The Secretary of State has granted planning permission following the recommendations of his Inspector (inquiry September 2009) for a new in-vessel composting facility on part of the former Wisley Airfield, Surrey in the Green Belt. Although earlier objections had been made by Natural England due to potential impact on the Thames Basin Heaths SPA amendments to the scheme (permitted by the Inspector and subject to EIA before the inquiry) led to the withdrawal of the NE habitats objection.
 
The IVC facility would process 30,000 tonnes of biodegradable waste per annum, sourced from Surrey and neighbouring counties. It would handle both municipal organic waste separated at source and biodegradable wastes from the commercial sector to produce high-quality compost for the horticultural and agricultural sectors. The operation would be fully commercial, with no public access. It would be fully enclosed such that the entire composting process would take place within a single building without the need for an external maturation area. The composting process would consist of 3 stages, each performed in separate parts of the building: waste reception and pre-treatment; in-vessel composting: and maturation, screening and bagging. The composting building would be a fully enclosed steel portal frame construction with a fully sealed concrete floor. It would be mechanically ventilated to keep it under negative pressure and fitted with fast acting roller shutter doors that open and close automatically, triggered by vehicle sensors.
 
The Inspector and Secretary of State accepted the case for the need for waste management facilities in Surrey and found that there was compliance with the Surrey Waste Plan and very special circumstances to warrant development in the Green Belt. Objections by the Royal Horticultural Society and local groups based on concerns about biopathogens and potential impact on the RHS Gardens at Wisley and on human health were rejected.
 
(This is the second major waste management facility approved by the Secretary of State in a week: see also news item for 2 March 2010 concerning the Rivenhall Airfield facility in Essex)
 
David Elvin QC and Gwion Lewis represented the Appellant, Wharf Land Investments (Jersey) Ltd.
 
Robert Walton and Toby Fisher represented Guildford Borough Council

To read the decision letter please click here

The Secretary of State has granted planning permission, following the Inspector's recommendation after an inquiry held in September & October 2009, for a major integrated waste management facility (known as the eRCF) at the former Rivenhall Airfield, Essex.
 
The development, which provides a flexible and sustainable waste management facility, in accordance with PPS10 and current design guidance, was promoted by Gent Fairhead with the support of Essex County Council and includes:

1. An anaerobic digestion (AD) plant treating Mixed Organic Waste (MOW), which would produce biogas that would be converted to electricity by biogas engine generators;
2. A Materials Recovery Facility (MRF) for mixed dry recyclable waste to recover materials e.g. paper, plastic, metals;
3. A Mechanical Biological Treatment facility (MBT) for the treatment of residual Municipal Solid Wastes (MSW) and/or Commercial and Industrial (C&I) waste to produce a Solid Recovered Fuel (SRF);
4. A De-inking and pulping paper recycling facility to reclaim paper pulp (this is described as Market de-inked paper pulp (MDIP); and
5. A Combined Heat and Power (CHP) plant utilising SRF to produce electricity, heat and steam;
 
The Developer was represented by David Elvin QC and Simon Pickles, instructed by Linklaters.

To read the decision letter please click here

The High Court will today hear argument on the meaning of “resident” for the purposes of section 117 of the Mental Health Act 1983.

JM lived in the London Borough of Hammersmith and Fulham for 15 years. After a serious car accident, the local authority provided him with residential accommodation, under s.21 National Assistance Act 1948, in a care home in Sutton. When his mental health deteriorated, he was subsequently detained under section 3 Mental Health Act 1983.

Prior to his release from hospital, London Borough of Hammersmith and Fulham denied responsibility for JM’s aftercare on the grounds that, although prior to his detention he was “ordinarily resident” in Hammersmith and Fulham for the purposes s.21 of the National Assistance Act, he was not “resident” there for the purposes of s.117 aftercare.

JM brought a claim contending that “resident” in s.117 Mental Health Act means the same, or substantially the same, as “ordinarily resident” for the purposes of the National Assistance Act, and therefore London Borough of Hammersmith and Fulham are responsible for his aftercare.

