Landmark Chambers is delighted to announce that they have been nominated for Environment & Planning Set of the Year at the Chambers Bar Awards 2010. 

Landmark’s John Male QC has been nominated for Real Estate Silk of the Year with  Nicholas Taggart for Real Estate Junior of the Year.

Landmark’s James Maurici has been nominated for Environment & Planning Junior of the Year. 

"We are absolutely delighted at our nominations", said Chief Executive Joanna Poulton "this reflects the hard work that we have put in over the past year.  It is rewarding that our clients recognise this.”

The 2010 Chambers Bar Awards are to be held at The London Hilton on Park Lane on Thursday, 30th September.

James Maurici and Sasha Blackmore have been instructed by the Secretary of State for Communities and Local Government in respect of the judicial review proceedings brought by Cala Homes to challenge the decision to revoke Regional Strategies, made on 6 July 2010.

The Application for Judicial Review was lodged on 9 August 2010 at the Administrative Court in the High Court in London. On the same day McCombe J. rejected an application for urgent consideration of the matter.

For further information please see: Planning Portal and Local Government Lawyer.

A Public Inquiry into Thames Water’s Water Resources Management Plan has closed. The Plan is Thames Water’s strategic plan for the next 25 years and addresses how the company proposes to balance supply and demand during that period. The content of the Plan is of particular significance to the preparation of the Water Supply National Policy Statement and therefore large scale water supply infrastructure which features in the Plan is likely to be carried forward to the NPS. The Inquiry was one of the first of its kind under s 37B Water Industry Act 1991.

Thames Water’s Plan was particularly controversial because it includes the construction of a large reservoir in the Upper Thames valley near Abingdon. The reservoir proposal is opposed by the relevant local authorities and by local residents.  The Environment Agency also appeared at the Inquiry and objected to various aspects of the Plan. The Inquiry has therefore received extensive coverage in the national media:

http://www.bbc.co.uk/news/uk-england-oxfordshire-10996972

http://www.telegraph.co.uk/earth/earthnews/7826799/Protests-at-plans-for-biggest-reservoir-in-the-South-East.html

The Inspectors are expected to report to the Secretary of State for Environment, Food and Rural Affairs in November.

Nathalie Lieven QC and Richard Turney appeared at the Inquiry for the Group Against Reservoir Development.
Matthew Reed appeared for Oxfordshire County Council and the Vale of White Horse District Council.

The Court of Appeal (Sullivan, Pill and Longmore LJ) today gave judgment in R (Health & Safety Executive) v Wolverhampton City Council & Another [2010] EWCA Civ 892.

The HSE’s application for judicial review of a decision of Wolverhampton to refuse to modify a planning permission under s. 97 of the Town and Country Planning Act 1990 (“the TCPA 1990”) had been dismissed by Collins J. (see [2009] EWHC 2688 (Admin)).

The permission in question was for the construction of 4 student blocks of accommodation close to a liquefied petroleum gas facility. In May 2009 Wolverhampton determined not to revoke or modify the permission. By that time 3 of the 4 blocks had been completed and hence the permission could not be revoked, nor could it be modified in respect of those three blocks.

The Court of Appeal unanimously allowed the appeal and ordered that the decision be re-taken because Wolverhampton had not considered, as they held it should have done, whether to modify the permission to prevent the construction of the final block on which work had yet to start.

The Court of Appeal was though split on what Pill LJ said was a “question of general importance in planning law” namely whether in determining whether to revoke or modify a permission under s. 97 of the TCPA 1990 or discontinue a use under s. 102 of the TCPA 1990 regard could be had to the fact that compensation would then be payable under ss. 107 or 115 of the TCPA 1990. There were conflicting High Court decisions on this. Richards J. (as he then was) in Alnwick DC v Secretary of State (2000) 79 P&CR  130 held that such matters could not be had regard to. More recently Ouseley J. in R (Usk Valley Conservation Group) v Brecon Beacons National Park Authority [2010] EWHC 71 (Admin) held that such matters were relevant. (Collins J. below in this case had found it unnecessary to determine which of these conflicting decisions was correct).

