Home > People > Queen's Counsel > Charles Banner QC

Charles Banner QC

Call: 2004Silk: 2019
Download CV

Practice Summary

Charles Banner QC was called to the Bar of England & Wales in 2004 and to the Bar of Northern Ireland in 2010. He took silk in 2019. He practices across both jurisdictions as well as internationally.

He has a broad and versatile practice covering a wide range of areas of law, falling principally within the following categories:

  1. Development & infrastructure (particularly in the residential, energy & transport sectors) – including the planning/development consent process and all aspects of planning law, environmental law and other regulation, project finance, contracts and procurement, commercial dispute resolution and compulsory acquisition.
  2. Government & regulation – including all aspects of public sector and state activity, administrative and constitutional law, EU law, human rights, economic sanctions, environmental law, healthcare, public procurement, state aid and competition, regulatory law and international trade and investment law.

Full details of his particular areas of expertise are set out in the links under the ‘Expertise’ tab on the right-hand side of this webpage.

Described in Chambers & Partners UK as “an exceptional commercial barrister”, in Legal 500 UK as “a match for any silk”, and by Planning Magazine’s Planning Law Survey as “one of the best court advocates I’ve seen”, Charles regularly acts as sole or lead counsel in complex and demanding litigation, arbitrations and public inquiries. He acts for commercial and private clients as well as NGOs and public authorities. From 2015 until taking silk in 2019, he was a member of the Attorney General’s A Panel of Junior Counsel to the Crown, in which capacity he represented the UK Government in some of its most challenging and high profile cases in the domestic courts and internationally. In addition to providing advocacy and advisory services, he also accepts instructions to sit as an arbitrator or mediator.

When not travelling with work, Charles divides his time between Landmark’s offices in London (where he lives) and Birmingham (where he is from and still has family). He is happy to meet clients in whichever location is more convenient for them.

Recognition includes:

  • Voted one of the Top 15 Planning QCs in Planning Magazine’s ​Planning Law Survey 2019 (based upon a poll of several hundred development & infrastructure industry professionals).
  • Previously the top-ranked junior in the planning sector in all three directories/surveys: Legal 500 UK Bar (Tier 1, 2017 & 2018), Chambers & Partners UK Bar (‘Star Individual’ 2018 & 2019) and Planning Magazine‘s Planning Legal Survey (No.1 junior, 2018; No.1 junior aged under 35, 2013, 2014 & 2015).
  • Winner of ‘UK Planning Barrister of the Year’, Lawyer Monthly Legal Awards 2018.
  • Winner of ‘Environment and Planning Junior of the Year’, Chambers UK Bar Awards 2017.
  • Shortlisted for ‘Real Estate, Environment and Planning Junior of the Year’, Legal 500 UK Bar Awards 2018.
  • Ranked as a leading practitioner by Legal 500 UK Bar 2018 and/or Chambers & Partners UK Bar 2019 in seven other areas: administrative and public law, civil liberties and human rights, energy, environment, European law, local government, and public procurement.

Experience includes:

  • 100+ planning inquiries / examinations.
  • 100+ reported court cases.
  • 16 appeals in the UK Supreme Court / House of Lords, including two as sole or lead counsel.
  • 13 cases before the European Union Courts (Court of Justice & General Court), including 10 as lead or sole counsel for the United Kingdom.
  • 9 cases before the UNECE Aarhus Convention Compliance Committee, including 7 as lead or sole counsel.
  • 3 cases before the European Court of Human Rights.
  • Parliamentary Select Committee Hearings on HS2.

Appointments include:

  • Member of the Chartered Institute of Arbitrators.
  • ADR Group Accredited Mediator.
  • Council Member, United Kingdom Environmental Law Association (2016-present).
  • College Lecturer in Law, University of Oxford, 2010-2015 (holding weekend classes in EU law and administrative law at Lincoln, Oriel and Regent’s Park Colleges).

Alongside his private practice at the Bar, Charles holds the following non-executive board positions:

International work

Charles is co-founder and Deputy Head of Landmark International, the international brand of Landmark Chambers. His practice has a strong international element, full details of which are on the Landmark International website.  He has rights of audience in the Dubai International Finance Centre Courts (Part II Registered since 2015), the Singapore International Commercial Court (Full Registered Foreign Lawyer since 2017) and the Astana International Finance Centre Court (Registered since 2018). He holds an Advanced Certificate in International Arbitration (Chartered Institute of Arbitrators, 2016) and is an Associate Member of the Hong Kong Institute of Arbitrators. In 2008 he undertook a secondment to Mayer Brown JSM in Hong Kong, working on real estate, construction and planning litigation and arbitration in Hong Kong. He has maintained strong professional and personal links with Hong Kong subsequently. He has a working knowledge of French and Russian.

Administrative & Public Law

Prior to his appointment as Queen’s Counsel in 2019, Charles was for many years recommended as a leading junior in administrative & public law in both Legal 500 UK Bar  and Chambers & Partners UK Bar. He was also recommended as a leading junior in local government law in Chambers & Partners ​UK Bar (2019). He undertakes advisory work and litigation across the whole spectrum of public law, including all aspects of central and local government, constitutional issues, freedom of information, immigration, community care, healthcare, mental health, prisons, public procurement, regulation, social security and transport.

He has worked on numerous cases before the Administrative Court in England & Wales and before the Judicial Review Court in Northern Ireland. His well-known appellate practice includes some of the leading public law appeals of the 2000s before the Supreme Court (where he has appeared 16 times) concerning issues such as the territorial application of UK Acts of Parliament (Al-Skeini), the circumstances in which the High Court’s judicial review jurisdiction can be restricted by legislation or judicial policy (Cart) and the Court’s jurisdiction to review the Parliamentary procedure for Hybrid Bills for compatibility with EU law (HS2).

Charles’ public law practice is balanced between acting for claimants, defendants and interested parties/interveners. He strongly believes that maintaining a balanced practice makes him best placed to advise his clients on the opportunities and threats that they face during litigation, by providing an insight into the other side’s likely mindset.

He is a member of the Attorney General’s A Panel of Junior Counsel to the Crown and was also member of the Treasury Solicitor’s Freedom of Information Panel until its incorporation within the Attorney General’s main panels. For many years he was a contributor to the Administrative Court Digest and on the editorial team of the ‘International Developments’ section of the journal Public Law. He has published and spoken widely on court systems and the judiciary, and has given expert evidence on the issue to the House of Lords Constitution Committee.

He is a member of the Administrative Law Bar Association. In 2018 he was Joint Acting Head of Landmark Chambers’ Public Law Group.

His significant public law cases include the following (for others please see the ‘cases’ link at the side of this webpage):

  • Constitutional law: represented the claimant in the Divisional Court, Court of Appeal and Supreme Court in R (Cart) v. Upper Tribunal [2012] 1 A.C. 663, a landmark constitutional case concerning whether the Upper Tribunal is amenable to judicial review in cases where no statutory appeal is available. The Supreme Court accepted the claimant’s submission that the approach of the Divisional Court and Court of Appeal (that JR was available only in wholly exceptional circumstances) was too narrow and held that permission to bring a JR claim should be granted if the claim raises an important point of principle of practice and/or there is some other compelling reason for it to be heard. The decision is one of the most important chapters in the case-law relating to the principles underpinning the High Court’s judicial review jurisdiction. Charles subsequently acted for the Public Law Project inJD (Congo) v. SSHD [2012] Imm. A.R. 719 in which the Court of Appeal gave important guidance on the interpretation of the “compelling reason” test for appeals from and judicial review of the Upper Tribunal.
  • Transport: acting for the Arora Group in the exceptional 2-week hearing into the multiple judicial review claims of the Airports National Policy Statement endorsing the principle of expansion of London Heathrow Airport including a 3rd runway (March 2019); acted for HS2 Action Alliance in the Supreme Court in R (HS2 Action Alliance Ltd) v. Secretary of State for Transport [2014] 1 W.L.R. 324, the high profile challenge to the Government’s White Paper High Speed 2: Decisions and Next Steps setting out the strategy for the HS2 high speed railway, a case raising several far-reaching points of public law principle including the status of EU law within the UK constitutional legal order.
  • Healthcare: acted for Cornwall Council in the Supreme Court in R (Cornwall Council) v. Secretary of State for Health [2016] A.C. 137, concerning the assessment of a vulnerable person’s ordinary residence for the purpose of identifying which authority is responsible for funding their long term residential care and support under ss.21 & 24 of the National Assistance Act 1948; acted for the Secretary of State for Health in Bayer plc & Novartis Pharmaceuticals UK Ltd v. Darlington CCG & others [2018] EWHC 2465 (Admin), concerning the legality of the defendant Clinical Commissioning Groups’ policy of offering the drug Avastin, which is  authorised by the European Medicines Agency for certain cancer treatments, for treating a degenerative eye condition known as ‘wet AMD’; provided extensive advice to the Department for Health on regulation of novel tobacco products (2018).
  • Social security: a series of four Supreme Court cases concerning the lawfulness of restrictions on access to social security benefits by economically inactive EU migrants: Patmalniece v. Secretary of State for Work and Pensions [2011] 1 W.L.R 783, St Prix v. Secretary of State for Work and Pensions [2013] 1 All E.R. 752, Mirga v. Secretary of State for Work and Pensions [2016] 1 W.L.R. 481, R (HC) v. Secretary of State for Work and Pensions [2017] 3 W.L.R. 1486.
  • Local government: acted for Transport for London in Southwark LBC v. Transport for London [2018] 3 W.L.R. 2059 (SC) regarding the extent of interests in London’s roads that were transferred from London local authorities to TfL upon the latter’s creation by statute in 2000; represented the London Mayor in the High Court in November 2013 in R (Islington LBC & others) v. Mayor of LondonLondon Fire Commissioner & London Fire and Emergency Planning Authority [2013] EWHC 4142 (Admin), a challenge by various London councils and the Fire Brigades Union to proposals in the Fifth London Safety Plan to reduce the number of fire stations, appliances and firefighters in London owing to budgetary constraints.
  • Local government finance and procurement: acted in two of the principal domestic cases on the duty under s.123 of the Local Government Act 1972 to obtain best consideration for the disposal of land interests, and the applicability of public procurement law, in the context of development agreements entered into between a local authority and a developer for urban regeneration projects on Council-owned land:  R (Faraday Development Ltd) v. West Berkshire Council [2016] EWHC 2166 (Admin) & [2018] EWCA Civ 2532 and R (Midlands Co-Operative) v. Birmingham City Council [2012] B.L.G.R. 393.
  • Regulation: acted for the UK Government (leading a 3-counsel team) successfully defending a heavyweight commercial judicial review claim concerning changes to the rules relating to energy markets: R (Eider Reserve Power Ltd) v. Secretary of State for Business, Energy & Industrial Strategy (CO/393/2018); acted for the Traveller Movement in their challenge to Ofcom’s decision not to uphold a complaint that Channel 4 had breached broadcasting standards in relation to the TV programmes My Big Fat Gypsy Wedding and Thelma’s Gypsy Girls, a case raising important issues about the legality of Ofcom’s procedures for determining complaints: R (Traveller Movement) v. Office of Communications [2015] EWHC 406 (Admin).
  • Immigration: appeared for the Joint Council for the Welfare of Immigrants in the Supreme Court in R (Munir) v. SSHD [2012] 1 W.L.R. 2192 and R (Alvi) v. SSHD [2012] 1 W.L.R. 2208, two high profile test cases in which the Court, accepting JCWI’s submissions, ruled that a significant part of the UK Border Agency’s practice was unlawful because requirements that could be determinative of immigration applications had not been laid before Parliament as required by s.3(2) of the Immigration Act 1971, but instead had been simply set out in governmental “Guidance” documents and other documents external to the Immigration Rules.
  • Immigration sponsor licensing: appeared in the Supreme Court inR (New London College Ltd.) v. SSHD [2013] 1 W.L.R. 2358, concerning the legality of the Tier 4 Sponsor Licence regime by which the UK Border Agency regulates educational organisations that sponsor visa applications by non-EEA students. Charles previously represented the successful claimant in R (London Reading College Ltd) v. SSHD [2010] E.L.R. 809, in which the High Court held that the revocation of the London Reading College’s Tier 4 Sponsor’s Licence by the UK Border Agency, the effect of which was that the College was unable to continue sponsoring overseas students (who formed the overwhelming majority of the college’s clientele), was procedurally unfair and in breach of Article 1 of the First Protocol ECHR.
  • Judicial review procedure: two of the most significant recent cases on standing to bring a judicial review claim in England & Wales (R (Wylde v. Waverley Borough Council [2017] P.T.S.R. 125) and Northern Ireland (Doyle’s application for judicial review [2014] NIQB 82).
  • Prisons: various challenges to decisions by prison authorities, including representing the Secretary of State for Justice in R (Bates) v. Independent Adjudicator [2011] EWHC 3236 (Admin) (fairness and Article 6 ECHR in prison adjudications) and R (Calder) v. Secretary of State for Justice[2015] EWCA Civ 1050 (level of evidence required for a decision to recall a prisoner on parole to prison; whether Parole Board hearing an alternative remedy precluding judicial review) and representing the Applicant in App 16477/09 MS v. United Kingdom(on the circumstances in which refusal to locate a prisoner to be near his/her family violates Article 8 EHCR).
  • Child support: represented the appellant in the Court of Appeal in R (Brookes) v. Child Maintenance and Enforcement Commission [2010] 1 W.L.R. 2448, the lead authority on the impact of the welfare principle under s.2 of the Child Support Act 1991 and of Article 8 ECHR on the discretion of the Commission to seize goods from the family home of a person owing arrears in child support maintenance and/or to seek his committal to prison.
  • Freedom of information: acted for a range of Government Departments in Freedom of Information Act cases, including Greenwood v. Information Commissioner [2013] UKFTT EA/2012/0169 (acting for the Crown Prosecution service resisting disclosure of the signatures and direct contact details of certain staff), Sittampalam v Information Commissioner & Home Office [2012] UKFTT EA/2012/0150 (concerning the circumstances in which a repeated request for information under the FOIA can be rejected as vexatious), Home Office v. Information Commissioner & Wickström [2012] UKFTT EA/2011/0203 (acting for the Home Office seeking to resist the disclosure of names of junior staff on the basis that it would offend the First Data Protection Principle), Ray v. Information Commissioner [2011] UKFTT EA/2010/0118 (acting for Companies House resisting disclosure of company information on the grounds that it would constitute an actionable breach of confidence) and Ministry of Justice v. Information Commissioner & Wyllie (acting for the MoJ resisting disclosure of records of certain internal policy discussions by the Government team responsible for the Inquiries Bill which became the Inquiries Act 2005).

Commercial Dispute Resolution

Charles regularly undertakes commercial litigation and associated advisory work in the context of the industry sectors to which his other areas of practice relate, including in particular energy, natural resources, infrastructure, planning, property, healthcare and regulation. He is particularly experienced in dealing with disputes arising out of development agreements, contractual disputes in the energy and infrastructure sectors, and commercial claims brought by or against government or other public authorities. He has worked on several substantial cases in the Commercial Court, Chancery Division and Queen’s Bench Division. He is a member of COMBAR.

An increasing proportion of his work involves arbitration, both within the UK and overseas. He is a Member of the Chartered Institute of Arbitrators (with an Advanced Certificate in International Arbitration) and the Hong Kong Institute of Arbitrators, as well as an ADR Group accredited mediator.

His recent and on-going commercial cases include:

  • A £10m+ Commercial Court claim relating to alleged contamination in food supplied to one of the largest commercial pig farms in the UK (2018-ongoing).
  • Arbitration proceedings concerning the interpretation of a contract concerning the maintenance and repair of the tidal defence gates at a major UK harbour (2017-ongoing).
  • Acting for a well-known care services provider in a £multi-million contractual dispute with a NHS regional clinical commissioning group over the interpretation of a contract for the provision of health services to NHS patents, in expert determination proceedings before a former Supreme Court judge (2017-ongoing).
  • A multi-jurisdictional commercial dispute concerning alleged breaches of warranty and misrepresentation in the context of co-operation agreements entered into with China National Petroleum Company for the exploitation of mineral resources in China (2016-ongoing).
  • Minerva (Wandsworth) Ltd v. Greenland Ram (London) Ltd [2017] EWHC 1457 (Ch) – acting for the Greenland Group in the 13-day Chancery Division trial of a £multi-million claim relating to overage provisions in a contract for the £135m purchase of the Ram Brewery development site in Wandsworth.
  • Manchester Ship Canal Company Ltd. v. Environment Agency [2017] EWHC 1340 (QB) – a £13 million claim against the Environment Agency under a contract agreed in 1963 by the Manchester Ship Canal Company and the Mersey River Board (a predecessor of the EA) and subsequently confirmed in Schedule 2 of the Mersey River Board Act 1964. MSCC claimed damages under the contract in respect of flood damage caused to the Manchester Ship Canal during the high profile, extreme Boxing Day Floods of 2015. Acted for the EA in its successful application for summary judgment.

Economic Sanctions

Charles has a growing practice in the law relating to economic sanctions imposed by the UN, the EU and domestic law. His expertise in EU law, human rights and international law makes him well placed to handle the overlaps between these areas which sanctions cases regularly involve.

He is the co-author of an influential article on the implications for the relationship between EU law and ECHR law of the litigation relating to the impoundment of an aircraft in Ireland pursuant to the EU sanctions against the former Yugoslav regime: Human rights review of State acts performed in compliance with EC law: Bosphorus Airways v. Ireland (2005) EHRLR 649. In the recent past he has regularly advised the Office of Financial Sanctions Implementation (part of HM Treasury) both on specific cases and on general matters of interpretation of the EU sections regime.

His recent work in this field includes:

  • Case T-715/14 NK Rosneft a.o. v. European Council ELCI:EU:T:2018:544 & Joined Cases T-735/14 & T-799/15 Gazprom Neft v. European Council ELCI:EU:T:2018:548 – proceedings before the EU General Court in which the Russian energy companies Rosneft and Gazprom sought the annulment of EU sanctions targeted at the Russian oil sector in the light of Russia’s actions destabilising the situation in Ukraine (Council Decision 2014/659/CFSP as amended and Council Regulation (EU) 833/2014 as amended). Sole counsel for the United Kingdom, whose submissions were endorsed by the General Court.
  • R (Ezz) v. HM Treasury  [2016] EWHC 1470 (Admin), relating to Council Regulation (EU) 270/2011 concerning restrictive measures directed at certain persons, entities and bodies in view of the situation in Egypt. The case related to the provision in Article 4(1)(b), which is common to all EU sanctions regulations, that funds may be released where it is determined that they are “intended exclusively for reasonable professional fees associated with the provision of legal services”. Sole counsel for HM Treasury, successfully defending the claims.
  • Advising the Office of Financial Sanctions Implementation on issues relating to the sanctions imposed on the former President of Ukraine, Viktor Yanukovych.

Energy and Natural Resources

Charles’ practice covers a wide range of issues affecting the energy and natural resources sector, both within the UK and internationally, including planning & environmental regulation of new energy infrastructure, energy markets regulation, contractual disputes, international trade & investment law (including the Energy Charter Treaty), project finance and public procurement. Prior to his appointment as Queen’s Counsel in 2019, Charles was recommended as a leading junior in Energy-related work in four consecutive editions of Legal 500 UK (2015-2018 inclusive).

Significant work in this sector includes:

  • Advising the UK Government on the EU energy law and international trade & investment law implications of Brexit for the All-Ireland Single Electricity Market (including in relation to GATT, GATS and the Energy Charter Treaty).
  • Case T-715/14 NK Rosneft a.o. v. European Council ELCI:EU:T:2018:544 & Joined Cases T-735/14 & T-799/15 Gazprom Neft v. European Council ELCI:EU:T:2018:548 – proceedings before the EU General Court in which the Russian energy companies Rosneft and Gazprom sought the annulment of EU sanctions targeted at the Russian oil sector in the light of Russia’s actions destabilising the situation in Ukraine (Council Decision 2014/659/CFSP as amended and  Council Regulation (EU) 833/2014 as amended). Sole counsel for the United Kingdom.
  • A multi-jurisdictional commercial dispute concerning alleged breaches of warranty and misrepresentation in the context of co-operation agreements entered into with China National Petroleum Company for the exploitation of mineral resources in China (2016-ongoing, with John Litton QC).
  • Acting for the UK Government (leading a 3-counsel team) successfully defending a heavyweight commercial judicial review claim concerning changes to the rules relating to energy markets: R (Eider Reserve Power Ltd) v. Secretary of State for Business, Energy & Industrial Strategy (CO/393/2018).
  • Promoting nationally significant energy infrastructure through the development consent process in England, including: the Keuper Gas Storage Project Development Consent Order (a joint venture between Ineos and the Solvay Group for a 19-cavity underground gas storage facility in Cheshire: see here); the Norfolk Vanguard Development Consent Order (one of the UK’s largest offshore windfarms, with an approximate capacity of 1.8GW which would meet the electricity needs of 1.3m homes: see here); Runcorn Energy From Waste for Ineos and Viridor (see here).
  • Acting for the Northern Ireland Department for Infrastructure for over 5 years (2013-present), including at a high profile public inquiry and in subsequent High Court proceedings, in connection with the North-South Ireland Electricity Interconnector, Northern Ireland Electricity’s proposed 400kv strategic interconnector between Tyrone in Northern Ireland and Cavan in the Republic of Ireland, regarded as Northern Ireland’s most significant energy infrastructure project to date.
  • Advising the Northern Ireland Department for Infrastructure in relation to the Curraghinalt Gold Project, an underground gold mine estimated to produce approximately 1.36Moz of gold and 0.38Moz of silver over an initial mine life of 10.5 years (see here).
  • Shale gas ‘fracking’ and exploration: advising the UK Government on fracking regulation; advising Nottinghamshire County Council in connection with its determination in November 2016 of a high profile application by IGas Energy for consent to undertake shale gas exploration at Mission Springs (see here); Europa Oil & Gas v. SSCLG [2014] J.P.L. 21 on whether exploration for hydrocarbons constitutes “extraction” for the purposes of national planning policy relating to development in the green belt.
  • Proceedings before the UNECE Aarhus Convention Compliance Committee in Geneva relating to an open-cast coal mine in Merthyr Tydfil which is to extract several million tonnes of coal over c.15 years as part of the Ffos-y-Fran Land Reclamation Scheme (sole counsel for the operator).

Environmental Law

Charles undertakes a wide range of environmental litigation and advisory work in the domestic, EU and international law spheres. Prior to his appointment as Queen’s Counsel in 2019, he was for many years recommended as a leading junior in environmental law by Chambers & Partners UK Bar and Legal 500 UK Bar. His environmental law practice is evenly split between commercial clients, private clients, environmental NGOs and public authorities including the Environment Agency and the Northern Ireland Department for Infrastructure.

He has acted in some of the most important environmental cases in the English High Court and appellate courts in the 2000s, including the first Supreme Court case to consider the application of the Aarhus Convention within the UK (Edwards), the Supreme Court’s landmark judgment on strategic environmental assessment and environmental impact assessment in the context of a Parliamentary development consent process (HS2 Action Alliance No. 1), important Court of Appeal judgments on the scope of the ‘project’ for the purposes of environmental impact assessment (Larkfleet) and the distinction in EU law between ‘waste recovery’ and ‘waste disposal’ (Tarmac) as well as most of the other principal authorities on strategic environmental assessment (Save Historic NewmarketAshdown Forest, HS2 Action Alliance No. 2 and Larkfleet Homes). He has also acted in one of the most significant cases in the Northern Ireland High Court regarding EIA and habitats (Newry Chamber of Commerce).

Internationally, he has appeared on multiple occasions before the UNECE Aarhus Convention Compliance Committee in Geneva, in a series of cases before the CJEU regarding EU environmental legislation (including most recently a challenge by the silicones industry to the high profile ban on ‘microbeads’ in wash-off cosmetic products), and in the European Court of Human Rights in App. No. 39714/15 Austin v. UK (2017) 65 E.H.R.R. SE16 (concerning the circumstances in which Article 8 ECHR applies in cases of alleged environmental pollution and whether protection against adverse costs orders is required to achieve compliance with the right to an effective remedy under Article 13 ECHR).

He is the Editor of The Aarhus Convention – A Guide for UK Lawyers (Hart Publishing, 2015), the first book to be published concerning the implementation of the Aarhus Convention in the UK, and co-author of the chapter on strategic environmental assessment in Garner’s Environmental Law.

In 2017, Charles was awarded ‘Environment and Planning Junior of the Year’ at the Chambers UK Bar Awards. In the same year, he was shortlisted for ‘Real Estate, Environment and Planning Junior of the Year’ at the Legal 500 UK Bar Awards.

He is a Trustee and Council Member of the UK Environmental Law Association (2016-present). In 2017, he was appointed by the Secretary of State for Environment, Food and Rural Affairs as an independent member of the Joint Nature Conservation Committee.

His most significant environmental cases include the following (details of others are within the ‘cases’ link on the right hand side of this webpage):

Aarhus Convention

  • Nine cases before the UNECE Aarhus Convention Compliance Committee in Geneva, details of which are listed in a separate link under the ‘Expertise’ tab at the right hand side of this webpage. This includes an ongoing communication (ACCC/C/2017/156 RSPB & others v. UK) raising the fundamental question of whether the application by the UK courts, in environmental judicial and statutory review proceedings of the Wednesbury standard of review is consistent with Article 9(2) of the Aarhus Convention in relation to the review of the substantive legality of certain environmental decisions, acts and omissions.
  • Advising DEFRA, DECC and the Ministry of Justice on Aarhus Convention compliance in the light of recent Compliance Committee and CJEU findings about the costs regime in environmental judicial review proceedings in the UK.
  • R (London Borough of Hillingdon) v. Secretary of State for the Transport [2015] P.T.S.R. 2015, concerning whether local authorities are entitled to an Aarhus protective costs order under CPR r. 45.41 and/or pursuant to Article 9 of the Aarhus Convention.
  • R (HS2 Action Alliance Ltd) v. Secretary of State for the Transport [2014] 1 W.L.R. 324, concerning (inter alia) the compatibility with the Strategic Environmental Assessment Directive 2001/42/EC with the EU’s obligations under Article 7 of the Aarhus Convention.
  • R (Edwards & Pallikaropoulos) v. Environment Agency [2011] Env. L.R. 13, concerning the approach to be taken in considering whether the costs of environmental litigation are “prohibitively expensive” contrary to Article 9(4) of the Aarhus Convention, as implemented into EU law by Article 10a of the EIA Directive.

Environmental cases before the EU courts

  • Case T-226/18 Global Silicones Council & others v. European Commission (awaiting a hearing before the EU General Court): application to the General Court to annul Commission Regulation (EU) 2018/35 which introduces an EU-wide ban, effective 31st January 2020, on silicone ‘microbeads’ in wash-off cosmetic products, due to their polluting effect on river and marine ecosystems.
  • Case C-528/16 Confédération Paysanne v. Premier Ministre ELCI:EU:C:2018:53 (CJEU Grand Chamber): a reference from the French  Conseil d’État regarding the scope and interpretation of the provisions of EU environmental legislation regulating to genetically modified organisms.
  • Case C-461/17 Holohan v. An Bord Pleanála ECLI:EU:C:2018:649 (CJEU), a reference from Ireland’s High Court concerning the required content of an appropriate assessment under the Habitats Directive and the consideration that an environmental statement under the EIA Directive needs to give to alternatives to the proposed development.

Strategic Environmental Assessment

  • R (HS2 Action Alliance Ltd.) v. Secretary of State for Transport [2014] 1 W.L.R. 324 (Supreme Court), the high profile legal challenge to the Government’s White Paper HS2 – Decisions and Next Steps (Jan 2012) on the grounds (inter alia) that the White Paper should have been and was not subject to SEA pursuant to the Strategic Environmental Assessment Directive.
  • R (HS2 Action Alliance Ltd) v. Secretary of State for Transport (No.2) [2015] J.P.L. 555 (Court of Appeal), concerning whether safeguarding directions constitute a plan or programme which sets the framework for development consent, so as to require SEA.
  • The two leading cases regarding the duty for the Environmental Report / Sustainability Appraisal accompanying a draft plan or programme to explain what reasonable alternatives to the proposed plan policies have been considered and why they were rejected: Save Historic Newmarket Ltd v. Forest Heath District Council [2011] J.P.L. 1233 and Ashdown Forest Economic Development LLP v. Wealden District Council [2016] Env. L.R. 2.
  • R (Larkfleet Homes Limited) v. Rutland District Council [2015] P.T.S.R. 1369, concerning the legal principles relating to ‘screening decisions’ on whether or not a plan covering a small scale at local level (such as a neighbourhood plan) needs to be subject to SEA, and the need for SEA screening decisions to have regard to the potential for positive effects as well as negative effects.
  • Advising the Department for Communities and Local Government on SEA issues relating to the revocation of Regional Strategies in 2012/13.

