so dramatic a change in resources. WMP4 - DEFRA proposed changes DEFRA has recently published a consultation paper (together with separate executive summary) which proposes revision of Waste Management Paper No 4, "The Licensing of Waste Disposal Sites" (1994). Simultaneously, the Environment Agency has published draft guidance intended to replace WMP26A on landfill completion. Modification of the guidance is certainly needed, given the implications of the landfill and IPPC European directives. New WMP4 draft applies to all waste disposal and recovering licences. The main document is in two parts. The first deals with the main regulatory directives for the Agency and dealing with the structure for licensing activities. The second contains nonstatutory guidance and explanatory material, particularly in relation to the legislation and procedures. The document made clear that there is a substantial extension of the risk-based approach so far as licensing objectives are concerned. For further information on the documents please contact the Planning and Environment Group. 14

15 Autumn 2003 What constitutes recycling? The European Court recently considered the issue of when materials have been recycled and cease to be waste. The case involved Mayer Parry, who processed ferrous metal packaging waste to render the materials suitable for use as a feedstock in a furnace which produced ingots, sheets and coils of steel. Mayer Parry argued that it was undertaking a recycling process, and thus should be accredited as a reprocessor able to issue Packaging Waste Recovery Notes. The Court found that the process undertaken by Mayer Parry did not return the material to its original state (ie steel), nor did it enable reuse for its original purpose (ie metal packaging). It followed that the material produced by Mayer Parry could not be regarded as recycled packaging waste. However, the reprocessing of this material to produce steel ingots could be regarded as a packaging waste recycling operation. The Court also considered the relationship between the Waste Framework Directive (75/442) and the Packaging Waste Directive (94/62), and held that the provisions of the latter Directive would prevail over the Framework Directive, in situations which the Packaging Directive specifically seeks to regulate. Waste used as a fuel - disposal or recovery? Recent European cases have given further consideration to waste being used as a fuel, and whether this waste is being used for a disposal or recovery operation. In one case, the waste was being used to fuel cement kilns, and in the other it went to a waste to energy plant processing municipal waste. In considering whether the respective activities constituted a recovery operation, the Court stated that the essential characteristic of such an operation was that the waste replaced other materials which would have had to be used for the same purpose. It followed that waste used as a fuel to power a cement kiln would be subject to a recovery activity, but waste sent to a municipal waste incinerator, where the principal objective was disposal and the recovery of energy was a secondary objective, was not. Review of the Waste Management Licensing Exemptions On 27 June 2003, DEFRA issued a consultation document on amendments to the system of exemptions from waste management licensing in England and Wales. Responses are required to the consultation paper by 19 September Six exemptions are reviewed under the consultation - land treatment; use of wastes for land reclamation; use and storage of building waste; composting; storage and spreading of sewerage sludge; and waste recovery at sewerage treatment works. The consultation paper also contains proposals to introduce a new exemption for the burning of dunnage at docksides. The proposed changes to the above exemptions include: specifying more tightly the types of waste that can be recovered under the terms of the exemption; imposing more stringent requirements in relation to information that must be sent to the Environment Agency before registration takes place; and introduction of fees payable to the Environment Agency to cover the non-regulatory costs. Statutory guidance is proposed covering the requirement for the Environment Agency to carry out specific inspections of the particular activities before registration of the exemptions. It is also proposed that penalties for breach of the regulations, or for failure to register an exemption, will be increased with fines of up to 20,000 for breach of the regulations and penalties up to 1,000 for failure to register exemptions. Currently, the penalty is a flat 10 fine. Penalties for breach of the regulations, or for failure to register an exemption, will be increased. 15

