Chambers is delighted to announce that three members of Chambers have been promoted on the Attorney General’s panels of approved counsel. Timothy Morshead and James Maurici have been appointed to the A Panel from the B Panel and Tim Buley has been appointed to the B Panel from the C Panel. These appointments will last for 5 years and are a recognition that Chambers has junior tenants of the highest quality.

In a separate judgment also given today in R (Neptune Wharf & Another) v Secretary of State for Trade & Industry [2007] EWHC 1036 (Admin) Wyn Williams J. dismissed a judicial review of a direction issued by the Secretary of State under s. 13C of the Acquisition of Land Act 1981 to postpone consideration of confirmation of the Order in relation to certain parts of the Order Lands. The Claimants unsuccessfully argued that that the phrase “until such time as may be specified by or under the direction” in section 13C(5) demanded that a specific date be set for the making of the decision postponed.

Richard Drabble QC and James Maurici were counsel for the Secretary of State for Trade and Industry.

The Court of Appeal today gave judgment in this important case dealing with so called piggy backing at landfill sites. The issue being whether as a matter of law a landfill permit may be granted pursuant to the Landfill Regulations (SI 2002/1559) for the operation of a separate landfill which partially overlies a closed cell containing previously deposited waste. The Court of Appeal held that such a permit could as a matter of law be granted subject to the Environment Agency being satisfied that the technical and environmental considerations which arise can be dealt with. The Court of Appeal also considered the meaning of the word “permit” in reg. 4 of the Groundwater Regulations 1998.

James Maurici submitted written arguments to the Court on behalf of the Secretary of State for Environment, Food and Rural Affairs as an Interested Party.

The Crossrail Bill was given its second reading by the House of Lords. It will now proceed to Lords' Select Committee and hearings are expected to begin there next month.

The Promoter, the Secretary of State for Transport, is represented by David Elvin QC, Tim Mould QC, Nathalie Lieven QC, Reuben Taylor and Gwion Lewis. Other members of chambers been been advising some of the petitioners.

The background is as follows: the Italian electricity production company ENEL entered into a contract for the supply of heavy fuel oil. The heavy fuel oil was to be used for electricity generation by ENEL in Italy. To fulfil the contract with ENEL, Total Raffinage Distribution (now Total France), sold a certain quantity of heavy fuel oils meeting the specifications of ENEL – which came from the Dunkirk refineries - to Total International Ltd, which chartered the ship m.v. Erika in order to transport it to the port of Milazzo in Sicily.

In 1999 the ship broke up off the coast of France which led to her cargo, namely several million tonnes of heavy fuel oil, being spilled into the sea. This led to the pollution of the French Atlantic coastline (click here for more information). It was France’s worst ever oil disaster.

The questions referred are:

1. Can heavy fuel oil, as the product of a refining process, meeting the user's specifications and intended by the producer to be sold as a combustible fuel, and referred to in Directive 68/414/EEC of 20 December 1968 as amended by Directive 98/93/EC of 14 December 1998 relating to strategic resources to which a stock-holding obligation attaches, be treated as waste within the meaning of Article 1 of Directive 75/442/EEC of 15 July 1975 as amended by Directive 91/156/EEC of 18 March 1991 and codified by Directive 2006/12/EC (“the Waste Framework Directive”)?

2. Does a cargo of heavy fuel oil, transported by a ship and accidentally spilled into the sea, constitute - either in itself or on account of being mixed with water and sediment - waste falling within Category Q4 in Annex I to the Waste Framework Directive?

3. Where the first question is answered in the negative and the second in the affirmative, can the producer of heavy fuel oil (Total Raffinage) and/or the seller and carrier (Total International Ltd) be regarded as the producer and/or holder of waste within the meaning of Article 1(b) and (c) of the Waste Framework Directive and for the purposes of applying Article 15 of that Directive, even though at the time of the accident which transformed it into waste the product was being transported by a third party?

The case will also consider the relationship of the Waste Framework Directive with (i) the International Convention of 27 November 1992 on Civil Liability for Oil Pollution Damage and the International Convention of 27 November 1992 on the Establishment of an International Fund for Compensation for Oil Pollution Damage; and (ii) Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (the “Environmental Liability Directive”).

James Maurici is appearing for the United Kingdom as interveners.

In the Administrative Court, Mitting J ordered the release of three “undocumented” Algerians, who had been detained for periods of up to sixteen months after the end of their sentence for offences committed in the UK, whilst the UK and Algerian authorities negotiated about the provision of travel documentation. Their cases were supported by the charity Bail for Immigration Detainees, which alleged a systemic problem in processing cases of this kind within a reasonable time. The judge refused a fourth application.

Richard Drabble QC appeared for the claimants.

The proceedings concern screening decisions as to whether Environmental Impact Assessment (“EIA”) is required of applications for development consent for projects falling within Annex II of Council Directive 85/337/EEC as amended by 97/11/EC and 2003/35/EC. In Mellor the Secretary of State determined that EIA was not required on a planning application for a medium secure hospital unit at HMS Forest Moor, Menwith Hill Road, Harrogate, North Yorkshire.

The issues which arise are whether the Secretary of State was required to give reasons for deciding that EIA was not required and, if so, whether her decision provided adequate reasons.

In R v Secretary of State for the Environment, Transport and the Regions ex p Marson [1998] Env LR 761 the Court of Appeal (on an application for permission to appeal) held that reasons did not have to be given for refusing to direct that EIA was required. That decision has been followed since by the English Courts: see R. v St Edmundsbury BC Ex p. Walton [1999] Env. L.R. 879 per Hooper J.; BAA Plc v Secretary of State for Transport, Local Government and the [2002] EWHC 1920; [2003] J.P.L. 610; Gillespie v First Secretary of State [2003] EWHC 8; [2003] 1 P. & C.R. 30 and R (Probyn) v Secretary of State for Communities and Local Government (CO/4368/2005, unreported, 24/2/06).

The questions referred by the Court of Appeal in Mellor are:

1.Whether under Article 4 of Council Directive 85/337/EEC as amended by directives 97/11/EC and 2003/35/EC (“the Directive”) Member States must make available to the public reasons for a determination that in respect of an Annex II project there is no requirement to subject the project to assessment in accordance with Articles 5 to 10 of the Directive?

2. If the answer to Question 1 is in the affirmative whether that requirement was satisfied by the content of the letter dated 4 December 2006 from the Secretary of State?

3. If the answer to Question 2 is in the negative, what are the principles governing the adequacy of reasons in this context?

James Maurici appeared for the Secretary of State for Communities and Local Government.

The first week of hearings comprises opening submissions, general presentations by the Promoter on noise, settlement and compensation issues and site visits.

The hearing of petitions is programmed to begin on Monday 25 February.

The Report found that leaflets published by the Department for Work and Pensions (DWP) between 1996 and 2004 encouraging the public to stay in company pension schemes were misleading and incomplete by failing to warn readers that their pensions were at risk if their company pension scheme wound up. The Ombudsman concluded that there had been maladministration resulting in injustice as a result of the actions of the DWP. However, the Secretary of State for Work and Pensions rejected the findings of the Report.

Four pensioners, all of whom have lost the substantial part of their retirement pensions, successfully challenged by way of judicial review the Secretary of State’s rejection of the Report: see the decision of Bean J. [2007] EWHC 242 (Admin); [2007] Pens. L.R. 87 and see here.

The Secretary of State’s appeal from the decision of Bean J. was dismissed by the Court of Appeal and the cross appeal of the Claimants allowed in part.

The Court of Appeal held that for the Secretary of State “to reject the Ombudsman’s findings in favour of his own view” it is necessary that “such a view is, itself, not irrational having regard to the legislative intention which underlies [the Parliamentary Commissioner Act 1967]. To put the point another way, it is not enough for a Minister who decides to reject the Ombudsman’s finding of maladministration simply to assert that he had a choice: he must have a reason for rejecting a finding which the Ombudsman has made after an investigation under the powers conferred by the Act” (see paras.51 and 72 of the judgment of Chadwick LJ).

James Maurici appeared for the Ombudsman instructed by Beachcroft LLP.

Alphasteel Limited, which carries out steel production at Corporation Road, Newport, appealed pursuant to reg. 32(3)(e) of the Greenhouse Gas Emissions Trading Scheme Regulations 2005 (“the 2005 Regulations”) against a civil penalty notice dated 6 December 2006 served by the Environment Agency because Alphasteel failed to comply with a condition imposed pursuant to reg. 10(3) of the 2005 Regulations. This required Alphasteel to surrender allowances equal to the annual reportable emissions from its installation by the end of April 2006.

The 2005 Regulations implement Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the European Community. The scheme is the largest multi-country, multi-sector greenhouse gas emission trading scheme world-wide.

This is believed to be the first ever appeal in the UK (or indeed in Europe) against such a civil penalty notice.

An appeal hearing took place in the summer of 2007 and on 6 March 2008 the Welsh Ministers issued a decision affirming the notice and requiring Alphasteel to pay the penalty of £564,599.93 plus interest.

James Maurici appeared for the Environment Agency.

In Walker & Brian v. Secretary of State & Blackburn with Darwen BC, following an expedited oral hearing, the Court of Appeal refused permission to appeal from the judgment of Wilkie J. on 24.1.08 who dismissed the challenge to the Darwen Academy (No. 3) CPO. Keene LJ (with whom Pill LJ agreed) held that the "Elevate" Pathfinder was entitled to provide HMRI funds in accordance with Government guidance to revitalise the housing market to allow clearance even where the end use was not housing but a use which would be regenerative in its effects (i.e. a new academy school).

The CPO, taken with an earlier CPO, will allow the Academy to be constructed on a site close to Darwen town centre. The Academy is sponsored by the Rod Aldridge foundation and will specialise in entrepreneurship and sport.

John Litton represented the Secretary of State and David Elvin QC and Graeme Keen represented the Blackburn with Darwen Council.

Richard Drabble QC of Landmark Chambers will be speaking on “environmental impact assessment” at this environmental law conference organised by the Public Law Project.

The conference will be looking into public law challenges in the environmental sphere including:

• Access to environmental information – who gets to see what
• What the Aarhus Convention means for claimants and defendants in 2008
• Consultation – how to consult the right people lawfully
• Environmental statements: European and domestic law requirements

The conference will take place on Thursday 6th March at 5.30pm at Herbert Smith’s offices in EC2A.

For more information and to register to the conference please click here.

On 13 March 2008 Advocate-General Kokott gave her opinion in the preliminary ruling from the Cour de Cassation (France) in Commune de Mesquer v Total France, SA, Total International Ltd (Case C-188/07).

The Italian electricity production company ENEL entered into a contract for the supply of heavy fuel oil. The heavy fuel oil was to be used for electricity generation by ENEL in Italy. To fulfil the contract with ENEL, Total Raffinage Distribution (now Total France), sold a certain quantity of heavy fuel oils meeting the specifications of ENEL – which came from the Dunkirk refineries - to Total International Ltd, which chartered the ship m.v. Erika in order to transport it to the port of Milazzo in Sicily.

In 1999 the ship broke up off the coast of France which led to her cargo, namely several million tonnes of heavy fuel oil, being spilled into the sea. This led to the pollution of the French Atlantic coastline (click here for more information). It was France’s worst ever oil disaster.

The Advocate-General has proposed the following answers to the questions referred:

1. Heavy fuel oil, as the product of a refining process, meeting the user’s specifications and intended by the producer to be sold as a combustible fuel, and referred to in Directive 68/414/EEC of 20 December 1968 imposing an obligation on Member States of the EEC to maintain minimum stocks of crude oil and/or petroleum products, cannot as such be treated as waste within the meaning of Article 1 of Council Directive 75/442/EEC of 15 July 1975 on waste.
2. Heavy fuel oil is to be treated as waste for the purposes of Directive 75/442 if it is discharged in a tanker accident and is mixed with water and sediment.
3. The producer of heavy fuel oil and/or the seller and carrier may be ordered under Article 15 of Directive 75/442 to bear the cost of disposing of oil waste following a shipping accident if they can be accused of contributing personally to causing the leak of the heavy fuel oil. However, it is also compatible with that provision to limit the liability of the producer of heavy fuel oil and/or the seller and carrier in accordance with the International Convention of 29 November 1969 on Civil Liability for Oil Pollution Damage, as amended by the Protocol of 1992, and the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, as amended by the Protocol of 1992.

James Maurici is appearing for the United Kingdom as interveners.

For the Advocate-General-s opinion please click here.

In R (Heath & Hampstead Society) v. Camden LBC & Vlachos [2007] EWCA Civ 193 the Court of Appeal upheld the order of Sullivan J quashing the grant of planning permission for a replacement dwelling in the Vale of Health on the basis that the Planning Authority had failed to place the correct emphasis on the comparative sizes of the existing and replacement dwellings, despite the considerable visual improvement which Camden considered the new dwelling would create.