Environmental Impact Assessment

  • Case C-461/17 Holohan v. An Bord Pleanála ECLI:EU:C:2018:649 (CJEU), a reference from Ireland’s High Court concerning the consideration that an environmental statement under the EIA Directive needs to give to alternatives to the proposed development.
  • R (Larkfleet Limited) v. South Kesteven DC [2016] Env. L.R. 4 (Court of Appeal), a judicial review challenge to the grant of a relief road to enable a large-scale urban extension on the grounds that the road and the urban extension should have been assessed as a single ‘project’ under the EIA Directive or alternatively that the cumulative environmental effects of the road taken together with the urban extension were not assessed in accordance with the requirements of the Directive. One of the lead domestic authorities on the scope of the ‘project’ for the purposes of EIA and the approach to be taken to assessing in-combination effects.
  • Newry Chamber of Commerce’s Application for Judicial Review [2015] NIQB 65, concerning the assessment of in-combination effects under the EIA Directive and the Court’s approach to EIA judicial reviews in circumstances where the claimant relies upon points which could have been, but were not, made to the decision-maker prior to the challenged decision. One of the leading Northern Ireland authorities on EIA.
  • R (Bucks CC & others) v. Secretary of State for Transport [2014] 1 W.L.R. 324 (Supreme Court), on whether the proposed Hybrid Bill procedure for obtaining development consent for HS2 from Parliament was incompatible with the requirements of the EIA Directive having regard to the conditional exemption under the Directive where development consent is to be granted by a legislature.
  • R (Trevone Objectors Group) v. Cornwall Council [2013] EWHC 4091 (Admin), on the applicability of the precautionary principle and the relevance of a site’s size to EIA screening decisions.

Habitats

  • Case C-461/17 Holohan v. An Bord Pleanála ECLI:EU:C:2018:649 (CJEU), a reference from Ireland’s High Court concerning the required content of an appropriate assessment under the Habitats Directive.
  • Three week inquiry in May 2018 into the Environment Agency’s proposed restrictions (on Habitats and Water Framework Directive grounds) on Southern Water’s licences to abstract water from the River Test and River Itchen. Lead counsel for the Environment Agency.
  • Catfield Fen Inquiry (April 2016) – acting as sole counsel for the proprietor of a major agricultural business in a 3 week inquiry into his appeal against the Environment Agency’s decision to refuse his applications for renewal of abstraction licences required to supply the irrigation system needed for salad and pre-pack potato crops. The appeal relates to whether the renewal of the licences would be compatible with the Habitats Directive having regard to the effect of water abstraction on the ecology of the Broads Special Area of Conservation. The issues included the proper interpretation of the Habitats Directive in relation to the assessment of potential harm to a SAC and relating to the test under Article 6(4) for imperative reasons of overriding public interest. The appeal was of wide-reaching impact for the farming industry and was supported by the National Farmers’ Union.
  • Ashdown Forest Economic Development LLP v. Wealden District Council [2016] Env. L.R. 2, concerning the relationship between the screening of a plan for potential effects on habitats pursuant to Art. 6 of the Habitats Directive and the consideration of what reasonable alternatives to the plan policies should be assessed pursuant to Art. 5 of the SEA Directive.
  • Newry Chamber of Commerce’s Application for Judicial Review [2015] NIQB 65, concerning the assessment of cumulative effects under the Habitats Directive and Habitats Regulations and the Court’s discretion not to quash in circumstances where even if there had been a technical breach of the Directive and Regulations there was no evidence that there was a real rather than hypothetical risk of harm to the designated habitat(s) which should have been considered. One of the leading Northern Ireland authorities on EIA.
  • Acting for the Department of Culture, Arts and Leisure in Northern Ireland in November 2012 in response to a high profile challenge to its refusal to issue or renew licences for commercial salmon fishing on the Antrim Coast due to the impact of salmon fishing on special areas of conservation protected by the Habitats Directive.

Waste

  • R (Tarmac Aggregates Ltd) v. (1) Secretary of State for Environment, Food and Rural Affairs and (2) Environment Agency [2016] Env. L.R. 15, concerning the approach to determining whether an activity is “waste recovery” under Article 3(15) of the Waste Framework Directive as opposed to “waste disposal”.
  • Acting for the Environment Agency at public inquiries into appeals against the refusal of environmental permit applications relating to (1) a proposed landfill at Birks Quarry, Oldham, and (2) a proposed quarry restoration scheme involving the use of inert waste at Methley Quarry, Leeds.
  • R (Residents Against Waste Site Ltd) v. Lancashire CC [2008] Env. L.R. 27, on the meaning and application of the “relevant objectives” under the Waste Framework Directive for considering proposals for the disposal or recovery of waste.
  • Representing Veolia Environmental Services in its successful defence of a High Court challenge to its permission for a strategic integrated waste management facility in Padworth, West Berkshire.

Advising on environmental regulatory compliance

  • Regularly advising USA-based companies on compliance with EU environmental regulatory law applicable to their products within the EU market, including issues under the Regulation Evaluation Authorisation and Restriction of Chemicals (‘REACH’) Regulation, Waste Electrical and Electronic Equipment (‘WEEE’) Directive and Restriction of Hazardous Substances (‘ROHS’) Directive.
  • Advising the Ministry of Defence on compliance with the REACH Regulation.
  • Advising a major Hong Kong landowner on environmental regulatory issues in Hong Kong.

European Union Law

A substantial part of Charles’ advisory and court work involves European Union law. He has considerable experience of proceedings before the EU Courts (CJEU and General Court) before whom he has appeared in 13 cases, as well as in EU law litigation in the domestic courts. He acted as sole counsel in the UK Supreme Court for Heathrow Hub Ltd in R (HS2 Action Alliance Ltd & others) v. Secretary of State for Transport [2014] 1 W.L.R. 324, described by Lord Reed JSC as the Supreme Court’s “most significant decision on EU law”.

He has published and lectured widely on EU law issues and was a College Lecturer in EU Law at Oxford University from 2010 to 2015, holding undergraduate classes at weekends (at Lincoln, Oriel and Regents Park Colleges). In his early career he spent over a year working as a part-time volunteer at the Centre for Advice on Individual Rights in Europe (‘AIRE Centre’), where he advised on a range of EU free movement and citizenship issues. He is a member of the Bar European Group and the UK State Aid Law Association. In 2017, he was appointed by the Lord Chancellor and Secretary of State for Justice as the UK Member of the EU Fundamental Rights Agency’s Management Board.

Prior to his appointment as Queen’s Counsel in 2019, he was for many years recommended as a leading junior in EU Law in Chambers & Partners UK Bar and Legal 500 UK Bar. Comments in these directories include that he “has an incredibly detailed knowledge of EU law and shows real skill in applying it”, is “extremely knowledgeable on EU law and equally passionate about its application”“is particularly adept at advising on cases involving questions of European law”, “his recent work has demonstrated his ability to handle cases involving the interpretation of European legislation and the subsequent impact in areas such as social security and benefit rights” and that “he has been active in a range of EU matters of late, including cases concerning fundamental rights and environment issues.”.

His significant EU law work includes the following:

Free movement of persons & EU citizenship

Charles has considerable experience of litigation and advisory work involving the scope of the free movement rights of workers and other EU citizens under the Citizenship Directive (Directive 2004/38/EC) and the TFEU, the rights of establishment and free movement of services, and the rights of EU citizens to social security benefits under Regulation (EC) 883/04. He also regularly acts in cases concerning the rights conferred on Turkish Citizens in the EU under the EEC-Turkey Association Agreement.

Recent cases in this field include:

  • A series of four UK Supreme Court cases concerning the lawfulness of restrictions on access to social security benefits by economically inactive EU migrants, concerning issues of EU citizenship law, the principles relating to Zambrano carers and EU anti-discrimination law: Patmalniece v. Secretary of State for Work and Pensions [2011] 1 W.L.R 783, St Prix v. Secretary of State for Work and Pensions [2013] 1 All E.R. 752, Mirga v. Secretary of State for Work and Pensions [2016] 1 W.L.R. 481, R (HC) v. Secretary of State for Work and Pensions [2017] 3 W.L.R. 1486.
  • Case C-507/12 St Prix v. Secretary of State for Work and Pensions[2013] 1 C.M.L.R. 38 (CJEU), concerning whether a woman from an EU Member State who, having worked in the UK, gives up work due to the demands of pregnancy remains a “worker” for the purposes of Article 7 of the Citizenship Directive and therefore retains a “right to reside” in the UK, bringing with it rights to social security benefits. The Supreme Court referred various questions to the CJEU under Art. 267 TFEU. The case raised far-reaching issues regarding the meaning of “worker” in EU free movement law and the anti-discrimination provisions of Articles 21 and 23 of the Charter of Fundamental Rights.
  • Case C-186/10 Oguz v. Secretary of State for the Home Department [2012] 1 W.L.R. 709 (CJEU), a preliminary reference from the Court of Appeal in which the CJEU held that a Turkish national who enters the UK lawfully but establishes a business in breach of his conditions of stay is not precluded by the ‘abuse of rights’ principle under EU law from relying on the standstill clause in the EEC-Turkey Association Agreement when he subsequently applies for further leave to remain in the UK on the basis of the business which he has established.

EU refugee and humanitarian protection law

Charles has advised and appeared in several judicial review cases in the Administrative Court raising issues under the Qualification Directive (Directive 2004/84/EC & Directive 2011/95/EU) and the Dublin Regulations as well as associated issues under the Charter of Fundamental Rights relating to the rights of persons seeking refugee or humanitarian protection in the EU. His cases in this field include:

  • Case C-490/16 AS v. Republic of Slovenia [2018] 1 W.L.R. 852 and Case C-466/16 Jafari [2018] 1 W.L.R. 773 – two conjoined cases before the CJEU Grand Chamber concerning how the allocation of responsibility between Member States for processing asylum claims under Regulation 604/2013 (the ‘Dublin III regulation’) is to be assessed in the context of the high profile migrant trains’ carrying Syrian refugees during 2015 in particular.
  • Case C-150/15 Der Bundesbeauftragte für Asylangelegenheiten v. N, concerning the proper approach to assessing whether an individual is entitled to protection under the Qualification Directive due to restrictions on religious freedom in his/her country of origin.
  • Case C-542/13 M’Bodj v. État Belge [2015] C.M.L.R. 16, concerning whether a seriously ill failed asylum seeker whose removal to their country of origin would be contrary to Article 3 ECHR falls within the scope of the Qualification Directive and is therefore entitled to the benefits conferred by that Directive.
  • Case C-562/13 Centre public d’action sociale d’Ottignies-Louvain-La-Neuve v. Abdida [2015] 2 C.M.L.R. 15, on whether the removal of a failed asylum seeker suffering from a serious illness to a country where appropriate treatment is not available can in some circumstances be contrary to the EU Charter of Fundamental Rights and, if so, the EU law consequences of that for the host Member State’s ability to remove them.

EU economic sanctions

Please see the separate page detailing Charles’ experience in relation to economic sanctions.

EU environmental law

The majority of Charles’ environmental law practice involves issues of EU law, most frequently (but not exclusively) in relation to the SEA Directive, the EIA Directive, the Habitats Directive and the Waste Framework Directive. His environmental cases in the EU courts include:

  • Case T-226/18 Global Silicones Council & others v. European Commission (awaiting a hearing before the EU General Court): application to the General Court to annul Commission Regulation (EU) 2018/35 which introduces an EU wide ban, effective 31st January 2020, on silicone ‘microbeads’ in wash-off cosmetic products, due to their polluting effect on river and marine ecosystems. (Lead Counsel for the UK Government, with Andrew Parkinson).
  • Case C-528/16 Confédération Paysanne v. Premier Ministre ELCI:EU:C:2018:53 (CJEU Grand Chamber): a reference from the French  Conseil d’État regarding the scope and interpretation of the provisions of EU environmental legislation regulating to genetically modified organisms. (Sole counsel for the UK Government).
  • Case C-461/17 Holohan v. An Bord Pleanála ECLI:EU:C:2018:649 (CJEU), a reference from Ireland’s High Court concerning the required content of an appropriate assessment under the Habitats Directive and the consideration that an environmental statement under the EIA Directive needs to give to alternatives to the proposed development (Drafted the UK Government’s written observations).

State aid law

Charles has considerable experience of advising both public and private sector clients on state aid issues. He has particular expertise on the provisions of the General Block Exemption Regulation relating to aid measures aimed at environmental protection and the Commission Guidelines on State Aid for the Environment, as well as state aid issues relating to the sale of land interests by public authorities to the private sector. He has recently advised on the state aid implications of the proposed financing of the redevelopment of a well known sports venue, of funding the remediation of a former mine, of central Government funding for a new relief road that will enable the development of a large scale urban extension, and of granting relief from the Community Infrastructure Levy to registered charities. He is a member of the UK State Aid Lawyers’ Association.

Competition law

Charles is also experienced in EU competition law under Arts. 101-106 TFEU and the Competition Act 1998. Whilst on secondment as Judicial Assistant to the Law Lords, he worked on the seminal case of Crehan v. Inntrepreneur Pub Co. [2007] A.C. 333. He has advised on complex competition issues in the context of a substantial dispute between a sports professional and a well-known sporting association, the provision of groundhandling activities at EU airports and the provision of services to the automotive industry. He is currently acting for the Arora Group in Chancery Division proceedings against Heathrow Airport Limited concerning the compatibility with Article 106 TFEU (taken together with Article 102 TFEU and/or Article 4(3) TEU) of what HAL contend is the proper interpretation of the planning regulation of new passenger parking at London Heathrow Airport (2018-ongoing). He is also acting for the Arora Group in the 2-week hearing in March 2019 of the judicial review challenges to the Airports National Policy Statement, one of which alleges that the Government’s endorsement through the NPS of the North West Runway Scheme promoted by HAL for Heathrow Expansion, ahead of Heathrow Hub Limited’s Extended North Runway Scheme, would breach competition law.

EU public procurement law

Please see the separate page detailing Charles’ experience in relation to public procurement law.

Other areas of EU law

Charles’ EU law practice extends beyond the above principal areas into a range of other fields including EU law relating to data protection, aviation, the free movement of services and establishment and consumer protection, as well as EU constitutional law. Examples include:

  • Free movement of goods / tobacco regulationacted for the Secretary of State for Health in proceedings brought by the leading producer of Swedish snus seeking the invalidation (on proportionality, subsidiarity and free movement of goods grounds) of the provisions in the 2014 Tobacco Products Directive which ban the production and supply of tobacco for oral use within the EU (except in Sweden, Austria and Finland in respect of which there are limited saving provisions): R (Swedish Match AB) v. Secretary of State for Health (referred by the Administrative Court to the CJEU following a hearing in January 2017).
  • Employment rights: Case C-214/16 King v. The Sash Window Workshop Ltd [2018] 2 C.M.L.R. 10 a reference under Art. 267 TFEU from the Court of Appeal regarding remedies for breach of a worker’s right under Article 7 of the Working Time Directive 2003/88 to paid annual leave of at least four weeks.
  • Kobler damages: acting for the Attorney General in Ijaz v. Attorney General (High Court, 2016), a Kobler damages claim arising out of the Court of Appeal’s treatment of litigation brought by the claimant relating to the Data Protection Directive 95/46/EC.

Human Rights

Prior to his appointment as Queen’s Counsel in 2019, Charles was recommended as a leading junior in Civil Liberties & Human in four consecutive editions of Legal 500 UK (2015-2018 inclusive)Much of his public law work involves issues under the Human Rights Act 1998 and/or the ECHR. He has experience of applications for declarations of incompatibility under s.4 of the Human Rights Act, judicial review of public authority acts on human rights grounds, damages claims under s.8 of the Human Rights Act and proceedings before the European Court of Human Rights. His EU law work also regularly involves issues under the Charter of Fundamental Rights. In 2017, he was appointed by the Lord Chancellor and Secretary of State for Justice as the UK Member of the EU Fundamental Rights Agency’s Management Board.

His experience includes:

  • Territorial scope of the ECHR and Human Rights Act: representing several NGOs in R (Al-Skeini) v. Secretary of State for Defence[2008] 1 A.C. 153, in which the House of Lords considered the extent to which the acts of British soldiers in Iraq fell within the scope of the UK’s obligations under the ECHR and Human Rights Act (with Keir Starmer QC).
  • Right to life: acting for the Secretary of State for Justice defending a claim alleging a failure by prison authorities to comply with the duty under Article 2 ECHR to take reasonable precautions against the risk of prisoners attempting suicide.
  • Inhuman and degrading treatment: appearing for the UK before the Grand Chamber of the CJEU in Case C-542/13 M’Bodj v. État Belge [2015] C.M.L.R. 16 and Case C-562/13 Centre public d’action sociale d’Ottignies-Louvain-La-Neuve v. Abdida [2015] 2 C.M.L.R. 15, two references from the Belgian Cour Constitutionelle concerning the scope of humanitarian protection under the EU Charter of Fundamental Rights for non-EU citizens suffering from serious illness whose removal to their country of origin would amount to inhuman or degrading treatment.
  • Forced labour and human trafficking: defending the Home Secretary in two challenges to the compatibility of the process for determining whether a person is a victim of human trafficking and their treatment before and after such a determination with the UK’s obligations under Article 4 ECHR (prohibition on slavery / forced labour) and the Council of Europe Convention on Action Against Trafficking: R (Atamewan) v. SSHD [2014] 1 W.L.R. 1949 (DC) and R (Haile) v. SSHD [2015] EWHC 732 (Admin).
  • Fair trial rights: acting for the Secretary of State for Justice in R (Bates) v. Independent Adjudicator [2011] EWHC 3236 (Admin), a challenge to a prison disciplinary adjudication alleging that the procedure was contrary to Article 6 ECHR.
  • Private/family lifeacting for the United Kingdom in App. No. 39714/15 Austin v. United Kingdom (2017) 65 E.H.R.R. SE16 concerning the circumstances in which Article 8 ECHR applies in cases of environmental pollution; acting for the applicant in App. No. 16477/09 MS v. United Kingdom, concerning the circumstances in which refusal to locate a prisoner to be near his / her family violates Article 8 EHCR; for the appellant in R (Brookes) v. Child Maintenance and Enforcement Commission [2010] 1 W.L.R. 2448, the lead authority on the impact of Article 8 ECHR on the discretion of the Commission to seize goods from the family home of a person owing arrears in child support maintenance and/or to seek his committal to prison; for the claimant in R (RLT Built Environment Ltd) v Cornwall Council[2016] EWHC 2817 (Admin) regarding the effect on Article 8 ECHR of the ‘second homes ban’ in St Ives; and for the Home Secretary in R (Stephenson) v. SSHD [2010] EWHC 704 (Admin), R (WJ) (China) v. SSHD [2010] EWHC 776 (Admin) and R (Juliuson) v. SSHD [2010] EWHC 2780 (Admin) concerning Article 8 EHCR in the context of the proposed removal / deportation of foreign criminals and persons unlawfully present in the UK.
  • Freedom of religion: acting for the UK in the CJEU in Case C-150/15 Der Bundesbeauftragte für Asylangelegenheiten v. N, concerning the proper approach to assessing whether an individual is entitled to protection under the Qualification Directive due to restrictions on religious freedom in his / her country of origin.
  • Right to marry: R (Baiai) v. SSHD [2009] 1 A.C. 287, in which the House of Lords considered the compatibility of the regime requiring non-EEA immigrants to obtain a certificate of approval before marrying in the UK with Article 12 ECHR (with Richard Drabble QC).
  • Possessions and property rights: (1) acting for the claimant in R (London Reading College Ltd) v. SSHD [2010] E.L.R. 809, in which the High Court held that the revocation of the London Reading College’s Tier 4 Sponsor’s Licence by the UK Border Agency, the effect of which was that the College was unable to continue sponsoring overseas students (who formed the overwhelming majority of the college’s clientele), was in breach of Article 1 of the First Protocol ECHR; (2) Case T-715/14 NK Rosneft a.o. v. European Council ELCI:EU:T:2018:544 & Joined Cases T-735/14 & T-799/15 Gazprom Neft v. European Council ELCI:EU:T:2018:548 – proceedings before the EU General Court in which the Russian energy companies Rosneft and Gazprom sought the annulment of EU sanctions targeted at the Russian oil sector in the light of Russia’s actions destabilising the situation in Ukraine, including on fundamental rights grounds relating to alleged infringement of Article 17 of the Charter of Fundamental Rights (right to property).
  • Discriminationacting for the AIRE Centre in the CJEU in Case C-507/12 Saint Prix v. Secretary of State for Work and Pensions[2014] P.T.S.R. 1448, concerning whether the exclusion of a woman who gives up work on account of the demands of pregnancy from the status of “worker” under Article 45 TFEU and/or the Citizenship Directive would amount to gender discrimination contrary to Articles 21 and 23 of the Charter of Fundamental Rights (with Jemima Stratford QC).
  • Right to an effective remedyacting for the United Kingdom in App. No. 39714/15 Austin v. United Kingdom (2017) 65 E.H.R.R. SE16 concerning whether protection of a litigant against an adverse costs order in the event that his / her claim fails is required in order to achieve compliance with the right to an effective remedy under Article 13 ECHR.
  • Human Rights Act damages: acting for the claimant in London Reading College v. Secretary of State for the Home Department, a claim for over £1.2 million damages under s.8 of the Human Rights Act arising out of the successful judicial review claim mentioned above.

Infrastructure

Charles has considerable experience of providing advice and representation in relation to large-scale infrastructure projects in a range of legal contexts, both within the UK and internationally, including the development consent order (‘DCO’) process, environmental regulation and other regulatory issues, contractual disputes, project finance, public procurement. He has particular experience of infrastructure work in the transport, energy and natural resources sectors.

His experience includes being integrally involved in proceedings relating to arguably the three most significant infrastructure projects in the UK in recent years: High Speed 2 (‘HS2’), the proposed 3rd runway and associated expansion at London Heathrow Airport, and the North-South Ireland Electricity Interconnector.

He is a member of the UK National Infrastructure Planning Association.

Significant infrastructure work includes the following:

Transport infrastructure

  • High Speed Two: acted for HS2 Action Alliance and affected landowners in the Parliamentary Select Committee proceedings established to consider objections to the proposed route and details of Phase 1 of HS2; prior to that, appeared in the high profile and long running litigation relating to HS2 including (1) acting for HS2 Action Alliance in the Supreme Court in their challenge to the Government’s strategy for HS2 (see R (HS2 Action Alliance Ltd) v. Secretary of State for Transport[2014] 1 W.L.R. 324; (2) acting as sole counsel in the Supreme Court in Heathrow Hub’s challenge to the decision that Heathrow Airport should not be served by the main line of HS2 (see R (Heathrow Hub Ltd) v. Secretary of State for Transport [2014] 1 W.L.R. 324); (3) acting for the London Borough of Hillingdon in its challenge to the safeguarding directions issued to protect land said to be required for Phase 1 of HS2 (see R (HS2 Action Alliance Ltd) v. Secretary of State for Transport (No.2) [2014] EWCA Civ 1578); (4) appearing for HS2 Action Alliance before the UNECE Aarhus Convention Compliance Committee in Geneva in proceedings relating to their complaint that the consultation process relating to HS2 breached the Aarhus Convention (Communication ACCC/C/2014/100).
  • London Heathrow Airport 3rd Runway and associated expansion: acting for the Arora Group, one of the principal landowners at and around Heathrow Airport and the promoter of the ‘Western Hub’ proposal pursuant to which, as part of the North-West Runway scheme supported by the Airports National Policy Statement, it seeks to construct and operate a new terminal facility at Heathrow in competition with the existing terminals operated by Heathrow Airport Limited (see here). Ongoing work includes (1) appearing as sole counsel for Arora in the 2 week hearing into the various judicial review claims brought in respect of the Airports NPS, listed for March 2019; (2) preparation of a DCO application for the Western Hub; (3) responding to HAL’s emerging DCO application for the North-West Runway scheme; (4) associated competition law matters.
  • London Stansted Airport expansion: acting for the Secretary of State for Transport in defence of a judicial review brought by Stop Stansted Expansion contending that a proposal to construct additional infrastructure at London Stansted Airport (two new taxiway links and nine additional aircraft stands) and to raise the annual cap on passenger transport movements at the airport by 8million passengers per annum should have been subjected to the DCO regime under the Planning Act 2008 as a nationally significant infrastructure project, rather than being left to the local planning authority to determine pursuant to the conventional planning regime under the Town and Country Planning Act 1990.
  • London Southend Airport: long-standing advisory role for London Stansted Airport Limited, part of the Stobart Group, in relation to their plans for the future of London Southend Airport.
  • Manston Airport DCO: advised the Secretary of State and the Planning Inspectorate on legal and procedural issues relating to the DCO application concerning the proposed development of Manston Airport into an airfreight hub with complimentary passenger and engineering services.
  • A5036 Port of Liverpool Access Scheme: acted for Highways England in defence of a judicial review challenge to the decision on its decision on a preferred route for an improved road link to the Port of Liverpool, following non statutory pre-DCO consultation: R (Sefton MBC) v. Highways England [2018] EWHC 3059 (Admin).
  • Promoting one of four competing proposals for a new motorway service area on the A1(M) in North Yorkshire at a three month ‘beauty parade’ public inquiry and in subsequent High Court proceedings (2010-2012).
  • Defending the Secretary of State for Transport in the High Court against a judicial review challenge to his decision to grant c.£53 million of funding towards a new link road between Bexhill and Hastings.

Energy & natural resources infrastructure

  • Acting for the Northern Ireland Department for Infrastructure for over 5 years (2013-present), including at a high profile public inquiry and in subsequent High Court proceedings, in connection with the North-South Ireland Electricity Interconnector, Northern Ireland Electricity’s proposed 400kv strategic interconnector between Tyrone in Northern Ireland and Cavan in the Republic of Ireland, regarded as Northern Ireland’s most significant energy infrastructure project to date.
  • Keuper Gas Storage Project DCO: concerning a joint venture between Ineos and the Solvay Group for a 19-cavity underground gas storage facility in Cheshire: see here. Sole counsel for the promoter.
  • Norfolk Vanguard DCO – one of the UK’s largest offshore windfarms, with an approximate capacity of 1.8GW which would meet the electricity needs of 1.3m homes: see here. Sole counsel for the promoter.
  • Runcorn Energy From Waste – 2 week public inquiry for Ineos and Viridor concerning their EfW plant which treats c.850,000 Tonnes of refuse derived fuel per year, generating c.130MW p.a.   (see here).
  • Advising the Northern Ireland Department for Infrastructure in relation to the Curraghinalt Gold Project, an underground gold mine estimated to produce approximately 1.36Moz of gold and 0.38Moz of silver over an initial mine life of 10.5 years (see here).
  • Shale gas ‘fracking’ and exploration: advising the UK Government on fracking regulation; advising Nottinghamshire County Council in connection with its determination in November 2016 of a high profile application by IGas Energy for consent to undertake shale gas exploration at Mission Springs (see here); Europa Oil & Gas v. SSCLG [2014] J.P.L. 21 on whether exploration for hydrocarbons constitutes “extraction” for the purposes of national planning policy relating to development in the green belt.
  • Proceedings before the UNECE Aarhus Convention Compliance Committee in Geneva relating to an open-cast coal mine in Merthyr Tydfil which is to extract several million tonnes of coal over c.15 years as part of the Ffos-y-Fran Land Reclamation Scheme (sole counsel for the operator).