16 environment Environment Policy Consultation on EU law on electrical waste and hazardous substances In the December 2002 edition of the Bulletin (No. 47) we reported on the EU's Waste Electrical and Electronic Equipment (WEEE) Directive, and the Restricting Certain Hazardous Substances (ROHS) Directive relating to electrical goods which came into effect in February of this year. The DTI has now published a consultation paper seeking views on applying the two EU Directives to UK legislation. These are required to be law in member states by August The WEEE Directive sets criteria for the collection, treatment, recycling and recovery of waste electrical and electronic equipment, and makes producers responsible for the financing of these measures from August The ROHS Directive aims to facilitate the dismantling and recycling of such equipment by restricting the use of hazardous substances in the manufacture of the goods. For example, from July 2006, it will no longer be permissible to use lead, mercury, or cadmium or certain flame retardants in new products. Certain processes are excluded from this requirement, and these materials may continue to be used until alternatives are found. It is intended that the Directives will serve to reduce the risks to the environment and human health posed by such equipment, as well as reducing pollution of the air by carbon dioxide and ozone depleting substances. The UK Government also envisages additional benefits such as the conservation of raw materials and energy resources, and the diversion of waste from landfill. The consultation paper raises questions as to the criteria that should be used in the UK to reflect the requirements of the WEEE Directive, and as to how those electrical products which do not fall within the scope of the WEEE Directive should be treated. In relation to the ROHS Directive, the consultation paper seeks opinions on the definitions of "electrical and electronic equipment" and "producer" and the correct formal testing procedures to be adopted for banned substances. For more information, please contact the Planning and Environment Group. Budget impact on the environment This year, the Chancellor, Gordon Brown, introduced a number of environmental initiatives in the Budget. Most importantly, these include various reforms to improve waste management. Mr Brown confirmed that the standard rate of landfill tax is to rise to 14 per tonne in 2003/04 and to 15 per tonne in 2004/05. Thereafter the rate will increase by at least 3 per tonne each year until a rate of 35 per tonne is reached in the medium to long term. Further reform of the Landfill Tax Credit Scheme will result in 100 million in 2003/04, 110 million in 2004/05 and 2005/6 being redirected to public spending on a new sustainable waste delivery programme which will promote recycling and new waste management technologies. A Waste Management Performance Fund is to be established to help local authorities improve waste performance for all households and the Government's Green Technology Challenge Scheme has been extended to cover further energy and water efficient measures. Enhanced Capital Allowances of 100% will be available to businesses for investment in water efficient technologies with similar allowances for investment in energy metering and monitoring equipment. Fuel duties have been altered, together with the introduction of a new rate of duty for sulphur-free petrol and diesel. The rates of Climate Change Levy are to be frozen in 2003/04 following a fall of 3.5% in UK CO2 emissions in 2002 compared to

17 Autumn 2003 Public interest will not provide immunity against a nuisance claim The High Court has held that the flying of Harrier jets over private land did constitute a nuisance but that the public interest involved in the flying of the jets and the training of pilots for defence of the realm required that the nuisance should continue. In the case of Dennis v Ministry of Defence (16 April 2003) the claimants argued that the noise caused by pilots from RAF Wittering on training circuits over their land amounted to either nuisance or an interference with their human rights. Accordingly the claimants sought a declaration and damages, on the basis that the noise disturbance prevented them from exploiting the land for incomegenerating activities. The Ministry of Defence admitted that disturbance was caused to the claimants, but that there no cause of action either at common law or under the European Convention on Human Rights. It was argued that training pilots for defence was a public interest, which provided the Ministry with a defence to the claimant's action. The High Court agreed that the noise disturbance was a serious interference with the claimant's enjoyment of their property, but public interest dictated that RAF Wittering should continue to train pilots. Therefore the court refused the claimants the declaration sought, but awarded damages representing loss of capital value, together with past and future loss of use and amenity. Amendments to the Prevention Pollution and Control Act 1999 The Pollution Prevention and Control (Designation of Council Directive on Solvent Emissions) Order 2003 came into force in April 2003 and designates Council Directive 1999/13/EC as a relevant directive for the purposes of Schedule 1 to the Pollution Prevention and Control Act 1999 ("the Act"). Schedule 1 of the Act includes a list of those purposes for which provision may be made by way of regulations made by the Secretary of State. These include establishing requirements in relation to emissions, identifying authorities to act as regulators, introducing permits for the operation