Sullivan LJ (with whom Longmore LJ agreed) held that compensation could be had regard to and that Alnwick was thus wrongly decided. Pill LJ dissented taking the view that Alnwick was correctly decided.

The HSE has sought permission to go to the Supreme Court on the compensation issue.

Carine Patry Hoskins appeared as junior counsel for the HSE instructed by the Treasury Solicitors Department.

James Maurici appeared for the Interested Party instructed by ReedSmith LLP

The Court of Appeal today dismissed the appeal in R (Midcounties Co-Operative Limited v Wyre Forest District Council & Tesco Stores Limited & Others  [2010] EWCA Civ 841.

Midcounties challenged the grant of a planning permission by the respondent District Council on 19 May 2008 to Tesco Stores Limited for a new Class A1 supermarket, customer car park, petrol filling station, new road bridge, footbridge, other highway works, landscaping and further works at the Former Carpets of Worth site, Severn Road, Stourport on Severn.

Ouseley J. had dismissed the claim ([2009] EWHC Admin 964). The appeal was limited to one only of the grounds of challenge pursued at first instance. This concerned the validity of the permission and focussed on condition 6 which was said to be bad in law. That condition provided:

“The food store hereby approved shall not exceed the following floor space allocations (maxima); 
Gross external up to 4209 sq metres measured externally
Nett retail sales up to 2919 sq metres, unless otherwise agreed with the Local Planning Authority.
Reason
In the interest of clarity, in order to define the permission and to ensure that it accords with Policies RT.1 and RT.4 of the Adopted Wyre Forest District Local Plan.”

The Court of Appeal summarised the relevant principles applicable to the interpretation of planning permissions.

The learned Judge below felt able to conclude that condition 6 was not bad in law as being vague or uncertain. Laws LJ (with whom Smith and Rimer LLJ agreed) said that Ouseley J. was “able to do so, with respect, out of his long experience as a distinguished planning lawyer.  He will not mind my saying that he must have seen many supermarket developments in his time.  I am not confident that the ordinary intelligent non-specialist – Arden LJ’s “reasonable reader” [see Carter Commercial Developments Ltd [2002] EWCA Civ 1914] – would be in a position to perform the same exercise. 

Laws LJ said:

“20. On the face of Condition 6, the selling space in the development is controlled by reference to the 2919 sq metres figure, not 2403.  Accordingly there exists the possibility that, consistently with the planning permission, the amount of actual selling space may be increased above 2403 (so long as it remains within 2919), and the non-selling space to which the public have access (customer facilities etc) may be correspondingly reduced.  Given that the clear basis on which the application was put forward was that the actual selling space should be limited to 2403, does this circumstance invalidate the permission?  The nature of the invalidity might be expressed as ... : the planning permission allowed a greater area for actual selling space than had been applied for.
...
[He then set out the way that the learned Judge had disposed of this argument in paras. 45 and 46 in the judgment below and continued:]
...
22. While I appreciate at once the eminent good sense of this reasoning, I confess to some unease in accepting it as a sufficient answer to Mr Holgate’s legal objection that since the actual selling space is not controlled to 2403, the possibility exists – no doubt subject to quite pressing practical constraints – that the intended balance between 2403 and 2919 could in fact be altered by the developer.  Planning permissions go with the land; what they are intended to permit should be clear from what they say”.

The Court of Appeal, however, dismissed the appeal on the basis that as. 106 agreement entered into on 17 February 2009 cured any potential legal difficulty with the permission (see paras. 23 – 26 of the draft judgment). That s. 106 agreement was entered into after the grant of the planning permission in issue and in response to these judicial review proceedings.

The Court of Appeal rejected the arguments advanced by the Appellant as to procedural differences between restrictions being imposed via a s. 106 on the one hand and a condition on the other hand in the event that the landowner at some point in the future sought to remove a restriction imposed on actual selling space: see paras. 25 and 26 of the judgment.

David Holgate QC and James Maurici appeared for the Appellant instructed by Brookstreet Des Roches
Russell Harris QC appeared for Tesco instructed by Berwin Leighton Paisner LLP

Landmark Chambers is delighted to announce Mark O'Connor's appointment as a Deputy Judge of the Upper Tribunal. This part-time appointment commences in September 2010.