The central issue was the interpretation of PPG2 paragraph 3.6, which provides that a replacement dwelling on Green Belt or Metropolitan Open Land need not be inappropriate development “providing the new dwelling is not materially larger than the dwelling it replaces”. Although the proposed replacement building in the present case was around three times the physical size of the existing dwelling, the Council had concluded that it was “not materially larger” because the increase in size would have no material effect on the openness of the Metropolitan Open Land.

In the High Court, Sullivan J held that this was an unlawful approach to PPG2 para. 3.6. Applying the earlier decision of the High Court in Surrey Homes Limited v. Secretary of State for Environment, Transport and the Regions CO/1273/2000 he stated:

"20. However ... the exercise under paragraph 3.6 is primarily an objective one by reference to size. Which physical dimension is most relevant for the purpose of assessing the relative size of the existing and replacement dwellinghouse, will depend on the circumstances of the particular case. It may be floor space, footprint, built volume, height, width, etc. But, as Mr Lockhart-Mummery said in Surrey Homes:

" ..... In most cases floor space will undoubtedly be the starting point, if indeed it is not the most important criterion."

It is one thing to say that in a case where the increase in dimensions is marginal in quantitative terms, some regard may be had to other matters "such as bulk, height, mass and prominence"; it is quite another thing to set consideration of the physical increase in size to one side altogether, and, in effect, to substitute a test such as "providing the new dwelling is not more visually intrusive than the dwelling it replaces" for the test in paragraph 3.6: "providing the new dwelling is not materially larger than the dwelling it replaces."

The Court of Appeal upheld the order of Sullivan J. Giving the lead judgment, Carnwath LJ held:

“37. … I do not think that the meaning of the word “material”, notwithstanding its use in planning law more generally, can bear the weight which the authority sought to give it. Size as Sullivan J said is the primary test. The general intention is that the new building should be similar in scale to that which it replaces. The Surrey Homes case illustrates why some qualification to the word “larger” is needed. A small increase may be significant or insignificant in planning terms, depending on such matters as design, massing and disposition on the site. The qualification provides the necessary flexibility to allow planning judgment and common sense to play a part, and it is not a precise formula. However, that flexibility does not justify stretching the word “materially” to produce a different, much broader test. As has been seen, where the authors of PPG2 intend a broader test, the intention is clearly expressed.”

David Elvin QC and Charles Banner represented Alex and Thalis Vlachos, the owners of the site.

A Grand Chamber of the ECJ today gave judgment in Case C-14/06 European Parliament v Commission and Case C-295/06 Denmark v Commission.

The cases concerned Decabromodiphenyl ether (known as “DecaBDE”) which is a flame retardant used extensively in electrical and electronic equipment casings and in furniture.

The use of DecaBDE was to be banned, as from, 1 July 2006 by Directive 2002/95/EC on the restriction of the use of certain hazardous substances in electrical and electronic equipment (“the RoHS Directive”). However in on 13 October 2005 the Commission decided to exempt from the ban the use of DecaBDE in polymeric applications (mainly use in electrical and electronic equipment casings): see Decision 2005/717/EC.

A Grand Chamber of the ECJ held that the Commission’s Decision in so far as it related to DecaBDE was outside its powers and therefore must be annulled.

The ECJ allowed the impugned measure to remain in force for 3 months until 30 June 2008 in order that undertakings using DecaBDE have an opportunity to adapt their processes.

James Maurici appeared for the United Kingdom which intervened in both sets of proceedings in support of the Commission.

Guidance from Collins J on the High Court’s jurisdiction to strike out a claim under s.288 of the Town and Country Planning Act 1990 challenging the grant or refusal of planning permission by the Secretary of State. 

In South Gloucestershire Council v. Secretary of State for Communities and Local Government [2008] EWHC 1047 (Admin), Collins J considered the High Court’s jurisdiction to strike out a claim under s.288 of the Town and Country Planning Act 1990 challenging the grant or refusal of planning permission by the Secretary of State. Commenting on this rarely-used procedure, he held:

“2. Claims under Section 288 are not subject to any permission stage, unlike claims relating to enforcement notices. The reason why there is no permission stage is largely historical. Section 288 has existed under previous legislation for a very long time. Originally there was no need for any leave to appeal in any application against a decision of the Secretary of State or one of his or her inspectors whether it be on enforcement notices or decisions relating to appeals against refusals of planning permission.

3. As a result of recommendations by Robert Carnwath QC (as he was) in a report which he had prepared in 1989 or thereabouts the decision was made that there should be a permission requirement in respect of enforcement notice appeals largely because those who were subjected to such notices were using the appeal system in order to prolong the period in which they could carry on the activities that they knew perfectly well in due course they were going to have to cease. That requirement was not brought in in respect of Section 288 appeals.

4. The judges of this court have for some time taken the view that it is desirable that such a permission stage should be introduced. This is partly for the protection of those who make these claims. Quite often such are litigants in person or frustrated objectors to planning applications and they sometimes bring claims which manifestly have no chance of success. If there were a permission stage they could do so at relatively small cost whereas if they go ahead the costs mount up and they find themselves liable to pay a considerable sum of money. That is merely by way of introduction and an expression, yet again, of the hope that Parliament will look into this quickly and provide for such a requirement.

5. In reality, what is being done here is an attempt to show that this claim is one which cannot succeed and therefore the application to strike out is, in one sense, being used as an alternative to the permission requirement.

6. Consideration has to be given to the approach of the court. Essentially we are here concerned only with whether there are errors of law. There is no question of any factual dispute. So the right approach is for the court to adopt essentially the same approach as it would were it considering whether a claim was arguable. There is suggestion in some of the authorities that the threshold should be a little higher than mere arguability. It has been put on the basis of "is there a real chance that the claim will succeed?" Or rather, to put it in its correct way, has the applicant for the strike out shown that the claim has no realistic prospect of success? That is, as it seems to me, the approach that I should adopt. Has Mr Lockhart Mummery persuaded me that there is no realistic prospect that the claim made by the council will succeed?”

Christopher Lockhart-Mummery QC and Charles Banner appeared for the applicants, Crest Nicholson (South West) Ltd and Harcourt Developments."

The House of Lords (Lords Hoffman, Hope, Walker, Brown and Mance) has heard the appeal into Pallikaropoulos v. Environment Agency & Others (formerly under the name of Edwards v. EA) from the Court of Appeal [2006] EWCA Civ 877. The hearing lasted 3 days and judgment has been reserved.

The case concerns the legality of a PPC permit which included the trial burning of tyres as a partial substitute fuel at Rugby Cement Works and concerns the operation of the PPC permitting regime and its interface with the requirements of environmental impact assessment. Issues also arise as to the exercise of the judicial review discretion not to quash where the breach of the duty to act fairly comprises a failure to consult on reports which have subsequently been overtaken by events.

David Elvin QC acts for the Environment Agency, Defra and DCLG.

James Maurici appeared for the Secretary of State for Communities and Local Government. " class="bborder">In R. (on the application of Bleaklow Industries Ltd) v Secretary of State for Communities and Local Government [2008] EWHC 606 (Admin) Sullivan J. allowed an appeal under s. 289 of the Town and Country Planning Act 1990 to a planning inspector's decision to uphold an enforcement notice affecting a quarry at Longstone Edge, near Bakewell, in the Peak District National Park. The breach of planning control alleged in the enforcement notice was "the winning and working of limestone other than in accordance with Planning Permission 1898/9/69".

The quarry was subject to a 1952 permission which permitted “the winning and working of fluorspar and barytes and for the working of lead and any other minerals which are won in the course of working these minerals, by turning over old spoil dumps, by open-cast working and by underground mining”.

The judge in allowing the appeal made clear he did not agree with either the inspector's or the National Park Authority's interpretation of the planning permission. The Inspector interpreted the permission as limiting the ratio of limestone to fluorspar ore extracted.

Sullivan J. held:

“31. Since fluorspar is a vein mineral and the host rock within which the vein (rakes) and stratabound deposits (flats) are contained is limestone, which itself is overlain by shales, it is clear that a planning permission for winning and working fluorspar also grants permission, by necessary implication, to remove - ie, to win and work, applying the definitions in English Clays (above) - so much of the host rock as is necessary to win and work the fluorspar. While limestone may not be won and worked as an end in itself, it may be removed (won and worked, see English Clays) to the extent that it is reasonably necessary to do so in order to win and work the fluorspar.

35. While I agree with the Inspector's view that the winning and working of fluorspar must be the "primary" activity under the first limb of the permission, and the winning and working of limestone will "necessarily be the subordinate or secondary operation" in the sense that the winning and working of limestone must not be an end in itself but simply the means to an end, namely the winning and working of fluorspar, it does not follow that "this will be reflected in the proportions of the minerals worked". Given the agreed geological characteristics, the proportions of the minerals worked will be variable throughout the life of the permission depending on such factors as the depth, width, direction and content of the fluorspar vein or flat within the host rock.

37. There was an understandable desire on the part of the second respondent to interpret the permission so as to impose some limit on the amount of limestone that could be won and worked in order to protect the natural beauty of the National Park

38. The underlying purpose of the permission is not to protect the National Park or to limit the amount of limestone that can be won and worked. It is to enable fluorspar to be won and worked. Thus the first limb of the permission permits the removal of as much or as little limestone as is reasonably necessary in order to win and work the fluorspar. If the geological conditions are such that a substantial amount of limestone has to be removed in order the win and work a much smaller amount of fluorspar, it would not be consistent with the underlying purpose of the permission to place some arbitrary limit on the amount, or ratio, of limestone extraction if to do so would prevent or inhibit the winning and working of fluorspar. 39. This approach to the interpretation of the condition does not mean that the appellant and the interested party have, in effect, a permission to win and work limestone. Whether the limestone has been won and worked as an end in itself or as a means to an end to enable the winning and working of fluorspar pursuant to the permission will, in the absence of any relevant limitation or condition, necessarily be a question of fact and degree.

41. At the risk of repetition, the permission is concerned to facilitate the extraction of fluorspar, not to limit the amount of limestone removed in order to achieve that end. The person implementing the permission does not have an entirely free hand. He must act reasonably. But, within the bounds of reasonableness, it is for the operator to decide how to win and work the fluorspar under the permission.

45. When deciding whether as a matter of fact and degree the operator is working limestone as an end in itself or as a means to an end (in order to win and work fluorspar) all of the relevant circumstances would need to be considered. They would certainly include the factors mentioned by the appellant: economics, practicality and safety. They would also include the absolute and relative quantities of limestone and fluorspar worked. But save perhaps in an extreme case, such as that postulated by Mr Tippett (1 million tons of limestone worked and sold to 1 ton of fluorspar), this factor alone could not be determinative given the geological characteristics of fluorspar (see above)”.

The permission covers a large area within the Peak District National Park totalling some 155 hectares (the site in issue in the High Court proceedings being only 12 hectares). What is more it is understood that there are other permissions within the Park granted at the same time which have similar wording.

The case has been described as “a test case of planning authorities' ability to "police" out-dated mineral permissions” (http://www.planningportal.gov.uk/news/?1115315576690).

James Maurici appeared for the Secretary of State for Communities and Local Government.

Member of Landmark again featured prominently in Planning Magazine's Legal Survey 2008.

Christopher Katkowski QC was the highest rated planning silk and Carine Patry-Hoskins was the highest rated planning barrister under 35. Roy Martin QC was the top rated Scottish planning advocate.

Overall, 29 Landmark members were in the various lists of the higest rated planning barristers.

Planning's Website states:

"Head of Landmark Chambers Christopher Katkowski QC is regarded as the nation's top silk for planning expertise, Planning's annual Legal Survey reports today. Katkowski finished narrowly ahead of last year’s choice Keith Lindblom QC of Francis Taylor Building. The survey drew responses from 172 solicitors and barristers specialising in planning and environmental law."

 www.planningresource.co.uk/careers/805020/Survey-uncovers-top-ratings-planning-law/
 

Hart District Council v. Secretary Of State For Communities & Local Government, Luckmore Homes Limited, Barrett Home (Southern Counties) Limited, Natural England & Another

Background

The Thames Basin Heaths SPA (“the SPA”) was classified, under Article 4 of EC Directive 79/407/ EEC on the Conservation of Wild Birds (“the Birds Directive”), on 9 March 2005 for nightjar, woodlark and Dartford warbler because it is regularly used by 1% or more of the Great Britain population of these species of wild birds. The SPA covers some 8,400ha and is made up of a number of component SSSIs.

The in-combination impact of housing development within 5km of the SPA has been an issue of contention for some time. Natural England’s “Thames Basin Heaths Special Protection Area: Mitigation Standards for Residential Development” known as the “Draft Delivery Plan” which sought to provide strategic guidance on the issues has been the subject of considerable debate in the context of the South East Plan examination-in-public. The issues raised are of considerable importance to local planning authorities across Hampshire, Berkshire and Surrey.