of certain installations and making provision to meet the requirements of certain European Directives. This Order introduces Directive 1999/13/EC on the limitation of volatile organic compounds due to the use of organic solvents in certain activities and installations to the list of relevant European Directives. The list already includes Directive 96/61/EEC concerning IPPC and Directive 75/442/EEC on waste, as amended. EU Emissions Trading Scheme Finalised On 2 July this year the EU Emissions Trading Scheme (EUETS) was finalised by the European Parliament. Following on from the Kyoto Protocol EUETS sets limits on the emissions of carbon dioxide from energy intensive sectors. Companies who reduce their emissions to a level below a particular limit can sell their over achievement to other companies above their limit. Alternatively, such companies may choose to "bank" it for future use. This is the first multi-national emissions trading scheme in the world covering all members of the EU and it is estimated that about 46% of the EU's total CO2 emissions in 2010 will be brought within the scheme. At present EUETS simply applies to energy intensive sectors but may be extended at a later date to include, for example, chemical, aluminium and transport companies. Within the UK action has started to implement the EUETS Directive. DEFRA has already contacted operators of various installations urging them to consider whether they fall within the directive. In addition, DEFRA need to produce a draft national allocation plan by the Autumn to divide up the total allocation awarded by the EU to the UK between different sectors and individual installations. At present it is not clear which methodology the Government will adopt in this plan, but this may be by way of reference to historic emissions figures, or regulatory targets such as those in the climate change agreements or by awarding allowances to industrial electricity users rather than 17

18 environment continued from p.17 generators. All installations coming under EUETS, including combustion installations, or refineries, coke ovens, iron and steel works and the pulp and paper industry will need to apply for a permit before It is likely that those installations which are currently covered by the UK's own emissions training scheme or a negotiated climate change agreement will seek to opt out of the first phase of EUETS to avoid losing their 80% exemption from the climate change levy. In response to this the Government is considering awarding a discount form the climate change levy to all companies which take on a cap under EUETS. Installations will only be permitted to opt out of EUETS if they can demonstrate that their emission reductions will be equivalent to those delivered under EUETS. Water Sewage treatment works are premises under statutory nuisance provisions The High Court has recently ruled in a preliminary hearing that sewage treatment works will fall within the definition of premises in Section 79(1) of the Environment Protection Act 1990 ("the Act"), and therefore are subject to the statutory nuisance provisions of the Act. In the case of Hounslow London Borough Council v Thames Water Utilities Limited (23 May 2003) Thames Water appealed against an abatement notice served by Hounslow London Borough Council ("the Council"). The notice alleged that an odour had occurred and was likely to re-occur at the sewage treatment works owned by Thames Water and that this odour amounted to a nuisance. Section 79(1) of the Act defines statutory nuisances to include premises in such a state as to be prejudicial to health or nuisance, and any dust, steam or smell arising from industrial trade or business premises being prejudicial to health or a nuisance. Section 79(7) of the Act defines "industrial trade or business premises" as including premises used for the purposes of any treatment or process. Thames Water sought to rely on the case of R v Parlby decided in 1889 where it was held that the words of Section 91 of the Public Health Act 1875 (the statutory predecessor to the EPA) did not include sewage treatment works within the definition of premises. The district judge followed the decision in Parlby and the Council appealed. The High Court took the view that Parliament had not intended to exclude any particular premises from Section 79 of the Act and there was no obvious reason why sewage treatment works should be treated as a special case. On its natural interpretation the word "premises" must include sewage treatment works and the High Court allowed the Council's appeal and ordered that the case be remitted to the Magistrates' Court for a full hearing. 18