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

A planning inquiry into Viridor Waste Management Ltd's proposals for an energy from waste, waste management facility, on an existing waste site at Ardley, Oxfordshire close to junction 10 of the M40 opened at Cherwell DC offices in Banbury. The proposals, which have been procured by Oxfordshire County Council to process all OCC's residual municipal waste were refused permission by OCC as planning authority last year. The proposed facility will treat up to 300,000 tonnes of waste per annum which would otherwise go to landfill. Issues raised by OCC and Cherwell DC principally relate to the acceptability of the proposals in terms of impact on the countryside. Issues regarding other matters are raised by others, including the local parish councils. The inquiry is expected to last 3 weeks.
 
David Elvin QC and Toby Fisher represent the Appellant, Viridor Waste Management Ltd
 
Gwion Lewis represents Cherwell DC

For further information click here

On 30th June 2010, the SoS refused permission for major mixed use development at the Ram Brewery Site in Wandsworth. The HSE was the only represented objector to development which was supported by the Mayor of London and the Council. The HSE had given advice that because of the proximity to substantial gas holders, there were strong safety reasons for refusing permission. The developers challenged the HSE methodology for setting its consultation zones and claimed that the consequences of a major incident would be far less than the HSE claimed. The HSE methodology, its consultation zones and its approach to developments within the consultation zones was upheld and accorded very significant weight in the decision with major implications for future applications in the zones of such  major hazard installations.

David Forsdick and Carine Patry Hoskins acted for the HSE

On 29th June 2010, the High Court (Griffiths Williams J) granted the Mayor of London an order for possession in respect of Parliament Square Gardens and injunctions restraining a large number of defendants from occupying the Square. A so called “democracy village” established a protest camp and  took control of much of the Square in May.  Another existing protest on the pavement expanded onto the gardens. The Mayor succeeded on all points of principle against all represented and unrepresented defendants and permission to appeal was refused.
  
Ashley Underwood Q.C. and David Forsdick acted for the Mayor

R (Morge) v. Hampshire County Council [2010] EWCA Civ 608, 10th June 2010

The Court of Appeal’s decision has clarified the extent of protection afforded to European protected species.

The Court of Appeal dismissed an appeal against a decision of HH Judge Bidder QC sitting as a Deputy High Court Judge in which he refused to quash a decision of Hampshire County Council to grant planning permission for a Bus Rapid Transit scheme providing a dedicated bus link between Gosport and Fareham.

The Claimant contended that the Council had not fulfilled its obligation to have regard to the requirements of the Habitats Directive when granting planning permission.

The Claimant contended that the protection afforded by Article 12(1)(b) of the Directive (deliberate disturbance of these species) was engaged as the proposed scheme would involve the destruction of foraging habitat and would introduce buses in area used by bats for crossing from a roost to foraging area.   The Court of Appeal held that the loss of habitat does not itself fall within Article 12.  The Court held that the occasional death of a bat should it be unable to take evasive action from large lighted buses will be a trivial disturbance not having a negative impact on the species as a whole so as to have any ecological importance.
 
The Claimant contended that Article 12(1)(d) of the Directive was engaged as potential bat roosts would be destroyed and as bats arriving at a leaving an existing roost would be adversely affected by passing buses.  The Court of Appeal rejected those arguments holding that Article 12(1)(d) requires strict protection of defined elements of the habitat namely actual breeding sites and resting places.

The Court of Appeal also rejected the Claimant’s challenge to the Council’s decision that the proposal did not amount to EIA development for the purposes of the EIA Directive.

Neil Cameron QC and Sasha White acted for Hampshire County Council, the Respondent.

The inquiry has opened into the call-in of the Preston Tithebarn scheme which aims to regenerate Preston City Centre by the development of 252,800 sqm of floorspace which seeks the comprehensive redevelopment of the Heart of the Tithebarn Regeneration Area comprising retail and ancillary uses, financial and professional services,  food and drink, residential, business workspace, a hotel, leisure uses including a cinema, bus transport interchange, substations, storage, car and cycle parking, vehicular access, servicing facilities, highway works, plant and machinery,  landscaping, enabling works and works to make good existing structures where they interface the new development. The scheme includes the renovation and reuse of the two historic market areas of the city.
 