Galina Ward is acting for London Borough of Sutton
Toby Fisher is acting for the Claimant

Affordable housing obligations for major urban extension South of Cambridge upheld despite recession. The Developer appealed against a refusal to reduce the affordable housing requirements in respect of a major urban extension to the South of Cambridge claiming that the slump in the property market made development unviable. The appeal was rejected and the affordable housing requirements remained.

David Forsdick acted for Cambridge City Council

For the full report please click here

Landmark Chambers is delighted to announce that two members of Chambers have been successful in the latest Queen's Counsel applications. Katharine Holland and John Litton have both been appointed to be Her Majesty's Counsel by the Lord Chancellor. They will formally make their declarations as new silks at the ceremony to be held at Westminster Hall on 22 March 2010 and will then be called within the Bar of the court by the Lord Chief Justice in his court at the RCJ in the afternoon.

In Good Harvest v Centaur [2010] EWHC 330 (Ch) the High Court finally decided the question that had been much debated since the enactment of the Landlord and Tenant (Covenants) Act 1995 as to whether a guarantor of an original tenant can be made to enter into an Authorised Guarantee Agreement along with the tenant itself. The Court decided that any guarantee of an assignees covenants entered into by the guarantor of an original tenant was rendered void by section 25 of the Act.

David Holland acted for the successful guarantor.

The High Court (Carnwath LJ) today began hearing a judicial review brought by the London Borough of Hillingdon & Others seeking to challenge the decision of the Secretary of State for Transport contained titled ‘Britain’s Transport Infrastructure - Adding Capacity at Heathrow: Decisions Following Consultation’ (January 2009) and announced on 15 January 2009. In that decision the Secretary of State confirmed the Government’s policy support for a third runway at Heathrow, which had been stated in the White Paper.

The Claimants (the London Boroughs of Hillingdon, Hounslow, Richmond-upon-Thames, Wandsworth, Hammersmith & Fulham, the Royal Borough of Windsor & Maidenhead, Greenpeace Ltd, WWF-UK, NoTRAG, HACAN ClearSkies and the CPRE) allege the consultation process was unfair, failed to take into account relevant matters and was insufficiently reasoned. Transport for London, and Interested Party, in the proceedings support the challenge in so far as it related to surface access issues.

For media coverage see: http://bit.ly/92GrX8

The hearing is expected to continue until Thursday.

Nathalie Lieven QC and David Forsdick are part of the team of Counsel appearing for the Claimants. James Maurici is part of the team of Counsel appearing for the Secretary of State.

In R (on the application of TT) v Secretary of State for the Home Department Sir Michael Harrison gave judgment on February 3rd in a claim for unlawful detention where the Secretary of State had sought to justify the continued detention of a mentally ill detainee, notwithstanding his failure to apply policy with regard to the mentally ill.

TT, a Zimbabwean national, suffered from PTSD and severe depressive illness, as a result of torture and persecution in Zimbabwe. In March 2009, he was detained by the Secretary of State under s.2(3) of Schedule 3 to the Immigration Act 1971. In breach of the Detention Centre Rules 2001, TT was not provided with a physical and mental medical examination within 24 hours of his detention or at all. Additionally, the Secretary of State failed to have regard to three subsequent medical reports which diagnosed TT with PTSD and severe depressive disorder when deciding to continue TT’s detention.

Although it was accepted, on behalf of the Secretary of State, that there had been a number of failures to apply policy, it was argued that relief should only be granted where that failure to apply policy had caused the claimant’s detention. Chapter 55.10 of UKBA’s Enforcement Instructions and Guidance states that the mentally ill, and those who have been subjected to torture, will normally only be suitable for detention in “very exceptional circumstances”. It was argued that the Claimant’s risk of absconding or reoffending amounted to such very exceptional circumstances.

The judge dismissed this argument and held that where there had been “a litany of failures and breaches of policy by the Secretary of State”, it would require very compelling evidence indeed to justify detention on the basis of very exceptional circumstances. Where the Claimant’s risk of reoffending was “medium” at most, and where his risk of absconding was “between low to medium”, such very exceptional circumstances did not exist and the claimant was entitled to a mandatory order for release.

Tim Buley appeared on behalf of the successful Claimant.