The facts

The Second and Third Defendants applied for outline and then detailed planning permission to construct 170 houses in a greenfield site off Dilly Lane, Hartley Wintney, and to undertake associated works in the form of improvements to a footpath and the creation of recreational green spaces known as “suitable alternative natural green spaces” (SANGs). The site in question lies approximately 1.5km from the edge of Hazeley Heath, which forms part of the SPA. It was proposed that the SANGs would avoid any net effect of an increased local population on the SPA by providing alternative recreational space for new residents and existing residents.

The procedural history of the case was complex. There were four relevant planning applications for the development, which had either been refused by the Claimant or not determined within the requisite time. The Second and Third Defendants accordingly appealed to the Secretary of State under s 78 Town and Country Planning Act 1990 against the refusals and deemed refusals. An inquiry was held in December 2006, and in January 2007 the Inspector recommended that the appeals be dismissed. The Secretary of State eventually rejected the Inspector’s recommendation and allowed the appeals in July 2007. That decision was the subject of the present proceedings.

The Grounds of Challenge

The Claimant alleged that the Secretary of State had erred in departing from her Inspector’s conclusions as the effect on the SPA. It was submitted that the question of whether a plan or project was likely to have a “significant effect” on the SPA for the purposes of regulation 48(1) of the Conservation (Natural Habitats etc) Regulations 1994 (SI 271/1994) must be assessed with any mitigation measures (in this case, the “SANGs”) disregarded. It was further claimed that the Secretary of State had erred in departing from the Inspector’s conclusion that there were likely to be significant effects on the SPA.

Sullivan J.’s decision

Sullivan J. held:

1. There is no absolute legal rule that mitigation measures should be disregarded in assessing the question of whether the project was likely to have significant effects on the SPA;

2. If certain features are incorporated into a project, there was no sensible reasons why they should be ignored at the initial assessment stage merely because they are directed at combating the likely effects of the project on the SPA;

3. The competent authority is required to assess the “project”, not part of the project shorn of mitigation measures incorporated into it;

4. There was nothing in the European Court of Justice’s judgment inLandelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris Van Landbouw, Natuurbeheer en Visserij (Case C-127/02) [2004] Env LR 14 to undermine those conclusions, because the project or plan before the ECJ did not propose any mitigation measures;

5. As a matter of commonsense, anything requiring the proponent of a project to consider mitigation measures at an early stage should be encouraged;

6. The similarity drawn between the Habitats Directive and the EIA Directive by the ECJ in Waddenzee applied in this case. In R(Catt) v Brighton and Hove CC [2007] Env LR 32 the Court of Appeal had held that mitigation measures incorporated into a project should not be disregarded at the screening stage;

7. The underlying principle, as with the EIA directive, is that the Habitats Directive is an aid to effective environmental decision-making, not a legal obstacle course. If having considered the scientific evidence the Secretary of State was satisfied that the mitigation measures would avoid a net increase in visitors to the SPA and therefore avoid any effect it would have been “ludicrous” for her to disaggregate those measures and require an appropriate assessment on the basis that the development without SANGs would be likely to have significant effects, only then to reassemble the project in the appropriate assessment.

8. The Secretary of State was entitled to depart from her Inspector. The Inspector’s “serious doubts” about the proponent’s scientific evidence did not mean that the Secretary of State was obliged to accept those doubts or that she could only exclude them on the basis of further objective evidence.

A transcript of the judgment is not yet available.

James Maurici appeared for the Secretary of State for Communities and Local Government. Richard Drabble QC appeared for Natural England.

The House of Lords Select Committee into the Crossrail Bill concluded its hearings today (8 May). The Committee began hearing petitions on 19 February 2008 and sat for 29 days. In concluding the hearings, Viscount Colville, the Lord Chairman said:

"The Committee has now concluded the hearing on the Petitions. We will continue to meet in private to discuss and agree the Special Report and the recommendations contained in it on the various Petitions. That will be published, I hope, later this month because we are going to get on to work on it straight away. There will be hard copies sent to all Petitioners. It will be put on the Committee’s website and then, of course, the Bill goes back to the floor of the House. It will go back I think through the remaining stages, re-committal, at which stage the railway clauses will presumably be moved out of it and then there will be a report stage and Third Reading. Then it will be returned to the House of Commons to then consider the amendments. I think that is the usual procedure for public as well as Hybrid Bills. I will just reiterate that it is a very happy moment that we have reached the end of this on a note of great goodwill and contentment all around. Very well. This Committee is adjourned until we get into private session."

The Bill was introduced into the House of Commons on 22 February 2005 and was introduced into the House of Lords on 14 December 2007. Select Committee hearings in the House of Commons ran from 17 January 2006 to 9 October 2007.

David Elvin QC, Timothy Mould QC, Nathalie Lieven QC, Reuben Taylor and Gwion Lewis act for the Promoter, the Secretary of State for Transport.

www.parliament.uk/parliamentary_committees/lords_crossrail.cfm
 

Following an appeal by the Westway Development Trust (www.westway.org), planning permission has been granted for two pioneering advertising structures on land adjoining the elevated A40 Westway in Kensington. They will be built using a semi-translucent metal mesh, significantly reducing their bulkiness. The same material has been used to award-winning effect in the renovation of the Young Vic Theatre and in creating the so-called 'Boilersuit' for Guy's Hospital, London.

The Inspector agreed with the Trust's submissions that "in the context of the extensive hard surfaces of roadway and the generally austere surroundings" of the A40 Westway, the structures "would not look out of place or unduly intrusive".

The Trust has been set up to counter-balance the negative effects of the A40 Westway, the largest continuous concrete structure in the UK and known widely as the "motorway monolith". Income derived from the advertising structures will be used to support the Trust's work in providing recreation, sport and leisure facilities for socially disadvantaged communities in west London.

Gwion Lewis appeared for the Trust and its advertising partner, JCDecaux.

An Inspector has dismissed an appeal by a farmer in Reigate who claimed that his newly built house was lawful because he had concealed it in a huge stack of straw. The Inspector, applying the decision of the House of Lords in Sage, found that the totality of operations comprised in the development of the house was not substantially complete until the straw casing was removed. The hearing also considered 12 other appeals.

Rupert Warren appeared for the Local Planning Authority in the case.

The Secretary of State has indicated she is minded to grant planning permission for the SnOasis project, a large winter-sports resort project centred on a disused quarry outside Ipswich. The decision was made upon the agreement to safeguard great crested newts at the site and commit to a very low carbon footprint in respect of the scheme’s energy use.

Rupert Warren represented the developer, Onslow Suffolk.

For more information click here.

Today the House of Lords began hearing argument in this important case concerning the compatibility with Article 12 ECHR of section 19 of the Asylum and Immigration (Treatment of Claimants) Act 2004 which requires persons subject to immigration control in the UK to obtain permission from the Secretary of State if they wish to enter into a civil marriage in the UK. The hearing is expected to last three days and judgment is anticipated later in the year.

Richard Drabble QC and Charles Banner appeared for the Interveners, the Joint Council for the Welfare of Immigrants and the AIRE Centre, together with Eric Fripp of Mitre House Chambers (instructed by Dawson Cornwell).

On 24 June the European Court of Justice gave its judgment on a reference from the Cour de Cassation (France) in Commune de Mesquer v Total France, SA, Total International Ltd (Case C-188/07).

The Italian electricity production company ENEL entered into a contract for the supply of heavy fuel oil. The heavy fuel oil was to be used for electricity generation by ENEL in Italy. To fulfil the contract with ENEL, Total Raffinage Distribution (now Total France), sold a certain quantity of heavy fuel oils meeting the specifications of ENEL – which came from the Dunkirk refineries - to Total International Ltd, which chartered the ship m.v. Erika in order to transport it to the port of Milazzo in Sicily.

In 1999 the ship broke up off the coast of France which led to her cargo, namely several million tonnes of heavy fuel oil, being spilled into the sea. This led to the pollution of the French Atlantic coastline. It was France’s worst ever oil disaster.

The ECJ held:

1.  A substance such as that at issue in the main proceedings, namely heavy fuel oil sold as a combustible fuel, does not constitute waste within the meaning of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Commission Decision 96/350/EC of 24 May 1996, where it is exploited or marketed on economically advantageous terms and is capable of actually being used as a fuel without requiring prior processing.

• • the national court may regard the seller of those hydrocarbons and charterer of the ship carrying them as a producer of that waste within the meaning of Article 1(b) of Directive 75/442, as amended by Decision 96/350, and thereby as a ‘previous holder’ for the purposes of applying the first part of the second indent of Article 15 of that directive, if that court, in the light of the elements which it alone is in a position to assess, reaches the conclusion that that seller-charterer contributed to the risk that the pollution caused by the shipwreck would occur, in particular if he failed to take measures to prevent such an incident, such as measures concerning the choice of ship;

• • if it happens that the cost of disposing of the waste produced by an accidental spillage of hydrocarbons at sea is not borne by the International Oil Pollution Compensation Fund, or cannot be borne because the ceiling for compensation for that accident has been reached, and that, in accordance with the limitations and/or exemptions of liability laid down, the national law of a Member State, including the law derived from international agreements, prevents that cost from being borne by the shipowner and/or the charterer, even though they are to be regarded as ‘holders’ within the meaning of Article 1(c) of Directive 75/442, as amended by Decision 96/350, such a national law will then, in order to ensure that Article 15 of that directive is correctly transposed, have to make provision for that cost to be borne by the producer of the product from which the waste thus spread came. In accordance with the ‘polluter pays’ principle, however, such a producer cannot be liable to bear that cost unless he has contributed by his conduct to the risk that the pollution caused by the shipwreck will occur”.

 James Maurici appeared for the United Kingdom as interveners.

Sullivan J. said that he would dismiss the judicial review of the decision to grant consent under s. 36 of the Electricity Act 1989 for one of the largest windfarms in the UK at Fullabrook, North Devon, and would give his reasons on Friday 27 June. The Inspector (and the Secretary of State) had found that although there were significant landscape and other impacts, they were outweighed by the substantial benefits in providing a source of sustainable energy.

The challenge to DBERR's decision to grant consent was brought by North Devon DC alleging failure to consider landscape and noise issues properly and failing to consult on new material.

John Litton represented the Secretary of State. David Elvin QC and Graeme Keen represented Devon Wind Power.

This was a claim for judicial review of a decision of the Higher Education Funding Council for England (“HEFCE”) to recover from Queen Mary University of London (“QM”) a total £852,000 of research support grant funds relating to the year 2006/7. The basis upon which recovery was sought was that HEFCE considered that QM was in breach of the terms or conditions applicable to obtaining such a grant. The term was concerned with “open competition”.

Burnett J. held that the issue of whether there had been “open competition” and hence a breach of condition was not a question of precedent fact and that HEFCE had correctly approached the matter. The learned Judge also rejected challenges to HEFCE’s decision to recover based on fairness and rationality. However, he found for QMUL on the issue of delegation.

James Maurici appeared as junior counsel for the HEFCE (led by The Hon Michael Beloff QC) instructed by Beachcroft LLP”.

The Court of Appeal (Pill, Rich and Longmore LLJ) gave detailed consideration as to what is the proper test to apply where it is alleged that a decision maker appears to have a closed mind so-called “apparent predetermination”.

The Court of Appeal reviewed the domestic authorities going back to Franklin v Minister of Town and Country Planning [1948] AC 87 as well as a number of Commonwealth authorities. The Court of Appeal held that it was not bound by the decision of the Court of Appeal in Condron v National Assembly [2007] LGR 87 as the proper test was a matter of concession in that case.

Pill LJ said:

“62. ...  There is no doubt that Councillors who have a personal interest, as defined in the authorities, must not participate in Council decisions.  No question of personal interest arises in this case.  The Committee which granted planning permission consisted of elected members who would be entitled, and indeed expected, to have, and to have expressed, views on planning issues.  When taking a decision Councillors must have regard to material considerations and only to material considerations, and to give fair consideration to points raised, whether in an Officer’s report to them or in representations made to them at a meeting of the Planning Committee.  Sufficient attention to the contents of the proposal, which on occasions will involve consideration of detail, must be given.  They are not, however, required to cast aside views on planning policy they will have formed when seeking election or when acting as Councillors.  The test is a very different one from that to be applied to those in a judicial or quasi-judicial position.         

63.          Councillors are elected to implement, amongst other things, planning policies.  They can properly take part in the debates which lead to planning applications made by the Council itself.  It is common ground that in the case of some applications they are likely to have, and are entitled to have, a disposition in favour of granting permission.  It is possible to infer a closed mind, or the real risk a mind was closed, from the circumstances and evidence.  Given the role of Councillors, clear pointers are, in my view, required if that state of mind is to be held to have become a closed, or apparently closed, mind at the time of decision.

deciding whether there is a real risk that minds were closed.  