Port and harbour infrastructure

  • Acting as sole counsel for the Secretary of State in Grafton Group Ltd v. Secretary of State for Transport & Port of London Authority [2017] 1 W.L.R. 373, a challenge to the confirmation of a compulsory purchase order made by the Port of London Authority of Orchard Wharf on the River Thames in order to secure its reactivation for wharf use. This was the first case examining the PLA’s powers of compulsory acquisition associated with its port and harbour functions.
  • Arbitration proceedings concerning the interpretation of a contract concerning the maintenance and repair of the tidal defence gates at a major UK harbour (2017-2019, ongoing).

Utilities infrastructure

  • Acting for a consortium of affected landowners in opposition to Thames Water’s proposal for the 16-mile Thames Tunnel “Super Sewer”, including successfully achieving the narrowing of the safeguarding direction issued to protect the proposed route.

Planning Law

Charles is ranked as one of the Top 15 Planning QCs in Planning Magazine’s ​Planning Law Survey 2019 (based upon a poll of several hundred development & infrastructure industry professionals) – the highest ranked 2019 silk and one of only two QCs appointed silk in the last 5 years to be ranked in the Top 15.​ Prior to taking silk, he was unanimously rated as the No.1 junior in the planning sector in all three of the main UK directories: Legal 500 UK Bar (2017 & 2018), Chambers & Partners UK Bar (2018 & 2019) and Planning Magazine’s Planning Legal Survey (2018). Commentary in the directories includes: a real jewel in the planning Bar crown”tremendously respected”, “a match for any silk” and one of the best court advocates I’ve seen. He was awarded ‘UK Planning Barrister of the Year’ at the Lawyer Monthly Legal Awards in 2018 and ‘Environment and Planning Junior of the Year’ at the Chambers UK Bar Awards in 2017. He was also shortlisted for ‘Real Estate, Environment and Planning Junior of the Year’ at the Legal 500 UK Bar Awards in 2017.

Charles’ practice covers the full range of advisory, inquiry and High Court work in the planning field. He has acted in some of the most significant planning court cases and inquiries in recent years (examples are given below and in the ‘cases’ and ‘inquiries’ links). The majority of his work is for commercial clients, but he also undertakes regular work for local planning authorities and central government (particularly in cases of strategic importance) as well as private clients.

Regularly commended in the legal directories for his personable and approachable manner, he enjoys the team-work that forms a central part of planning practice. He is just at home cross-examining on complex technical issues at an inquiry as he is making submissions on novel legal issues in the High Court and appellate courts, or providing strategic advice as a part of a multi-disciplinary team.

Details of the most significant planning inquiries and court cases on which he has acted can be viewed by clicking the links above. Listed below are some highlights arranged sector-by-sector in the following order: (1) Major London development; (2) residential; (3) care home and other specialist accommodation (4) commercial, industrial, retail and  regeneration; (5) waste; (6) plan-making; (7) enforcement; (8) heritage assets; (9) Green Belt development; (10) Planning procedure and practice. Please scroll down to see each sector. For details of his infrastructure planning work (including energy and transport infrastructure projects), please see the separate page here.

Major London development

  • Promoted Prime London residential developments at Duke’s Lodge adjacent to Holland Park (for Christian Candy’s CPC Group), Chester Gate adjacent to Regent’s Park (also for the CPC Group), the former Harrods Depository at 60 Sloane Avenue, South Kensington (a complex land use swap involving the relocation of existing offices to new bespoke office development in Kensal Green), 1 Campden Hill & 69 Campden Hill Road (a substantial Grade II listed property near Kensington High Street) and Fulham Riverside (463 waterfront dwellings near Hurlingham Park).
  • Advising on planning strategy in relation to a 500,000 sqft mixed use scheme at 15-16 Minories & 62 Aldgate in the City of London,
  • Tall buildings – successfully defending the London Borough of Southwark’s refusal of permission for a 12 storey tower at 6 Paris Garden & 20-21 Hatfields, Southwark, SE1 and acting for the successful objectors to a proposed tower on the site of Mildmay Hospital, Shoreditch. Also currently working on several tall buildings cases in Bristol for the developers/promoters (2018-2019, ongoing).
  • Urban regeneration – acting for the SSCLG in the litigation concerning the compulsory purchase order for the intended to facilitate the multi-million pound makeover of Shepherds Bush Market (Horada v. Secretary of State for Communities and Local Government [2016] EWCA Civ 169); advising the Greater London Authority on strategic planning issues relating to the regeneration of Old Oak Common; successfully promoting a compulsory purchase order by Westminster City Council to deliver the comprehensive re-development of the Tollgate Gardens Estate in Kilburn in order to improve the quality and quantity of the Council’s housing stock (a flagship project of the Council’s Housing Renewal Strategy).

Residential

  • Promoting numerous residential developments at planning inquiries and hearings. In late 2018 and early-mid 2019 this includes: 1210 dwellings at Woolborough Barton, Teignbridge District (for the landowner consortium); 300 dwelilings at Heol-Y-Cefn, Blackwood, Caerphilly Borough (for Persimmon); 120 dwellings in Buxton, Peak District (for Persimmon); 155 units plus a 65-bed care home in Topsham, Exeter (for Waddeton Park Ltd); 144 dwellings for Beechcroft Land Ltd in Droitwich, Wychavon District 66 units at Ickford, Aylesbury Vale District (for CALA); 36 units in the North Wessex Downs AONB in West Berkshire District (for CALA); 27 Units in the Surrey Hills AONB on the edge of Haselmere in Waverley Borough (for Monkhill Ltd).
  • Residential development successfully promoted on appeal from 2016 until mid 2018 includes: 605 homes at Money Hill in Ashby-de-la-Zouch (for the Money Hill Consortium); 188 homes in close proximity to the Grade I listed Berkeley Castle in Stroud District (for Persimmon); 150 dwellings in Capel St Mary in Babergh District  (for Persimmon); 140 dwellings in Chinnor, South Oxfordshire District in the face of a significant neighbourhood plan issue (for Persimmon); 162 units in Topsham, Exeter, including a costs award (for Waddeton Park Ltd); 91 homes plus office development in the AONB at Wallingford, South Oxfordshire District (for CALA); 80 dwellings in Kingsteignton, including a costs award (for Codex Land Promotions Ltd); 145 apartments in Bristol (for the Generator Group).
  • Successfully defending East Riding of Yorkshire Council’s 5 year housing land supply in three 3 high profile appeals by Gladman in 2017 relating to proposed residential developments South Cave, Holm on Spalding Moor and Pocklington – the Council successfully resisted each of the appeals, the latter two with costs awards in their favour. Currently instructed to act for the Council in a further appeal by Williamsfield Developments Ltd relating to a proposed 67 dwelling residential development at Hutton Cranswick in April 2019.
  • Acting for the promoters/landowners of new settlements at Fawley Power Station (Fawley Waterside), Deenethorpe Airfield (Tresham Garden Village), West Tey and Dunsfold Aerodrome.
  • Promoting major allocations through the local Plan EiP process including a 10,000 dwelling new settlement in North Essex, 5000 dwellings in Central Bedfordshire, 2000 dwellings East of Chippenham, 1800 dwellings in Waverley Borough, 700 dwellings in Hart District and 540 dwellings in Cherwell District.
  • Devising a successful, JR-proof strategy to obtain planning permission from local planning authorities for two Crest Nicholson developments on Green Belt sites in Broxbourne District.
  • Successfully defending High Court challenges to major residential planning permissions including Stroud BC v. SSCLG [2017] EWHC Admin (LPA’s challenge to an Inspector’s decision to allow an appeal by Persimmon Homes relating to a 188 dwelling scheme in Berkeley), Exeter City Council v. SSCLG  [2015] EWHC 1663 (Admin) (LPA’s challenge to 120 dwellings near Exeter), R (Leicestershire Police and Crime Commissioner) v. Blaby DC [2014] EWHC 1719 (Admin) (a challenge by Leicestershire Police to a 4,250 dwelling Lubbesthorpe Urban Extension in Blaby District).
  • Influential court cases on wide-reaching issues of law and policy affecting residential development including the NPPF definition of “Previously Developed Land” (Dartford BC v. SSCLG [2017] EWCA Civ 141), the ‘second homes ban’ in the St Ives Neighbourhood Plan (R (RLT Built Environment Ltd) v. Cornwall Council [2016] EWHC 2817 (Admin)); whether student accommodation can be included in a LPA’s 5 year housing land supply (Exeter City Council v. SSCLG [2015] EWHC 1663 (Admin)) and whether neighbourhood plans can allocate sites for residential development (R (Larkfleet Homes Ltd) v. Rutland County Council [2015] P.T.S.R. 1369).

Care home and other specialist accommodation

  • 4 day inquiry in January 2019 relating to Churchill Retirement Living’s proposal for 43 retirement apartments in Hythe, New Forest District (for the local planning authority).
  • Obtained permission on appeal for a 60 bed residential care home, 47 assisted living apartments and 55 age restricted dwellings at Exeter Road, Topsham for Waddeton Park Ltd following a 2 week appeal in 2016 (together with an award of costs); acted for the same client at a further inquiry in December 2018 relating to a proposed 64-bedroom residential care home and 155 market housing units (decision awaited).
  • Successfully acted for Henley Healthcare Ltd at a 5 day inquiry in 2014 regarding its proposal for a community mental hospital at its residential care home premises at Apple Hill, nr Maidenhead, and in an associated appeal against the enforcement of a condition restricting the age of occupants of the care home to “the elderly”.

Commercial, industrial, retail and regeneration

  • Promoting a concrete batching plant and associated development at Waterside Way industrial estate, Wimbledon (for Express Concrete); advising London Concrete & Aggregate Industries on planning issues relating to another London concrete batching plant. (Both 2019-ongoing).
  • Acting for Whitstable Oyster Company in an enforcement appeal relating to alleged breaches of planning control associated with trestles on Whitstable Beach which it uses for commercial oyster farming.
  • Airport car-parking: promoting a £500m 9 storey passenger car park at London Heathrow Airport for the Arora Group (2016-2019, ongoing); Re Department of Environment’s Application for Judicial Review [2014] NIQB 4, concerning the proper interpretation of Northern Ireland planning policy in relation to commercial airport car-parking in the vicinity of Belfast International Airport.
  • Securing a favourable planning policy framework for Jaguar Land Rover’s long-term business plans in the UK (three development plan examinations in 2015-2017).
  • Public procurement challenges to development agreements relating to the regeneration of the London Road Industrial Estate in Newbury (Faraday Development Ltd v. West Berkshire Council [2018] EWCA Civ 2532), the Brightwells urban regeneration scheme in Farnham (Wylde v. Waverley Borough Council  [2017] P.T.S.R. 1245) and the retail-led regeneration of Stirchley in Birmingham (Midlands Co-Operative v. Birmingham City Council [2012) Eu L.R. 640)
  • Providing strategic advice to Guildford Borough Council on its vision for retail-led town centre regeneration in its new Local Plan.
  • Acting for the promoters of a retail-led regeneration scheme on the edge of Newmarket (including a new 3716 sqm ASDA food store together with associated development including 4 retail units, a café and two restaurants, an art gallery and the restoration of two listed buildings) at a 6 day inquiry in 2014.
  • Successfully promoting Porsche Cars (Great Britain) Ltd’s proposals for the remodelling and extension of the flagship Porsche Sales Centre on the A4 in Chiswick, which were allowed on appeal in 2014.
  • Several High Court planning challenges to planning permissions and compulsory purchase orders for retail and commercial development including R (Sainsbury’s Supermarkets Ltd.) v. Wolverhampton City Council [2011] 1 A.C. 437 (for Sainsbury’s in its successful Supreme Court challenge to the grant of a CPO to facilitate a large Tesco store in Wolverhampton on the basis that the Council took into account immaterial considerations), R (Midlands Co-Operative) v. Birmingham City Council [2012] B.L.G.R. 393 (successfully defending Birmingham City Council’s decision to make a CPO to facilitate proposals by Tesco for the retail-led regeneration of Stirchley), Newry Chamber of Commerce’s Application for Judicial Review [2015] NIQB 65 (appearing for the developers of a 80,000sqft convenience goods scheme in Newry, Northern Ireland, successfully resisting a JR challenge by rival retailers), Re Ellen Doyle’s Application for Leave to Apply for Judicial Review [2014] NIQB 82 (for the Northern Ireland Planning Appeals Commission successfully defending the grant of permission to the University of Ulster for a key element of a £300m mixed use regeneration scheme described in the decision as “the most important regeneration in North Belfast over the next 5-10 years”), Horada v. Secretary of State for Communities and Local Government [2016] EWCA Civ 169 (appearing for the SSCLG in a challenge to the CPO made by the London Borough of Hammersmith and Fulham to facilitate the multi-million pound makeover of Shepherds Bush Market), R (Privett) v. Gravesham BC [2016] EWHC (Admin) (for the claimant in a successful judicial review of Gravesham BC’s grant of planning permission for a BP service station and associated retail/commercial development next to the A2), Gallagher Properties Ltd. v. Secretary of State for Communities and Local Government [2016] EWHC Civ 674 (Admin) (for the SSCLG successfully defending an Inspector’s refusal of permission for a proposed 56,000sqm industrial estate at Waterside Park in Kent).

Waste

  • Nine-day inquiry in April 2017 concerning a 34,000tpa anaerobic digestion facility in the West Sussex Countryside.
  • Acted for Ineos ChlorVinyls at a 5 day public inquiry in January 2014 seeking the lifting of a restriction on the amount of refuse derived fuel it is allowed to import by road into its Energy from Waste facility in Runcorn (with Nathalie Lieven QC).
  • Successfully defended West Sussex County Council’s refusal of planning permission for a proposed waste recycling facility in a disused quarry adjacent to the South Downs National Park at Boxgrove Quarry, nr Chichester, at a four day inquiry in September 2012.
  • Represented Veolia Environmental Services in its successful defence of a High Court challenge to its permission for a strategic integrated waste management facility in Padworth, West Berkshire.

Plan-making

  • Appeared for site promoters at the Examinations in Public of the Cherwell Local Plan Review (2018-2019), Hart Local Plan (2018), the Coventry Local Plan (2017), the Warwick Local Plan (2017), the Stratford upon Avon Core Strategy (2015), the Central Bedfordshire Development Strategy (2015), the Chippenham Site Allocations Plan DPD (2015) and the Rutland Site Allocations DPD (2013).
  • R (RLT Built Environment Ltd) v. Cornwall Council [2017] J.P.L. 378, the high profile challenge to the St Ives Neighbourhood Plan which imposed a ‘ban’ on new second homes in St Ives.
  • The two leading cases regarding the duty for the Environmental Report / Sustainability Appraisal accompanying a draft plan to explain what reasonable alternatives to the proposed plan policies have been considered and why they were rejected: Save Historic Newmarket Ltd v. Forest Heath District Council [2011] J.P.L. 1233 and Ashdown Forest Economic Development LLP v. Wealden District Council [2016] Env. L.R. 2. In each case Charles acted for the successful claimant obtaining the quashing of the challenged plan policies.
  • R (Larkfleet Limited) v. Rutland District Council [2015] P.T.S.R. 1369, a challenge to the Uppingham Neighbourhood Plan concerning the scope of policies which may lawfully be included in neighbourhood plans as opposed to district-wide local plans and in particular whether neighbourhood plans can contain site specific allocations.
  • R (Stevenage BC) v. SSCLG & North Hertfordshire DC [2011] EWHC 3136 (Admin), on the relevance of the then-proposed abolition of Regional Strategies to the preparation and examination of DPDs prior to abolition being effected.

Enforcement

  • Ioannou v. SSCLG [2015] 1 P.& C.R. 10, the leading authority on the scope of the powers on an appeal against an enforcement notice to grant permission for a different or modified development to that enforced against, and on the scope of the deemed planning permission in cases of under-enforcement under s.173(11) of the Town and Country Planning Act 1990.
  • Bowring v. SSCLG [2013] J.P.L. 1417, concerning the scope of requirements that can lawfully be contained in an enforcement notice against an unauthorised change of use.
  • R (Harbige) v. SSCLG [2012] J.P.L 2012 regarding whether, for an unauthorised use of land to become lawful through expiry of time, it is necessary to show that the same use has subsisted over the relevant 10 year period or merely that the same use class has subsisted over that period.
  • Appearing before the Planning Appeals Commission in Northern Ireland in August 2012 at the hearing of a high profile enforcement appeal in relation to unauthorised large-scale commercial car parking in the vicinity of Belfast International Airport

Heritage assets

  • Obtained planning permission on appeal for Persimmon / Charles Church for a 188 dwelling scheme in Berkeley in close proximity to the Grade I listed Berkeley Castle and several other listed buildings, and partially within the Berkeley Conservation Area – despite forceful objections from Heritage England and the owner of Berkeley Castle.  Two week public inquiry in 2016; successfully defended a High Court challenge in 2017.
  • Mordue v. Secretary of State for  Communities and Local Government [2015] EWHC 539 (Admin), concerning the burden of proof in planning claims alleging that the decision-maker has failed to comply with the duty under s.66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 to have special regard to the preservation and enhancement of listed buildings and their settings.
  • Acted for Exeter College, Oxford University, in connection with its successful application to Oxford City Council for a new, state of the art quadrangle at the Grade II* Ruskin College building on Walton Street, which was granted permission in February 2014. Now constructed, it is known as the Cohen Quad.

Green Belt development

  • Acted in a series of influential High Court cases over many years concerning the interpretation of Green Belt policy: R (Heath & Hampstead Society) v. Camden LBC [2008] All E.R. 80 (interpretation of PPG2 para 3.6 on replacement dwellings), West Lancashire BC. v. SSCLG [2010] J.P.L. 810 (interpretation of PPG2 para. 3.12 regarding material changes of use in the Green Belt), Knight v. SSCLG [2009] EWHC 3808 (Admin) (application of PPG2 in relation to previously developed land in the Green Belt), Hayden-Cook v SSCLG [2011] J.P.L. 90 (relevance of alternative, more acceptable forms of development in considering the ‘very special circumstances’ test), Europa Oil & Gas Ltd. v. SSCLG [2014] 1 P. & C.R. 3 (whether exploration for oil and gas constitutes “mineral extraction” under NPPF para. 90 and is thus capable of being appropriate development in the Green Belt) and R (Privett) v. Gravesham BC [2016] EWHC 1276 (Admin) (regarding NPPF para. 89 on redevelopment of previously developed sites in the Green Belt).
  • Devised a successful, JR proof strategy to obtain planning permission from local planning authorities on two green belt sites in Broxbourne District (residential development, acting on both occasions for Crest Nicholson) and in St Albans District (a new 6 form of entry secondary school, acting for the Education and Skills Funding Agency).
  • Major planning inquiries for large-scale residential and commercial development in the Green Belt for the Anderson Group (2016) and Pinewood Studios (2011).

Planning procedure and practice

  • R (Gleeson Homes Ltd) v. SSCLG [2014] P.T.S.R. 1226 concerning the time when a recovery direction takes effect and whether the Secretary of State has implied powers under the Town and Country Planning Act 1990 to correct obvious errors in appeal decisions (with Jonathan Swift QC).
  • Garlick v. Secretary of State for Communities and Local Government [2013] EWHC 1126 (Admin) on the requirements of procedural fairness in the context of planning appeals under the written representations procedure.
  • Various proceedings relating to the enforcement, modification and discharge of planning obligations, including the leading case of R (Renaissance Habitat Ltd) v. West Berkshire DC [2011] J.P.L. 1209 on the interpretation of the requirement under s.106A of the Town and Country Planning Act 1990 that in order for a planning obligation to be discharged the applicant must show that it “no longer serves a useful purpose”.

Public Procurement

Charles is Co-Chair of Landmark Chambers’ Public Procurement Practice Group. Drawing on his experience in EU law, he has substantial experience of both advisory and contentious public procurement work. Prior to his appointment as Queen’s Counsel in 2019, he was recommended as a leading junior in public procurement by Legal 500 UK Bar (2018 & 2017), which comments that he is “very good at sorting the wheat from the chaff” and has “amassed considerable experience” in this field. His clients have included contracting authorities, contractors and potential challengers. He is an active member of the Procurement Lawyers’ Association.

Much of his procurement work has been in the context of regeneration projects and development agreements. This has included the two leading cases on the circumstances in which such agreements trigger the need for procurement: most recently, he acted for the successful appellant in the ground-breaking case of R (Faraday Development Limited) v. West Berkshire Council [2018] EWCA Civ 2532 in which, in addition to holding that a development agreement structured around an option to purchase the land in question was a public works contract requiring procurement, the Court of Appeal made the first ever declaration of ineffectiveness by an English court as well as imposing a civil financial penalty; prior to that, he acted for the successful defendant authority in R (Midlands Co-Operative) v. Birmingham City Council [2012] Eu L.R. 640 (defending a challenge to a development agreement for a retail-led regeneration scheme in Stirchley). He has advised on similar issues in the context of the proposed expansion of a world famous stadium, the relocation of a major sports club and retail-led regeneration proposals. He has also lectured and published extensively on this subject, including an influential article cited in Prof. Sue Arrowsmith’s leading book Law of Public and Utilities Procurement.

His practice also includes procurement issues more broadly. His experience includes:

  • R (Wylde) v. Waverley Borough Council [2017] P.T.S.R. 1245 – on the extent to which persons other than ‘economic operators’ as defined in the Public Contracts Regulations have standing to bring a judicial claim alleging that a contracting authority has breached the Regulations.
  • Advising a local authority in relation to the procurement of management services for its entire leisure and culture portfolio.
  • Advising the Skills Funding Agency on procurement issues relating to services contracts awarded by it to skills training organisations.
  • A dispute (ultimately settled) relating to the applicability of the Public Contracts Regulations to the Government’s Start-Up Loans scheme set up to boost youth enterprise.
  • Advising a housing association on procurement of housing stock from developers with planning permission for affordable housing.

Regulatory Law

Charles has a busy regulatory law practice, drawing upon his expertise in public law and EU law. He provides advice and representation in a range of regulatory contexts, including (but not limited to) aviation, broadcasting, data protection, energy, financial services, food standards, professional discipline, licensing and utilities. He has acted for a wide range of clients in the regulatory field including regulators, companies and users of regulated services. He is a member of the Association of Regulatory and Disciplinary Lawyers. He is an Independent Member of the Royal Institution of Chartered Surveyors’ UK and Ireland Regulatory Sub-Board (since 2018).

His significant regulatory law cases include:

  • Energy regulation: Acting for the UK Government (leading a three-counsel team) successfully defending a heavyweight commercial judicial review claim concerning changes to the rules relating to energy markets: R (Eider Reserve Power Ltd) v. Secretary of State for Business, Energy & Industrial Strategy (CO/393/2018).
  • Tobacco regulation: (1) acted for the Secretary of State for Health in proceedings brought by the leading producer of Swedish snus seeking the invalidation of the provisions in the 2014 EU Tobacco Products Directive which ban the production and supply of tobacco for oral use within the EU: R (Swedish Match AB) v. Secretary of State for Health(referred by the Administrative Court to the CJEU following a hearing in January 2017); (2) provided extensive advice to the Department for Health on regulation of novel tobacco products (2018).
  • Pharmaceutical/healthcare regulation: acted for the Secretary of State in Bayer plc & Novartis Pharmaceuticals UK Ltd v. Darlington CCG & others [2018] EWHC 2465 (Admin), concerning the compatibility with EU law of the defendant Clinical Commissioning Groups’ policy of offering the drug Avastin, which is authorised by the European Medicines Agency for certain cancer treatments, for treating a degenerative eye condition known as ‘wet AMD’.
  • Broadcasting regulation: R (Traveller Movement) v. Office of Communications [2015] EWHC 406 (Admin), a challenge to Ofcom’s decision not to uphold a complaint that Channel 4 had breached broadcasting standards in relation to the TV programmes My Big Fat Gypsy Wedding and Thelma’s Gypsy Girls, raising important issues about the legality of Ofcom’s procedures for determining complaints.
  • Financial services regulation: acted for the Serious Fraud Office in a two-day hearing in the Commercial Court in November 2012 successfully striking out a claim alleging that the Director of the SFO negligently failed to exercise his powers of investigation against certain financial services providers pursuant to s.2 of the Criminal Justice Act 1987: Makar v. Russell Jones & Walker, Serious Fraud Office and others [2012] EWHC 3681 (Comm).
  • Regulation of solicitors: acted for the claimant in R (Amlin UK) v. Solicitors Regulation Authority (2012, settled), a judicial review of a decision of the Solicitors Regulation Authority to rescind an earlier decision to refer the claimant’s complaint of misconduct against a solicitor to the Solicitors Disciplinary Tribunal. The case raised the far-reaching question of whether the applicable standard of proof in the SDT is the criminal standard or the civil standard, a matter which has been the subject of much discussion in recent years. The claim was granted permission to proceed by Burnett J. (as he then was) and settled shortly before the substantive hearing in November 2012.
  • Regulation of barristers: acted for the Crown Prosecution Service successfully defending a judicial review of its decision of remove a barrister from its Advocate Panel following a finding that he had made recklessly misleading statements in the context of an application to renew his membership of the panel. The issues include the compatibility of the decision with Article 1 of the First Protocol ECHR and common law principles of procedural fairness, and whether decisions regarding membership of the CPD Advocate Panel are amendable to judicial review  (2017-18).
  • Pub companies regulation: acted for the newly established Pubs Code Adjudicator in relation to his powers as regulator and as arbitrator of disputes between pub companies and their tied tenants pursuant to the Pubs Code etc. Regulations 2016 and the Small Business Enterprise and Employment Act 2015.
  • Regulation of immigration sponsors: R (New London College Ltd.) v. SSHD [2013] 1 W.L.R. 2358 (SC), a challenge to the legality of the sponsor licensing regime operated by the UK Border Agency to regulate educational institutions and employers that sponsor non-EU citizens’ applications for leave to enter or remain in the UK. Charles previously acted for the successful claimant in the lead case of R (London Reading College Ltd) v. SSHD [2010] E.L.R. 809, in which the High Court held that the revocation of the London Reading College’s Tier 4 Sponsor Licence was procedurally unfair and in breach of Article 1 of the First Protocol ECHR. He was subsequently engaged on the College’s £1.2m damages claim under s.8 of the Human Rights Act 1998 in the Queen’s Bench Division, which recently settled. He also acted for the Claimant in R (Central College of London Ltd) v. SSHD [2012] EWHC 1273 (Admin), in which Hickinbottom J held that, in the context of a regulatory scheme, disciplinary action by the relevant public authority against the regulated body may be irrational and thus unlawful if it is a disproportionate response to the regulated body’s conduct or actions (notwithstanding that disproportionality is not a general free-standing ground for judicial review).
  • Fisheries regulation: advising the Northern Ireland Department of Culture, Arts and Leisure and the Environment Agency in England on regulation of salmon fishing.
  • Aviation regulation: advising one of the UK’s major airports on compliance with EU Regulations 2008/300 and 185/2010 on common basic standards for aviation security.
  • Food standards regulation: advising a well-known multi-national company on compliance with food standards regulations under Regulation (EC) 852/2004 on the hygiene of foodstuffs.

Northern Ireland

Charles was called to the Bar of Northern Ireland in 2010 and regularly provides advice and representation on matters within or relating to Northern Ireland, particularly in his specialist fields of planning lawenvironmental lawadministrative and public lawpublic procurement law and commercial dispute resolution.

His most significant work in Northern Ireland includes the following:

High Court cases

  • Safe Electricity Armagh and Tyrone Ltd’s application for Judicial Review [2018] NIQB: challenge to the Department for Infrastructure’s grant of planning permission for the Northern Ireland element of the North-South Ireland Electricity Interconnector, the most substantial energy infrastructure project in Northern Ireland in the modern era. The grounds include alleged breaches of EU environmental law and that the Department’s Permanent Secretary did not have vires to issue the decision whilst there remained no ministers in Northern Ireland due to the collapse of the power sharing government. The latter point is of profound constitutional and practical importance in Northern Ireland. (With John Litton QC).
  • Buttercrane Centre Limited’s Application for Judicial Review [2017] NIQB: challenge to planning permission for the extension of The Quays retail centre in Newry, concerning the compatibility with Article 6 ECHR of the ‘promptness’ requirement for JR.
  • Kelvin Properties Limited’s Application for Judicial Review [2016] NIQB: challenge to the Planning Appeal Commission’s refusal of planning permission for a retail development in Coleraine (settled following leave hearing).
  • Darren Crowe’s Application for Judicial Review [2016] NIQB: challenge to the Planning Appeal Commission’s refusal of planning permission for an onshore wind turbine development on the grounds of potential impact on species protected under the EU Habitats Directive (settled following leave hearing).
  • Newry Chamber of Commerce’s Application for Judicial Review [2015] NIQB 65: challenge to planning permission for a large scale retail-led redevelopment, raising issues under the Habitats Directive, EIA Directive and the Northern Ireland Act 1998.
  • Doyle’s Application for Judicial Review [2014] NIQB 82: challenge to the Planning Appeal Commission’s grant of permission for a key element of the University of Ulster’s £300m regeneration scheme in North Belfast, concerning standing for JR in the planning context.
  • Department of Environment’s Application for Judicial Review [2014] NIQB 4: challenge to Planning Appeal Commission’s grant of permission for a large-scale airport car-park in the countryside, concerning the relationship between the different applicable Planning Policy Statements.