Sir Thayne Forbes has rejected the legal challenge mounted by Mr Robert Fidler to an Inspector's decision declaring his clandestine house unlawful. Mr Fidler had constructed the house within a structure of straw bales and tarpaulin, and lived in it for four years before removing the straw casing. His belief that the house had thereby accrued immunity from enforcement was not borne out by the local authority, Reigate and Banstead, which issued an enforcement notice. An inspector upheld the notice on appeal and the High Court rejected a challenge to the inspector's decision on 4 February 2010. The court held that the inspector was entitled to find as a fact that the straw casing and tarpaulin formed part of the 'building operations' for the purposes of s.171B; on that basis four years had not elapsed since the substantial completion of the building operations and the structure was not lawful. 
 
Rupert Warren appeared at the inquiry and in the High Court for the planning authority.

The High Court dismissed, following rolled up hearings, two judicial reviews of a decision of the Secretary of State for Environment, Food and Rural Affairs to dismiss appeals made under s. 78L of the Environment Protection Act 1990 against a remediation notice issued by the Environment Agency in respect of land at St Leonard’s Court, Sandridge, Hertfordshire.
 
The Agency issued the notice after the relevant local authority, St Albans City and District Council, identified the land as contaminated. Between 1955 and 1980, various bromine-based substances were manufactured on the land, which has led to bromate and bromide contamination of the chalk aquifer in the area of Hatfield, north London.

Today, St Leonard’s Court is the UK’s largest known point source contaminant plume. This is generating substantial concern given that groundwater flowing through the aquifer is a major source of water across a wide area of north London. Currently, the water companies are managing the situation by expending considerable sums on decontamination. The Agency, and subsequently the Secretary of State on appeal, was charged with deciding who should be held responsible for the contamination and bear those costs.

In upholding the remediation notice with modifications, the Secretary of State decided that liability should be apportioned between Redland Minerals Ltd, which controlled the site when the manufacturing works were ongoing, and Crest Nicholson Ltd, which purchased the site for a housing scheme in 1983. Redland and Crest are challenging the Secretary of State’s decision on the apportionment of liability. Redland is also challenging the Secretary of State’s decision to include scavenge pumping as a remediation requirement of the notice.

These are believed to be the first challenges brought against a decision of the Secretary of State on an appeal against a remediation notice issued in respect of contaminated land.

Sales J. refused permission on both claims.

Matthew Reed appears for Redland. James Maurici and Gwion Lewis appear for the Secretary of State. 

The new UK Supreme Court began hearing an appeal on 1st February by Sainsbury’s Supermarkets Ltd in a landmark case concerning the scope of material considerations that may be taken into account by a local authority exercising compulsory purchase powers under the Town and County Planning Act 1990. This is the first English case to come before the highest court concerning the scope of CPO powers and the outcome will have far reaching implications across the country.

The case arose after Sainsbury's and Tesco advanced competing proposals for the redevelopment of a site at Raglan Street, Wolverhampton. The Council decided to grant planning permission for both schemes. Neither could be implemented without the use of compulsory purchase powers so the Council held a competition to decide which developer to support. It found that the “decisive advantage” of the Tesco proposals was an offer to use the development of the Raglan Street site to cross-subsidise the regeneration of the Royal Hospital Site elsewhere in the city. Sainsbury’s contend that this offer of cross-subsidy could not lawfully be taken into account by the Council when considering the exercise of its relevant compulsory purchase powers under section 226 of the Town and Country Planning Act 1990, as amended.

All sides in the appeal are represented exclusively by Landmark members.

Christopher Lockhart-Mummery QC, Eian Caws and Charles Banner act for Sainsbury’s Supermarkets Ltd.

Neil King QC and Guy Williams act for Wolverhampton City Council.

Christopher Katkowski QC and Scott Lyness act for Tesco Stores Ltd.

In R (on the application of Huitson) v. Her Majesty's Revenue & Customs [2010] EWHC 97 (Admin) Mr Justice Kenneth Parker (sitting in the Administrative Court) today handed down judgment in which he ruled that the provisions of s. 58 of the Finance Act 2008 were compatible with article 1 of the First Protocol to the European Convention on Human Rights. These provision not only "clarified the law" (as contended by HM Revenue and Customs) with regard to tax avoidance schemes operated using Isle of Man partnerships and the Double Taxation Agreement between the UK and IoM but also applied retrospectively to make taxable some £300m of income which had been subject to such schemes since c. 2001 and in respect of which HMRC had failed to take action until 2007, some 6 years since they knew of the schemes.
 