The proposals are opposed by a consortium of local authorities including Blackpool and Blackburn with Darwen Borough Councils who argue that the proposals for comparison retail (some 52,000 sqm net) are too large and will seriously damage Blackpool and Blackburn and their own regeneration prospects.
 
The inquiry is scheduled to sit for 6 weeks.
 
David Elvin QC and Graeme Keen represent the Preston Tithebarn Partnership/Lend Lease, the developer
 
Christopher Katkowski QC represents the Opposition Consortium of Authorities
 
For further details please click here

The Court of Appeal has dismissed an appeal against a decision of His Honour Judge Mole QC, sitting as a Deputy High Court Judge, in which he refused to quash a decision of the Secretary of State for Communities and Local Government (“the Secretary of State”) to grant permission for the development of land at Doon Street, Cornwall Road and Upper Ground, London SE1, often referred to as “the Doon Street Tower” (for further information please click here).

The appeal was brought by Mr William Ashton (“the appellant”) who was one of the unsuccessful applicants before the judge.  The other unsuccessful applicants, the Historic Buildings and Monuments Commission for England (English Heritage) and Westminster City Council did not appeal. 

The Appellant’s substantive ground of challenge was rejected.

The Appellant lived close to the proposed tower and was a member of a local group (“WCDG”) which had objected. He himself though made no written objection at the local planning authority stage, nor did he make written or oral objection at the inquiry stage. Nor did the Appellant play any part in the presentation of the local group’s case, nor any part in its preparation. The Judge below concluded that he took insufficiently active role in the process and so was not a "person aggrieved" for the purposes of s. 288 of the Town and Country Planning Act 1990. The Court of Appeal agreed:

“53.         The following principles may be extracted from the authorities and applied when considering whether a person is aggrieved within the meaning of section 288 of the 1990 Act: 

1. Wide access to the courts is required under section 288 (article 10(a), N’Jie). 
2. Normally, participation in the planning process which led to the decision sought to be challenged is required.  What is sufficient participation will depend on the opportunities available and the steps taken (Eco-Energy, Lardner).
3. There may be situations in which failure to participate is not a bar (Cumming, cited in Lardner).  
4. A further factor to be considered is the nature and weight of the person’s substantive interest and the extent to which it is prejudiced (N’Jie and Lardner).  The sufficiency of the interest must be considered (article 10(a). 
5. This factor is to be assessed objectively.  There is a difference between feeling aggrieved and being aggrieved (Lardner).  
6. What might otherwise be a sufficient interest may not be sufficient if acquired for the purpose of establishing a status under section 288 (Morbaine). 
7. The participation factor and the interest factor may be interrelated in that it may not be possible to assess the extent of the person’s interest if he has not participated in the planning procedures (Lardner). 
8. While recognising the need for wide access to the courts, weight may be given, when assessing the prior participation required, and the interests relied on, to the public interest in the implementation of projects and the delay involved in judicial proceedings (Advocate General Kokott in Ireland).

54.    I do not consider that the appellant had standing under section 288 to bring the present claim.  His participation in the planning process was insufficient in the circumstances to acquire standing.  He was not an objector to the proposal in any formal sense and did not make representations, either oral or written, at the properly constituted Public Inquiry.  Mere attendance at parts of the hearing and membership of WCDG, which has not brought proceedings in this court, were insufficient.  I agree with the judge’s conclusion set out at paragraph 32 above [the conclusion was ““I do not doubt the genuineness of [the appellant’s] interest in the outcome of the decision-making process but in my judgment he did not play a sufficiently active role in the planning process properly to be described as ‘aggrieved’ within section 288.”]”

James Maurici appeared for the First Respondent, the Secretary of State.  David Forsdick appeared for the Second Respondent – the Coin Street Community Builders”

The Court of Appeal has dismissed an appeal in respect of 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 Westfield development in White City: 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 at first instance 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”. The Court of Appeal upheld the decision.

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