69.          Central to such a consideration, however, must be a recognition that Councillors are not in a judicial or quasi-judicial position but are elected to provide and pursue policies.  Members of a Planning Committee would be entitled, and indeed expected, to have and to have expressed views on planning issues…

70.          The judge properly acknowledged the need to be “cognisant of the practicalities of local government”.  Where he erred, in my judgment, was in finding that there were present “additional unusual circumstances” which required the permission to be quashed.  The danger of the “notional observer” test is that the role of elected Councillors may not fully be taken into account.  That could lead to any Councillor, elected on a pro-scheme manifesto, creating a serious risk of a Council’s grant of permission being quashed if he participated in the decision to grant.  That would not be in the public interest or accord with the law.”

The Court of Appeal also considered the impact of the fact that the planning decision and the signing of the development agreement had taken place in the pre-election purdah period.

The case also raised issues related to the proper approach to the undertaking of an appropriate assessment under the Conservation (Natural Habitats &c) Regulations 1994.

Richard Drabble QC and James Maurici appeared for the successful Appellant, Persimmon Homes Teeside Limited instructed by Ward Hadaway.

Cooper v Attorney-General (HQ05X03767)

The High Court (Plender J.) is to hear what is believed to be the first claim brought in the UK for damages, pursuant to the ECJ’s decision in Case C-224/01 Kobler v Republik Osterreich [2003] ECR I-10239. In that case the ECJ held that a Member State may be answerable in damages for failures by its courts of final instance to give effect to Community law, where the failure amounts to a sufficiently serious breach of Community law.

The case arises out of what are alleged to have been sufficiently serious/manifest errors of Community law by the Court of Appeal when dismissing judicial review proceedings commenced by Stephen Cooper and the other then trustees of the CPRE London Branch in October 1999 in respect of the White City development: see R. v London Borough of Hammersmith and Fulham [2000] 2 C.M.L.R. 1021; [2000] Env. L.R. 549 and [2000] Env. L.R. 532.

James Maurici is junior counsel for the Attorney-General (led by Philip Sales QC) 

The successful Claimant was represented by Tim Buley.

The Court of Appeal (Buxton, Thomas and Stanley Burnton LJJ) have heard the London Borough of Wandsworth's appeal against the award of £1.6 million compensation by the Lands Tribunal (reported at [2007] 50 EG 110) for the compulsory purchase of a park in Wandworth which was agreed to have a market value of £15,000.

The issue was the propose construction and effect of the assumption in s. 15(3) of the Land Compensation Act 1961 which appears to require the assumption of the grant of planning permission for development within Schedule 3 to the Town and Country Planning Act 1990, including the rebuilding of war damaged properties. Although the land originally included a terrace of houses which were bombed during the Second World War, it had for 30 years comprised prefabricated houses and for the last 30 years enjoyed planning permission as a park.

The Law Commission has recommended the repeal of these provisions which originate in the Town and Country Planning Act 1947 (part was removed by the Planning & Compensation Act 1991), following many judicial expressions of the need for reform in this area of the law, but the Government has shelved the Law Commission's proposals.

Judgment was reserved.

David Elvin QC and Reuben Taylor appeared for the Appellant Council and John Male QC appeared for the Respondent.

Mrs Justice Dobbs dismissed an application for judicial review brought by Julie Kay through her father and litigation friend George Kay against the Health Service Commissioner (“the Ombudsman”).

In the course of an investigation being conducted by the Ombudsman Mr Kay made, on his daughter’s behalf, requests for disclosure of all the documents provided by the Oxfordshire Learning Disability NHS Trust (“the Trust”) to the Ombudsman.

The Ombudsman, following the decision of Mr Justice Collins in R (Turpin) v Commissioner for Local Administration [2003] LGR 133, offered to disclose “all the documents on which she is proposing to rely or which may influence her decision on the complaint to her”. Mr Kay, however, sought disclosure of all documents provided by the Trust to the Ombudsman in order that he could consider such documentation and make representations on their relevance. Mr Kay also refused to provide an undertaking limiting use of the documents offered to be disclosed for the purposes of making representations on the investigation.

The learned Judge dismissed the claim holding that the Ombudsman had acted fairly and properly.

James Maurici appeared for the Ombudsman instructed by Beachcroft LLP.

This was a challenge under s. 288 of the Town and Country Planning Act 1990 to the decision of an Inspector to dismiss an appeal for the demolition of 2 existing dwelling houses and the erection of 14 two bedroom apartments in two blocks of seven apartments at Crowthorne. The Inspector refused permission on the basis that the proposal could, in combination with other plans and projects, have an adverse effect on the integrity of the Thames Basin Heaths SPA having regard to, inter alia, the failure also to make provision for any suitable alternative natural green spaces known as SANGs within the unilateral undertaking offered.

Mr Justice Sullivan dismissed the claim holding that the Inspector had been entitled to rely on the advice of Natural England as regards impact on the SPA. The learned Jugde held that the approach taken was consistent with the decision of the ECJ in Waddenzee case [2004] ECR I-7405 and his own decision in Hart DC v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin).

The Thames Basin Heaths SPA was classified, under Article 4 of EC Directive 79/407/ EEC on the Conservation of Wild Birds (“the Birds Directive”), on 9 March 2005 for nightjar, woodlark and Dartford warbler because it is regularly used by 1% or more of the Great Britain population of these species of wild birds. The SPA covers some 8,400ha and is made up of a number of component SSSIs.

The in-combination impact of housing development within 5km of the SPA has been an issue of contention for some time. Natural England’s “Thames Basin Heaths Special Protection Area: Mitigation Standards for Residential Development” known as the “Draft Delivery Plan” which sought to provide strategic guidance on the issues has been the subject of considerable debate in the context of the South East Plan examination-in-public.

Rupert Warren appeared for the Claimant. James Maurici appeared for the Secretary of State.

On 30 June 2008 Warren J granted to the power generation company E.On and the National Grid an injunction to prevent trespass at Kingsnorth power station Kent during the “Camp for Climate Action” 2008 which is to take place in the vicinity of the power station between 3 and 11 August 2008. The power station has become a focal point for environmental protestors because E.On plans to build on the site the first new coal fired power station in the UK since 1976. On the Camp for Climate Action website there is mention of a day of “mass action” on 9 August in an attempt to shut down the power station with threats of incursions by land, sea and from the air. The injunction was granted despite the fact that the Claimants do not know the identity of any of those who might attempt to trespass. It covers not only the area of the main power station but the airspace above it and an “exclusion zone” of 25 meters surrounding the cooling water intake on the River Medway. Further special directions were given to enable the proceedings and the order to be served by posting them in prominent places around the site and by e-mail.

On 22nd July 2008 Lindsay J extended the area covered by the injunction.

David Holland acted for the Claimants E.On and the National Grid.

The Crossrail Bill was granted Royal Assent today, marking the end of the Parliamentary process that has scrutinized this £16 billion rail scheme for London. The Crossrail Act 2008 grants consent for the new railway, allowing construction work on the largest civil engineering project in Europe to commence, and the necessary property rights to be acquired.

David Elvin QC, Tim Mould QC, Nathalie Lieven QC, Reuben Taylor and Gwion Lewis represented the promoter of the scheme, the Department for Transport, in hearings before Select Committees of both Houses of Parliament.

The Court of Appeal upheld the decision of the first instance judge that, on the correct interpretation of four commercial leases, the landlord could only claim service charge in respect of works carried out if it had served on the tenant an end of year statement which included reference to those works. There was no provision which allowed the landlord to claim the sums by means of an invoice outside the service charge machinery which was “the contractual route down which the landlord must travel to be entitled to payment”. However the court indicated that: “Provisions of this kind should not be seen as procedural obstacle courses. Businessmen dealing with one another often make mistakes.

David Holland appeared for the appellant.

Carine Patry Hoskins Appointed to Treasury Counsel B Panel

Landmark Chambers is delighted to announce that Carine Patry Hoskins has been appointed to the Attorney General’s "B" Panel of approved counsel, following 3 years on the "C" Panel. This appointment will last for 5 years and is further recognition that Chambers has junior tenants of the highest quality.

For more information on the Attorney General's Panels of Counsel, please click here.

The most significant recommendation is that the Bill should make it compulsory for all premises selling food in London to display their food hygiene certificates. The current 5-star rating system, known as ‘Scores on the Doors’, is voluntary only, but the London Boroughs are seeking powers for a mandatory scheme to bring London in line with New York, Los Angeles and Copenhagen.

The Bill also enables the London Boroughs to charge premises for placing tables and chairs on the highway. The Select Committee agreed that this clause should be retained given the growth of ‘café culture’ in the capital and the additional burden that this places on local authorities in terms of street cleaning and enforcement.

The Bill is being promoted by Westminster City Council on behalf of all 33 London Boroughs and covers a wide range of issues relating to the capital. The Committee sat for three days in July to hear evidence and submissions from the promoters, the petitioners and central government.

Dismissing the Secretary of State’s appeal, the House of Lords held that the policy providing for the denial of permission to all those who are in the country without leave, or those whose grant of leave to enter or remain in the UK totalled less than 6 months, or those who did not have at least 3 months’ leave remaining, was incompatible with Article 12 ECHR. Their Lordships also held that the prescribed application fee of £295 was incompatible with Article 12.

Richard Drabble QC and Charles Banner appeared for the successful Interveners, the Joint Council for the Welfare of Immigrants and the AIRE Centre (instructed by Dawson Cornwell), together with Eric Fripp of Mitre House Chambers.

For full details of this case, please click here.

Landmark Chambers today appeared at the House of Lords in 5 cases. These cases were:

R (Baiai) v. Secretary of State for the Home Department [2008] UKHL 53

A case considering Article 12 ECHR (the right to marry and found a family) of the scheme set up under section 19 Asylum and Immigration (Treatment of Claimants) Act 2004. More information

Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints [2008] UKHL 56

Case concerning the treatment of Mormon Church buildings for the purposes of non-domestic rating. More information

Yeoman's Row Management Ltd v Cobbe [2008] UKHL 55

An important judgment regarding proprietary estoppel and its role in pre-contractual negotiations. More information

R(Heffernan) v The Rent Service [2008] UKHL 58

A case concerning the calculation of the maximum allowable housing benefit for a person who is eligible for support. More information

Doherty v Birmingham City Council [2008] UKHL 57

An important step the in the evolution of human rights jurisprudence in the field of property law. More information
 

Welsh Heritage Minister attends launch of Gwion Lewis' new book on language rights

In an event attended by over 100 lawyers, politicians, civil servants and activists, Gwion Lewis launched his new book on language rights today. Hawl i'r Gymraeg (The Right to Welsh) analyses the law relating to minority languages, with a particular focus on international and European law. It is the first book of its kind in the Welsh language and will be translated into English in late 2008.

Wales' newly-appointed Heritage Minister, Alun Ffred Jones, attended the launch at the National Eisteddfod in Cardiff, which was heavily covered by the media in Wales. The book examines the politics of linguistic identity and argues that the current system of Welsh language schemes for the public sector, as provided by the Welsh Language Act 1993, should be jettionsed in favour of a rights-based approach that also embraces the private sector. It also calls for the Welsh language to be declared the official language of Wales.

The timing of the book is apposite as the House of Lords is likely to transfer primary legislative powers over the Welsh language to the Welsh Assembly later this year.

Gweinidog Treftadaeth newydd Cymru yn mynychu lansiad Hawl i'r Gymraeg, llyfr newydd Gwion Lewis

Lansiodd Gwion Lewis ei gyfrol newydd, Hawl i'r Gymraeg, heddiw yng nghwmni dros 100 o gyfreithwyr, gwleidyddion, gweision sifil ac ymgyrchwyr. Dyma'r gyfrol gyntaf i osod y Gymraeg yng nghyd-destun cyfreithiau rhyngwladol a Ewropeaidd.

Mynychodd Alun Ffred Jones, Gweinidog Treftadaeth newydd Cymru, y lansiad ar faes yr Eisteddfod Genedlaethol yng Nghaerdydd, a gafodd gryn sylw gan y cyfryngau. Mae'r gyfrol yn trafod y berthynas rhwng iaith ac hunaniaeth ac yn dadlau na fydd y gyfraith yn ddigonol nes y bydd yn cydnabod fod gan siaradwyr y Gymraeg yr hawl i ddefnyddio'r iaith. Byddai'r sectorau cyhoeddus a phreifat yng Nghymru yn gorfod cydnabod yr hawl honno. Mae'r gyfrol hefyd yn galw ar Lywodraeth y Cynulliad i ddatgan mai'r Gymraeg yw iaith swyddogol Cymru.