The learned Judge rejected arguments that the delay/indecision by HMRC and the failure to carry out any assessment of the impact of the proposals on some 2,500 taxpayers was disproportionate when set against the strong policy applied by Parliament in enacting the provisions that all residents should pay tax. He rejected the view that any uncertainty as to the law and the principle that a taxpayer might arrange his affairs in a legitimate way to avoid tax, that there was uncertainty with regard to the position in any event and that there was sufficient to show that taxpayers should have been aware of the risk of retrospective legislation to deal with the scheme (in view of the Treasury's similar response to Padmore v. IRC [1989] STC 493).
 
Mr Justice Kenneth Parker held:
 
"16. It is also immediately plain that the tax avoidance scheme, if it worked, would be singularly attractive to any person in the position of the Claimant, that is, any resident of the UK who, as a self-employed person, carried on a trade or profession here.  So long as end users were content to contract with an intermediary, rather than with the actual provider of the services, and so long as professional rules did not preclude such intermediation (barristers, for example, need not apply), any UK self-employed trader could reduce his or her taxable income to a tiny fraction of what it would otherwise have been.  I accept that very many would not do so, taking the view that the tax avoidance scheme was wholly artificial and perhaps thinking that as UK residents they should be paying UK income tax on the profits of their trade or profession.  But, and the figures produced by HMRC confirm this, a substantial number would be attracted..."
 
"76.   The following propositions seem to me incontrovertible:
i) It is a truth universally acknowledged that in contemporary society a state is entitled to impose income tax on any person who resides in the state in question and who earns income there (or indeed elsewhere), including income from the exercise of a trade or profession.  ...          

No more than a cursory glance at UK fiscal legislation is needed to see that residence is the core connecting factor for the imposition of income tax.

ii) As a correlative to (i), any resident of a state must reasonably expect to be taxed by the state in question on the income that he or she earns there (or indeed elsewhere), including income from the exercise of a trade or profession.

iii) The expectation in (ii) has also an important moral dimension.  ... those who reside in a state and enjoy the safety and security that it offers, and all the other public goods that it makes available (such as a fair and efficient system of civil justice), can hardly complain if they must by law pay income tax to the state of residence...
....
 
77. I see no basis for a claim that the Parliamentary response in this case was disproportionate.  Parliament, in my view, was entitled to conclude that a rigorous application of the policy referred to in (vi) above was called for; that legislation was needed to put the effect of the DTA beyond doubt, and to prevent taxpayers resident in the UK from exploiting the relevant DTA in a way that would enable them substantially to reduce income tax that would otherwise be properly paid on income from the exercise of a trade or profession.  Parliament was also entitled, having regard to the background that I have set out, to legislate with retrospective effect, particularly in order to ensure a “fair balance” between the interests of the great body of resident taxpayers who paid income tax on their income from a trade or profession in the normal way, and the taxpayers, like the Claimant, who had sought to exploit, by artificial arrangements, the DTA, in plain contravention of the important public policy set out above, and in full knowledge of how Parliament had maintained that public policy after Padmore."
 
The Claimant intends to appeal the decision.
 
David Elvin QC acted for the Claimant taxpayer.

http://news.bbc.co.uk/1/hi/business/8484955.stm

The Supreme Court Costs Officers (Mrs Registrar Di Mambro and Master O'Hare) today handed down an important judgment in R (Edwards & Pallikaropoulos) v Environment Agency, the First Secretary of State and  & the Secretary of State for the Environment Food and Rural Affairs.

The appeal to which the order for costs in issue relates arose out of an application for judicial review seeking to quash a permit issued on 12 August 2003 by the Environment Agency ("the Agency") for the operation of a cement works in Rugby. The grounds alleged that the Agency did not disclose enough information about the environmental impact of the plant to satisfy its statutory and common law duties of public consultation. The grounds included argument on the provisions contained in Council Directive 96/61/EC concerning integrated pollution prevention and control ("the IPPC Directive") and Council Directive 85/337/EEC concerning Environmental Impact Assessment ("the EIA Directive"). Those Directives implement provisions of the Aarhus Convention the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters:  25 June 1998 requiring that access to environmental justice not be "prohibitively expensive".