Planning inquiries and planning appeal hearings

  • Appearing for the Department for Infrastructure at the two-stage public inquiry into the Northern Ireland element of the proposed North-South Ireland Electricity Interconnector, Northern Ireland’s largest infrastructure project in recent years.
  • Acting for Derry and Strabane District Council at an inquiry into a proposed 1,400 dwelling urban extension on the edge of Derry City.
  • Several planning appeal hearings concerning appeals against enforcement notices served on operators of unauthorised airport car parks in the open countryside near Belfast International airport.

Advisory work

  • Advising the UK Government on the EU law and international trade law implications of Brexit for the all-Ireland Single Electricity Market.
  • Advising the Department of Culture, Arts and Leisure on proposed restrictions to salmon fishing in the River Foyle on EU habitats grounds.
  • Advising local planning authorities on planning applications for onshore wind turbine developments.

Supreme Court & House of Lords cases

Transport for London v. London Borough of Southwark [2018] 3 W.L.R. 2059
Concerning the extent of interests in London’s roads that were transferred from London local authorities to TfL upon the latter’s creation by statute in 2000, an issue which turns on important issues of highway law.

R (HC) v. Secretary of State for Work and Pensions [2017] 3 W.L.R. 1486
Concerning whether and in what circumstances a non-EU citizen with a Zambrano right to reside in the UK as the primary carer of a dependant EU national is entitled under EU law to social benefits to which UK citizens and EU citizens with a right to reside in the UK are entitled.

Mirga v. Secretary of State for Work and Pensions [2016] 1 W.L.R. 481
Concerning the rights of EU nationals to claim benefits in the UK and whether a fact-specific proportionality assessment is required prior to refusing benefits to an EU national who does not otherwise qualify.

R (Cornwall Council) v. Secretary of State for Health [2016] A.C. 137
Concerning the assessment of a vulnerable person’s ordinary residence for the purpose of identifying which authority is responsible for funding their long term residential care and support under ss.21 & 24 of the National Assistance Act 1948.

R (Heathrow Hub Ltd.) v. Secretary of State for Transport [2014] 1 W.L.R. 324
Challenge to the Government’s strategy for the High Speed 2 railway line, contained in the January 2012 Command Paper “High Speed Two: Decisions and Next Steps”, on the ground that the rejection of a through route via. Heathrow Airport in favour of connecting to Heathrow via a ‘spur’ link should have been and was not subject to strategic environmental assessment pursuant to the SEA Directive.

R (HS2 Action Alliance Ltd.) v. Secretary of State for Transport [2014] 1 W.L.R. 324
Challenge to the Government’s January 2012 Command Paper “High Speed Two: Decisions and Next Steps” on the ground that it should have been and was not subject to SEA pursuant to the Strategic Environmental Assessment Directive or, alternatively, that if the terms of the SEA Directive exempted a document of this nature from the requirement for SEA those elements of the Directive are contrary to Art 7 of the Aarhus Convention and should be invalidated.

R (New London College Ltd.) v. Secretary of State for the Home Department [2013] 1 W.L.R. 2358
Challenge to the legality of the sponsor licensing regime set up by the Government to regulate educational institutions that admit students from non-EEA countries.

St Prix v Secretary of State for Work and Pensions [2013] 1 C.M.L.R. 38
Whether a woman from an EU Member State who, having worked in the UK, gives up work due to the demands of pregnancy remains a “worker” for the purposes of Article 7 of the Citizenship Directive and therefore retains a “right to reside”, bringing with it rights to certain benefits.

R (Munir) v. Secretary of State for the Home Department [2012] 1 W.L.R. 2192
Whether the Secretary of State has power under the Royal Prerogative to regulate immigration control in ways not provided for by the Immigration Act 1971 or the Immigration Rules produced pursuant to it; and whether the Secretary of State may grant leave under the 1971 Act to a person whose application does not meet the requirements of the Immigration Rules.

R (Alvi) v. Secretary of State for the Home Department [2012] 1 W.L.R. 2208
Whether s.3(2) of the Immigration Act 1971, which requires that all changes to the Home Secretary’s practice in the administration of immigration control should be laid in Immigration Rules before Parliament, precludes her from imposing new requirements for leave to enter and/or remain in policy statements that have not been laid before Parliament.

R (Cart) v. Upper Tribunal [2012] 1 A.C. 663
Seminal constitutional case concerning whether the Upper Tribunal is amenable to judicial review in cases where no statutory appeal is available, as was the case with the previous tribunals that the Upper Tribunal replaced.

R (Patmalniece) v. Secretary of State for Work and Pensions [2011] 1 W.L.R 783
Whether the imposition of a “right to reside” test for social security benefits within the scope of Council Regulation (EC) 1408/71 is compatible with EU anti-discrimination law.

R (Edwards) v. Environment Agency [2011] 1 W.L.R 79
Interpretation of the requirement of Article 9 of the Aarhus Convention, as implemented into EU environmental law by the Public Participation Directive 2003/355/EC, that environmental litigation should not be “prohibitively expensive” (referred to the Court of Justice of the European Union).

R (Sainsbury’s Supermarkets Ltd) v. Wolverhampton City Council [2011] 1 A.C. 437
Concerning the scope of material considerations that may be taken into account by a local authority exercising compulsory purchase powers.

R (Baiai) v. Secretary of State for the Home Department [2009] 1 A.C. 287
Test case regarding the compatibility with Article 12 ECHR (right to marry and found a family) to the legislative and policy scheme set up to restrict non-EU/EEA immigrants’ ability to marry in the UK.

R (Al-Skeini) v. Secretary of State for Defence [2008] 1 A. C. 153
Concerning the extra-territorial effect of the ECHR and Human Rights Act 1998 in which the House of Lords ruled that the relatives of an Iraqi citizen who died whilst in British army custody in Basra in 2003 were entitled to bring proceedings in the English courts under the HRA.

Cases before the European Union Courts (Court of Justice & General Court​)

Case T-226/18 Global Silicones Council & others v. European Commission (awaiting a hearing before the EU General Court)
Application to the General Court to annul Commission Regulation (EU) 2018/35 which introduces an EU wide ban, effective 31st January 2020, on silicone ‘microbeads’ in wash-off cosmetic products. Lead Counsel for the UK Government (with Andrew Parkinson).

Case C-461/17 Holohan v. An Bord Pleanála ECLI:EU:C:2018:649
Reference to the CJEU from Ireland’s High Court concerning the required content of an appropriate assessment under the Habitats Directive and the consideration that an environmental statement under the EIA Directive needs to give to alternatives to the proposed development. Drafted the UK Government’s written observations.

Case T-715/14 NK Rosneft a.o. v. European Council ELCI:EU:T:2018:544 & Joined Cases T-735/14 & T-799/15 Gazprom Neft v. European Council ELCI:EU:T:2018:548
Three applications to the General Court by the Russian energy companies Rosneft and Gazprom for the annulment of EU sanctions targeted at the Russian oil sector in the light of Russia’s actions destabilising the situation in Ukraine, contained within Council Decision 2014/659/CFSP as amended and  Council Regulation (EU) 833/2014 as amended. Sole Counsel for the UK Government.

Case C-528/16 Confédération Paysanne v. Premier Ministre ELCI:EU:C:2018:53 (Grand Chamber)
Reference from the French Conseil d’État on whether mutagenesis is excluded from the scope of the provisions of EU legislation relating to genetically modified organisms, and if not whether the relevant legislation is invalid having regard to the precautionary principle. Sole counsel for the UK Government.

Case C-214/16 King v. Sash Window Workshop Ltd [2018] 2 C.M.L.R. 10
On the remedies for breach of a worker’s right under Article 7 of the Working Time Directive 2003/88 to paid annual leave of at least four weeks. The issues include the relationship between the principle of procedural autonomy and the principle of effectiveness. Sole counsel for the UK Government.

Case C-490/16 AS v. Republic of Slovenia [2018] 1 W.L.R. 852 and Case C-466/16 Jafari [2018] 1 W.L.R. 773 (Grand Chamber)
Two conjoined cases concerning how the allocation of responsibility between Member States for processing asylum claims under Regulation 604/2013 (the ‘Dublin III regulation’) is to be assessed in the context of the high-profile migrant trains’ carrying Syrian refugees during 2015 in particular. Sole counsel for the UK Government.

Case C-150/15 Der Bundesbeauftragte für Asylangelegenheiten v. N (settled following the written observations stage)
On the proper approach to assessing whether an individual is entitled to protection under the Qualification Directive due to restrictions on religious freedom in his/her country of origin. Sole counsel for the UK Government.

Case C-542/13 M’Bodj v. État Belge [2015] C.M.L.R. 16 (Grand Chamber)
On whether a seriously ill failed asylum seeker whose removal to their country of origin would be contrary to Article 3 ECHR falls within the scope of the Qualification Directive and is therefore entitled to the benefits conferred by that Directive. Sole counsel for the UK Government.

Case C-562/13 Centre public d’action sociale d’Ottignies-Louvain-La-Neuve v. Abdida [2015] 2 C.M.L.R. 15 (Grand Chamber)
On whether the removal of a failed asylum seeker suffering from a serious illness to a country where appropriate treatment is not available can in some circumstances be contrary to the EU Charter of Fundamental Rights and, if so, the EU law consequences of that for the host Member State’s ability to remove them. Sole counsel for the UK Government.

Case C-507/12 St Prix v. Secretary of State for Work and Pensions [2013] 1 C.M.L.R. 38
On whether a woman from an EU Member State who, having worked in the UK, gives up work due to the demands of pregnancy remains a “worker” for the purposes of Article 7 of the Citizenship Directive and therefore retains a “right to reside” in the UK, bringing with it rights to social security benefits. Junior counsel for the AIRE Centre, led by Jemima Stratford QC.

Case C-186/10 Oguz v. Secretary of State for the Home Department [2012] 1 W.L.R. 709
A preliminary reference from the Court of Appeal in which the CJEU held that a Turkish national who enters the UK lawfully but establishes a business in breach of his conditions of stay is not precluded by the ‘abuse of rights’ principle under EU law from relying on the standstill clause in the EEC-Turkey Association Agreement when he subsequently applies for further leave to remain in the UK on the basis of the business which he has established. Junior Counsel for the AIRE Centre, led by Simon Cox.

Cases before the UNECE Aarhus Convention Compliance Committee

ACCC/C/2017/157 Hardwick v. United Kingdom
Concerning an allegation that the amended (2017) environmental costs protection rules in the Civil Procedure Rules in certain respects fail to achieve compliance with Article 9 of the Aarhus Convention.

ACCC/C/2017/156 RSPB & others v. United Kingdom
Concerning an allegation that the application by the UK courts, in environmental judicial and statutory review proceedings, of the Wednesbury standard of review is in breach of Article 9(2) of the Aarhus Convention in relation to the review of the substantive legality of decisions, acts and omissions falling within the scope of Article 9(2).

ACCC/C/2016/142 John Hemming v. United Kingdom
Concerning an allegation that the United Kingdom breached the access to justice requirements of Article 9 of the Aarhus Convention in the context of proceedings by individuals to enforce the duty of public authorities under the Environmental Protection Act 1990 to clean up litter. Sole counsel for the United Kingdom.

ACCC/C/2015/131 Tracy Breakell v. United Kingdom
Concerning various allegations that the United Kingdom breached the access to justice requirements of Article 9 of the Aarhus Convention in the context of a challenge to a decision that a proposed urban development did not require environmental impact assessment. Lead counsel for the United Kingdom (with Jacqueline Lean).

ACCC/C/2014/101 HS2 Action Alliance  & others v. European Union
Concerning allegations that the EU has failed to comply with its obligations to put in place a regulatory framework to give effect to Article 7 of the Aarhus Convention (public participation in plans and programmes). Junior counsel for the United Kingdom (with Robert McCracken QC).

ACCC/C/2014/100 HS2 Action Alliance v. United Kingdom
Concerning allegations that that the UK Government breached Article 7 of the Aarhus Convention by failing to provide the public with adequate environmental information about the proposed High Speed Two (HS2) railway and the alternatives to it before adopting its strategy for HS2 in the January 2012 Command Paper, “High Speed Two: Decisions and Next Steps”. Junior counsel for the United Kingdom (with Robert McCracken QC).

ACCC/C/2013/85 Environmental Law Foundation v. United Kingdom; ACCC/C/2013/86 Alyson Austin v. United Kingdom
Two communications heard together concerning allegations that the costs regime in private law nuisance litigation in the United Kingdom exposes claimants to prohibitive expense and is therefore contrary to Article 9 of the Aarhus Convention. Sole counsel for the United Kingdom.

ACCC/C/2009/40 Condron v. United Kingdom
One of the first communications regarding the United Kingdom’s compliance with the Aarhus Convention, concerning whether the state could in some circumstances be responsible under the Convention for the actions of private bodies. Sole counsel for Miller Argent (South Wales) Ltd, the operator of the open cast coal mine that was the subject of the communication and whose actions were alleged to have triggered state liability under the Convention.

Qualifications

Charles was a scholar at Lincoln College, Oxford University, where he obtained a BA(Hons) and MA(Oxon) in Classics. He subsequently received a Postgraduate Diploma in Law from City University and a Postgraduate Diploma in European Community Law from King’s College, London (Distinction; first in year). He was graded Outstanding on the Bar Vocational Course at the Inns of Court School of Law and won the Du Cann Memorial Prize for coming top of his year-group in advocacy. He was awarded several scholarships from Lincoln’s Inn during the course of his legal studies.

In 2005-06, Charles undertook a one-year secondment to the House of Lords working as a Judicial Assistant to the Law Lords, assigned to Lords Nicholls, Rodger and Brown. This involved working on a number of House of Lords and Privy Council appeals involving important points of law within his practice areas.

In August-October 2008 he was based in Hong Kong as a Pegasus Scholar, where he spent a month on secondment to the planning, environmental & construction litigation team at Mayer Brown JSM and a month as a Judicial Assistant in the Hong Kong Court of Appeal and Court of Final Appeal.

He is a Member of the Chartered Institute of Arbitrators and holds an Advanced Certificate in International Arbitration (with a mark of 91%). He is an Associate Member of the Hong Kong Institute of Arbitrators.

He is a Fellow of the Royal Geographical Society.

Recommendations

Quotes from clients and solicitors in Chambers & Partners UK BarLegal 500 UK Bar and Planning Magazine’s annual Planning Law Survey have included:

  • “He is extremely enthusiastic and proactive and has amassed considerable experience.
  • “Very versatile, an excellent planning practice and also a very good EU and public lawyer.
  • “A real jewel in the planning Bar crown: very sharp intellect with a lot of common sense.
  • “Very bright, very clever, and good with both judges and clients.” “A fine advocate who is amenable and sensible.”
  • “He has outstanding intellect and charm. He is very good with clients and easy to work with. He is a very good example of a 21st century member of the Bar and is an exceptional, commercial barrister.”
  • “He has a very clear way of communicating and an excellent professional approach. He is sharp and clearly has an excellent grasp of the legal matters at hand.”
  • “A very confident advocate who is full of ideas.”
  • “Very bright, very clever, and good with both judges and clients.” “A fine advocate who is amenable and sensible.”
  • “He combines great intellect with charm, hard work and excellent advocacy skills.”
  • “Deep thinker; considers all angles. Is client/outcome focused.
  • Extremely bright and one of the ablest juniors at the Bar. User friendly, accessible and cuts to the heart of the issue in double quick time.
  • An exceptional barrister – fantastically bright, hardworking and accessible. Can handle anything you or the other side can throw at him.
  • “Full of energy and boundless intelligence”
  • “He inspires confidence by his enthusiasm for the project and is a delight to work with.”
  • “An exceptionally talented lawyer with very good cross-examination and presentation skills, he really knows how to get projects through the planning process. He stands out in the strong class of juniors he’s in.”
  • “His ability to get on top of complex cases is very, very impressive and he has an attractive style of advocacy.”
  • “He is massively personable and a pleasure to work with. He has a very good eye for spotting key details in a case, he is strong on analysis of complex facts to produce a coherent narrative and he is very clear in how to structure the case to bring out its strongest points.”
  • “He’s a star of the junior Bar and has exceptional client servicing skills.”
  • “Has the ability to make the most challenging and complicated legal issues seem straightforward.”
  • “One of the stars of the future at the Planning Bar, he’s regularly operating across from leading silks already and is tremendously respected.”
  • Knowledgeable, enthusiastic and persuasive in his advocacy.”
  • A terrifically clever, smooth and confident advocate; undoubtedly a future silk.”
  • He has the ear of the court because they know the points he raises are worth hearing.”
  • Knowledgeable and enthusiastic with excellent client skills.”
  • He has a very positive attitude and an ability to deal with complex issues swiftly and confidently.’
  • He is very bright, incredibly responsive and great with clients – a match for any silk.”
  • “Very good at sorting the wheat from the chaff.”
  • “A QC in all but name already.”
  • “One of the best court advocates I’ve seen.”
  • “A real rising star of the planning bar.”
  • “He is excellent on the client service front and a very bright guy with great expertise in many aspects of the law.”
  • “Very commercial as well as academic, and with a nice advocacy style.”
  • “He has a quick brain, is very personable and has a great depth of knowledge of planning matters.”
  • “He is affable, approachable and client-friendly.”
  • Really impressive in terms of his advocacy.”
  • “A pleasure to deal with. He is responsive, clear and concise in the advice he provides.”
  • “Super-bright, extremely pleasant to deal with and very much in demand.”
  • “Bright, engaging and wonderfully enthusiastic.”
  • “He gets the detail of things and does not shy away from the difficult points.”
  • “He’s got exceptional client feedback… client friendly, enthusiastic, motivated and organised.”
  • “He has a sharp intellect, an eye for detail and a mastery of the case facts and law.”
  • “Always impressive.”
  • “He is personable and ready to listen, and gives clear and decisive answers to questions… a highly effective advocate with an approachable manner.”
  • “He is capable of undertaking a tremendous amount of work with great enthusiasm.”
  • “Combines obvious intellect with a naturally helpful manner.”
  • Stunningly good.”

 

 

 

Inquiries

Inquiries

Proposed 67 dwelling development at Hutton Cranswick, East Riding of Yorkshire

02/04/2019

This was a 6 day public inquiry into an appeal by Williamsfield Developments Ltd into the refusal by East Riding of Yorkshire District Council of its application for outline planning permission for 67 dwellings on an unallocated greenfield site outside the settlement boundary at Hutton Cranswick.

A central issue in the appeal was whether the Council was able to demonstrate a deliverable 5 year housing land supply (‘5YHLS’). In 2017, the Council emphatically succeeded in fending off a sustained challenge to its claimed 5YHLS at 3 appeals by Gladman (in South Cave, Holm-on-Spalding Moor and Pocklington), two of which resulted in costs awards in favour of the Council. Those appeal decisions received a nationally high profile in the planning & development industry at the time and were treated as illustrative of the demanding task facing appellants seeking to interrogate a local authority’s 5YHLS following the Court of Appeal’s judgment in the St Modwen  case concerning the interpretation of the definition of ‘deliverable’ in the 2012 National Planning Policy Framework. In the Hutton Cranswick appeal, the Appellant sought to re-open the argument in reliance on the revised definition of ‘deliverable’ in the 2018 and 2019 versions of the NPPF and having regard to the accompanying Planning Practice Guidance. The Council contended that the Appellant had misunderstood the revised definition and that its application of the definition to the Council’s claimed 5YHLS was misplaced.

The forthcoming decision of the Inspector (Philip Ware DipTP MRTPI) is likely to be one of, if not the, leading early appeal decisions on the effect of the new NPPF and PPG on determining 5YHLS in the context of planning decision-making.

Charles Banner QC and Matthew Henderson appeared for East Riding of Yorkshire Council, instructed by Peter Atkinson of the Council’s legal department. Charles appeared in all 3 of the 2017 appeals in which the Council successfully defended its 5YHLS, with Matthew in the latter two.

:

Inquiries

Proposed mixed use urban extension to Newton Abbot at Wolborough Barton Farm, including 1210 dwellings as well as community, retail and employment development.

26/03/2019

This was a 5 day public inquiry into an appeal against the non-determination by Teignbridge District Council of a part-outline, part-full planning application for a proposed mixed use urban extension to Newton Abbot at Wolborough Barton Farm, including 1210 dwellings as well as community, retail and employment development.

The site was allocated by Policy NA3 of the Teignbridge Local Plan but since the allocation Historic England and Natural England objected on heritage and habitats grounds. The heritage objection related to the impact on the setting of the nearby Grade 1 listed St Mary’s Church, and the habitats objection alleged that it is not possible to rule out adverse impact on the integrity of the South Hams Special Area of Conservation, in relation to Greater Horseshoe Bats. Following those objections the Council did not determine the application. A duplicate application was recommended for approval by Council officers but refused by members of the Council’s Planning Committee.

The appeal was recovered by the Secretary of State for his own determination.

Charles Banner QC appeared for the Appellants (the Rew family, the owners of the appeal site), instructed by David Seaton of PCL Planning.

:

Inquiries

Proposed redevelopment comprising 43 retirement apartments and associated communal facilities at 2 South Street, Hythe

22/01/2019

This was a 3 day inquiry into an appeal by Churchill Retirement Living against the refusal by New Forest District Council of planning permission for the proposed redevelopment of a previously developed site at 2 South Street, Hythe, to comprise 43 retirement apartments and associated communal facilities.

The main issue in the appeal concerned the impact of the proposed development on various listed buildings in the vicinity as well as on the Hythe Conservation Area.

Charles Banner appeared for New Forest District Council.

Neil Cameron QC appeared for Churchill Retirement Living.

:

Inquiries

Proposed residential development at Highfield Farm, Topsham, Exeter

04/12/2018

Three day public inquiry into a proposed development of 155 residential units and a 64 bedroom care home on a greenfield site on the edge of the upmarket settlement of Topsham in Exeter. The site lies within the so-called ‘strategic gap’ between Topsham and Exeter to which Policy LS1 of the 2005 Exeter Local Plan and Policy CP16 of the 2012 Exeter Core Strategy relate. The issues in the appeal included the proper interpretation of those policies and whether they imposed an in-principle bar on development, the landscape and visual effects of the appeal scheme, and its impact on the local highway network.

On 14 January 2019 the Inspector published his decision allowing the appeal, together with an award of costs in the Appellant’s favour.

Charles Banner appeared for the Appellant, Waddeton Park Ltd, instructed by David Seaton of PCL Planning.

:

Inquiries

Proposed residential development on land off Charlotte Close, Hermitage, West Berkshire

13/11/2018

Six day public inquiry into a proposed 36 dwelling development on a site within the North Wessex Downs Area of Outstanding Natural Beauty on the edge of Hermitage. The site was allocated in the West Berkshire Housing Sites Allocations DPD for development of 15 dwellings. The main issues in the appeal concerned whether the proposal for a more substantial development of the site was acceptable having regard to its impact on the AONB, ecology, provision of public open space, design and settlement character.

Charles Banner appeared for the Appellant, CALA Homes (Chiltern) Ltd, instructed by Matthew Mainstone of Wedlake Bell LLP.

:

Inquiries

Proposed residential development at Longdene House, Haselmere, Waverley District

09/10/2018

Five day public inquiry into a proposed 27 dwelling development on an unallocated site in the Surrey Hills Area of Outstanding Natural Beauty on the edge of Haselmere. The issues included:

  • Whether the LPA could demonstrate a five year housing land supply having regard to the new definition of ‘deliverable’ in the revised NPPF and the guidance in the accompanying PPG.
  • The effect of the proposed development on the AONB.
  • The effect of the proposed development on the local highway network.

Charles Banner acted for the Appellant (Monkhill Ltd), instructed by David Neame of Neame Sutton Chartered Town Planners.

:

Inquiries

Proposed residential development at Chinnor, South Oxfordshire

03/07/2018

Following a hard fought 14 day public inquiry into two proposed developments on unallocated greenfield sites at Chinnor, South Oxfordshire District – a 140 dwelling proposal by Persimmon and a 54 dwelling proposal by CALA – the Inspector (Ken Barton) allowed Persimmon’s appeal and dismissed CALA’s appeal. The appeal decisions contain several important conclusions of wider significance including on the new wording regarding the gateways to the tilted balance in para.11 of the revised NPPF; the correct housing requirement figure in light of the Oxfordshire Growth Deal, the Standard Methodology, and Oxford’s Unmet Need; and the interpretation of permissively worded policies in a Neighbourhood Plan.

In winning their appeal, Persimmon succeeded in their primary argument that despite its size the appeal scheme would be infill and as such within the sole category of residential development that the Chinnor Neighbourhood Plan expressly supports. This meant that Persimmon, unlike CALA (whose development was not infill), did not need to rely on other arguments concerning the approach to be taken to development not expressly supported by the CNP (having regard to relevant principles of interpretation, the new NPPF, the HLS situation and the absence of allocations in the South Oxfordshire Core Strategy).

Charles Banner acted for Persimmon. CALA and SODC were represented by QCs.

The decision letters can be downloaded here and here.

This is Charles’ third consecutive success for Persimmon, following in the footsteps of recent proposals at Berkeley in Stroud District (in close proximity to the Grade 1 listed Berkeley Castle) and Capel St Mary in Babergh District. Charles and Persimmon have two further appeals already lined up for 2019 with hopes for similar success.

:

Inquiries

Proposed restrictions on Southern Water’s abstraction licences at the Rivers Test and Itchen

13/03/2018

This was a public inquiry into the Environment Agency’s proposed changes to three sets of surface water and groundwater abstraction licences at the River Test, River Itchen and Candover Stream in Hampshire. The Test and Itchen licences were held by Southern Water for the purpose of public water supply. The Candover licence was held by the Agency but Southern Water wished to use it for augmenting water in the Itchen in times of drought.

The Agency’s proposals were made on the ground that more restrictive conditions are necessary in order to achieve compliance with the Habitats Directive and Water Framework Directive.

Shortly before the pre-inquiry meeting in November 2017, Southern Water announced that it no longer contested the proposals for the Test and Itchen subject to the imposition of special conditions allowing increased abstraction during drought conditions on ground of imperative reasons of overriding public interest pursuant to Article 6(4) of the Habitats Directive. The Environment Agency’s position was that the appropriate means of dealing with drought conditions is through the drought order and drought permit regime under Part II, Chapter III of the Water Resources Act 1991.

The inquiry was due to last 3 weeks but at the opening the parties announced that agreement in principle had been reached between Southern Water and the Environment Agency pursuant to which Southern Water would withdraw its remaining objections and a water resource management scheme would be entered into by the parties pursuant to s.20 of the 1991 Act which would set out the process by which Southern Water will be able to ensure that it is ‘application ready’ to make an application for a drought permit order and by which such an application will be made and considered. The inquiry proceeded to hear representations from Fish Legal and other third parties on the proposed arrangements.

Charles Banner and Alistair Mills​ appeared for the Environment Agency.​

:

Inquiries

Land North and East of Mayfields, The Balk, Pocklington, East Riding of Yorkshire

08/08/2017

This was a six day public inquiry into an appeal by Gladman Developments Ltd against the decision of the East Riding of Yorkshire Council to refuse planning permission for Gladman’s proposed development of 380 dwellings, a 60-bed care home, a retail centre and other facilities and infrastructure on a greenfield site adjacent to Pocklington.