Landmark Chambers has been short-listed in 2 Categories of The Chambers Bar Awards. Russell Harris QC has been short-listed for Silk of the Year for Environment/Planning and John Male QC has been shortlisted for Silk of the Year for Real Estate.

The Awards will be held at The Grosvenor House Hotel, Park Lane, on Thursday 25^th September 2008.

The Court of Appeal (Keene, Thomas and Hughes LJJ) heard the expedited appeal from Collins J. [2008] EWHC 1650 (Admin) in R(Finn-Kelcey) v. Milton Keynes Council & MK Windfarms Ltd. and, whilst reserving their reasons until October, indicated that they would dismiss the appeal and refuse permission to bring judicial review.

Milton Keynes Council had granted planning permission for a new windfarm at Petsoe Manor Farm in January 2008 and the grounds of challenge included an allegation that there had been a failure to comply with regulation 19(4) of the EIA Regulations 1999 and a failure to make certain windspeed data properly available to objectors, in breach of the EIA Directive.

David Elvin QC and Richard Turney represented the Council.

John Litton represented the Interested Party, MK Windfarms.

In the case of Bovale v SSCLG [2008] EWHC 2143 (Admin) Mr Justice Collins, the Lead Judge of the Administrative Court, has indicated that defendants in claims under s. 287 and 288 of the Town and Country Planning Act 1990 (and also s. 113 of the Planning & Compulsory Purchase Act 2004) ought to think in terms of serving both evidence and grounds for resistance, however short, within a period of 10 weeks from service of the claim.

Furthermore he indicated that where the defendant chose not to put in any grounds for resisting and thus the grounds set out in the claim form represented the way in which the case was to be put by the claimant, it was for the defendant to put in the first skeleton argument.

Collins J. so held on an appeal by the Secretary of State against an order made by the deputy master, pursuant to an application made by the Claimant, to file and serve evidence and any grounds of resistance alternative or additional to those lodged voluntarily by the defendant local authority. The Claimant’s application may well have been a result of a communication from Collins J to PEBA – the Specialist Bar Association for Planning Environment and Local Government - that: “Claimants in T&CPA 1990 s. 287 and 288 claims should, in appropriate cases, apply in their Claim for Directions as to exchange of evidence and/or summary grounds of Defence so as to ensure that the ambit of the dispute is known in advance, so that full evidence is exchanged and so that Claimants are aware of the Defence in advance of filing Skeletons.”

Collins J. observed that the timescales set out in the practice direction and rules for service of evidence by defendants in s. 287 and 288 claims were far too short and that it was quite unrealistic to expect the Treasury Solicitor and planning authorities to take proper instructions within the time set out. An appropriate period for lodging evidence and grounds for resisting the claim would be 10 weeks, relying on his own decision in Dinedor Hill Action Association v Herefordshire DC (2008) EWHC 1741 (Admin), (2008) NPC 90.

David Blundell appeared for the Secretary of State before Collins J. on the appeal. James Maurici is instructed by the Secretary of State in the substantive s. 288 claim in Bovale.

On Friday 5th September the Planning Inspectorate declared Tandridge District Council's Core Strategy to be sound, in compliance with the tests in PPS12. The declaration is of great importance as it is only the the second Core Strategy to be declared sound in Surrey.

The Core Strategy, a blueprint for the future development of Tandridge District, was the subject of a public examination by the Inspector in June and July 2008. The Council’s approach, based on restraint, has been supported by the Planning Inspector and his report will be made available shortly.

Carine Patry Hoskins, who acted for a local residents group, attended every session of the examination in order to support the Council in arguing that the Core Strategy was sound.

We are delighted to announce that we have retained and improved our positions in the top tiers for each of our core practice areas in the 2008 edition of The Legal 500. The publication states:

"Landmark Chambers possesses real strength in all of the set's core areas of planning, environment, property law, and increasingly, administrative law in which area, the set is promoted this year. Chief Executive, Joanna Poulton, is sure to inspire success".

Our rankings in the 2008 directory are as follows:

Administrative & Public Law - Tier 2: "Landmark is promoted, seemingly 'in all the reported cases'", with "impressive and well-liked lawyers".

Environment - Tier 1: "One of Landmark Chambers' core areas, residing at the intersection of planning and public law", our barristers are described as "universally regarded", "very well respected" and "outstandingly proactive".

Planning - Tier 1: "Landmark Chambers is the pre-eminent planning set, with an unrivalled breadth of experience and quality at all levels".

Property Litigation - Tier 2: For property litigation our barristers are described as "astute tacticians", "superb and fast thinking" and who provide a "first class service".

Landmark Chambers are delighted to announce that Russell Harris QC has won Silk of the Year for Environment/Planning at the Chambers Bar Awards 2008.

The awards were held on 25 September 2008 at the Grosvenor House Hotel, Park Lane.

Cooper v Attorney-General [2008] EWHC 2178

The High Court (Plender J.) has dismissed the first claim brought in the UK for damages, pursuant to the ECJ’s decision in Case C-224/01 Kobler v Republik Osterreich [2003] ECR I-10239. In that case the ECJ held that a Member State may be answerable in damages for failures by its courts of final instance to give effect to Community law, where the failure amounts to a sufficiently serious breach of Community law.

The case arises out of what are alleged to have been sufficiently serious/manifest errors of Community law by the Court of Appeal when dismissing judicial review proceedings commenced by Stephen Cooper and the other then trustees of the CPRE London Branch in October 1999 in respect of the White City development: see R. v London Borough of Hammersmith and Fulham [2000] 2 C.M.L.R. 1021; [2000] Env. L.R. 549 and [2000] Env. L.R. 532.

Plender J. concluded that the case fell “far below the standard required to constitute a manifest infringement of the applicable law so as to give rise to a claim for damages”

Plender J. granted permission to appeal.

James Maurici is junior counsel for the Attorney-General (led by Philip Sales QC)

For full case details, please click here.

A public inquiry examining proposals for a new mixed-use community on the site of a former Cold War airbase opened in Oxfordshire today.

A consortium of developers is seeking permission to build 1075 dwellings with supporting infrastructure on the former RAF Upper Heyford base near Bicester. During the Cold War, the 505 hectare site was one of the largest US Air Force bases in Europe and most of the military infrastructure remains, including a battle command centre, several weapons stores and 56 hardened aircraft shelters.

The local planning authority, Cherwell District Council, is opposing the proposal alongside Oxfordshire County Council on several grounds, but primarily on the basis that it is unsustainable and would fail to enhance the environment of the base in accordance with an adopted planning brief. English Heritage is also opposing the proposal on heritage grounds.

The inquiry is due to last a month before the decision is called in for a decision by the Secretary of State. It is generating considerable media interest: the BBC’s coverage can be followed here.

Graeme Keen and Gwion Lewis are acting for Cherwell District Council and Oxfordshire County Council. Robert Walton is acting for English Heritage.

We are delighted to announce that Jacqueline Lean, Richard Turney and Jonathan Wills have become tenants of Landmark Chambers upon the successful completion of their pupillages.

Landmark Chambers is delighted to announce the launch of its Centre for Environmental Law. A first for the Bar, the Centre is a forum for discussion and commentary on all matters relating to environmental law and policy, drawing on the expertise of Landmark’s members and our links with leaders in the field.

Through an ambitious programme of seminars, podcasts, training courses and other events, the Centre will cement Landmark’s reputation as a leader in the environmental arena. Our members regularly appear in the leading cases, both in the UK and beyond, and in addition to our ‘pure’ environmental work, the environment features heavily in our other three specialisms: planning, property and public law. This makes us ideally placed to advise on environmental law as it continues to develop as an increasingly important area of the law.

We encourage all those with an interest in environmental law and policy to become involved with the Centre. At the heart of the project is a dedicated website, www.landmarkchambers.co.uk/LCCEL, where you will find research tools, notes, articles and the latest environmental news from the BBC. You will also be able to download our free podcasts, featuring expert commentary from Landmark members and interviews with key figures. The first, London 2012 and Sustainability, an interview with Shaun McCarthy, Chair of Commission for a Sustainable London 2012, is available to download now.

For more details about the Landmark Chambers Centre for Environmental Law, please contact the Assistant Directors, Sasha Blackmore or Gwion Lewis.

Burnett J. today gave judgment in the case of Attwood v Health Service Commissioner.

This was an application for judicial review of a report of the Health Service Commissioner (“the Ombudsman”) into complaints surrounding the treatment of a patient who died in January 2002. The Claimant was a doctor who treated the deceased and who was severely criticised in the report. He challenged the report on two bases. First, he contends that the Ombudsman misdirected herself in law because she failed to apply the Bolam test to questions arising out of the clinical decisions he made concerning the deceased’s treatment and management. Secondly, he mad a series of discrete points directed to the detail of the report, the findings made and conclusions reached in the report.

Burnett J. held that:

1. the language of section 3(1) of the Health Service Commissioners Act 1993 as amended does not dictate that the Bolam test should be applied by the Ombudsman to questions of clinical judgment;
2. however, the test for “failure of service” under section 3(1) as publicly articulated by the Ombudsman (namely whether the service provided by the trust “fell below a standard which the patient could reasonably have expected in the circumstances”) was in fact the Bolam test in all but name and therefore that the Ombudsman had failed to apply her own test.

The learned Judge also made observations about the standard of reasoning required in an Ombudsman’s report.

James Maurici appeared for the Health Service Commissioner instructed by Beachcroft LLP.

Chambers is delighted to announce we have been placed 20^th in The Lawyer “Bar Top 30” report.

With a turnover of £20.2m for 2007-2008 we have been placed 20th and are well positioned in the top 10 for The Silk Race (9th) , Court of Appeal Appearances (8th), ECJ Appearances (5th)and House of Lords Appearances (7th).

Chief Executive Joanna Poulton commented “2008 has been a very good year for  Chambers. Our positioning in the top tiers of the Bar both in The Bar Top 30 and the recent Legal 500 2008 further reinforces our reputation as one of the country’s leading sets.”

The Court of Appeal today gave judgment in R (Finn-Kelcey) v Milton Keynes Council [2008] EWCA Civ 1067. The Court dismissed the appeal against Collins J's refusal of permission to seek judicial review of the Council's decision to grant planning permission for the construction of seven wind turbines in Olney, Buckinghamshire. The Court held that technical wind speed information which was referred to in documents on the planning file was available to objectors, and that there had been no breach of a Directive 2003/35/EC. It was also held that Collins J was correct to refuse permission on the basis that the claimant had not brought his claim promptly in circumstances where proceedings were brought just within three months from the date of the decision.

David Elvin QC and Richard Turney acted for Milton Keynes Council in the Court of Appeal. David Forsdick acted for the Council at first instance.

John Litton acted for the Interested Party, MK Windfarm Limited.

This week the House of Lords hears the appeal by the Cadogan Estate in the joint appeals for the joined appeals of Earl Cadogan v Sportelli [2007] EWCA Civ 1042; Pitts v Earl Cadogan; Earl Cadogan v Atlantic Telecasters Ltd [2007] EWCA Civ 1280; [2008] RVR 244.

The appeal concerns hope value and whether it should be added to the price payable by leaseholders for leasehold enfranchisement.

Tom Jefferies is acting for the leaseholders.

The House of Lords today gave judgment in R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, a case with wide implications for social security rights, homelessness and discrimination under the Convention.

There were four main issues:

1. whether social security benefits fall within the ambit Art 1 of Protocol 1 following the Grand Chamber’s decision in Stec v UK;
2.  
3. the correct approach to “other status” in Art 14 and in particular whether homelessness is an “other status”;
4.  
5. whether disentitling the homeless (those “without accommodation”) from receiving disability premium in income support (under the Income Support (General) Regulations 1987 could be justified by the Secretary of State;
6.  
7. the correct approach to section 2 HRA where a court is faced with a recent Strasbourg, and a previous inconsistent (but otherwise binding) domestic decision, following Kay v Lambeth.

Their Lordships (Lord Neuberger of Abbotsbury giving the leading speech) found in the Appellants’ favour on the first two issues, holding that, in the light of Stec, disability premium as part of the “UK’s social welfare system” fell squarely within the ambit of Art 1 Protocol 1 and that homelessness was an “other status” within Art 14.

Their Lordships rejected the Court of Appeal’s narrow, formalistic approach to the question of ‘personal characteristic’ under Art 14. ‘Personal characteristic’ within the Strasbourg jurisprudence “generally requires one to concentrate on what somebody is, rather than what he is doing or what is being done to him” (per Lord Neuberger at [45]). In this context, a generous meaning was to be given to the phrase “other status”.

On issue 4) their Lordships held that the Court of Appeal had been free to depart from its earlier contrary decision (Campbell v South Northamptonshire DC) in the light of a subsequent inconsistent decision of the ECtHR.

Their Lordships went onto dismiss the appeal, finding in the Secretary of State’s favour issue 3), justification, with Lord Mance expressing some “residual doubt” on this issue (at [15]).