19 Autumn 2003 Protocol on Transboundary Water Pollution The United Nations Economic Commission's "Protocol on Civil Liability and Compensation for Damage caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters" is soon to come into force, providing for civil liability and compensation for pollution to transboundary waters caused by industrial accidents. The Protocol will give rights to make a claim to those affected by such pollution. Any claim under domestic law will still remain, and it will be possible to bring a claim under both systems. Industrial accidents are broadly defined within the Protocol as events resulting from an uncontrolled development in the course of an activity such as the commissioning of a newly constructed water treatment plant involving hazardous substances in particular quantities. Strict liability for both physical and economic damage will fall on the operator of the plant who will be under a duty to take all reasonable response measures. The Protocol defines "operator" broadly to include plant owners, facilities managers, contractors working on site and even consultants carrying out a supervisory role. Claims for compensation must be brought under the Protocol both within fifteen years of the date of the accident and within three years from the date the claimant knew or should reasonably have known of the damage. It remains to be seen whether the Protocol will increase the risk of liability for companies operating near national boundaries. National legislation is already likely to cover pollution caused by industrial accidents, though the Protocol's strict liability may be more onerous, and certain allows a wider range of claimants to sue an operator. Miscellaneous Transport operators' licences criteria - new case A recent Court of Appeal decision serves to remind readers of the sometimes difficult interaction between planning and other controls of operating centres for transport purposes. In Surrey County Council v Paul Williams [Court of Appeal ] Mr Williams trading as a landscape gardener had applied to the County Council for a restricted operator's licence for his vehicles. Such a licence is required in addition to any necessary planning permission. The Transport Tribunal had upheld the decision of the traffic commissioner to approve the operator's application to the licence but this decision had been challenged by the County Council. They had criticised the decision on the basis of the number of accidents that had occurred nearby and disagreed with certain conclusions of the commissioner as to the safety of the access onto the public highway. In particular, the County Council argued that the tribunal had not properly applied the guidelines contained in Design Bulletin 32. The Court of Appeal concluded that the decision was not perverse and upheld the tribunal's decision. We mention this case because it represents a very good example of the importance of those seeking operating centres to bear in mind that not only is planning permission is required but also an operator's licence. The existence of the former is by no means a guarantee that the latter will be obtainable. Not only is planning permission required but also an operator s licence. 19

20 environment Consultation on CROW restrictions Further to our reports in Issues no 46 and 48 of the Bulletin, DEFRA has published a consultation paper on regulations relating to the removal or relaxation of general restrictions on access land under Part 1 of the Countryside and Rights of Way Act 2000 ("the Act"). Whilst Section 2 of the Act gives people a right to enter and remain on access land (as defined in Section 1) for the purposes of open air recreation, they must observe the general restrictions set out in Schedule 2 of the Act. For example, the use of vehicles and bicycles is not permitted, nor is horse riding or camping. Schedule 2 also requires that dogs be kept on leads on access land at certain times of the year. The consultation paper proposes three options by which the Countryside Agency (for England) and the Countryside Council for Wales may remove or relax the Schedule 2 restrictions to allow the public wider access. Firstly, DEFRA seeks views on whether the relevant authority should be entitled to give a direction, if sought by the landowner, to bring any of the activities forbidden under Schedule 2 within the access rights contained in the Act and to reduce the owner's liability towards any person engaged in such activities. The second option DEFRA is considering is whether landowners should be allowed to make the decision to relax the restrictions of their own accord, within the terms of a direction granted previously by the relevant authority. The owner would not require the permission of the authority to do this, though he would be obliged to inform the authority of any relaxation or removal of restrictions that he chooses to make on his access land. The third option would involve a range of regulations designed to give flexibility to both relevant authorities and owners to reduce the restrictions with as little bureaucracy as possible. The consultation period will run until early October of this year. Team Changes Sadly, we report the departure of Michael Broughton from the firm. Michael has left to take up a Consultancy position with another London firm. We wish him well in his new role. Who to contact For further information contact John Garbutt or Elisa de Wit. Nicholson Graham & Jones 110 Cannon Street, London EC4N 6AR john.garbutt@ngj.co.uk elisa.de.wit@ngj.co.uk Internationally a member of GlobaLex The contents of these notes have been gathered from various sources. You should take advice before acting on any material covered in Environment Bulletin. 20