The critical issues were:

1) whether the Council was able to demonstrate a 5 year housing land supply, which in turn raised important issues of principle as to the approach to assessing the deliverability of sites which are allocated in a newly adopted local plan but which do not yet have planning permission; and

2) the implications of the development’s acknowledged breach of overarching spatial planning policies in the recently adopted East Riding of Yorkshire Local Plan.

Charles Banner appeared for the local planning authority, East Riding of Yorkshire Council, assisted by Matthew Henderson (pupil barrister at Landmark Chambers).

:

Inquiries

Land at Nosworthy Way, Wallingford, South Oxfordshire District

04/07/2017

In a decision letter issued on 31 August 2017, following a 5 day public inquiry in July 2017, Planning Inspector Christina Downes BSc DipTP MRTPI allowed an appeal by CALA Management Ltd and CAB International against the refusal by South Oxfordshire District Council for a major development in the Chilterns AONB comprising 91 dwellings and a new, state of the art global headquarters building for CABI to replace the out-dated former school buildings on the site which CABI currently use as their headquarters office.

CABI is an international not-for-profit inter-governmental development and information organisation focusing on the agricultural and environmental sectors. It was established pursuant to a UN level treaty and is headquartered in the UK at the appeal site near Wallingford. In recent years it has identified a compelling need for new headquarters premises owing to the current buildings on site having reached the end of their lifetime. On its own, however, the project would not be viable. Accordingly, CABI entered into a joint venture agreement with the housebuilder CALA pursuant to which residential development was also proposed to cross-subsidise the new office building. A previous proposal for a care home development to provide a similar cross-subsidy had been granted planning permission by the Council but proved commercially unviable and the permission lapsed.

The Council’s Planning Committee rejected the current proposal, against Officer advice, on grounds that included a failure to show exceptional circumstances justifying major development in the AONB in accordance with the test in NPPF para. 116 as also reflected in development plan policy, that the location was not suitable for residential development having regard to the extent of accessibility by sustainable transport means, as well as a failure to provide the 40% affordable housing which development plan policy targeted (despite 20% being agreed to be the maximum viable amount in the circumstances) and the provision of a market housing mix which did not provide pro rata equivalence to analysis in the latest Strategic Housing Market Assessment as to the extent of need for different sizes of dwelling in the District (despite the proposed mix also being agreed to have been dictated by viability considerations).

Allowing the appeal, the Inspector concluded:

  1. At best the Council had a 4.1 year housing land supply. Therefore the NPPF para. 14 tilted balance would be engaged in the event that there was compliance with NPPF para. 116 in relation to the AONB and NPPF paras. 132-134 in relation to impact on a nearby Grade II* listed church.
  2. Contrary to the Council’s submissions, harm other than harm to the AONB was not relevant to the assessment under NPPF para. 116.
  3. The delivery of market and 20% affordable housing was in the public interest, particularly given the lack of a 5 year housing land supply, and given the viability position there was no merit in the Council’s objection either to the amount of affordable housing or to the proposed mix.
  4. CABI was an organization of international importance and worldwide reputation, as well as a significant local employer. The provision of a new building for it would be in the public interest.
  5. There was no scope for providing the development elsewhere or in any other way – the most likely alternative was that CABI would move its headquarters overseas – therefore it was in the public interest for the development to happen on the appeal site.
  6. The special qualities of the AONB would not be diminished if the appeal scheme were to go ahead, albeit there would be some detrimental impact to the perception and experience of recreational users of the nearby public rights of way.
  7. Overall, exceptional circumstances existed so as to justify this major development in the AONB in accordance with NPPF para. 116 and the equivalent development plan policy.
  8. The limited ‘less than substantial’ harm to the listed church was clearly outweighed by the proposals’ public benefits, in accordance with NPPF para. 134.
  9. Therefore, there were no restrictive policies in the NPPF that pointed against the proposals and the tilted balance in NPPF para. 14 was accordingly engaged.
  10. Whilst accessibility to local facilities on foot was limited, cycling would be an attractive option as would the bus services which stopped right outside the appeal site. Overall there was compliance with NPPF and development plan policies relating to sustainable transport.
  11. Overall, the adverse impacts of granting permission did not significantly and demonstrably outweigh the benefits, and the limited breaches of development plan policies relating to the settlement hierarchy and development in the countryside outside settlement boundaries were outweighed by other material considerations.

The appeal decision can be downloaded here.

Charles Banner acted as sole counsel for the Appellants, instructed by Matthew Mainstone of Wedlake Bell.

:

Inquiries

Land at Back Lane, Holme-on-Spalding Moor, East Riding of Yorkshire

06/06/2017

In a decision issued on 21 August 2017, following a four day public inquiry in June 2017, Planning Inspector Olivia Spencer BA BSc DipArch RIBA dismissed an appeal by Gladman Developments Limited against the refusal of planning permission by East Riding of Yorkshire Council  for 175 residential dwellings (including 25% affordable housing) on land to the South of Back Lane, Holme-on-Spalding-Moor (“HOSM”).  The proposed development was located in the countryside, on an unallocated site outside, but adjacent to, the settlement boundary for HOSM.

Gladman advanced two main arguments at the Inquiry: (1) that the Council did not have a five-year housing land supply, therefore the tilted balance in NPPF para. 14 was engaged; and (2) that in any event, there were other material considerations which outweighed any breach of the development plan.  Both arguments were rejected by the Inspector.

The context of this appeal decision was particularly significant.  In particular:

  1. The Local Plan Strategy Document and Local Plan Allocations Document were both recently adopted in mid-2016, having been found sound by the Local Plan Inspector who also concluded that the Council could demonstrate a 5YHLS.  Subsequently, the Local Plan won both the plan-making category and overall Editor’s Award at Planning Magazine’s Planning Awards in June 2017.
  1. Three months before the Inquiry in March 2017, a different Inspector had dismissed another appeal by Gladman relating to a residential development at South Cave, again adjacent to but outside the settlement boundary. The Inspector in the South Cave appeal found that the Council could demonstrate a 5YHLS.

Gladman’s main attack on the 5YHLS was directed at local plan allocation sites where no planning application had yet been received and which were not under the control of developers or subject to what Gladman termed “developer interest”.  It was alleged that the lack of planning activity or developer interest, coupled with fact that these sites had previously been considered deliverable by the Council in earlier iterations of its SHLAA but had not in fact been delivered in the timescale indicated by those earlier SHLAAs, meant that the sites should no longer be considered deliverable and should be discounted from the 5YHLS.

The Council submitted that this applied a more exacting approach to deliverability of Local Plan allocations than the relevant provisions of the NPPF and PPG required. In particular, it submitted that, following the judgment of Ouseley J, in St Modwen Developments Limited v SSCLG [2016] EWHC 968 (Admin), there was an important distinction between deliverability and actual delivery – the former (argued he Council) did not require certainty or even probability that a site would in fact be delivered within 5 years but rather that it was capable of being delivered. Further, the Council submitted that the effect of Wainhomes (South West) Holdings Limited v SSCLG [2013] EWHC 597 (Admin) and the PPG at 3-031 and 3-033, the allocation of a site in an up-to-date Local Plan indicates that the site is deliverable unless there is clear evidence that there is no realistic prospect of the site being delivered within five years.

The Inspector found in favour of the Council and rejected Gladman’s approach focused on so-called “developer interest”. In particular at [15] the Inspector held:

“I agree therefore with the conclusions of the South Cave Inspector that neither an absence of delivery in the past, the lack of planning activity nor inclusion in the Prospectus [of deliverable sites in the district produced by the Council] indicate in themselves that allocated sites in this case are undeliverable.  The appellant’s contention made in respect of the vast majority of the 66 [disputed] sites […] that a failure to demonstrate active developer interest or planning activity on all or parts of the sites either now or in the past is an indication that they are not deliverable within the 5 year period is not therefore well founded.”

The Inspector went on to conclude that the proposed development was not in accordance with the development plan, because it was located outside of the settlement boundaries and thus in conflict with the Local Plan spatial policies. At para. 28-29, she rejected Gladman’s contention that this conflict was outweightd by the benefits associated with delivery of market and affordable housing, construction jobs, increased local spending and ecological improvements:

“28. All of these [benefits] however would be equally applicable to many other developments in other locations including those in higher tier settlements where occupiers would have access to significantly better and more extensive facilities, services, jobs and sustainable transport choices.  They are generic, non-specific benefits. […]

29. The essential point here is that whilst the benefits referred to could contribute in varying degrees towards sustainable development, they do not address the fundamental issue in this case, that of location.  The Local Plan is predicated on securing sustainable development and achieves this in large part by ensuring that the right level of development takes place in the right place.  The benefits put forward by the appellant are no more than would be expected of almost any housing development and do not provide specific justification for the development proposed in the location proposed.  They do not therefore in my judgement amount to other considerations sufficient to outweigh the presumption in favour of the Development Plan.”

This Inspector also ordered Gladman to pay the Council’s costs in relation to the 5YHLS issue on the basis that it was unreasonable to argue this issue in near identical form to that dismissed by the Inspector at the South Cave inquiry, without any material new site-specific evidence of a change in circumstances since that decision.

The appeal decision can be downloaded here and the costs decision here. They are of interest in relation to (i) the approach to assessing deliverability within the 5YHLS of local plan allocations (ii) the weight to be given in the planning balance to breaches of spatial planning / settlement boundary policies in up to date, recently adopted local plans and (iii) the approach of the Inspectorate to consistency of decision making in the context of a recent appeal raising very similar issues in a very similar context.

A third appeal by Gladman, relating to a proposed 380 dwelling residential-led development (also including a care home and a convenience retail unit) near Pocklington, was the subject of a two week inquiry in August 2017. Similar issues were also raised in that appeal. A decision is due in November 2017.

Charles Banner and Matthew Henderson (a pupil barrister due to commence full-time practice at Landmark in September 2017) appeared for East Riding of Yorkshire Council at the HOSM and Pocklington inquiries. Charles also appeared for the Council at the South Cave inquiry.

:

Inquiries

Land at Penns Mount, Kingsteignton, Teignbridge District, Devon

16/05/2017

This was a three day inquiry into two related appeals for a proposed development on an elevated site at Penns Mount, near Kingsteignton, one for 80 dwellings and one for up to 90 dwellings. The critical issues were landscape & visual impact, archeology and the proper interpretation of a development plan policy relating to the provision of a hilltop park on land which included but extended beyond the appeal site.

In a decision dated 15 June 2017 the Inspector allowed both appeals and made a costs award in favour of the Appellant.

Charles Banner appeared for the Appellant, Codex Land Promotion Ltd, instructed by David Seaton of PCL Planning.

:

Inquiries

Crouchland Farm, Plaistow West Sussex

25/04/2017

This inquiry concerned appeals by Crouchland Biogas Ltd against (i) the refusal by West Sussex County Council to grant planning permission for a proposed c.34,000tpa anaerobic digestion facility at Crouchland Farm and (ii) enforcement notices issued by Chichester District Council against the commencement of the development without prior planning permission.

The inquiry heard expert evidence on traffic, noise, air quality, landscape and visual impact, operational matters and planning. At the heart of the dispute between the parties was whether Crouchland Biogas Ltd was right to assert that, having regard to the existing consents applicable to the site, it had a fallback position involving a greater impact than the proposed development.

Reuben Taylor QC appeared for the Appellant, Crouchland Biogas Ltd.

Charles Banner appeared for West Sussex County Council.

Gwion Lewis appeared for Chichester District Council.

On 10 October 2017 the Inspector published her decision dismissing the appeals and upholding the County Council’s refusal of permission as well as the enforcement notices issued by the District Council.

:

Inquiries

North-South Interconnector

22/02/2017

This was the second stage of the reopened public inquiry held by the Planning Appeals Commission for Northern Ireland into the Northern Ireland element of the North-South Interconnector, a 400kv strategic link between the electricity grids of the Republic of Ireland and Northern Ireland. Permission for the Republic of Ireland element of the Interconnector was granted by the An Bord Pleanala in December 2016. The Interconnector would involve 85 miles of overhead lines and pylons and is the largest proposed infrastructure project in Northern Ireland in recent times.

The planning application for the Northern Ireland element of the Interconnector will be determined by the Northern Ireland Minister for Infrastructure, having regard to the recommendation of the Planning Appeals Commission which has been appointed to hold the public inquiry. The inquiry originally opened in 2012 but was subsequently adjourned after the need for amendments to the proposal was identified. The first stage of the reopened inquiry was held in June 2016 to consider objectors’ arguments that the application was contrary to EU environmental law, including in relation to transboundary consultation with the Republic of Ireland and its residents concerning cross-border effects. The second stage is to consider the merits of the proposal.

Scott Lyness with William Orbinson QC of the Bar Library appeared at the inquiry for SONI, the electricity system operator for Northern Ireland and part of the EirGrid group, which is the promoter of the North-South Interconnector (instructed by Carson McDowell LLP).

Lisa Busch QC appeared for Armagh, Banbridge and Craigavon Council.

John Litton QC and Charles Banner appeared for the Department for Infrastructure and will be advising the Department upon the Minister’s ultimate decision (instructed by the Departmental Solicitor’s Office.

:

Inquiries

Land East of Little Wold Lane, South Cave, East Riding of Yorkshire

17/01/2017

This case concerned a proposal by Gladman Developments Ltd for a 119 dwelling development on a greenfield adjacent to the village of South Cave in the East Riding of Yorkshire.

The critical issues were:

1) whether the Council was able to demonstrate a 5 year housing land supply, which in turn raised important issues of principle as to the approach to assessing the deliverability of sites which are allocated in a newly adopted local plan but which do not yet have planning permission; and

2) the effect of the development on the landscape, in particular from viewpoints on the Yorkshire Wolds Way National Trail.

In a decision letter dated 13 March 2017 the Inspector dismissed the appeal.

Charles Banner appeared for the local planning authority, East Riding of Yorkshire Council.

:

Inquiries

Proposed residential development at Mansfield Bowling Club, Croftdown Road, London Borough of Camden

26/10/2016

This was an appeal against the refusal by the London Borough of Campden’s Planning Committee (against the recommendation of its professional planning officers) of an application by the Generator Group for planning permission to build a high quality 21-dwelling development, together with improvements to the tennis club on the site and the provision of almost 3000sqm of new public open space, at the site of the former Mansfield Bowling Club (which had been defunct for a number of years).

Planning permission was refused by the Committee and opposed by several local residents on the basis that an alternative leisure use of the site would be suitable, and as a result the requirements of Policy DP15 of the Camden Development Policies DPD and para. 73 of the NPPF had not been complied with.

The Appellant contended that it was sufficient to comply with these policies to show that there were adequate alternative bowling facilities in the area, which the Council accepted there were, and alternatively that any alternative leisure use would not in fact be viable.

Charles Banner appeared for the Appellant, the Generator Group, instructed by Iceni Projects.

On 27 January 2017 the Inspector published his decision, allowing the appeal and making a full award of costs in favour of the Appellant.

:

Inquiries

Proposed residential and employment development at Harlow Gateway South and Foster Street South, Epping Forest District

11/10/2016

This was a 4 day inquiry into two planning appeals relating to proposed major development in the Green Belt involving the relocation of Hargreaves Services plc’s logistics operations to new bespoke premises on the edge of Harlow and the redevelopment of its existing site at Foster Street South into a 65-dwelling development.

Epping Forest District Council had refused planning permission for both schemes on the basis that they were inappropriate development in the green belt for which very special circumstances had not been shown. They also contended that the Foster Street South residential development would not be sustainable due to its inaccessibility to services and facilities by public transport.

The Appellants argued that very special circumstances existed for both developments having regard in particular to (i) the role they would play in allowing a major local employer to remain and grow in the District, (ii) the serious housing supply shortfall in the District, in circumstances where the Council accepted it had at most a 1.35 year housing land supply (iii) the fact that Harlow Gateway South was a draft allocation in the Council’s emerging local plan, (iv) the previously developed nature of much of the Foster Street South site (v) the unsuitability of Foster Street South for Hargreaves’ plans for growth which would have significant impacts on the amenity of neighbouring residential properties, and (vi) the fact that 93% of the District is within Green Belt boundaries which had last been reviewed in 1998, and were therefore out of date and having a serious effect in constraining housing and employment growth.

In relation to the sustainability of Foster Street South for residential development, amongst other things the Appellants relied upon an innovative proposal to provide free electric cars for 15% of the development, as well as an additional pooled electric car for use by all residents and free electric car charging points for each home, so as to ensure that as many as possible car trips to and from the site would be in electric vehicles which would amount to sustainable transport.

Charles Banner appeared for the Appellant, instructed by Iceni Projects.

:

Inquiries

Warwick Local Plan Examination in Public

04/10/2016

Jaguar Land Rover was a participant at several sessions of the Examination in Public of the Warwick District Local Plan relating to its nationally significant major employment sites in Warwick District, seeking to ensure that the Local Plan allowed JLR maximum flexibility to grow its business at these sites during the plan period.

Charles Banner appeared for Jaguar Land Rover, instructed by Robert Davies of Gerald Eve. Charles previously appeared for JLR in relation to similar issues at the Stratford upon Avon Local Plan EiP in 2015.

:

Inquiries

Land at Winslade Farm, South Hams, Devon

05/09/2016

This was a three day public inquiry into a called-in application by the Perraton Partnership for a 34.2m height wind turbine in the South Devon AONB has concluded today. The issues in the inquiry included the extent to which the development would affect several heritage assets and the AONB, and whether that impact would be outweighed by the scheme’s benefits including the support it would give to the applicants’ substantial and energy-consuming dairy business. The Secretary of State’s decision will also shed light on his approach to the transitional provisions in the Written Ministerial Statement of 18 June 2015 on wind turbine schemes, the interpretation of which was the subject of debate between the parties.

A notable feature of the inquiry was that the applicants’ sole expert witness withdrew the entirety of his evidence during cross-examination by counsel for the Rule 6 Party objectors, having accepted that he was not, as required by the RIBA Code of Conduct, an impartial expert because he was related to the applicants.

Charles Banner appeared for the Rule 6 Party objectors, instructed by Susan Ring of Harrison Grant LLP.

On 20 January 2017 the Secretary of State announced his decision, upholding the Inspector’s recommendation to dismiss the application as contended for by the Rule 6 Party.

:

Inquiries

Land adjacent to Canonbury Road, Berkeley, Stroud District

02/08/2016

This was a two week inquiry into a proposal by Charles Church Developments / Persimmon Homes Ltd for a 188 dwelling development on the edge of the historic town of Berkeley.

Following extensive pre and post application consultation, and two amendments to the application in response to feedback from Stroud District Council, the Council’s case officer recommended that planning permission be granted. By a 5-4 majority, however, Members of the Development Control Committee voted to refuse planning permission on the grounds that (i) the proposal would harm the setting of the Grade I listed Berkeley Castle, its associated Registered Park and the Berkeley Conservation Area and (ii) the landscape and visual impact of the development would be unacceptable.

The main issues for the inquiry were:

1) whether the Council could demonstrate a 5 year housing land supply;

2) whether and if so to what extent the development would harm the heritage assets cited in the reasons for refusal

3) whether and if so to what extent the development would have a harmful effect on the landscape

4) whether, overall, the proposal was sustainable development having regard to the above considerations as well as the benefits of the development and the settlement hierarchy policies within the Council’s recently adopted Local Plan.

On 21 November 2016 the Inspector published his decision allowing the appeal.

Charles Banner appeared for Persimmon Homes Ltd, instructed by Bilfinger GVA.

Sasha Blackmore appeared for Stroud District Council, instructed by the Council Solicitor.

:

Inquiries

Tryone-Cavan Interconnector

21/06/2016

This inquiry concerned two planning applications by SONI Ltd (the electricity transmission system operator for Northern Ireland) for the Northern Ireland section of the proposed Tyrone-Cavan Electricity Interconnector, a substantial electricity infrastructure project including a new substation and a 400Kv overhead transmission line connecting the electricity grids of Northern Ireland and the Republic of Ireland. The inquiry previously adjourned upon opening in 2012 due to the PAC’s concerns about the adequacy of advertising for the first application and its accompanying environmental statement. A parallel application for the Republic of Ireland section of the project was the subject of hearings before the An Bord Pleaná in spring 2016.

The first stage of the inquiry considered legal issues relating, amongst other things, to environmental assessment and proposed amendments to the first application. The PAC is to report on those issues and the Department for Infrastructure will determine them. If the Department indicates that it is satisfied that the applications can proceed to a substantive inquiry, the PAC will convene a second stage of the inquiry which will consider the merits of the applications.

For information about the project, click here.

Scott Lyness appeared for SONI Limited (with William Orbinson QC), instructed by Carson McDowell LLP.

Charles Banner appeared for the Department for Infrastructure, instructed by the Departmental Solicitor.

:

Inquiries

Catfield Fen, Broads Special Area of Conservation, Norfolk

19/04/2016

This was a three-week inquiry into two appeals by Mr Andrew Alston under s.43 of the Water Resources Act 1991 regarding the Environment Agency’s refusal to renew his two licences to abstract water in order to irrigate salad and potato crops on his land at Catfield, Norfolk. The licences were refused on the basis that the Environment Agency could not rule out the risk that continued abstraction would harm the integrity of the Broads Special Area of Conservation and Broadlands Special Protection Area, which are protected under the Habitats Directive and Regulations, in particular due to alleged impact on the chemistry at Catfield Fen and consequent changes to its vegetation.

Mr Alston contended in his appeals that it was clear beyond reasonable scientific doubt that continued abstraction will not adversely affect the integrity of the SAC and SPA, and alternatively that there were imperative reasons of overriding public interest justifying a short-term renewal of his licences until March 2018 whereupon the future of the much larger Anglian Water abstraction in the vicinity would be known.

The issues in the inquiry included complex technical evidence on the hydrology and ecology of Catfield Fen as well as legal argument over the proper interpretation of the Habitats Directive.

Charles Banner appeared as sole counsel for the appellant, Mr Alston (instructed by Birketts LLP).

:

Inquiries

Land at Denham Lane, Huncote, Blaby District, Leicestershire

13/04/2016

This was a two day inquiry into Westleigh Developments’ proposal for a 60 dwelling development. Planning permission had been refused by Blaby District Council on the basis that the development was not in a sustainable location having regard to its accessibility by means other than the private car.

The main issues at the inquiry were (i) the extent to which residents of the development would be able to access services, facilities and employment by means other than the car, (ii) whether the development complied with the housing distribution policies of the development plan and (iii) the proper application of the NPPF in this context.

Following the inquiry, on 28 June 2016 the Inspector published her decision allowing the appeal.

Charles Banner appeared for the appellant, Westleigh Developments, instructed by Marrons Shakespeares LLP.

Alistair Mills appeared for the local planning authority, Blaby District Council, instructed by the Council’s legal department.

:

Inquiries

Keuper Gas Storage Project

16/03/2016

Examination hearings into the Keuper Gas Storage Project (“KGSP”) Development Consent Order. The KGSP is a nationally significant infrastructure project involving the creation of underground cavities in salt rock that would be used to store natural gas to help meet the UK’s growing energy needs. Full information about the project is available at http://www.kgsp.co.uk/

Charles Banner appeared as sole counsel for the promoters of the project, Keuper Gas Storage Ltd, a wholly owned subsidiary of INEOS Enterprises Group, and INOVYN Enterprises Ltd, a joint venture between INEOS and the Solvay Group (instructed by Zyda Law).

Scott Lyness represented the University of Manchester.

The Secretary of State for Business, Energy and Industrial Strategy granted the DCO on 15 March 2017.

:

Inquiries

Exeter Road, Topsham

23/02/2016

This was an appeal against Exeter City Council’s refusal to grant planning permission for a 60 bed residential care home, 44 assisted living apartments and 55 age restricted dwellings on the edge of Topsham.

The main issues included:

(1) whether the Council could demonstrate that it had a five year housing land supply, which turned on whether it was appropriate to include student accommodation within the housing land supply; and

(2) whether the development was in breach of development plan policies relating to the ‘Topsham Gap’ between Exeter and Topsham, and if so what weight should be given to those polices.

Charles Banner appeared for the appellant developer, Waddeton Park Ltd (instructed by Stephens Scown LLP)

Stephen Whale appeared for Exeter City Council (instructed by the Council’s Legal Department).

On 28 April 2016 the Inspector published his decision allowing the appeal, together with a partial award of costs in the Appellant’s favour.

:

Inquiries

Chippenham Site Allocations Plan DPD Examination in Public

10/11/2015

This was the Examination in Public into Wiltshire Council’s Chippenham Site Allocations Plan DPD.

Charles Banner appeared for Chippenham 2020 LLP (instructed by CSJ Planning) in support of the allocation within the DPD of their proposal for a large urban extension to the East of Chippenham.

:

Inquiries

Duke’s Lodge, 80 Holland Park, London W11

27/10/2015

This was a two week inquiry into an appeal against the Royal Borough of Kensington and Chelsea’s refusal to grant planning permission for Candy & Candy’s proposal for a new luxury apartment building in Holland Park. The issues included (i) the impact of the development on the character and appearance of the Holland Park Conservation Area (ii) the design of the proposed apartment building (iii) the construction impact and whether the proposal was in accordance with RBKC’s policy on basements and (iv) the appropriate affordable housing contribution having regard to the evidence on viability.

Following the inquiry, on 29 January 2016 the Inspector published her decision allowing the appeal and granting planning permission for the development.

Christopher Katkowski QC and Charles Banner appeared for the Appellant, Dukes Lodge (Guernsey) Ltd, a subsidiary of Candy & Candy’s CPC Group.

:

Inquiries

Money Hill, Ashby-de-la-Zouch, North West Leicestershire

08/09/2015

This was an inquiry into an appeal by the Money Hill Consortium (comprised of Cogent Land LLP, Bloor Homes and Taylor Wimpey Plc) against the refusal by North West Leicestershire District Council of the Consortium’s application for outline planning permission for the development of 605 dwellings together with associated facilities and infrastructure on a greenfield site at Money Hill, Ashby-de-la-Zouch.

The issues include (i) the sustainability of the appeal scheme from a transport perspective (ii) the impact of the development on the local highway network and (iii) affordable housing and viability.

The appeal was recovered by the Secretary of State for his own determination. On 15 February 2016 the Secretary of State published his decision allowing the appeal and granting planning permission for the development.

Charles Banner acted as sole counsel for the Money Hill Consortium, instructed by Iceni Projects and Clyde & Co LLP.

:

Inquiries

City of Westminster (Tollgate Gardens Estate NW6) Compulsory Purchase Order 2014

09/06/2015

This was an inquiry into a CPO made by Westminster City Council under s.226(1)(a) of the Town and Country Planning Act 1990 to facilitate the comprehensive re-development of a large 1960s/1970s housing estate. This was a flagship project of the Council’s Housing Renewal Strategy, aimed at improving both the quality and quantity of its housing stock.

Following the inquiry, on 13 October 2015 the Secretary of State published his decision confirming the CPO in its entirety.

Charles Banner acted for the City Council promoting the CPO, instructed by Tri-Borough Legal Services.

:

Inquiries

Hatchfield Farm, Newmarket

14/04/2015

This was a three week inquiry into a proposed 400 dwelling development at Hatchfield Farm on the edge of Newmarket. A previous proposal for 1200 dwellings had been the subject of an unsuccessful appeal to the Secretary of State in 2011-2012 following the quashing by the High Court of the allocation of the site in the Forest Heath Core Strategy: see Save Historic Newmarket Ltd. v Forest Heath District Council [2011] EWHC 606 (Admin). The subsequent application for 400 dwellings was the subject of a resolution to grant by Forest Heath District Council’s planning committee, but was called in by the Secretary of State for his own determination.

The inquiry centred on the impact that the development would have on the horse racing industry centered in Newmarket and its potential effect on Chippenham Fen SSSI (part of the Fenland SAC) due to abstraction required to supply the development with water. Expert evidence was heard on the subjects of economics, equine behavior, the horse racing industry, hydrology, ecology and planning.

Christopher Boyle QC and Andrew Parkinson appeared for the Applicant, Lord Derby, instructed by Trevor Blaney of Blaney Planning.

David Elvin QC and Charles Banner appeared for the Newmarket Horsemen’s Group, who were a Rule 6 party to the inquiry and the principal objectors, instructed by Simon Rawlins of Bracher Rawlins LLP.

On 1 September 2016 the Secretary of State published his decision refusing planning permission (departing from the recommendation of his Inspector).