Richard Drabble QC and Zoe Leventhal appeared for RJM, instructed by the Child Poverty Action Group.

Nathalie Lieven QC (with John Howell QC) appeared for the Secretary of State. The Equalities and Human Rights Commission as intervenor made written submissions.

This week a rare challenge to the admissions criteria for schools was heard at the High Court. The case was the first High Court challenge to an Adjudicator's decision on admissions criteria since the bringing into effect of changes to the School Standards and Framework Act 1998 and the new Code on School Admissions.

The School had brought urgent proceedings to the High Court following Ealing Council’s referral of the School's oversubscription criteria to the Adjudicator. In this referral they believed that their third criterion had the effect of unfairly excluding children from a particularly socially deprived area whilst including children from a more affluent area.

The Adjudicator agreed that the challenged criterion did not comply with the Code because it did not actively promote social equity and imposed a different criterion based solely upon distance from the School.

The High Court concluded that although the Adjudicator was entitled to reach the conclusion that the disputed criterion disadvantaged children from a more socially deprived area than those benefitting from the criterion, he had failed to properly address the School's arguments about the effect of changing the criterion on other children, particularly those to the east of the school.

The School's Adjudicator was nonetheless successful on certain matters of principle. The judgment provides guidance on the approach of the High Court to challenges to the Adjudicator's decision (applying the guidance on specialist tribunals set out in the House of Lords decision in AH (Sudan) [2008] ... to Schools Adjudicator's for the first time) and rejected the Schools argument that the Adjudicator's jurisdiction had been altered by the amendments to the legislation and the Code: it remains an original jurisdiction.

Samantha Broadfoot appeared for the Adjudicator.

The ECJ gave judgment today in Case C-247/06 Commission v Germany.

The UK intervened to ask the ECJ to reconsider its previous decisions in Commission v Italy (C486/04) [2006] E.C.R. IA-11025 and Commission v Italy (C255/05) on whether references in the Environmental Impact Assessment Directive (Directive 85/337/EC) to “waste disposal” include as well as operations leading to waste disposal operations for waste recovery.

James Maurici acted for the United Kingdom.

The judgment is available at: http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en

The Secretary of State has granted planning permission for the SnOasis project in Suffolk, following a four-year application process.

The project involved three linked applications: a £370 million winter sports resort (which will include Europe's longest real snow ski dome), a new railway station, and 400 houses. Planning permission for the railway station and the housing was granted by the Secretary of State earlier in 2008. 

The Secretary of State found that the proposal's benefits to the region's economy, employment, leisure, sporting facilities and tourism were significant factors weighing in favour of permission.

Rupert Warren represented the developer, Onslow Suffolk.

The Court of Appeal today gave judgment in Ali v Birmingham City Council [2008] EWCA Civ 1228. The case concerned the proper scope of appeal rights of homeless persons under Part VII of the Housing Act 1996.

The City Council, as a housing authority, had determined that it had discharged its duty to two homeless persons on the ground that they had refused suitable accommodation. Those determinations were reviewed and upheld by the authority’s reviewing officer, who found in each case that as a matter of fact both appellants had received certain letters.

Each appealed to the County Court under s. 204 of the Act. That provision provides a right of appeal substantially the same as judicial review.

It was contended by the two appellants that since the reviewing officer was not an impartial and independent tribunal, it was necessary in order to comply with Article 6.1 for a s. 204 appeal right to extend to the determination of issues of fact. Although the House of Lords held in Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5; [2003] 2 AC 430 that the statutory scheme was Article 6.1 compliant, it was contended here that that case only applied to determinations of fact by the reviewing officer which raised issues of specialist knowledge or policy. In contrast, both appeals here turned on a simple issue of fact.

The Court of Appeal unanimously held that the matter in issue had been determined by the House of Lords in Runa Begum, and dismissed the appeals.

This decision was unaffected by the European Court of Human Rights decision in Tsfayo v The United Kingdom [2006] ECHR 60860/00; [2007] LGR 1 that the requirements of the statutory scheme did not fulfil the requirements of Article 6.1, since the decision in Runa Begum was binding authority and in any event, the Strasbourg court “said nothing that cast doubt” on the correctness of Runa Begum.

Ashley Underwood QC (with Miss Catherine Rowlands) appeared for Birmingham City Council.

Richard Drabble QC appeared for the Secretary of State, the interested party.

The House of Lords today dismissed an appeal from the Court of Appeal in Northern Ireland concerning the social security entitlements of workers from the "A8" accession states, including Poland. The House held that the denial of social security benefits to workers who had not complied with the terms of the Worker Registration Scheme was a proportionate penalty.

Richard Drabble QC, James Maurici and Richard Turney acted for the Interveners, the Child Poverty Action Group and the Public Law Project.

For more information on the case click here.

The High Court (Collins J) quashed Nottinghamshire County Council’s grant of planning permission to itself for a bus station development in Mansfield Town Centre.

The judge held that the County Council acted unlawfully in failing to secure a mechanism for the development to proceed in a way which was compatible with the Claimant’s plans for the adjoining development. The judge also held that planning permission had been granted unlawfully because the County Council failed to produce a written screening opinion under the Environmental Impact Assessment Regulations and because the Council had failed to comply with article 22 of the General Development Procedure Order (duty to give summary reasons and a summary of relevant policies in the decision notice granting planning permission).

Dan Kolinsky acted for the successful Claimant, Aldergate Projects Limited.

The Court of Appeal have suspended the effect of the judgment of Collins J. in Bovale Ltd v SSCLG and Herefordshire DC [2008] EWHC 2143 (Admin) pending the outcome of the Secretary of State’s appeal.

In Bovale Collins J., the Lead Judge of the Administrative Court, has indicated that defendants in claims under s. 287 and 288 of the Town and Country Planning Act 1990 (and also s. 113 of the Planning & Compulsory Purchase Act 2004) ought to think in terms of serving both evidence and grounds for resistance, however short, within a period of 10 weeks from service of the claim. Furthermore he indicated that where the defendant chose not to put in any grounds for resisting and thus the grounds set out in the claim form represented the way in which the case was to be put by the claimant, it was for the defendant to put in the first skeleton argument.

The appeal from Collins J.’s judgment was part heard on Monday 10 November. The hearing was adjourned to allow the appointment of an advocate to the court and seek representations from the Lord Chancellor. In adjourning the matter the Court of Appeal made an order which included the

following terms:

“2. the judgment of Collins J. dated 1 September 2008 be suspended pending the hearing of this appeal in so far as it provides:

i. that an acknowledgement of service is required in proceedings under s. 287 and 288 of the Town and County Planning Act 1990 and s. 113 of the Planning and Compulsory Purchase Act 2004;

ii. that there is an assumption/standard direction that evidence by defendants to proceedings under s. 287 and 288 of the Town and County Planning Act 1990 and s. 113 of the Planning and Compulsory Purchase Act 2004 be filed and served within the period of 10 weeks of lodging of the claim rather than the 21 days provided for in para. 22 of the Part 8 Practice Direction;

iii. that there be an expectation/standard direction that grounds of resistance be filed and served by defendants to proceedings under s. 287 and 288 of the Town and County Planning Act 1990 and s. 113 of the Planning and Compulsory Purchase Act 2004;

iv. that if defendants fail to file and serve grounds of resistance it will generally be required that defendants, rather than the claimant, put in the first skeleton argument

3. Para. 2 above is without prejudice to the ability of any party to argue that in the particular circumstances of their case an order providing for any of the matters at i. – iv. is appropriate.”

James Maurici is Counsel instructed by the Secretary of State on the appeal.

The High Court (Collins J) overturned the decision of a Planning Inspector refusing planning permission for the redevelopment of a former bus station in Cromer on the grounds of apparent bias in circumstances where the Inspector was a former employee of Norfolk County Council which was the main objector to the proposed redevelopment.

The Court also found that the Inspector had erred in law in failing to grapple with the Claimant’s contention that the use of the former bus station would not resume if planning permission were refused.

Dan Kolinsky acted for the successful Claimant, Ortona Limited.

A possession order was made today in the Central London County Court against a group of squatters calling themselves the Da! collective who have been occupying 18 Upper Grosvenor Street in Mayfair since early October after having allegedly obtained access through an open window.

Camilla Lamont acted for Deltaland Resources Ltd, the leasehold owner of 18 Upper Grosvenor Street, instructed by Maxwell Winward.

Mr Justice Collins is today hearing a claim raising points of general importance related to prisoners’ access to health care: CO/6004/2008 R (Brooks) v SS For Justice.

The claim is brought by a prisoner who suffered substantial delays in receiving medical treatment because of lack of escorts to take him to hospital, causing cancelled appointments as well as his being transferred between prisons.

JUSTICE obtained permission to intervene by way of written submissions on the issue of how prisoners’ entitlement to healthcare is regarded under domestic, European and international law, and in particular, whether it should be regarded as a fundamental right protected under the European Convention on Human Rights.

James Maurici and Jacqueline Lean are acting for JUSTICE.

Landmark Chambers is delighted to announce David Holland's appointment as a Deputy Adjudicator to HM Land Registry. The part-time appointment commences on 1 December 2008, for a period of 5 years.

Commenting on David's appointment, Chief Executive Joanna Poulton said:

"We are all incredibly pleased for David. His appointment follows an extremely competitive application process, and underlines his position as one of the leading juniors for Real Estate litigation".

This week the High Court dismissed an appeal from a landlord against a council's decision to revoke his license.

The case is the first of its kind to consider whether the smoking offences created in the Health Act 2006 amount to a crime and to consider the meaning of the words “crime and disorder” in s4 of the Licensing Act 2003.

In a ruling that will be very important in licensing decisions across England and Wales, Denyer J. held that the smoking offenses did amount to a crime and importantly held that the words “crime and disorder” should be read disjunctively.

Samantha Broadfoot acted for the intervenor, the Department for Culture, Media and Sport.

For further coverage related to this case, please click here.

This morning the House of Lords gave judgment in the long running leasehold enfranchisement case of Cadogan v Sportelli. The Lords decided that hope value is not payable in claims for the freehold under the Leasehold Reform Act 1967, in lease extension claims under the 1993 Act or for participating tenants in a collective enfranchisement under the 1993 Act. By a 4-1 majority, they decided that hope value could be claimed in respect of non participating tenants in a collective enfranchisement. Lord Hoffman dissented, commenting that the majority had adopted “heroic methods of construction”. The focus will now switch to the appropriate method of valuing the hope of deals with non participating tenants, and in particular how to treat section 42 notices already served, an issue on which the Lords appear divided.

Thomas Jefferies appeared for Grandeden, the Respondent tenants.

The House of Lords (Lord Phillips, Baroness Hale and Lord Mance) has refused leave to appeal from the decision of the Court of Appeal on 10 October in R (Finn-Kelcey) v. Milton Keynes Council & MK Windfarm Ltd [2008] EWCA Civ 1067 which dismissed Mr Finn-Kelcey's appeal against the refusal to quash the planning permission for a wind farm granted by Milton Keynes Council. The Court of Appeal's judgment dealt with the requirement of the EIA Directive to "make available" information to the public and with delay and lack of promptness in planning cases.

David Elvin QC and Richard Turney acted for Milton Keynes Council

John Litton acted for M K Windfarm Ltd.

The High Court has given judgment in the first substantive judicial review following the Strasbourg decision in NA v. United Kingdom on the issue of the risk on return faced by Sri Lankan Tamils. A number of judicial review claims were initially granted permission following the Country Guidance determination by the Asylum and Immigration Tribunal in LP (Sri Lanka). Lenin was the first opportunity for the High Court to consider the correct approach to such cases following the Strasbourg Court’s decision in NA. The claim challenged the refusal of the Secretary of State for the Home Department to recognise further representations made by the Claimant following the promulgation of LP and relying on that case as a fresh claim for asylum. The claim was dismissed.

David Blundell represented the Secretary of State.

A case - historic in every sense of the word - regarding fishing rights in the River Wye in the centre of Hereford has finally been resolved by the High Court. The Church Commissioners claimed that the right fish the Wye had been granted to the Bishops of Hereford by Royal Charters made between 1121 and 1135. In the alternative, they claimed the rights had been acquired by the law of prescription, through consistent fishing of the river by the Bishops’ tenants since 1759. The Claimant, who wished to moor a floating restaurant in the city centre, contested these rights, relying on events during the English Civil War and Restoration to show that the City Council had a better title to the fishing.

After seven years of litigation in Barton v. The Church Commissioners for England and Wales, Morgan J found for the Church Commissioners on a preliminary issue, which has disposed of the whole case. He held that the evidence of acts of ownership by the Bishops of Hereford, and their tenants, since 1759 established the Commissioners‘ prescriptive right to take as many fish as they pleased from the Wye, without having to own either the banks or the bed of the river: an “unstinted right of piscary in gross”.