The claim having failed in the High Court and Court of Appeal , Mrs Pallikaropoulos obtained leave to appeal to the House of Lords  and made an application to the House of Lords for an order varying or dispensing with the requirement to give security for costs in accordance with House of Lords Practice Direction 10.6 and an application for a protective costs order ("PCO") seeking to cap her liability for costs on the appeal to the House of Lords to £10,000 (pp. 29 35). The submissions made relied upon the Aarhus Convention and the Public Participation Directive 2003/355/EC amending the EIA and IPPC Directives to include the requirement that access to courts not be "prohibitively expensive" (see p. 34). The applications for waiver of security and a PCO were opposed by the Respondents. By letter dated 22 March 2007 the Judicial Office wrote indicating that the Appeal Committee had rejected the applications for waiver of security and for a PCO. The Appeal Committee determined that it did not consider "the suggested protective costs orders regarding costs appear proportionate on the information which is before them and in the light of the nature of the issues involved; and they do not consider that any case has been made for saying that the proposed appeal would be "prohibitively expensive" or that Directive 2003/35/EC would be breached without a special order".

The appeal before the Judicial Committee lasted 3 days between 21 and 23 January 2008. On 16 April 2008 the Judicial Committee unanimously affirmed the Court of Appeal's decision and dismissed the appeal ([2008] UKHL 22; [2008] 1 W.L.R. 1587). The issue of costs was adjourned so that the parties could make written representations.

Mrs Pallikaropoulos' written submissions on costs argued that there should be no order as to costs on the appeal. Those submissions again relied on Directive 2003/355/EC and the Aarhus Convention and the requirement that the procedure not be "prohibitively expensive".

On 18 July 2008 the House of Lords ordered that Mrs Pallikaropoulos "do pay or cause to be paid to the respondents their costs of the appeal to this House, the amount of such costs to be certified by the Clerk of the Parliaments if not agreed between the parties".

Correspondence between the parties ensued on the issue of costs. The Agency claimed costs of £55,810, the Secretary of State costs of £32,290.

Mrs Pallikaropoulos then argued at the detailed assessment of the bills costs stage that the Supreme Court's Costs Officers were required by "(1) the EIA Directive and IPPC Directive; and/or (2) the Aarhus Convention to assess Mrs Pallikaropoulos' liability for the Secretary of State's and Environment Agency's costs here (being the costs of the appeal in the House of Lords) at a level which is not "prohibitively expensive" within the meaning of those legal regimes; which, in the circumstances is nil". The Supreme Court costs officers on 4 December 2009 held a hearing to determine the following preliminary issues:

i) Where an order for costs has been made, whether, as a general rule, the court assessing those costs has any jurisdiction to implement the IPPC and EIA Directives.
ii) If so, whether, in the particular circumstances of this case, we should seek to implement the EIA and IPPC Directives.

The Supreme Court Costs officers held that their jurisdiction to consider whether costs were "unreasonably incurred" and "unreasonable in amount" (see the Supreme Court Practice Direction 13, para. 16.1) when read in the light of the requirements of the Directives allowed consideration of whether the costs sought were "prohibitively expensive", and that such a jurisdiction was similar to that conferred under s. 11 of the Access to Justice Act when a party ordered to pay costs has the benefit of LSC funding.

The Supreme Court Costs Officers also held that the test of "prohibitively expensive" they were minded to adopt was that in the Sullivan Report namely: "… costs, actual or risked, should be regarded as "prohibitively expensive" if they would reasonably prevent an "ordinary" member of the public (that is, "one who is neither very rich nor very poor, and would not be entitled to legal aid") from embarking on the challenge falling within the terms of Aarhus". They said:

"That seems to us to require us to start by making an objective assessment of what costs are reasonable costs.    However, any allowance or disallowance of costs we make must be made in the light of all the circumstances.   We presently take the view that we should also have regard to the following:

i) The financial resources of both parties.
ii) Their conduct in connection with the appeal.
iii) The fact that the threat of an adverse costs order did not in fact prohibit the appeal.
iv) The fact that a request to waive security money was refused and security was in fact provided.
v) The amount raised and paid for the Appellant's own costs".