:

Inquiries

Central Bedfordshire Development Strategy Examination in Public

03/02/2015

Charles Banner appeared for O&H Properties, the promoters of a new settlement of up to 5,000 dwellings at Marston Valley in Bedfordshire, at the sessions of the Central Beds Development Strategy EiP on compliance with the Duty to Co-Operate and the soundness of the proposed housing requirement.

On 19 February 2015 the Inspector published his findings, holding that (as had been submitted by O&H Properties) the Council had not complied with the Duty to Co-Operate.

:

Inquiries

Stratford upon Avon Core Strategy Examination in Public

08/01/2015

Charles Banner appeared for Jaguar Land Rover (instructed by Gerald Eve LLP) at the EiP sessions in support of the allocation in Policy GLH of the submission draft Core Strategy of 100ha of land for the expansion of its engineering, testing and design facilities at Gaydon which currently employ over 6,000 people and are of national economic significance. The Inspector’s subsequent interim findings endorsed the principle of this allocation.

:

Inquiries

Land off Cheltenham Road, Bredon, Wychavon District

02/12/2014

This was a five day inquiry into a proposed 33 dwelling development by Knarsboro Homes Ltd on a greenfield site. The issues included:

  1. the appropriate requirement figure for calculating whether the Council had a five year housing land supply;
  2. the level of evidence required to enable the conclusion that sites without planning permission were deliverable within five years and should therefore be included within the five year housing land supply;
  3. whether the whether the development plan was ‘out of date’ within the meaning of NPPF para. 14 even if there was a five year housing land supply;
  4. the adequacy of the ecological survey work undertaken;
  5. the landscape and visual impact of the development; and
  6. the sustainability of the site, housing land supply issues and whether the development plan was ‘out of date’ within the meaning of NPPF para. 14.

Charles Banner and Heather Sargent appeared for the Appellant, Knarsboro Homes Ltd, instructed by RPS Planning.

:

Inquiries

Land to the East of St Edmunds Lane, Great Dunmow, Uttlesford District

26/11/2014

This was a four-day inquiry into proposed 22 dwelling custom/self build home development. It is the first planning appeal to test the policy relating to custom/self-build homes in NPPF para. 50 (which requires local planning authorities to plan positively for custom/self-build homes) and the October 2014 DCLG Consultation Paper Right to Build: Supporting custom and self-build which seeks the provision of 100,000 such units within the next decade. On 15 May 2015 the Inspector published her decision allowing the appeal.

Charles Banner appeared for the Appellant, the Saint Edmunds Lane Partnership, instructed by Iceni Projects.

:

Inquiries

Proposed diversion of Footpath 36, Rochford, Essex

29/07/2014

This was a two day inquiry concerning the confirmation of a footpath diversion order made by Rochford District Council pursuant to s.119 of the Highways Act 1980 to divert a footpath which ran through the airside area of London Southend Airport, a recently redeveloped and fast growing airport for commercial and passenger flights, used by over 1 million passengers in 2013-2014.

The issues included:

  1. Whether it had been demonstrated that the proposed diversion was not substantially less convenient than the existing route; and
  2. Whether it was expedient to confirm the order, having regard to the statutory material considerations under s.119 of the 1980 Act as well as all other relevant considerations, including in particular the requirements of EU Regulations 300/2008 and 185/2010 on common standards for aviation security throughout the EU which require a physical obstruction between the landside and airside parts of an airport and the imposition of restrictions on the persons entitled to go airside. 

Following the inquiry, on 8 October 2014 the Inspector published his decision confirming the order.

Heather Sargent appeared for Rochford District Council, the order-making authority (instructed by the Council Legal Department).

Charles Banner appeared for London Southend Airport Company Limited, the applicant for the diversion order (instructed by Ian Ginbey of Clyde & Co LLP).

:

Inquiries

Porsche Centre West London, Chiswick Garage, Cedars Road, London

09/07/2014

In an appeal decision dated 31 July 2014, the Inspector (David Richards BSocSci DipTP MRTPI) allowed Porsche Cars (Great Britain) Ltd’s appeals against the refusal of Hounslow Borough Council of two applications for planning permission for the extensive remodelling and extension of the well-known flagship Porsche Centre on the A4 in Chiswick. The works were intended to update the appearance of the existing building and to provide future capacity to meet Porsche’s anticipated future business in West London, as well as enhancing the contribution that the Centre makes to Porsche’s brand through its prominent position in a location passed by over 80,000 vehicles per day.

Permission had been refused for the first application on the grounds that the redevelopment would harm the adjacent Wellesley Road Conservation Area and would have an unacceptable impact on the living conditions of neighbouring properties, the gardens of which back on to the area of the proposed extension. A second application was submitted for a smaller scheme, which Porsche contended was the smallest viable means of remodelling and extending the existing building. The Council refused permission for the second scheme on the same grounds as the first.

Allowing the appeals, the Inspector held that neither scheme would have an adverse impact on residential amenity, that the remodelling of the existing building would represent a considerable enhancement on its present appearance, that the proposals would at the very least preserve the character and appearance of the Conservation Area, and that the economic benefits of the two schemes were significant material considerations weighing in favour of granting permission.

Following the hearing, on 31 July 2014 the Inspector published his decision allowing both appeals.

Charles Banner appeared for the successful appellant, Porsche Cars (Great Britain) Ltd, instructed by Marcus Bate of Pinsent Masons LLP.

:

Inquiries

Methley Quarry, Leeds

07/07/2014

This was a three day inquiry into an appeal by Lafarge Aggregates Ltd against the Environment Agency’s refusal of a waste recovery permit for the backfilling of a quarry with 69,581 tonnes of inert waste to reinstate a footpath diverted to enable the quarry’s excavation.

The central issue was whether the proposed activity amounted to waste recovery or waste disposal under Article 3 of the EU Waste Framework Directive 2008/98/EC. Lafarge, who were represented by leading counsel, contended that the Environment Agency had misinterpreted the Directive in concluding that the proposed activity was not waste recovery. The Inspector disagreed and upheld the Environment Agency’s decision. He concluded that in the light of answers given by Lafarge’s main witness in cross-examination by the Environment Agency’s counsel, it could not be concluded that the proposed activity would be undertaken to the same extent or at all using non-waste materials in the event that waste could not be used, and therefore the definition of “recovery” was not satisfied.

Charles Banner appeared as sole counsel for the Environment Agency, who successfully resisted the appeal.

:

Inquiries

Apple Hill care home, Henley

29/04/2014

This was a five day inquiry into two appeals, the first under s.174 of the Town and Country Planning Act 1990 against an enforcement notice issued by the Council of the Royal Borough of Windsor and Maidenhead against the use of a residential care home in breach of a condition restricting the use to the “elderly”, and the second under s.78 of the 1990 Act against the Council’s the refusal of planning permission for the premises also to be used as a community mental hospital.

The issues included:

  • Whether the condition’s purported restriction on the premises’ use for the “elderly” was invalid on grounds of uncertainty.
  • Whether upholding the enforcement notice would result in unjustified discrimination on grounds of age, contrary to Article 14 ECHR taken together with Article 8.
  • Whether, having regard to the expert mental healthcare, noise, traffic and planning evidence, the use of the premises for persons other than the “elderly” and/or as a community mental hospital would cause demonstrable harm to the amenity of neighbouring properties and/or amount to inappropriate development in the Green Belt.

Following the inquiry, on 21 October 2014 the Inspector published her decision allowed both appeals.

Sasha White QC and Charles Banner appeared for the appellant, Henley Healthcare Ltd, instructed by Woolf Bond Planning LLP.

Rupert Warren QC appeared for the Council, instructed by the Solicitor to the Royal Borough of Windsor and Maidenhead.

:

Inquiries

Apple Hill care home, Henley

29/04/2014

This was a five day inquiry into two appeals, the first under s.174 of the Town and Country Planning Act 1990 against an enforcement notice issued by the Council of the Royal Borough of Windsor and Maidenhead against the use of a residential care home in breach of a condition restricting the use to the “elderly”, and the second under s.78 of the 1990 Act against the Council’s the refusal of planning permission for the premises also to be used as a community mental hospital.

The issues included:

  • Whether the condition’s purported restriction on the premises’ use for the “elderly” was invalid on grounds of uncertainty.
  • Whether upholding the enforcement notice would result in unjustified discrimination on grounds of age, contrary to Article 14 ECHR taken together with Article 8.
  • Whether, having regard to the expert mental healthcare, noise, traffic and planning evidence, the use of the premises for persons other than the “elderly” and/or as a community mental hospital would cause demonstrable harm to the amenity of neighbouring properties and/or amount to inappropriate development in the Green Belt.

Following the inquiry, on 21 October 2014 the Inspector published her decision allowed both appeals.

Sasha White QC and Charles Banner appeared for the appellant, Henley Healthcare Ltd, instructed by Woolf Bond Planning LLP.

Rupert Warren QC appeared for the Council, instructed by the Solicitor to the Royal Borough of Windsor and Maidenhead.

:

Inquiries

Newmarket retail inquiry

26/02/2014

This was a six day inquiry into an appeal by Unex (No 3) Ltd against the refusal by Forest Heath District Council of planning permission and listed building consent for a retail-led regeneration scheme on the edge of Newmarket town centre, including a 3716sqm ASDA food store, 4 retail units, a cafe and restaurant, an art gallery and the restoration of a complex of highly dilapidated listed buildings on the High Street frontage.

The issues included:
1) whether the development would be in breach of development plan policies designed to safeguard the horse-racing industry in Newmarket, having regard to the site’s former use as a racehorse training establishment;

2) whether those policies were compliant with the NPPF, having regard to the judgment of Kenneth Parker J in Colman v SSCLG [2013] EWHC 1138 (Admin);

3) whether the impact of the development on the conservation area within which it would be located would be substantial or less than substantial, and whether the appropriate test in NPPF paras 133-134 to justify the degree of harm was satisfied; and

4) whether the scheme’s impact on the viability and vitality of the town centre would be beneficial by virtue of clawing back trade lost to out of centre locations (as alleged by the appellant) or harmful by virtue of its cumulative impact taken together with recently consented out of centre retail schemes proposed by Tesco and Morrisons (as alleged by the Council).

Charles Banner and Heather Sargent appeared for the Appellant, instructed by Savills and The Unex Group.

:

Inquiries

Runcorn Energy from Waste

21/01/2014

This was an inquiry into the refusal by Halton Borough Council to vary a condition on the planning permission for the 810,000tpa Runcorn Energy from Waste facility limiting the amount of refuse derived fuel to be transported by road (as opposed to by rail or by water) to 85,000tpa. The EfW is operated by Viridor and designed to meet c.30% of the electricity demands of Ineos Chlorvinyls’ chlorine manufacturing plant in Runcorn, which has the greatest electricity demand of any single site in the UK. The evidence presented on behalf of Ineos and Viridor was that if the condition was maintained then the EfW would either operate at under-capacity (meaning that it would divert significantly less waste from landfill) and/or it would be forced to source waste over long-distance rail journeys which would generate greater greenhouse gas emissions than short-distance road journeys, and therefore the condition was environmentally counter-productive as well as threatening the economic benefits of the EfW in securing a nationally significant industrial plant with a vast electricity demand from fluctuations in the energy market.

On 5 March 2015 the Inspector published her decision allowing the appeal together with a full award of costs in favour of the Appellant.

Nathalie Lieven QC and Charles Banner appeared for the Appellant, Ineos Chlorvinyls, instructed by Zyda Law LLP.

:

Inquiries

Land at Garden Farm, Blofield, Broadland District

19/12/2013

This was a two day inquiry into an appeal by the Generator Group against the refusal of Broadland District Council to grant it planning permission for a 75 dwelling development on an unallocated greenfield site in Blofield. The issues included (i) the approach to be taken to quantifying the Council’s objectively assessed five year housing needs and to calculating its supply of deliverable sites, (ii) whether the scheme should be refused on grounds of prematurity pending the Council’s Site Allocations DPD, and (iii) the proper application of the presumption of sustainable development in NPPF paragraph 14. On 16 January 2014, the Inspector published his decision in which he allowed the appeal, granted permission for the development and made a full award of costs in favour of the Generator Group.

Charles Banner appeared for the Appellant, the Generator Group.

:

Inquiries

Rutland Site Allocations DPD Examination in Public

19/11/2013

This stage of the EiP into the Rutland Site Allocations DPD considered the issue of compliance with the relevant legal requirements. The DPD contained no allocations for the Council’s second biggest settlement, Uppingham (contrary to the Council’s Core Strategy, which expressly envisaged that it would), on the ground that such allocations would be set out in the emerging Uppingham Neighbourhood Plan, if adopted.

Larkfleet Homes, the owners of significant development interests in Uppingham, objected to this approach on the basis that (i) it was contrary to the Planning and Compulsory Purchase Act 2004 and the Local Plan Regulations 2012 for the DPD completely to hive off the question of allocations for part of its area to the Neighbourhood Plan and (ii) the Sustainability Appraisal for the DPD had failed to assess the environmental effects of the policy vacuum resulting from the absence of allocations for Uppingham until such time as a Neighbourhood Plan was adopted and/or the environmental effects of the reasonable alternatives to this approach (in particular, the approach originally envisage by the Core Strategy of the DPD containing allocations for Uppingham) and/or the cumulative effects of the DPD and the Neighbourhood Plan in combination.

Charles Banner appeared at the EiP on behalf of Larkfleet Homes, instructed by Marrons Shakespeares LLP.

:

Inquiries

Land adjacent to Sims Metals, near Pebworth, Worcestershire

12/11/2013

This was a six day inquiry into an appeal by Codex Land Promotions Ltd against the refusal of Wychavon District Council to grant planning permission for a mixed use development including 380 dwellings, 5000 sqm commercial floorspace and  community/leisure facilities adjacent to the Long Marston Depot site (nr Pebworth) where St Modwen have obtained planning permission for a 500 dwelling mixed use development which is in the process of being built out.

The primary issues on which the inquiry focused were whether the Council was able to demonstrate a five year supply of deliverable housing sites to meet its objectively assessed needs, whether the site was in an ‘unsustainable location’ as contended by the Council and whether granting permission was premature pending the adoption of the emerging South Worcestershire Development Plan, which was intended to be the future development plan for the area.

Charles Banner acted for the Appellant, Codex Land Promotions Ltd, instructed by Foxeley Tagg Planning.

On 2 July 2014, the Secretary of State, in accordance with the Inspector’s recommendation, allowed the appeal and granted planning permission.

:

Inquiries

Land off Wyngates, Blofield, Broadland District

16/10/2013

This was a two day inquiry into an appeal by Norfolk Homes Ltd against the refusal of Broadland District Council to grant it planning permission for a 64 dwelling development on an unallocated greenfield site in Blofield. The issues included (i) the approach to be taken to quantifying the Council’s objectively assessed five year housing needs and to calculating its supply of deliverable sites, (ii) whether the scheme should be refused on grounds of prematurity pending the Council’s Site Allocations DPD, and (iii) the proper application of the presumption of sustainable development in NPPF paragraph 14.

Charles Banner (instructed by Iceni Projects) appeared for the Generator Group, the promoters of a further 75 dwelling development the inquiry into which was listed to be heard a few weeks afterwards by the same Inspector, with both appeal decisions to be listed on the same date.

:

Inquiries

The Garden House, Hampstead Heath, LB Camden

24/09/2013

This was a two day inquiry into an appeal against the decision of Camden LBC’s Planning Committee, against officer advice, to refuse planning permission for alterations and extensions to the well-known Garden House building in the Vale of Health. The appeal scheme is designed by the award winning architect James Gorst and, in conjunction with two certificates of lawfulness for permitted development under Part 1 of Schedule 2 to the General Permitted Development Order, would result in the creation of dormer and basement extensions along with the cladding of the entire building in slate. The site is in Metropolitan Open Land, which attracts the same protection as Green Belt, and the issues at the inquiry include the proper interpretation of the exemptions to inappropriate development in the Green Belt under paragraph 89 of the NPPF, including the new sixth bullet relating to “the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use… which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development”.

The application and appeal attracted considerable local attention, following litigation of a previous planning permission for redevelopment of the Garden House which had been the subject of litigation which reached the Court of Appeal in R (Heath & Hampstead Society) v. Camden LBC [2008] 3 All E.R. 80.

On 30 October 2013 the Inspector published his decision letter accepting the entirety of the Appellant’s arguments and allowing the appeal.

Charles Banner appeared for the appellant, Mr Alex Vlachos, instructed by Lee Bolton Monier Williams LLP.

:

Inquiries

Former Fremington Army Camp, Military Road, Fremington, North Devon

16/04/2013

Six day inquiry into proposed 277 dwelling residential development, raising highway safety and heritage issues.

Charles Banner appeared for the Rule 6 Party, Army Camp Safe Access Group, instructed by PCL Planning Ltd.

:

Inquiries

Holywell Spring Farm, Ashby de la Zouch, North West Leicestershire

19/02/2013

This case concerns an appeal by CLB (Ashby) Ltd against the refusal by North West Leicestershire District Council of their application for planning permission for a 400 dwelling urban extension to Ashby de la Zouch.

The Council’s draft Core Strategy, due for submission to the Secretary of State in summer 2013, proposes that Ashby’s housing needs should be met by means of a 605 urban extension on another site, controlled by the Money Hill Consortium (comprised of Bloor Homes, Cogent Land LLP and Taylor Wimpey).

The Council refused planning permission on the basis that the development was contrary to the saved policy of its Local Plan resisting development in the countryside and is in any event premature and prejudicial to the emerging Core Strategy which proposes that future growth in Ashby should be at the Money Hill site. The appellant’s case is that the development’s ability to meet an alleged shortfall in the Council’s five year housing supply outweighs those considerations. The Money Hill Consortium supports the Council’s case on breach of the Local Plan and prematurity/prejudice to the Core Stategy.

A four day inquiry was listed to commence 19 February 2013. On the second day of the inquiry, the Inspector accepted the submissions advanced on behalf of the Money Hill Consortium that, in the light of the suggestion for the first time in the appellant’s rebuttal proof of evidence that the two urban extensions were not in fact mutually exclusive but could come forward side-by-side, the screening opinion excluding the need for Environmental Impact Assessment of the development was deficient since it failed to have regard to potential cumulative effects of the two developments in combination. The Inspector therefore adjourned the inquiry in order for a fresh screening opinion to be undertaken and, if necessary, the development to be subject to EIA. Following the adjournment of the inquiry the appellant withdrew the appeal.

In the meantime, the Money Hill Consortium have applied for planning permission for their proposed urban extension in accordance with the emerging Core Strategy.

Charles Banner is acting for the Money Hill Consortium, instructed by Iceni Projects.

:

Inquiries

Charlie Butler Public House, Mortlake High Street, London

05/02/2013

This case concerned the proposed demolition of public house and erection of an architect-designed block of 9 apartments adjacent to the Mortlake Conservation Area. The Council’s putative reasons for refusal (the appeal having been brought against the non-determination of the application within the required period) included the alleged impact of the development on the Conservation Area, design, impact on the privacy of nearby properties, and the impact on a TPO’d tree on Mortlake High Street.

Following a two-day inquiry, the Inspector’s decision letter dated 26 March 2013 allowed the appeal and granted planning permission.

Charles Banner acted for the successful appellant, Languard Homes 2020 LLP, instructed by KR Planning.

:

Inquiries

Former Everest Sports Ground, Andrews Lane, Cheshunt (Broxbourne BC)

13/11/2012

On 13 November 2012 Broxbourne Borough Council’s Planning and Regulatory Committee resolved to grant Crest Nicholson Operations Ltd planning permission (subject to completion of a satisfactory s.106 agreement) for a 96 dwelling residential development on a 3.6ha site in the Green Belt at the Former Everest Sports Ground, Andrews Lane, Cheshunt. Despite the presumption against inappropriate development in the Green Belt, the Council accepted Crest’s case that “very special circumstances” existed to justify the development in accordance with para. 88 of the National Planning Policy Framework and Policy GB2 of the Broxbourne Local Plan. The Council agreed with Crest that that harm which would be caused by the development was “clearly outweighed” by the substantial benefits that the scheme would deliver, in particular the provision of a significant amount of market and affordable housing (including a valuable provision of number of new family houses with gardens) of a particularly high quality design and containing innovative energy efficiency measures, in a sustainable location which is within an area which had already been identified by the Broxbourne Submission Core Strategy as suitable for meeting the Council’s strategic housing needs.

Charles Banner advised Crest on legal and strategic issues throughout the preparation and determination of the application.

:

Inquiries

Unauthorised commercial car park at 10 Crooked Stone Road, Crumlin, Co Antrim

22/08/2012

This is one of a number of high profile enforcement appeals in recent months and years concerning unauthorised large scale commercial car park operations on agricultural landholdings near Belfast International Airport. Following the conclusion of the hearing, the Planning Appeals Commission wrote to the parties to express concern about the term used in the enforcement notice – “use as a commercial car park” – given that prior to the unauthorised operations there was legitimate parking taking place on the site which was incidental and ancillary to the lawful use of the land for (commercial) agriculture and for an animal feeds business. A further hearing was therefore convened to hear submissions upon whether the terms of the enforcement notice were in accordance with the requirements of Article 68A of the Planning (Northern Ireland) Order 1991 as amended and, if not, whether the PAC could exercise its powers under Article 70(2) to amend the notice.

Charles Banner appeared for the Department of Environment at the reconvened hearing, instructed by the Departmental Solicitor’s Office.

:

Inquiries

Costa Coffee shops at 14 Gloucester Road and 123-125 Whiteladies Road, Bristol

24/07/2012

This was a conjoined inquiry into appeals relating to two separate conversions of premises within primary retail frontages in Bristol city centre to mixed A1/A3 use as Costa Coffee shops. In the first case, Council Members had rejected an officer recommendation to grant planning permission for the change of use, and an enforcement notice was subsequently issued. The franchise holder, South West Coffee Ltd, appealed against both these decisions. In the second case, no planning permission had been sought or obtained for the conversion and the Council issued an enforcement notice, which was also subsequently appealed.

The issue in each case was whether the introduction of the mixed A1/A3 use, and in particular the substantial A3 element (which represented about 70% of sales at each premises), harmed the viability and vitality of the shopping areas in question by diluting its retail character to an unacceptable level, having regard to the existing A3 uses in the vicinity.

Charles Banner acted for Bristol City Council.

:

Inquiries

Bath Road, Thatcham, West Berkshire

06/03/2012

In this case, the appellant, Newbury Property Investment Ltd, sought the modification under s.106A-B of the Town and Country Planning Act 1990 of planning obligations that had been entered into in 2005 which required the payment to the local planning authority, West Berkshire Council, of financial contributions towards local infrastructure. The basis of the appellant’s argument was that, following changes in the Council’s supplementary planning guidance on infrastructure contributions, lower financial contributions were now justified than those which were contained in the relevant planning obligations.

Accepting the Council’s submissions, the Inspector held that, following the judgment of R (Renaissance Habitat Ltd) v. West Berkshire Council [2011] EWHC 242 (Admin), the question in the appeal was simply whether the obligations continued to serve a useful planning purpose which would not be served as well by the modifications, and that this was not the same as asking whether the obligations were strictly necessary to make the development acceptable. She accepted the Council’s evidence that the obligations did continue to serve a useful planning purpose, and that reducing the amount of the financial contributions would not serve that purpose as well. The appeal was therefore dismissed. The Inspector also ordered the Appellant to pay the Council’s costs.

Charles Banner appeared for West Berkshire Council. He also previously appeared in High Court in the Renaissance case (with Tom Jefferies).

:

Inquiries

Proposed windfarm at Bavington Hill Head Farm, Kirkharle, Northumberland

16/05/2011

This is an inquiry into proposals by RWE Npower Renewables Ltd for a 4 turbine windfarm with associated development. The pre-inquiry meeting took place on 16th May 2011 and the inquiry is due to sit for up to 3 weeks in July-August 2011.

The principal issues to be considered at the inquiry relate to:

  • the landscape and visual impact of the proposed windfarm;
  • the impact on cultural heritage (in particular nearby listed buildings);
  • noise impacts;
  • potential interference with the civilian air traffic control radars servicing Newcastle International Airport;
  • potential interference with the military air traffic control radars servicing RAF Spadeadam; and
  • the extent to which the developments would beneficially contribute to the production of renewable energy, and the weight to be given to that contribution.

Charles Banner is acting for the Ministry of Defence, who have become a Rule 6 party at the inquiry in order to ensure the safeguarding of its interests at RAF Spadeadam.

:

Inquiries

Project Pinewood, Pinewood Studios, S Bucks

08/04/2011

Five week planning inquiry into Pinewood Studios Ltd’s proposal to create Project Pinewood, a groundbreaking living and working community for the creative industries next to the world famous film studios, involving 15 different streetscapes representing a variety of international cities (avoiding the time, expense and carbon emissions of travelling to film ‘on location’), together with 1400 residential units. The economic growth in the creative sector that would be generated by the scheme was anticipated to generate at least £2.7billion additional value to the UK’s GDP over thirty years. Pinewood Studios Ltd’s case was that these economic benefits, coupled with the other the scheme’s other advantages, constituted ‘very special circumstances’ which justified granting permission despite the site’s Green Belt status.

The Secretary of State’s decision is awaited.

Christopher Katkowski QC and Charles Banner appeared for Pinewood Studios Ltd, instructed by Travers Smith LLP.

:

Inquiries

Proposed new Motorway Service Area on the A1(M) in North Yorkshire

02/11/2010

This public inquiry, which commenced on 2nd November 2010 and is scheduled to last until February 2011, will hear evidence on whether there is a need for a new MSA (including the views of the Highways Agency, who consider that there is a need, and objections from Harrogate Borough Council and Moto Hospitality Ltd, who operate other MSAs in the region) as well as evidence on the four competing proposals for the location of the new MSA in the event that a need is established.

Four of the eight parties at the inquiry are represented by members of Landmark:

John Litton QC is appearing on behalf of Jaytee Rainton Ltd, the promoters of a proposed new MSA at Baldersby Junction (instructed by DPP).

Charles Banner is appearing on behalf of Heather Ive Associates, the promoters of a proposed new MSA at Kirby Hill (instructed by Marrons LLP).

Robert Walton is appearing on behalf of Harrogate Borough Council, the local planning authority.

Guy Williams is appearing on behalf of North Yorkshire County Council, the local highway authority.

:

Inquiries

Proposed windfarms at Burnthouse Farm and Floods Ferry Farm, Cambridgeshire

14/09/2010

This was an inquiry into two separately promoted windfarm proposals (3 and 9 turbines) with associated development at Burnthouse Farm and Floods Ferry Farm, Fenland District, Cambridgeshire.

The inquiry considered the effect of the proposed windfarms on the residential amenity of local residents, the cumulative effect on the character and appearance of the local landscape, and the potential interference with the Air Traffic Control Primary Surveillance Radars at RAF Cottesmore and RAF Lakenheath.

Charles Banner appeared for the Ministry of Defence, who were a Rule 6 party at the inquiry and sought the imposition of planning conditions on any grant of permission in order to protect against interference with its radar systems.

:

Inquiries

Land to the South of the Railway Line, Westerfield Road, Ipswich

06/04/2010

Three-week ‘recovered’ inquiry into an appeal by Mersea Homes and CBRE in respect of a proposed 1,085 dwelling urban extension to form the first phase of the new Northern Fringe of Ipswich, which is earmarked for up to 5,000 new homes in Ipswich Borough Council’s draft Core Strategy..

The scheme was opposed by the Council and Crest Strategic Projects Ltd, a Rule 6 party to the inquiry with an interest in one of the other main sites within the Northern Fringe.

A number of issues were examined in evidence and submissions, including:

1) Whether the application was premature pending the adoption of the Council’s Core Strategy and the subsequent SPD masterplanning process.
2) Whether the scheme would have an unacceptable impact on the separate identity of Westerfield Village.
3) Whether the scheme would prejudice the ability to provide a bridge over the railway which currently separates the site from the Crest land, which was widely recognised as a crucial feature for the comprehensive development of the Northern Fringe.
4) The adequacy of the Design and Access Statement submitted with the outline application.
5) The impact of noise and vibration from the railway line on the living environment of dwellings abutting it.
6) The implications of the scheme for the current and future educational infrastructure in Ipswich.