The existence of such rights is rare indeed: the last reported case where a claim of this nature has succeeded was in 1863.

Nicholas Taggart acted for The Church Commissioners.

Landmark Chambers is delighted to announce David Elvin QC's appointment as a Member of the Boundary Commission, effective from 12 January 2009. The appointment follows David's previous role as an Assistant Commissioner from 2000 during which time he conducted an inquiry into, and reported on, the East London Parliamentary constituencies in 2001-2.

Joanna Poulton, Chief Executive at Landmark Chambers, commended David Elvin's appointment stating: "David has been at the forefront of Public Law for a number of years. His appointment to the Boundary Commission fully reflects his status as one of the leading and most respected members of the Bar".

For more information on the Boundary Commission, please click here.

Landmard Chambers is delighted to announce that they have been short-listed for Chambers of the Year at the Legal Business Awards 2009.

"We are absolutely delighted at our short-listing", said Chief Executive Joanna Poulton. "2008 has been an incredible year for Landmark Chambers, with record numbers of appearances in the House of Lords and Court of Appeal, excellent rankings in Chambers & Partners and the Legal 500 and an intensive rebranding initiative to ensure that we are fully reflective of our position as one of the leading Chambers in the Environment, Planning, Property and Public Law Bar".

The awards take place on Thursday 12 February at the Grosveor House Hotel.

Knowsley Housing Trust v White; Honeygan-Green v Islington LBC; Porter (FC) v Shepherds Bush Housing Association [2008] UKHL 70

The House of Lords has handed down judgment in three conjoined appeals relating to the effect of suspended possession orders on statutorily protected tenants.

It was held that an assured tenancy subject to a suspended possession order does not come to an end until possession is delivered up. To hold otherwise would leave tenants in the "peculiar, even oxymoronic" status of a tolerated trespasser.

The concept of "tolerated trespassers" will be effectively abolished by the imminent coming into force of the Housing and Regeneration Act. In the meantime, this ruling constitutes a robust policy decision to limit that concept

It was further held that under s. 85 of the Housing Act 1985, the courts are entitled to include a proleptic discharge provision in a suspended possession order.

Finally, the right to buy pursuant to a notice served under s.122 of the 1985 Act is not irreversibly lost on the determination of a secure tenancy pursuant to an order for possession. Such right could be retrospectively reinstated by the discharge of the order for possession. (Rogers v Lambeth LBC (2000) 32 H.L.R. 361 CA (Civ Div) applied).

Ashley Underwood QC appeared for the third respondent.

Richard Drabble QC appeared for the third appellant and second respondent.

Landmark Chambers is delighted to announce the expansion of its Property team with the addition of Toby Watkin, who joined Chambers on 5^th January 2009.

Toby, called in 1996, joins from 42 Bedford Row and has broad experience across the spectrum of Property Law. His property practice regularly includes co-ownership/trusts disputes; easement and boundary disputes; party wall disputes (for which he is standing counsel to a London local authority); commercial landlord and tenant disputes (including renewals, dilapidations and rent reviews); residential landlord and tenant disputes; housing; mortgages; conveyancing and land registration issues, as well as professional negligence claims raising similar issues.

 “I am delighted to be joining a set as highly regarded as Landmark Chambers” remarked Toby Watkin.” They continue to be at the forefront of some of the largest and most influential property cases and I am looking forward to being part of their Property team as Chambers push forward and continue to develop in 2009.”

Commenting on Toby Watkin joining Landmark Chambers, Chief Executive Joanna Poulton said:

“We are all looking forward to working with Toby. In these difficult market conditions we are thrilled to have been able to add a barrister of his quality and experience, which further enhances the reputation of our Property team. He brings with him an extensive knowledge of property law that will be of great benefit to our clients.”

The Secretary of State today agreed with the recommendation of her Inspector and granted planning permission on a called-in application for the redevelopment of existing industrial, storage and related uses to provide an industrial and warehousing estate in the Green Belt at Bedfont Road, East Bedfont, Middlesex, London, TW14 8EE.

The existing uses occupying the land were in large part unauthorised but had become immune. The existing uses had developed in a haphazard manner. They were unsightly, noisy and wholly uncontrolled. The Inspector and Secretary of State considered that significant weight could be attached to the fact that the proposals would replace these uses with a modern well designed industrial and warehousing estate meeting modern efficiency and sustainability standards. They also attached substantial weight to a wide-ranging package of environmental improvements to, and uses of, open land surrounding the estate. It was concluded that but for Green Belt issues the proposals were supported by the Development Plan. The view taken was that the merits of the proposed development would clearly outweigh harm to the Green Belt.

See for media coverage, please click here.

James Maurici appeared for the LB of Hounslow which supported the grant of planning permission.

Landmark Chambers is delighted to announce that James Maurici and Gwion Lewis have been appointed to the Welsh Assembly Government's Junior Counsel Panel.

Both James and Gwion have been appointed to the Public Law Panel, for a period 3 years beginning in January 2009. The Panels undertake civil work and criminal prosecution work for the Welsh Assembly Government, on instruction by either the Counsel General or solicitors appointed to act on behalf of the Counsel General. The appointments allow them to undertake advocacy and advisory work for the Welsh Assembly Government.

The House of Lords gave judgment yesterday on the question of whether the provisional listing of care workers on the Protection of Vulnerable Adults List under Part VII of the Care Standards Act 2000 was compatible with Article 6 (the right to a fair hearing) and Article 8 (the right to privacy) of the European Convention of Human Rights. Their Lordships found that s 82(4)(b) of the Act was incompatible with both articles and made a declaration of incompatibility to that effect under section 4 HRA.

Baroness Hale (with whom the remainder of their lordships agreed) agreed with the Court of Appeal that it was appropriate to approach provisional listing on the basis that Art 6 was engaged although this did not mean it would necessarily be engaged or breached on the facts of any particular case. She also held that Article 8 was engaged by the scheme. She held that the Court of Appeal’s solution – giving the right to make representations to care workers before provisional listing in all cases, save those where there would be a resultant risk of harm to vulnerable adults on account of the delay – did not go far enough, largely on account of the procedure put in place following the judgment which did not address the true urgency of the case before deciding whether or not to give representations (paragraph 29).

 Further, Baroness Hale did not suggest how the scheme might be made compatible with the Convention: firstly, since the incompatibility arose from the interaction between a fair procedure, the criteria for listing and the consequences of listing; “the delicate balance” to be struck here between the rights of care workers and protecting the welfare and rights of vulnerable adults was to be struck in the first instance by the legislature (paragraph 39). Secondly, because the scheme under Part VII of the 2000 Act had now been replaced by a completely different scheme under the Safeguarding Vulnerable Groups Act 2006 .

Nathalie Lieven QC and Zoe Leventhal appeared for the Secretaries of State. 

The High Court (Mr Justice Walker) is today hearing a judicial review claim which challenges the lawfulness of the Government’s consultation on Eco-towns: CO/5990/2008 The Bard Campaign v Secretary of State for Communities and Local Government.

The claim is brought by an organisation opposed to the building of an eco-town in Long Marston, near Stratford on Avon. The Claimants allege that the Government failed to consult on the principle of eco-towns and on the appropriate criteria for selecting them. Another local group (Weston Front) opposed to the building of an eco-town at Western Otmoor is an Interested Party supporting the claim.

Tim Mould Q.C. and James Maurici are acting for the Secretary of State.

The Court of Appeal (Pill, Lloyd and Moses LJJ) today unanimously reversed the decision of Collins J. at [2008] EWHC 987 (Admin) and upheld the decision by Basildon DC to take steps to execute long-outstanding enforcement notices against the occupiers of the travellers’ site at Dale Farm, Cray’s Hill, Basildon, probably the largest such site in the UK.

Following numerous planning and enforcement decisions against the site, all of which had upheld the Council’s judgment that this was an inappropriate location of a site (in the green belt amongst other reasons), the Council sought to take direct action to secure compliance with the notices and the law. Finally, it resolved on 13 December 2007 to take direct action under s. 178 of the Town and Country Planning Act 1990.

Collins J. quashed the decision in May 2008 on the grounds that an unduly narrow approach had been taken to the issue of “need” (which is highly controversial given the 475% increase in unlawfully sited caravans in Basildon since 2000) and that duties under the Housing Act had not properly been considered.

The Court of Appeal allowed Basildon’s appeal on the grounds that a homelessness procedure was instituted in 2005 and the Council accepted the need to deal with the effects of eviction under the Housing Act, that individual circumstances were properly considered at a closed session, with the benefit of a detailed statement of each occupier's circumstances, that the controversial issue of need for sites had been properly considered and that, in conclusion, it had not been unlawful for the Council to resolve to use section 178 powers.

Permission to appeal has been sought by the travellers.

David Elvin QC and Reuben Taylor represented Basildon District Council.

For more information on this case click here.

Advocate-General Kokott today gave her opinion in Case C-75/08 Mellor v Secretary of State for Communities and Local Government, a case concerning the need for reasons for negative screening decisions under Council Directive 85/337/EEC – the Environmental Impact Assessment Directive.

The Advocate-General was of the opinion that Member States must, under Article 4 of the Directive make available to the public the reasons for a decision that, in respect of an Annex II project, it is not necessary to subject the project to an assessment in accordance with Articles 5 to 10 of the Directive. That decision must contain or be accompanied by all the information that makes it possible to check that it is based on adequate screening carried out in accordance with the requirements of the Directive. In particular, there must be a sufficient demonstration of the reasons why legal and factual aspects which have already been raised in the procedure do not show that there is a possibility of significant effects on the environment.

If the European Court of Justice accept the opinion then planning authorities will be obliged to give reasons for negative screening decisions under the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 despite the absence of any express requirement to do so. Such a decision would also have the effect of reversing the decision of the Court of Appeal in R v Secretary of State for the Environment, Transport and the Regions ex p Marson [1998] Env LR 761.

James Maurici was Counsel for the United Kingdom

For full details of this case, please click here.

Mr Justice Simon today gave judgment in R (on the application of Hidden Hearing Ltd) v The Hearing Aid Council [2009] EWHC 63 (Admin).

The Hearing Aid Council (“the Council”) was established by the Hearing Aid Act 1968 to register persons engaged in the supply of hearing aids, to advise on the training of persons engaged in such business, and to regulate trade practices.

The claim was brought by Hidden Hearing Ltd one of the main hearing aid dispensers in the UK. This was the first time the Council had ever been judicially reviewed.

The case concerned a Guidance Note issued by the Council which Hidden alleged was misleading as regards the definition of “dispensing” in the 1968 Act in suggesting that the fitting of hearing aids and post-fitting rehabilitation work might constitute dispensing. Under the 1968 a "dispenser of hearing aids" is defined as “an individual who conducts or seeks to conduct oral negotiations with a view to effecting the supply of a hearing aid, whether by him or another, to or for the use of a person with impaired hearing; and references to the dispensing of hearing aids or to acting as a dispenser of such aids shall be construed accordingly”.

The learned Judge dismissed the application for judicial review.

James Maurici appeared for the Hearing Aid Council instructed by Beachcroft LLP.

The High Court today dismissed a judicial review which challenged the lawfulness of the Governments consultation on Eco-towns: CO/5990/2008 The Bard Campaign v Secretary of State for Communities and Local Government.

Giving judgment, Mr Justice Walker held that the governments consultation on the principle of, and criteria for, eco-towns was satisfactory and lawful. In addition, the governments approach to the requirements of the Strategic Environmental Assessment (SEA) Directive was upheld.

The claim was brought by an organisation opposed to the building of an eco-town in Long Marston, near Stratford on Avon. Another local group (Weston Front) opposed to the building of an eco-town at Western Otmoor was an Interested Party supporting the claim.

Tim Mould Q.C. and James Maurici acted for the Secretary of State.

For media coverage of this case, please click here.

Nathalie Lieven QC today appeared for the Secretary of State for Defence in a challenge to the rights for unmarried partners to receive war pensions.

Mrs Ratcliffe was the unmarried partner of a deceased member of the armed forces, whose death in April 2005 was caused by his service. She was refused a war pension because she did not fall within the very limited class of unmarried partners who qualify (in practice those with children and pre-service relationships). She argued that the refusal of a war pension was contrary to the Human Rights Act, because she was being unfairly discriminated against, by comparison with married partners.

Her case was rejected in front of the Pension Appeal Tribunal and she appealed to the Court of Appeal. She relied on article 14 and article 1 protocol 1 of the European Convention.

The Court of Appeal found that whether married and unmarried partners were in an analogous situation depended on the particular scheme in issue. Because of the Ministry of Defences changes in policy they had accepted post-2005 that the two groups were in an analogous situation. However, the Court went on to find that the differential treatment was justifiable.