The Supreme Court Costs Officers also held that the previous consideration of the Directives and Aarhus by the House of Lords in this case did not prevent their considering these issues again at the assessment stage, they held there was no issue estoppel.

The respondents are seeking to appeal the decision to the Justices in accordance para. 49 of the Supreme Court Rules.

James Maurici appeared for the Respondents.

Click here for full Judgement

R (Baker) v Bath and North East Somerset Council (no.2) [2009] EWHC 3320

The High Court has refused to order a local planning authority to take enforcement action against breaches of planning control which, it was contended, amounted to unlawful EIA development.  In R (Baker) v Bath and North East Somerset Council (no.1) [2009] EWHC 595, Collins J quashed planning permissions permitting modifications to a composting site at Queen’s Charlton, Keynsham, near Bristol, because the local planning authority had failed to adopt screening opinions.  Screening opinions were required because the relevant threshold in paragraph 13 of Schedule 2 of the 1999 EIA Regulations did not properly implement the EU Directive which accordingly had direct effect.  The development covered by the permissions continued.  The High Court (HHJ Birtles) has now declined to reach its own view on whether the development amounted to EIA development.  Had the court found that the development was EIA development it would have been confronted with an argument that the local planning authority should be obliged to take enforcement action against the development, given the decision of the ECJ in Commission v Ireland [2008] C-215/06.

Richard Langham appeared for the successful local planning authority, Bath and North East Somerset Council.

In Yemshaw v Hounslow Borough Council the Court of Appeal (Waller LJ (V-P), Laws LJ, Etherton LJ) held following the decision in Danesh v Kensington and Chelsea RLBC [2006] EWCA Civ 1404, [2007] 1 WLR 69 that for the purpose of determining whether it was reasonable for a person to continue occupying accommodation, the term "violence" referred to in s.177(1) of the Housing Act 1996 required physical contact.

Mrs Yemshaw was married with children and had been living with her husband in their matrimonial home. She claimed that she was forced to flee the home with her children because of her husband’s abusive (emotional, psychological and financial) but non-violent behaviour. She applied to the housing authority for housing assistance under the Housing Act 1996 Pt VII and was refused on the basis that it was reasonable for her to occupy the matrimonial home, there being no probability of threat or actual violence.

On appeal Mrs Yemshaw argued that the meaning of "violence" in s.177(1) of the 1996 Act was not limited to physical contact.

The Court of Appeal rejected wider interpretation of the term, holding itself to be bound by the narrower interpretation expressed by the Court of Appeal in Danesh v Kensington and Chelsea RLBC. In that case, the Court of Appeal had had regard to the then current Homelessness Code of Guidance for Local Authorities 2002, which supported the view that violence required some form of physical contact. Since then, the Secretary of State for Communities and Local Government had issued new guidance in 2006 which widened the scope of violence to include other non-physical forms of abuse. The new Code says “The Secretary of State considers that the term ‘violence’ should not be given a restrictive meaning, and that ‘domestic violence’ should be understood to include threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between persons who are, or have been, intimate partners, family members or members of the same household, regardless of gender or sexuality”.

It was argued by Mrs Yemshaw that the case of Danesh would be decided differently in light of the 2006 guidance and that a more flexible judicial approach to the interpretation of the term was consistent with a purposive approach to the construction of social legislation designed to reflect the changing state of society's understanding of such terms.

The Secretary of State intervened by way of written submissions in the instant proceedings, supporting Mrs Yemshaw's contentions.

In dismissing the appeal the Court affirmed that guidance such as the Code was persuasive authority only and that although the meanings of words used in statutes could change over time, hesitation had to be exercised in the instant case where the secretary of state had access to a mechanism in s.177(3) of the Housing Act 1996 for specifying such other circumstances and matters that housing authorities could consider when assessing reasonableness in relation to the provision of housing.

James Maurici acted for the Intervener, the Secretary of State for Communities & Local Government