On 1st September 2010 the Secretary of State dismissed the appeal, in accordance with the Inspector’s recommendation, upholding Crest’s objections to the scheme.

Charles Banner acted for Crest Strategic Projects Ltd, instructed by Davies Arnold Cooper LLP.

:

Inquiries

Middlewick Ranges, Colchester

25/01/2010

Two-day inquiry into footpath diversion order required to enable the Ministry of Defence’s strategically important live firing ranges at Middlewick to be enclosed by a security fence.

The proposal was hotly contested by a number of local residents on the basis that the public would be excluded from open space to which they had enjoyed permissive access for many decades.

Charles Banner appeared for the Ministry of Defence, calling Lt Col Simon Lloyd MBE RA (Commander of Defence Training Estate – East) and Colonel Tom Fleetwood (Commander of Colchester Garrison) to explain why security and health & safety issues necessitated the erection of the fence and the diversion of the footpath.

On 23rd April 2010 the Inspector issued his decision, upholding the Ministry of Defence’s submissions and confirming the Order.

:

Inquiries

Proposed windfarms at Nutsgrove Farm and Wryde Croft, Peterborough

24/11/2009

This was an inquiry into two separately promoted windfarm proposals (a 7 and 6 turbines) with associated development at Nutsgrove Farm and Wryde Croft, Peterborough.

The main issues for inquiry were the effect of the windfarms on the Primary Surveillance Radar at RAF Cottesmore and the Precision Approach Radar at RAF Wittering, the effect of the windfarms on the landscape and the residential amenity of local residents, and the extent to which the developments would beneficially contribute to the production of renewable energy.

Charles Banner appeared for the Peterborough City Council, the local planning authority, who supported the applications subject to the imposition of satisfactory conditions and planning obligations.

On 1st April 2010, the Inspector granted permission for both schemes.

:

Inquiries

Proposed inert waste recycling and landfill facility at the former Hurstpierpoint Sewage Treatment Works, West Sussex

10/11/2009

Two-day inquiry into substantial waste recovery & disposal scheme that would deliver 10% of the additional recycling capacity that West Sussex is required by the South East Plan to achieve by 2015.

The waste planning authority, West Sussex County Council, refused planning permission on the basis that a sufficient visibility splay could not be provided to the south of the site access onto the Cuckfield Road, meaning that there would be an unacceptable threat to highway safety. On appeal, the principal issues at the inquiry were:

(1) What was the extent of the visibility splay necessary in order to avoid the risk of collisions?
(2) Would the highway authority have power to undertake the necessary works to the hedge adjoining the road which was currently interfering with visibility to and from the site access?
(3) Insofar as the Council was right that the achievable visibility splay was less than what ought normally to be provided, was that outweighed by the proposed highway safety improvements together with the various socio-economic and environmental benefits associated with the scheme?

On 16th December 2009, the Inspector appointed by the Secretary of State issued her decision allowing the appeal and granting planning permission for the scheme.

Charles Banner appeared for the successful Appellant, Edburton Contractors Ltd, instructed by Richard Walker Planning Consultancy.

:

Inquiries

Proposed Industrial Workshop in Metropolitan Green Belt at Smiths Farm, Northolt, LB Ealing

19/05/2009

Inquiry into proposal for demolition of old agricultural barns (now used as warehouses) and their replacement with a purpose built workshop to be used in connection with Thames Materials’ waste management activities.

The Inspector dismissed the appeal, concluding that the impact on the character and appearance of the Metropolitan Green Belt was not clearly outweighed by the alleged environmental improvements to the site and the employment opportunities generated by the proposal.

John Male QC appeared for the Appellants, Thames Materials Ltd. Charles Banner appeared for the local planning authority, Ealing LBC.

:

Inquiries

Proposed 13 & 11 Storey Towers at 6 Paris Garden and 20-21 Hatfields, LB Southwark

21/04/2009

Two-day inquiry into proposal by JG Paris LLP and the Central School of Ballet for two 13 & 11 storey towers for the relocation of the Central School of Ballet and 196 units of student accommodation.

Prior to the inquiry Southwark LBC had granted planning permission for an alternative scheme comprising two 13 & 9 storey towers. The main issue before the inquiry was whether the 11 storey block on the Hatfields side had an unacceptable impact on the character and appearance of the area, compared to the 9 storey block in the already approved scheme.

Having considered the planning and design evidence before the Inquiry, the Inspector dismissed the appeal on the following basis:

“23. I conclude that the appeal scheme would have a detrimental impact on the character and appearance of the area, contrary to the relevant national and local planning policies, most notably Southwark Plan policy 3.13i ii and iii which requires that consideration should be given to designing proposals that are appropriate to the local context and which do not dominate their surroundings inappropriately; to have regard to the existing urban grain and to their local context. I conclude that the scheme would not meet the objectives of this policy.

24. I have weighed this against the appellants’ submissions that the additional floors represented by the appeal scheme would create greater ‘certainty and flexibility’ of the scheme proceeding in the current financial climate. I am aware that the Central School of Ballet requires a new site in the immediate future and that their relocation on the appeal site would realise significant benefits to the locality through their Outreach Programmes. I have no evidence however that the approved scheme would not deliver all these benefits. These matters would not outweigh the harm that I have identified.”

David Elvin QC appeared for the Appellants, JG Paris LLP and the Central School of Ballet. Charles Banner appeared for the local planning authority, Southwark LBC.

:

Inquiries

Proposed ‘eco-village’ at Dunsfold Park

10/03/2009

A four week-inquiry inquiry into The Rutland Group’s proposals for the UK’s first ‘eco-village’ at Dunsfold Aerodrome in Surrey.

The scheme – a new settlement comprising 2,601 dwellings (including 910 affordable homes) alongside substantial business development, together with a groundbreaking package of sustainability measures to reduce carbon emissions – is billed as the UK’s most sustainable settlement. It will achieve an average carbon footprint per resident of between a third and half of the average UK resident.

The inquiry is considering Waverley Borough Council’s objection to the scheme on locational and transportation grounds. It is the first planning inquiry in the UK to consider the Government’s much publicised draft policy on Eco-Towns.

Christopher Katkowski QC and Charles Banner are appearing for the Appellant, Dunsfold Park Ltd (a SPV subsidiary of The Rutland Group). Tim Mould QC is appearing for Waverley Borough Council.

:

Inquiries

Land adjacent to Lady Forester Nursing Home, Much Wenlock

29/07/2008

Two-day inquiry into proposals for 33 dwellings within the curtilage of Lady Forester Nursing Home, in Much Wenlock. Against the advice of Officers, the Environment Agency, and the highways authority, members of Bridgnorth District Council’s Development Control Committee voted to refuse planning permission on grounds relating to arboriculture, flooding and highways. The Council pursued these grounds at appeal, although following concessions made in cross-examination the flooding reason for refusal was withdrawn before the close of the inquiry.

On 19th September 2008 the Inspector allowed the appeal and awarded costs to the Appellant.

Charles Banner appeared for the Appellant, Lioncourt Homes Ltd, instructed by RPS Planning (Bristol).

:

Inquiries

Hardwick Views, Sedgefield

08/07/2008

Six-day inquiry into proposals for a holiday park comprising 330 static caravans and 48 lodges, together with associated infrastructure, at an 88ha site adjacent to the historic Hardwick Park in Sedgefield (a registered historic park and garden, and a conservation area which included the Grade II listed Hardwick Hall).

The scheme was designed with the specific objective of enhancing the historic landscape of Hardwick Park, in particular by (inter alia) the removal of unattractive and prominent farm buildings on the appeal site and the restoration of certain historic views. The caravans and lodges were proposed to be arranged in clusters which would be fully screened by over 10ha of new woodland planting. A condition was proposed whereby no caravans or lodges would be sited until the new planting had been in place for five years, thereby ensuring that the screening was effective.

Despite support from English Heritage and Durham County Council (the owners of Hardwick Park), Sedgefield Borough Council refused to grant planning permission, against its Officers’ advice. The six-day inquiry held into the developer’s appeal against this decision considered the following principal issues:

  1. The effect the proposal would have on the character and appearance of the local countryside, including its ecology and wildlife, bearing in mind national and local planning policies relating to tourism and rural development.
  2. The impact of the proposal on the character of Hardwick Park as a Grade II* registered historic park and garden; on the setting of Hardwick Hall as a Grade II listed building; and on the character and appearance of the Hardwick Park Conservation Area; and
  3. Whether the scale and nature of
    the proposal would result in environmental, economic and social benefits for
    the area, including reference to highway safety, community resources, services
    and the living conditions of local residents.

The Inspector’s decision is due in early September 2008.

Christopher Katkowski QC and Charles Banner appeared for the Appellant, Theakston Farms LLP (instructed by Nathaniel Lichfield and Partners).

:

Inquiries

Hunts Grove, Stroud District

22/01/2008

Three week ‘called-in’ inquiry into a proposed urban extension on an allocated greenfield site to the south of Gloucester comprising up to 1,750 homes together with substantial office/business development, community facilities and ancillary infrastructure.

Although Stroud District Council as local planning authority supported the proposals, and notwithstanding the site’s allocation in the Local Plan and its endorsement in the draft RSS for the South West, Gloucester City Council and the two local MPs intervened in opposition. They contended that the site was not suitable for an urban extension on the grounds (i) that it was less sustainable than sites to the north of Gloucester and (ii) that it would prejudice the policy objective of regenerating vacant and under-used brownfield sites within Gloucester City. The validity of these two contentions was the primary focus of the inquiry.

On 11th July 2008, in accordance with the Inspector’s recommendation, the Secretary of State allowed the appeal and granted planning permission for the scheme.

Rhodri Price Lewis QC and Charles Banner appeared for the applicants, Crest Nicholson Strategic Projects and St Modwen Properties plc, instructed by RPS Planning.

:

Inquiries

Oxford Westgate CPO

04/12/2007

Two-week public inquiry into a proposed compulsory purchase order which will allow the extension, redevelopment and improvement of the Westgate Centre and surrounding highways for a £500m mixed-use scheme with a substantial retail element. The scheme will not only assist in realising commercial retail aspirations for Oxford, but will support Oxford in maintaining its sub-regional status and provide a focus for regeneration of Oxford’s West End. The development will be carried out by the Westgate Partnership, of which the main partner is Capital Shopping Centres plc.

By the conclusion of the inquiry, all of the statutory objectors attending the inquiry had withdrawn their objections.

On 30th April 2008, the Secretary of State confirmed the CPO in accordance with the recommendations of the Inspector following the conclusion of the inquiry.

David Elvin QC and Charles Banner appeared for the promoters, Oxford City Council and the Westgate Partnership.

:

Inquiries

Colin Campbell Court CPO, Plymouth

08/11/2006

Two week inquiry into a compulsory purchase order made by Plymouth City Council for the provision of a shopping centre and ancillary infrastructure in the western end of Plymouth City Centre.

Christopher Lockhart-Mummery QC and Charles Banner appeared for the acquiring authority, Plymouth City Council. Christopher Katkowski QC appeared for the objectors, Thomas Estates Ltd and Plymouth & South West Co-Operative Society Ltd.

:

Inquiries

Bolnore Village, Haywards Heath

19/09/2006

Three month inquiry into proposed 785 home development by Crest Nicholson (South) in the south-western fringe of Haywards Heath, Mid Sussex.

The inquiry considered a range of issues including: the alleged ancient woodland status of one of the development cells; whether the proposed ‘buffer zones’ were sufficient to protect the adjoining woodland habitats; the adequacy of the appellants’ affordable housing offer; the provision of the final stages of the Haywards Heath relief road; the viability of various proposed construction access routes; density and open space.

On 24th January 2008, the Secretary of State for Communities and Local Government wrote to the parties to state that she accepted most of the Local Community Organisations’ and the Council’s objections (including those relating to ancient woodland, buffer zones, dedication of ecologically sensitive land, and the overall number of dwellings) and required a framework of revisions to be made to the s.106 obligations and conditions so as to address these objections (as originally suggested by the Local Community Organisations). After such revisions were made, on 28th March 2008 the Secretary of State granted permission for the development subject to the revised framework of conditions and obligations.

Edmund Robb appeared for Mid Sussex District Council. Charles Banner appeared for local community organisations. Robert Griffiths QC appeared for Crest Nicholson.

:

Inquiries

Proposed 67 dwelling development at Hutton Cranswick, East Riding of Yorkshire

02/04/2019

This was a 6 day public inquiry into an appeal by Williamsfield Developments Ltd into the refusal by East Riding of Yorkshire District Council of its application for outline planning permission for 67 dwellings on an unallocated greenfield site outside the settlement boundary at Hutton Cranswick.

A central issue in the appeal was whether the Council was able to demonstrate a deliverable 5 year housing land supply (‘5YHLS’). In 2017, the Council emphatically succeeded in fending off a sustained challenge to its claimed 5YHLS at 3 appeals by Gladman (in South Cave, Holm-on-Spalding Moor and Pocklington), two of which resulted in costs awards in favour of the Council. Those appeal decisions received a nationally high profile in the planning & development industry at the time and were treated as illustrative of the demanding task facing appellants seeking to interrogate a local authority’s 5YHLS following the Court of Appeal’s judgment in the St Modwen  case concerning the interpretation of the definition of ‘deliverable’ in the 2012 National Planning Policy Framework. In the Hutton Cranswick appeal, the Appellant sought to re-open the argument in reliance on the revised definition of ‘deliverable’ in the 2018 and 2019 versions of the NPPF and having regard to the accompanying Planning Practice Guidance. The Council contended that the Appellant had misunderstood the revised definition and that its application of the definition to the Council’s claimed 5YHLS was misplaced.

The forthcoming decision of the Inspector (Philip Ware DipTP MRTPI) is likely to be one of, if not the, leading early appeal decisions on the effect of the new NPPF and PPG on determining 5YHLS in the context of planning decision-making.

Charles Banner QC and Matthew Henderson appeared for East Riding of Yorkshire Council, instructed by Peter Atkinson of the Council’s legal department. Charles appeared in all 3 of the 2017 appeals in which the Council successfully defended its 5YHLS, with Matthew in the latter two.

:

Inquiries

Proposed mixed use urban extension to Newton Abbot at Wolborough Barton Farm, including 1210 dwellings as well as community, retail and employment development.

26/03/2019

This was a 5 day public inquiry into an appeal against the non-determination by Teignbridge District Council of a part-outline, part-full planning application for a proposed mixed use urban extension to Newton Abbot at Wolborough Barton Farm, including 1210 dwellings as well as community, retail and employment development.

The site was allocated by Policy NA3 of the Teignbridge Local Plan but since the allocation Historic England and Natural England objected on heritage and habitats grounds. The heritage objection related to the impact on the setting of the nearby Grade 1 listed St Mary’s Church, and the habitats objection alleged that it is not possible to rule out adverse impact on the integrity of the South Hams Special Area of Conservation, in relation to Greater Horseshoe Bats. Following those objections the Council did not determine the application. A duplicate application was recommended for approval by Council officers but refused by members of the Council’s Planning Committee.

The appeal was recovered by the Secretary of State for his own determination.

Charles Banner QC appeared for the Appellants (the Rew family, the owners of the appeal site), instructed by David Seaton of PCL Planning.

:

Inquiries

Proposed redevelopment comprising 43 retirement apartments and associated communal facilities at 2 South Street, Hythe

22/01/2019

This was a 3 day inquiry into an appeal by Churchill Retirement Living against the refusal by New Forest District Council of planning permission for the proposed redevelopment of a previously developed site at 2 South Street, Hythe, to comprise 43 retirement apartments and associated communal facilities.

The main issue in the appeal concerned the impact of the proposed development on various listed buildings in the vicinity as well as on the Hythe Conservation Area.

Charles Banner appeared for New Forest District Council.

Neil Cameron QC appeared for Churchill Retirement Living.

:

Inquiries

Proposed residential development at Highfield Farm, Topsham, Exeter

04/12/2018

Three day public inquiry into a proposed development of 155 residential units and a 64 bedroom care home on a greenfield site on the edge of the upmarket settlement of Topsham in Exeter. The site lies within the so-called ‘strategic gap’ between Topsham and Exeter to which Policy LS1 of the 2005 Exeter Local Plan and Policy CP16 of the 2012 Exeter Core Strategy relate. The issues in the appeal included the proper interpretation of those policies and whether they imposed an in-principle bar on development, the landscape and visual effects of the appeal scheme, and its impact on the local highway network.

On 14 January 2019 the Inspector published his decision allowing the appeal, together with an award of costs in the Appellant’s favour.

Charles Banner appeared for the Appellant, Waddeton Park Ltd, instructed by David Seaton of PCL Planning.

:

Inquiries

Proposed residential development on land off Charlotte Close, Hermitage, West Berkshire

13/11/2018

Six day public inquiry into a proposed 36 dwelling development on a site within the North Wessex Downs Area of Outstanding Natural Beauty on the edge of Hermitage. The site was allocated in the West Berkshire Housing Sites Allocations DPD for development of 15 dwellings. The main issues in the appeal concerned whether the proposal for a more substantial development of the site was acceptable having regard to its impact on the AONB, ecology, provision of public open space, design and settlement character.

Charles Banner appeared for the Appellant, CALA Homes (Chiltern) Ltd, instructed by Matthew Mainstone of Wedlake Bell LLP.

:

Inquiries

Proposed residential development at Longdene House, Haselmere, Waverley District

09/10/2018

Five day public inquiry into a proposed 27 dwelling development on an unallocated site in the Surrey Hills Area of Outstanding Natural Beauty on the edge of Haselmere. The issues included:

  • Whether the LPA could demonstrate a five year housing land supply having regard to the new definition of ‘deliverable’ in the revised NPPF and the guidance in the accompanying PPG.
  • The effect of the proposed development on the AONB.
  • The effect of the proposed development on the local highway network.

Charles Banner acted for the Appellant (Monkhill Ltd), instructed by David Neame of Neame Sutton Chartered Town Planners.

:

Inquiries

Proposed residential development at Chinnor, South Oxfordshire

03/07/2018

Following a hard fought 14 day public inquiry into two proposed developments on unallocated greenfield sites at Chinnor, South Oxfordshire District – a 140 dwelling proposal by Persimmon and a 54 dwelling proposal by CALA – the Inspector (Ken Barton) allowed Persimmon’s appeal and dismissed CALA’s appeal. The appeal decisions contain several important conclusions of wider significance including on the new wording regarding the gateways to the tilted balance in para.11 of the revised NPPF; the correct housing requirement figure in light of the Oxfordshire Growth Deal, the Standard Methodology, and Oxford’s Unmet Need; and the interpretation of permissively worded policies in a Neighbourhood Plan.

In winning their appeal, Persimmon succeeded in their primary argument that despite its size the appeal scheme would be infill and as such within the sole category of residential development that the Chinnor Neighbourhood Plan expressly supports. This meant that Persimmon, unlike CALA (whose development was not infill), did not need to rely on other arguments concerning the approach to be taken to development not expressly supported by the CNP (having regard to relevant principles of interpretation, the new NPPF, the HLS situation and the absence of allocations in the South Oxfordshire Core Strategy).

Charles Banner acted for Persimmon. CALA and SODC were represented by QCs.

The decision letters can be downloaded here and here.

This is Charles’ third consecutive success for Persimmon, following in the footsteps of recent proposals at Berkeley in Stroud District (in close proximity to the Grade 1 listed Berkeley Castle) and Capel St Mary in Babergh District. Charles and Persimmon have two further appeals already lined up for 2019 with hopes for similar success.

:

Inquiries

Proposed restrictions on Southern Water’s abstraction licences at the Rivers Test and Itchen

13/03/2018

This was a public inquiry into the Environment Agency’s proposed changes to three sets of surface water and groundwater abstraction licences at the River Test, River Itchen and Candover Stream in Hampshire. The Test and Itchen licences were held by Southern Water for the purpose of public water supply. The Candover licence was held by the Agency but Southern Water wished to use it for augmenting water in the Itchen in times of drought.

The Agency’s proposals were made on the ground that more restrictive conditions are necessary in order to achieve compliance with the Habitats Directive and Water Framework Directive.

Shortly before the pre-inquiry meeting in November 2017, Southern Water announced that it no longer contested the proposals for the Test and Itchen subject to the imposition of special conditions allowing increased abstraction during drought conditions on ground of imperative reasons of overriding public interest pursuant to Article 6(4) of the Habitats Directive. The Environment Agency’s position was that the appropriate means of dealing with drought conditions is through the drought order and drought permit regime under Part II, Chapter III of the Water Resources Act 1991.

The inquiry was due to last 3 weeks but at the opening the parties announced that agreement in principle had been reached between Southern Water and the Environment Agency pursuant to which Southern Water would withdraw its remaining objections and a water resource management scheme would be entered into by the parties pursuant to s.20 of the 1991 Act which would set out the process by which Southern Water will be able to ensure that it is ‘application ready’ to make an application for a drought permit order and by which such an application will be made and considered. The inquiry proceeded to hear representations from Fish Legal and other third parties on the proposed arrangements.

Charles Banner and Alistair Mills​ appeared for the Environment Agency.​

:

Inquiries

Land North and East of Mayfields, The Balk, Pocklington, East Riding of Yorkshire

08/08/2017

This was a six day public inquiry into an appeal by Gladman Developments Ltd against the decision of the East Riding of Yorkshire Council to refuse planning permission for Gladman’s proposed development of 380 dwellings, a 60-bed care home, a retail centre and other facilities and infrastructure on a greenfield site adjacent to Pocklington.

The critical issues were:

1) whether the Council was able to demonstrate a 5 year housing land supply, which in turn raised important issues of principle as to the approach to assessing the deliverability of sites which are allocated in a newly adopted local plan but which do not yet have planning permission; and

2) the implications of the development’s acknowledged breach of overarching spatial planning policies in the recently adopted East Riding of Yorkshire Local Plan.

Charles Banner appeared for the local planning authority, East Riding of Yorkshire Council, assisted by Matthew Henderson (pupil barrister at Landmark Chambers).

:

Inquiries

Land at Nosworthy Way, Wallingford, South Oxfordshire District

04/07/2017

In a decision letter issued on 31 August 2017, following a 5 day public inquiry in July 2017, Planning Inspector Christina Downes BSc DipTP MRTPI allowed an appeal by CALA Management Ltd and CAB International against the refusal by South Oxfordshire District Council for a major development in the Chilterns AONB comprising 91 dwellings and a new, state of the art global headquarters building for CABI to replace the out-dated former school buildings on the site which CABI currently use as their headquarters office.

CABI is an international not-for-profit inter-governmental development and information organisation focusing on the agricultural and environmental sectors. It was established pursuant to a UN level treaty and is headquartered in the UK at the appeal site near Wallingford. In recent years it has identified a compelling need for new headquarters premises owing to the current buildings on site having reached the end of their lifetime. On its own, however, the project would not be viable. Accordingly, CABI entered into a joint venture agreement with the housebuilder CALA pursuant to which residential development was also proposed to cross-subsidise the new office building. A previous proposal for a care home development to provide a similar cross-subsidy had been granted planning permission by the Council but proved commercially unviable and the permission lapsed.

The Council’s Planning Committee rejected the current proposal, against Officer advice, on grounds that included a failure to show exceptional circumstances justifying major development in the AONB in accordance with the test in NPPF para. 116 as also reflected in development plan policy, that the location was not suitable for residential development having regard to the extent of accessibility by sustainable transport means, as well as a failure to provide the 40% affordable housing which development plan policy targeted (despite 20% being agreed to be the maximum viable amount in the circumstances) and the provision of a market housing mix which did not provide pro rata equivalence to analysis in the latest Strategic Housing Market Assessment as to the extent of need for different sizes of dwelling in the District (despite the proposed mix also being agreed to have been dictated by viability considerations).

Allowing the appeal, the Inspector concluded:

  1. At best the Council had a 4.1 year housing land supply. Therefore the NPPF para. 14 tilted balance would be engaged in the event that there was compliance with NPPF para. 116 in relation to the AONB and NPPF paras. 132-134 in relation to impact on a nearby Grade II* listed church.
  2. Contrary to the Council’s submissions, harm other than harm to the AONB was not relevant to the assessment under NPPF para. 116.
  3. The delivery of market and 20% affordable housing was in the public interest, particularly given the lack of a 5 year housing land supply, and given the viability position there was no merit in the Council’s objection either to the amount of affordable housing or to the proposed mix.
  4. CABI was an organization of international importance and worldwide reputation, as well as a significant local employer. The provision of a new building for it would be in the public interest.
  5. There was no scope for providing the development elsewhere or in any other way – the most likely alternative was that CABI would move its headquarters overseas – therefore it was in the public interest for the development to happen on the appeal site.
  6. The special qualities of the AONB would not be diminished if the appeal scheme were to go ahead, albeit there would be some detrimental impact to the perception and experience of recreational users of the nearby public rights of way.
  7. Overall, exceptional circumstances existed so as to justify this major development in the AONB in accordance with NPPF para. 116 and the equivalent development plan policy.
  8. The limited ‘less than substantial’ harm to the listed church was clearly outweighed by the proposals’ public benefits, in accordance with NPPF para. 134.
  9. Therefore, there were no restrictive policies in the NPPF that pointed against the proposals and the tilted balance in NPPF para. 14 was accordingly engaged.
  10. Whilst accessibility to local facilities on foot was limited, cycling would be an attractive option as would the bus services which stopped right outside the appeal site. Overall there was compliance with NPPF and development plan policies relating to sustainable transport.
  11. Overall, the adverse impacts of granting permission did not significantly and demonstrably outweigh the benefits, and the limited breaches of development plan policies relating to the settlement hierarchy and development in the countryside outside settlement boundaries were outweighed by other material considerations.

The appeal decision can be downloaded here.

Charles Banner acted as sole counsel for the Appellants, instructed by Matthew Mainstone of Wedlake Bell.

:

Inquiries

Land at Back Lane, Holme-on-Spalding Moor, East Riding of Yorkshire

06/06/2017

In a decision issued on 21 August 2017, following a four day public inquiry in June 2017, Planning Inspector Olivia Spencer BA BSc DipArch RIBA dismissed an appeal by Gladman Developments Limited against the refusal of planning permission by East Riding of Yorkshire Council  for 175 residential dwellings (including 25% affordable housing) on land to the South of Back Lane, Holme-on-Spalding-Moor (“HOSM”).  The proposed development was located in the countryside, on an unallocated site outside, but adjacent to, the settlement boundary for HOSM.

Gladman advanced two main arguments at the Inquiry: (1) that the Council did not have a five-year housing land supply, therefore the tilted balance in NPPF para. 14 was engaged; and (2) that in any event, there were other material considerations which outweighed any breach of the development plan.  Both arguments were rejected by the Inspector.

The context of this appeal decision was particularly significant.  In particular:

  1. The Local Plan Strategy Document and Local Plan Allocations Document were both recently adopted in mid-2016, having been found sound by the Local Plan Inspector who also concluded that the Council could demonstrate a 5YHLS.  Subsequently, the Local Plan won both the plan-making category and overall Editor’s Award at Planning Magazine’s Planning Awards in June 2017.
  1. Three months before the Inquiry in March 2017, a different Inspector had dismissed another appeal by Gladman relating to a residential development at South Cave, again adjacent to but outside the settlement boundary. The Inspector in the South Cave appeal found that the Council could demonstrate a 5YHLS.

Gladman’s main attack on the 5YHLS was directed at local plan allocation sites where no planning application had yet been received and which were not under the control of developers or subject to what Gladman termed “developer interest”.  It was alleged that the lack of planning activity or developer interest, coupled with fact that these sites had previously been considered deliverable by the Council in earlier iterations of its SHLAA but had not in fact been delivered in the timescale indicated by those earlier SHLAAs, meant that the sites should no longer be considered deliverable and should be discounted from the 5YHLS.

The Council submitted that this applied a more exacting approach to deliverability of Local Plan allocations than the relevant provisions of the NPPF and PPG required. In particular, it submitted that, following the judgment of Ouseley J, in St Modwen Developments Limited v SSCLG [2016] EWHC 968 (Admin), there was an important distinction between deliverability and actual delivery – the former (argued he Council) did not require certainty or even probability that a site would in fact be delivered within 5 years but rather that it was capable of being delivered. Further, the Council submitted that the effect of Wainhomes (South West) Holdings Limited v SSCLG [2013] EWHC 597 (Admin) and the PPG at 3-031 and 3-033, the allocation of a site in an up-to-date Local Plan indicates that the site is deliverable unless there is clear evidence that there is no realistic prospect of the site being delivered within five years.