The Court said that the Secretary of State was not obliged to produce evidence of the cost of making any changes. The decision as to at what point of time any amendments to the scheme, to put married and unmarried partners in the same position, was a matter for the government and not the courts. Parliament had been entitled to take into account the competing claims on public funds.

Landmark Chambers is delighted to announce that Galina Ward, Charles Banner and Gwion Lewis have been appointed to the Attorney Generals "C" Panel of approved counsel, effective of 1st March 2009. Their appointments will last for 5 years and is further recognition that Chambers has junior tenants of the highest quality.

For more information on the Attorney General's Panels of Counsel, please click here.

On Tuesday and Wednesday this week the Second Chamber and Seventh Chambers of the European Court of First Instance is to hear Article 230 challenges brought by Poland (T/183/07) and Estonia (T-263/07) seeking to annul decisions by the European Commission to reject the Phase II National Allocation Plans of those Member States submitted under Directive 2003/87/EC the EU Emissions Trading Scheme (EU ETS) Directive.

The EU ETS is the key policy introduced to help reduce greenhouse gas emissions from within the EU. It is the largest multi-country, multi-sector greenhouse gas emission trading scheme world-wide. In total approximately 11,500 installations are covered by the EU ETS and it accounts for nearly 45% of total CO2 emissions, and about 30% of all greenhouse gases in the EU.

The UK has intervened to support the European Commission because it is concerned that were the challenges to succeed and Poland and Estonia to obtain the additional allocation of allowances sought there would be as happened in Phase I a sharp downward correction in prices (see the globally acclaimed Stern review) which would undermine the efficacy of the EU ETS as a mechanism to reduce CO2 emissions.

Similar challenges have been brought by Bulgaria, the Czech Republic, Hungary, Latvia and Romania.

James Maurici is appearing for the UK Government in the Polish and Estonian cases.

For media coverage of these cases, please click here.

A London Council served a notice under s11 of the London Local Authorities Act 1995 against an advertisement hoarding sited in the playground of a school. The hoarding was freestanding but was under 1m from the flank wall of a adjoining building. Until January 2007 the same hoarding had been attached to the flank wall: this flank wall had been used for the display of advertisements for many years. Apart from the movement away from the wall, the position of the hoarding had not changed. The advertiser contended that the hoarding had the benefit of deemed consent under Class 13 of the 2007 Advertisement Regulations since the relevant site had been used for the display of advertisements for more than 10 years.

On a challenge to the s11 notice by way of judicial review, Blake J held that the site used for the pre-January 2007 advertisement was confined to the flank wall whereas the site used for the present display was part of the playground. He also held that, if he was wrong about the extent of the pre-January 2007 site, there had been a material alteration in the manner of its use when the hoarding was moved. Either point was sufficient to mean that there was no deemed consent.

The case is interesting because it was necessary for the judge to decide the above factual points for himself. The s11 notice would have been invalid if deemed consent had existed (a matter of fact) and whether this was so was for the court to decide (see R (Maiden) v Lambeth LBC [2004] JPL 820).

Tim Buley appeared for the claimant advertiser.

Richard Langham appeared for the defendant authority.

In Palm Developments Limited v Secretary of State for Communities and Local Government [2009] EWHC 220 (Admin) (Cranston J: 13 February 2009), the Administrative Court has given important guidance on what is a tree.

Cranston J dismissed Palm Developments Limited's challenge under s.288 of the Town and Country Planning Act 1990 against the Secretary of States dismissal of its appeal against Medway Councils refusal of works under a woodland TPO.

The case is of interest because Section 198 of the Town and Country Planning Act 1990 enables the making of tree preservation orders (TPOs) to preserve trees, groups of trees and woodlands, however there is no statutory definition of a tree. Cranston J concluded that with tree preservation orders there are no limitations in terms of size for what is to be treated as a tree and therefore saplings are trees.

Further, he confirmed that a tree preservation order for a woodland extends to all trees in the woodland, even if not in existence at the time the order is made.

Dan Kolinsky represented the Secretary of State for Communities and Local Government and Edmund Robb represented Medway Council.

RB (Algeria)(FC) and U v Secretary of State for the Home Department

OO (Jordan) v same [2009] UKHL] 10

On 18^th February 2009 the House of Lords gave judgment in this case, which concerned the decision of the Secretary of State to deport three alleged terrorists to Algeria or Jordan. The Lords upheld the decision of the Court of Appeal, which had in turn upheld the decision of SIAC that removal was lawful and compatible with Article 3 of the ECHR. In doing so, the Lords accepted that the Secretary of State was entitled to rely on diplomatic assurances given by Algeria and Jordan that the three would be properly treated in Jordan and Algeria, despite the track-record of torture in both those states. An application to Strasbourg is highly likely.

Richard Drabble QC appeared for U, one of the Algerians.

In a striking oral judgment in R (Baker) v Bath and North East Somerset Council and Hinton Organics (Wessex) Limited Collins J has ruled that part of the 1999 EIA Regulations do not properly implement the EIA Directive.

The case concerned two planning permissions which made changes to a composting facility near Queen Charlton, Bristol. The original composting site would now constitute Schedule 2 development, being a waste disposal installation exceeding 0.5h in area. The relevant applications were for a ‘change or extension’ to this development and could ‘have significant adverse effects on the environment’. However the local planning authority did not subject them to screening because the change/extension did not exceed the 2.1h threshold which has to be ‘applied to the change or extension (and not to the development as changed or extended)’.

Collins J has ruled that the words ‘(and not to the development as changed or extended)’ do not properly implement the relevant EU Directive since the Directive requires there to be consideration of the environmental effect of the changed/extended development as a whole.

The judgment appears to mean that, where an application is made to change/extend existing Schedule 1 or Schedule 2 development and the change/extension may have significant adverse effects on the environment, screening is required, regardless of the smallness of the change/extension.

An appeal is likely.

Richard Langham appeared for the defendant local planning authority.

James Maurici appeared for the Secretary of State for Communities and Local Government, an interested party

Chambers is delighted to announce that Neil Cameron has been selected to take Silk, taking our number of Silks to 18.

Called to the Bar in 1982, Neil has extensive experience in planning, compulsory purchase, parliamentary and environmental work. Recent major public inquiries include 20, Fenchurch Street (the Walkie Talkie Building), the Smithfield General Market redevelopment, the English Partnerships Liverpool Pathfinder CPO, and the Blackfriars Beetham Tower.

Commenting on Neil's Selection, Landmark Chambers Chief Executive Joanna Poulton said:

"We are all incredibly pleased for Neil. His selection is recognition of his skill and expertise and reflective of his appearances at some of the most high-profile Planning Inquiries in 2008. It also reinforces Landmark Chambers' position as the leading Planning set in the UK."

Neil will formally be sworn in on 30 March 2009. For any inquiries as to his availability for work please contact either Bill King or Kevin Squires, our specialist planning Clerks, on 020 7430 1221.

In a rare judgment on the power of a local planning authority to serve a visual amenity notice pursuant to s. 215 of the Town and Country Planning Act 1990, the High Court has quashed a notice served by Hammersmith and Fulham LBC on the Fulham branch of hairdressers Toni & Guy: Toni & Guy (South) Ltd v Hammersmith LBC [2009] EWHC 203 (Admin).

The Council had served the notice on all occupiers of a four-floor building, stating that remedial work needed to be carried out to the first, second and third floors. Toni & Guy occupied only the ground floor and it appealed against the notice stating that it was neither the “owner” nor the “occupier” of the “land” that was the subject of the notice.

The district judge refused the appeal. Even though the notice only required action in relation to particular floors, the district judge reasoned that it had still been issued in respect of the four-floor property as a whole. It was held that the Council was therefore “required” to serve the notice on Toni & Guy given that it occupied a part of that property.

Toni & Guy appealed by way of case stated to the High Court.

Wyn Williams J allowed the appeal and held that the Council had acted ultra vires by serving the notice on the ground floor occupier when it was neither the “owner” nor the “occupier” of the “land” where work was required. In view of this conclusion, Wyn Wiliams J did not consider it necessary to rule on the appellant’s alternative submission that the notice was a nullity from the outset in effectively requiring the ground floor occupier to commit a trespass.

Gwion Lewis and Angela Morris represented the appellant, Toni & Guy (South) Limited.

Sir Thayne Forbes today began hearing a s.288 challenge against the decision of the Secretaries of State for Communities and Local Government and Transport to grant planning permission for the removal of one condition (Condition MPPA1) and the variation of a second condition (Condition ATM1) attached to a planning permission dated relating to the development and use of Stansted Airport. The effect of which would be to allow BAA to operate the existing runway at Stansted to an annual passenger throughput not exceeding 35 million passengers and air transport movements not exceeding 264,000 overall in any period of 12 calendar months.

The decision of the Secretaries of State to grant permission was made following a favourable recommendation by an Inspector who conducted a public inquiry into the proposal.

The claim alleges that the reasoning of the Secretaries of State demonstrates that they made their decision without taking proper account of environmental and economic considerations which were material to their determination of the planning appeal. The Claimants contend that, in so doing, the Secretaries of State failed in their statutory duties to have regard to all material considerations. The Claimants identify 3 specific environmental and economic effects which they allege the Secretaries of State failed properly to take into account in reaching their decision –(i) the negative impact of the G1 project on the UK’s balance of trade;(ii) the noise impacts of the G1 project; and(iii) the impact on the environment of the aviation emissions which would be generated by the operation of Stansted in accordance with the G1 project.

The hearing is expected to last most of the week.

Tim Mould QC and James Maurici are appearing for the Secretaries of State.

For media coverage of these challenges, please click here.

Landmark Chambers has become the first barristers' chambers to launch its own channel on iTunes. Please click here to subscribe to our podcasts, which feature expert commentary from our barristers on recent developments in our areas of practice.

Our most recent podcast, The Costs of Green Justice, is a collaboration between the Landmark Chambers Centre for Environmental Law and the World Wide Fund for Nature (WWF). With the European Commission claiming that access to environmental justice in the UK is prohibitively expensive, how serious is the problem and what, if anything, should be done about it? Landmark barristers James Maurici and Gwion Lewis discuss the matter with WWF UK's solicitor, Carol Hatton, and its legal researcher, Kirsty Schneeberger.

Subscribing to the Landmark channel means that your computer will automatically download any new podcasts from us, free of charge, when you open iTunes.

Future podcasts will include an interactive guide to the new Environmental Damage (Prevention and Remediation) Regulations 2009.

The Court of Appeal today referred a question on the interpretation of the Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States to the European Court of Justice for a preliminary ruling. The question arose in a case concerning the availability of income support of EU nationals: Secretary of State for Work and Pensions v Lassal [2009] EWCA Civ 157.

The reference concerns the right of permanent residence set out in Article 16 of the Directive. The Secretary of State argued that the right did not apply to situations where a person had been resident for a continuous period of five years which ended prior to the implementation date of the Directive. The Court of Appeal (Waller, Arden and Moore-Bick LJJ) disagreed with that interpretation but decided to refer the question to the ECJ as the Directive was not acte clair. The reference potentially has wide reaching implications in social security and immigration law for the EU citizens and their family members. 

Richard Drabble QC and Richard Turney appeared for the Intervener, the Child Poverty Action Group.

The Court of Appeal have today overturned the decision Collins J. in Bovale Ltd v SSCLG and Herefordshire DC [2008] EWHC 2143 (Admin).

In Bovale Collins J., as Lead Judge of the Administrative Court, indicated that defendants in claims under s. 287 and 288 of the Town and Country Planning Act 1990 (and also s. 113 of the Planning & Compulsory Purchase Act 2004) ought to think in terms of serving both evidence and grounds for resistance, however short, within a period of 10 weeks from service of the claim. Furthermore he indicated that where the defendant chose not to put in any grounds for resisting and thus the grounds set out in the claim form represented the way in which the case was to be put by the claimant, it was for the defendant to put in the first skeleton argument.

The Court of Appeal held that Collins J. erred in so doing. Accordingly, there is no general requirement for grounds of resistance in such claims and evidence continues to be governed by the relevant parts of the CPR Part 8 Practice Direction. The Court of Appeal held that:

parties are entitled to start from the position that the relevant rules and practice directions will apply to their case; the onus will be on the party seeking a different form of process and indeed on the judge who may of his own motion wish to exercise his case management powers in a particular case to demonstrate that the case is outside the norm. What Collins J was not entitled to do was to put the onus entirely the other way round and impose an onus on a defendant to persuade the court that some procedure inconsistent with the rules and practice directions should not be followed. The right way to alter the rules is through the Rule Committee and the right way to alter a practice direction is under the Section 5 procedure.

The case is also one of some constitutional importance considering the relationship between the Courts and the executive as regards the making of practice directions which are governed by s. 5 of the Civil Procedure Act 1997 as amended.

James Maurici appeared for the Secretary of State.

search news