The Inspector found in favour of the Council and rejected Gladman’s approach focused on so-called “developer interest”. In particular at [15] the Inspector held:

“I agree therefore with the conclusions of the South Cave Inspector that neither an absence of delivery in the past, the lack of planning activity nor inclusion in the Prospectus [of deliverable sites in the district produced by the Council] indicate in themselves that allocated sites in this case are undeliverable.  The appellant’s contention made in respect of the vast majority of the 66 [disputed] sites […] that a failure to demonstrate active developer interest or planning activity on all or parts of the sites either now or in the past is an indication that they are not deliverable within the 5 year period is not therefore well founded.”

The Inspector went on to conclude that the proposed development was not in accordance with the development plan, because it was located outside of the settlement boundaries and thus in conflict with the Local Plan spatial policies. At para. 28-29, she rejected Gladman’s contention that this conflict was outweightd by the benefits associated with delivery of market and affordable housing, construction jobs, increased local spending and ecological improvements:

“28. All of these [benefits] however would be equally applicable to many other developments in other locations including those in higher tier settlements where occupiers would have access to significantly better and more extensive facilities, services, jobs and sustainable transport choices.  They are generic, non-specific benefits. […]

29. The essential point here is that whilst the benefits referred to could contribute in varying degrees towards sustainable development, they do not address the fundamental issue in this case, that of location.  The Local Plan is predicated on securing sustainable development and achieves this in large part by ensuring that the right level of development takes place in the right place.  The benefits put forward by the appellant are no more than would be expected of almost any housing development and do not provide specific justification for the development proposed in the location proposed.  They do not therefore in my judgement amount to other considerations sufficient to outweigh the presumption in favour of the Development Plan.”

This Inspector also ordered Gladman to pay the Council’s costs in relation to the 5YHLS issue on the basis that it was unreasonable to argue this issue in near identical form to that dismissed by the Inspector at the South Cave inquiry, without any material new site-specific evidence of a change in circumstances since that decision.

The appeal decision can be downloaded here and the costs decision here. They are of interest in relation to (i) the approach to assessing deliverability within the 5YHLS of local plan allocations (ii) the weight to be given in the planning balance to breaches of spatial planning / settlement boundary policies in up to date, recently adopted local plans and (iii) the approach of the Inspectorate to consistency of decision making in the context of a recent appeal raising very similar issues in a very similar context.

A third appeal by Gladman, relating to a proposed 380 dwelling residential-led development (also including a care home and a convenience retail unit) near Pocklington, was the subject of a two week inquiry in August 2017. Similar issues were also raised in that appeal. A decision is due in November 2017.

Charles Banner and Matthew Henderson (a pupil barrister due to commence full-time practice at Landmark in September 2017) appeared for East Riding of Yorkshire Council at the HOSM and Pocklington inquiries. Charles also appeared for the Council at the South Cave inquiry.

:

Inquiries

Land at Penns Mount, Kingsteignton, Teignbridge District, Devon

16/05/2017

This was a three day inquiry into two related appeals for a proposed development on an elevated site at Penns Mount, near Kingsteignton, one for 80 dwellings and one for up to 90 dwellings. The critical issues were landscape & visual impact, archeology and the proper interpretation of a development plan policy relating to the provision of a hilltop park on land which included but extended beyond the appeal site.

In a decision dated 15 June 2017 the Inspector allowed both appeals and made a costs award in favour of the Appellant.

Charles Banner appeared for the Appellant, Codex Land Promotion Ltd, instructed by David Seaton of PCL Planning.

:

Inquiries

Crouchland Farm, Plaistow West Sussex

25/04/2017

This inquiry concerned appeals by Crouchland Biogas Ltd against (i) the refusal by West Sussex County Council to grant planning permission for a proposed c.34,000tpa anaerobic digestion facility at Crouchland Farm and (ii) enforcement notices issued by Chichester District Council against the commencement of the development without prior planning permission.

The inquiry heard expert evidence on traffic, noise, air quality, landscape and visual impact, operational matters and planning. At the heart of the dispute between the parties was whether Crouchland Biogas Ltd was right to assert that, having regard to the existing consents applicable to the site, it had a fallback position involving a greater impact than the proposed development.

Reuben Taylor QC appeared for the Appellant, Crouchland Biogas Ltd.

Charles Banner appeared for West Sussex County Council.

Gwion Lewis appeared for Chichester District Council.

On 10 October 2017 the Inspector published her decision dismissing the appeals and upholding the County Council’s refusal of permission as well as the enforcement notices issued by the District Council.

:

Inquiries

North-South Interconnector

22/02/2017

This was the second stage of the reopened public inquiry held by the Planning Appeals Commission for Northern Ireland into the Northern Ireland element of the North-South Interconnector, a 400kv strategic link between the electricity grids of the Republic of Ireland and Northern Ireland. Permission for the Republic of Ireland element of the Interconnector was granted by the An Bord Pleanala in December 2016. The Interconnector would involve 85 miles of overhead lines and pylons and is the largest proposed infrastructure project in Northern Ireland in recent times.

The planning application for the Northern Ireland element of the Interconnector will be determined by the Northern Ireland Minister for Infrastructure, having regard to the recommendation of the Planning Appeals Commission which has been appointed to hold the public inquiry. The inquiry originally opened in 2012 but was subsequently adjourned after the need for amendments to the proposal was identified. The first stage of the reopened inquiry was held in June 2016 to consider objectors’ arguments that the application was contrary to EU environmental law, including in relation to transboundary consultation with the Republic of Ireland and its residents concerning cross-border effects. The second stage is to consider the merits of the proposal.

Scott Lyness with William Orbinson QC of the Bar Library appeared at the inquiry for SONI, the electricity system operator for Northern Ireland and part of the EirGrid group, which is the promoter of the North-South Interconnector (instructed by Carson McDowell LLP).

Lisa Busch QC appeared for Armagh, Banbridge and Craigavon Council.

John Litton QC and Charles Banner appeared for the Department for Infrastructure and will be advising the Department upon the Minister’s ultimate decision (instructed by the Departmental Solicitor’s Office.

:

Inquiries

Land East of Little Wold Lane, South Cave, East Riding of Yorkshire

17/01/2017

This case concerned a proposal by Gladman Developments Ltd for a 119 dwelling development on a greenfield adjacent to the village of South Cave in the East Riding of Yorkshire.

The critical issues were:

1) whether the Council was able to demonstrate a 5 year housing land supply, which in turn raised important issues of principle as to the approach to assessing the deliverability of sites which are allocated in a newly adopted local plan but which do not yet have planning permission; and

2) the effect of the development on the landscape, in particular from viewpoints on the Yorkshire Wolds Way National Trail.

In a decision letter dated 13 March 2017 the Inspector dismissed the appeal.

Charles Banner appeared for the local planning authority, East Riding of Yorkshire Council.

:

Inquiries

Proposed residential development at Mansfield Bowling Club, Croftdown Road, London Borough of Camden

26/10/2016

This was an appeal against the refusal by the London Borough of Campden’s Planning Committee (against the recommendation of its professional planning officers) of an application by the Generator Group for planning permission to build a high quality 21-dwelling development, together with improvements to the tennis club on the site and the provision of almost 3000sqm of new public open space, at the site of the former Mansfield Bowling Club (which had been defunct for a number of years).

Planning permission was refused by the Committee and opposed by several local residents on the basis that an alternative leisure use of the site would be suitable, and as a result the requirements of Policy DP15 of the Camden Development Policies DPD and para. 73 of the NPPF had not been complied with.

The Appellant contended that it was sufficient to comply with these policies to show that there were adequate alternative bowling facilities in the area, which the Council accepted there were, and alternatively that any alternative leisure use would not in fact be viable.

Charles Banner appeared for the Appellant, the Generator Group, instructed by Iceni Projects.

On 27 January 2017 the Inspector published his decision, allowing the appeal and making a full award of costs in favour of the Appellant.

:

Inquiries

Proposed residential and employment development at Harlow Gateway South and Foster Street South, Epping Forest District

11/10/2016

This was a 4 day inquiry into two planning appeals relating to proposed major development in the Green Belt involving the relocation of Hargreaves Services plc’s logistics operations to new bespoke premises on the edge of Harlow and the redevelopment of its existing site at Foster Street South into a 65-dwelling development.

Epping Forest District Council had refused planning permission for both schemes on the basis that they were inappropriate development in the green belt for which very special circumstances had not been shown. They also contended that the Foster Street South residential development would not be sustainable due to its inaccessibility to services and facilities by public transport.

The Appellants argued that very special circumstances existed for both developments having regard in particular to (i) the role they would play in allowing a major local employer to remain and grow in the District, (ii) the serious housing supply shortfall in the District, in circumstances where the Council accepted it had at most a 1.35 year housing land supply (iii) the fact that Harlow Gateway South was a draft allocation in the Council’s emerging local plan, (iv) the previously developed nature of much of the Foster Street South site (v) the unsuitability of Foster Street South for Hargreaves’ plans for growth which would have significant impacts on the amenity of neighbouring residential properties, and (vi) the fact that 93% of the District is within Green Belt boundaries which had last been reviewed in 1998, and were therefore out of date and having a serious effect in constraining housing and employment growth.

In relation to the sustainability of Foster Street South for residential development, amongst other things the Appellants relied upon an innovative proposal to provide free electric cars for 15% of the development, as well as an additional pooled electric car for use by all residents and free electric car charging points for each home, so as to ensure that as many as possible car trips to and from the site would be in electric vehicles which would amount to sustainable transport.

Charles Banner appeared for the Appellant, instructed by Iceni Projects.

:

Inquiries

Warwick Local Plan Examination in Public

04/10/2016

Jaguar Land Rover was a participant at several sessions of the Examination in Public of the Warwick District Local Plan relating to its nationally significant major employment sites in Warwick District, seeking to ensure that the Local Plan allowed JLR maximum flexibility to grow its business at these sites during the plan period.

Charles Banner appeared for Jaguar Land Rover, instructed by Robert Davies of Gerald Eve. Charles previously appeared for JLR in relation to similar issues at the Stratford upon Avon Local Plan EiP in 2015.

:

Inquiries

Land at Winslade Farm, South Hams, Devon

05/09/2016

This was a three day public inquiry into a called-in application by the Perraton Partnership for a 34.2m height wind turbine in the South Devon AONB has concluded today. The issues in the inquiry included the extent to which the development would affect several heritage assets and the AONB, and whether that impact would be outweighed by the scheme’s benefits including the support it would give to the applicants’ substantial and energy-consuming dairy business. The Secretary of State’s decision will also shed light on his approach to the transitional provisions in the Written Ministerial Statement of 18 June 2015 on wind turbine schemes, the interpretation of which was the subject of debate between the parties.

A notable feature of the inquiry was that the applicants’ sole expert witness withdrew the entirety of his evidence during cross-examination by counsel for the Rule 6 Party objectors, having accepted that he was not, as required by the RIBA Code of Conduct, an impartial expert because he was related to the applicants.

Charles Banner appeared for the Rule 6 Party objectors, instructed by Susan Ring of Harrison Grant LLP.

On 20 January 2017 the Secretary of State announced his decision, upholding the Inspector’s recommendation to dismiss the application as contended for by the Rule 6 Party.

:

Inquiries

Land adjacent to Canonbury Road, Berkeley, Stroud District

02/08/2016

This was a two week inquiry into a proposal by Charles Church Developments / Persimmon Homes Ltd for a 188 dwelling development on the edge of the historic town of Berkeley.

Following extensive pre and post application consultation, and two amendments to the application in response to feedback from Stroud District Council, the Council’s case officer recommended that planning permission be granted. By a 5-4 majority, however, Members of the Development Control Committee voted to refuse planning permission on the grounds that (i) the proposal would harm the setting of the Grade I listed Berkeley Castle, its associated Registered Park and the Berkeley Conservation Area and (ii) the landscape and visual impact of the development would be unacceptable.

The main issues for the inquiry were:

1) whether the Council could demonstrate a 5 year housing land supply;

2) whether and if so to what extent the development would harm the heritage assets cited in the reasons for refusal

3) whether and if so to what extent the development would have a harmful effect on the landscape

4) whether, overall, the proposal was sustainable development having regard to the above considerations as well as the benefits of the development and the settlement hierarchy policies within the Council’s recently adopted Local Plan.

On 21 November 2016 the Inspector published his decision allowing the appeal.

Charles Banner appeared for Persimmon Homes Ltd, instructed by Bilfinger GVA.

Sasha Blackmore appeared for Stroud District Council, instructed by the Council Solicitor.

:

Inquiries

Tryone-Cavan Interconnector

21/06/2016

This inquiry concerned two planning applications by SONI Ltd (the electricity transmission system operator for Northern Ireland) for the Northern Ireland section of the proposed Tyrone-Cavan Electricity Interconnector, a substantial electricity infrastructure project including a new substation and a 400Kv overhead transmission line connecting the electricity grids of Northern Ireland and the Republic of Ireland. The inquiry previously adjourned upon opening in 2012 due to the PAC’s concerns about the adequacy of advertising for the first application and its accompanying environmental statement. A parallel application for the Republic of Ireland section of the project was the subject of hearings before the An Bord Pleaná in spring 2016.

The first stage of the inquiry considered legal issues relating, amongst other things, to environmental assessment and proposed amendments to the first application. The PAC is to report on those issues and the Department for Infrastructure will determine them. If the Department indicates that it is satisfied that the applications can proceed to a substantive inquiry, the PAC will convene a second stage of the inquiry which will consider the merits of the applications.

For information about the project, click here.

Scott Lyness appeared for SONI Limited (with William Orbinson QC), instructed by Carson McDowell LLP.

Charles Banner appeared for the Department for Infrastructure, instructed by the Departmental Solicitor.

:

Inquiries

Catfield Fen, Broads Special Area of Conservation, Norfolk

19/04/2016

This was a three-week inquiry into two appeals by Mr Andrew Alston under s.43 of the Water Resources Act 1991 regarding the Environment Agency’s refusal to renew his two licences to abstract water in order to irrigate salad and potato crops on his land at Catfield, Norfolk. The licences were refused on the basis that the Environment Agency could not rule out the risk that continued abstraction would harm the integrity of the Broads Special Area of Conservation and Broadlands Special Protection Area, which are protected under the Habitats Directive and Regulations, in particular due to alleged impact on the chemistry at Catfield Fen and consequent changes to its vegetation.

Mr Alston contended in his appeals that it was clear beyond reasonable scientific doubt that continued abstraction will not adversely affect the integrity of the SAC and SPA, and alternatively that there were imperative reasons of overriding public interest justifying a short-term renewal of his licences until March 2018 whereupon the future of the much larger Anglian Water abstraction in the vicinity would be known.

The issues in the inquiry included complex technical evidence on the hydrology and ecology of Catfield Fen as well as legal argument over the proper interpretation of the Habitats Directive.

Charles Banner appeared as sole counsel for the appellant, Mr Alston (instructed by Birketts LLP).

:

Inquiries

Land at Denham Lane, Huncote, Blaby District, Leicestershire

13/04/2016

This was a two day inquiry into Westleigh Developments’ proposal for a 60 dwelling development. Planning permission had been refused by Blaby District Council on the basis that the development was not in a sustainable location having regard to its accessibility by means other than the private car.

The main issues at the inquiry were (i) the extent to which residents of the development would be able to access services, facilities and employment by means other than the car, (ii) whether the development complied with the housing distribution policies of the development plan and (iii) the proper application of the NPPF in this context.

Following the inquiry, on 28 June 2016 the Inspector published her decision allowing the appeal.

Charles Banner appeared for the appellant, Westleigh Developments, instructed by Marrons Shakespeares LLP.

Alistair Mills appeared for the local planning authority, Blaby District Council, instructed by the Council’s legal department.

:

Inquiries

Keuper Gas Storage Project

16/03/2016

Examination hearings into the Keuper Gas Storage Project (“KGSP”) Development Consent Order. The KGSP is a nationally significant infrastructure project involving the creation of underground cavities in salt rock that would be used to store natural gas to help meet the UK’s growing energy needs. Full information about the project is available at http://www.kgsp.co.uk/

Charles Banner appeared as sole counsel for the promoters of the project, Keuper Gas Storage Ltd, a wholly owned subsidiary of INEOS Enterprises Group, and INOVYN Enterprises Ltd, a joint venture between INEOS and the Solvay Group (instructed by Zyda Law).

Scott Lyness represented the University of Manchester.

The Secretary of State for Business, Energy and Industrial Strategy granted the DCO on 15 March 2017.

:

Inquiries

Exeter Road, Topsham

23/02/2016

This was an appeal against Exeter City Council’s refusal to grant planning permission for a 60 bed residential care home, 44 assisted living apartments and 55 age restricted dwellings on the edge of Topsham.

The main issues included:

(1) whether the Council could demonstrate that it had a five year housing land supply, which turned on whether it was appropriate to include student accommodation within the housing land supply; and

(2) whether the development was in breach of development plan policies relating to the ‘Topsham Gap’ between Exeter and Topsham, and if so what weight should be given to those polices.

Charles Banner appeared for the appellant developer, Waddeton Park Ltd (instructed by Stephens Scown LLP)

Stephen Whale appeared for Exeter City Council (instructed by the Council’s Legal Department).

On 28 April 2016 the Inspector published his decision allowing the appeal, together with a partial award of costs in the Appellant’s favour.

:

Inquiries

Chippenham Site Allocations Plan DPD Examination in Public

10/11/2015

This was the Examination in Public into Wiltshire Council’s Chippenham Site Allocations Plan DPD.

Charles Banner appeared for Chippenham 2020 LLP (instructed by CSJ Planning) in support of the allocation within the DPD of their proposal for a large urban extension to the East of Chippenham.

:

Inquiries

Duke’s Lodge, 80 Holland Park, London W11

27/10/2015

This was a two week inquiry into an appeal against the Royal Borough of Kensington and Chelsea’s refusal to grant planning permission for Candy & Candy’s proposal for a new luxury apartment building in Holland Park. The issues included (i) the impact of the development on the character and appearance of the Holland Park Conservation Area (ii) the design of the proposed apartment building (iii) the construction impact and whether the proposal was in accordance with RBKC’s policy on basements and (iv) the appropriate affordable housing contribution having regard to the evidence on viability.

Following the inquiry, on 29 January 2016 the Inspector published her decision allowing the appeal and granting planning permission for the development.

Christopher Katkowski QC and Charles Banner appeared for the Appellant, Dukes Lodge (Guernsey) Ltd, a subsidiary of Candy & Candy’s CPC Group.

:

Inquiries

Money Hill, Ashby-de-la-Zouch, North West Leicestershire

08/09/2015

This was an inquiry into an appeal by the Money Hill Consortium (comprised of Cogent Land LLP, Bloor Homes and Taylor Wimpey Plc) against the refusal by North West Leicestershire District Council of the Consortium’s application for outline planning permission for the development of 605 dwellings together with associated facilities and infrastructure on a greenfield site at Money Hill, Ashby-de-la-Zouch.

The issues include (i) the sustainability of the appeal scheme from a transport perspective (ii) the impact of the development on the local highway network and (iii) affordable housing and viability.

The appeal was recovered by the Secretary of State for his own determination. On 15 February 2016 the Secretary of State published his decision allowing the appeal and granting planning permission for the development.

Charles Banner acted as sole counsel for the Money Hill Consortium, instructed by Iceni Projects and Clyde & Co LLP.

:

Inquiries

City of Westminster (Tollgate Gardens Estate NW6) Compulsory Purchase Order 2014

09/06/2015

This was an inquiry into a CPO made by Westminster City Council under s.226(1)(a) of the Town and Country Planning Act 1990 to facilitate the comprehensive re-development of a large 1960s/1970s housing estate. This was a flagship project of the Council’s Housing Renewal Strategy, aimed at improving both the quality and quantity of its housing stock.

Following the inquiry, on 13 October 2015 the Secretary of State published his decision confirming the CPO in its entirety.

Charles Banner acted for the City Council promoting the CPO, instructed by Tri-Borough Legal Services.

:

Inquiries

Hatchfield Farm, Newmarket

14/04/2015

This was a three week inquiry into a proposed 400 dwelling development at Hatchfield Farm on the edge of Newmarket. A previous proposal for 1200 dwellings had been the subject of an unsuccessful appeal to the Secretary of State in 2011-2012 following the quashing by the High Court of the allocation of the site in the Forest Heath Core Strategy: see Save Historic Newmarket Ltd. v Forest Heath District Council [2011] EWHC 606 (Admin). The subsequent application for 400 dwellings was the subject of a resolution to grant by Forest Heath District Council’s planning committee, but was called in by the Secretary of State for his own determination.

The inquiry centred on the impact that the development would have on the horse racing industry centered in Newmarket and its potential effect on Chippenham Fen SSSI (part of the Fenland SAC) due to abstraction required to supply the development with water. Expert evidence was heard on the subjects of economics, equine behavior, the horse racing industry, hydrology, ecology and planning.

Christopher Boyle QC and Andrew Parkinson appeared for the Applicant, Lord Derby, instructed by Trevor Blaney of Blaney Planning.

David Elvin QC and Charles Banner appeared for the Newmarket Horsemen’s Group, who were a Rule 6 party to the inquiry and the principal objectors, instructed by Simon Rawlins of Bracher Rawlins LLP.

On 1 September 2016 the Secretary of State published his decision refusing planning permission (departing from the recommendation of his Inspector).

:

Inquiries

Central Bedfordshire Development Strategy Examination in Public

03/02/2015

Charles Banner appeared for O&H Properties, the promoters of a new settlement of up to 5,000 dwellings at Marston Valley in Bedfordshire, at the sessions of the Central Beds Development Strategy EiP on compliance with the Duty to Co-Operate and the soundness of the proposed housing requirement.

On 19 February 2015 the Inspector published his findings, holding that (as had been submitted by O&H Properties) the Council had not complied with the Duty to Co-Operate.

:

Inquiries

Stratford upon Avon Core Strategy Examination in Public

08/01/2015

Charles Banner appeared for Jaguar Land Rover (instructed by Gerald Eve LLP) at the EiP sessions in support of the allocation in Policy GLH of the submission draft Core Strategy of 100ha of land for the expansion of its engineering, testing and design facilities at Gaydon which currently employ over 6,000 people and are of national economic significance. The Inspector’s subsequent interim findings endorsed the principle of this allocation.

:

Inquiries

Land off Cheltenham Road, Bredon, Wychavon District

02/12/2014

This was a five day inquiry into a proposed 33 dwelling development by Knarsboro Homes Ltd on a greenfield site. The issues included:

  1. the appropriate requirement figure for calculating whether the Council had a five year housing land supply;
  2. the level of evidence required to enable the conclusion that sites without planning permission were deliverable within five years and should therefore be included within the five year housing land supply;
  3. whether the whether the development plan was ‘out of date’ within the meaning of NPPF para. 14 even if there was a five year housing land supply;
  4. the adequacy of the ecological survey work undertaken;
  5. the landscape and visual impact of the development; and
  6. the sustainability of the site, housing land supply issues and whether the development plan was ‘out of date’ within the meaning of NPPF para. 14.

Charles Banner and Heather Sargent appeared for the Appellant, Knarsboro Homes Ltd, instructed by RPS Planning.

:

Inquiries

Land to the East of St Edmunds Lane, Great Dunmow, Uttlesford District

26/11/2014

This was a four-day inquiry into proposed 22 dwelling custom/self build home development. It is the first planning appeal to test the policy relating to custom/self-build homes in NPPF para. 50 (which requires local planning authorities to plan positively for custom/self-build homes) and the October 2014 DCLG Consultation Paper Right to Build: Supporting custom and self-build which seeks the provision of 100,000 such units within the next decade. On 15 May 2015 the Inspector published her decision allowing the appeal.

Charles Banner appeared for the Appellant, the Saint Edmunds Lane Partnership, instructed by Iceni Projects.

:

Inquiries

Proposed diversion of Footpath 36, Rochford, Essex

29/07/2014

This was a two day inquiry concerning the confirmation of a footpath diversion order made by Rochford District Council pursuant to s.119 of the Highways Act 1980 to divert a footpath which ran through the airside area of London Southend Airport, a recently redeveloped and fast growing airport for commercial and passenger flights, used by over 1 million passengers in 2013-2014.

The issues included:

  1. Whether it had been demonstrated that the proposed diversion was not substantially less convenient than the existing route; and
  2. Whether it was expedient to confirm the order, having regard to the statutory material considerations under s.119 of the 1980 Act as well as all other relevant considerations, including in particular the requirements of EU Regulations 300/2008 and 185/2010 on common standards for aviation security throughout the EU which require a physical obstruction between the landside and airside parts of an airport and the imposition of restrictions on the persons entitled to go airside. 

Following the inquiry, on 8 October 2014 the Inspector published his decision confirming the order.

Heather Sargent appeared for Rochford District Council, the order-making authority (instructed by the Council Legal Department).

Charles Banner appeared for London Southend Airport Company Limited, the applicant for the diversion order (instructed by Ian Ginbey of Clyde & Co LLP).

:

Inquiries

Porsche Centre West London, Chiswick Garage, Cedars Road, London

09/07/2014

In an appeal decision dated 31 July 2014, the Inspector (David Richards BSocSci DipTP MRTPI) allowed Porsche Cars (Great Britain) Ltd’s appeals against the refusal of Hounslow Borough Council of two applications for planning permission for the extensive remodelling and extension of the well-known flagship Porsche Centre on the A4 in Chiswick. The works were intended to update the appearance of the existing building and to provide future capacity to meet Porsche’s anticipated future business in West London, as well as enhancing the contribution that the Centre makes to Porsche’s brand through its prominent position in a location passed by over 80,000 vehicles per day.

Permission had been refused for the first application on the grounds that the redevelopment would harm the adjacent Wellesley Road Conservation Area and would have an unacceptable impact on the living conditions of neighbouring properties, the gardens of which back on to the area of the proposed extension. A second application was submitted for a smaller scheme, which Porsche contended was the smallest viable means of remodelling and extending the existing building. The Council refused permission for the second scheme on the same grounds as the first.

Allowing the appeals, the Inspector held that neither scheme would have an adverse impact on residential amenity, that the remodelling of the existing building would represent a considerable enhancement on its present appearance, that the proposals would at the very least preserve the character and appearance of the Conservation Area, and that the economic benefits of the two schemes were significant material considerations weighing in favour of granting permission.

Following the hearing, on 31 July 2014 the Inspector published his decision allowing both appeals.

Charles Banner appeared for the successful appellant, Porsche Cars (Great Britain) Ltd, instructed by Marcus Bate of Pinsent Masons LLP.

:

Inquiries

Methley Quarry, Leeds

07/07/2014

This was a three day inquiry into an appeal by Lafarge Aggregates Ltd against the Environment Agency’s refusal of a waste recovery permit for the backfilling of a quarry with 69,581 tonnes of inert waste to reinstate a footpath diverted to enable the quarry’s excavation.

The central issue was whether the proposed activity amounted to waste recovery or waste disposal under Article 3 of the EU Waste Framework Directive 2008/98/EC. Lafarge, who were represented by leading counsel, contended that the Environment Agency had misinterpreted the Directive in concluding that the proposed activity was not waste recovery. The Inspector disagreed and upheld the Environment Agency’s decision. He concluded that in the light of answers given by Lafarge’s main witness in cross-examination by the Environment Agency’s counsel, it could not be concluded that the proposed activity would be undertaken to the same extent or at all using non-waste materials in the event that waste could not be used, and therefore the definition of “recovery” was not satisfied.

Charles Banner appeared as sole counsel for the Environment Agency, who successfully resisted the appeal.

:

Inquiries

Apple Hill care home, Henley

29/04/2014

This was a five day inquiry into two appeals, the first under s.174 of the Town and Country Planning Act 1990 against an enforcement notice issued by the Council of the Royal Borough of Windsor and Maidenhead against the use of a residential care home in breach of a condition restricting the use to the “elderly”, and the second under s.78 of the 1990 Act against the Council’s the refusal of planning permission for the premises also to be used as a community mental hospital.

The issues included:

  • Whether the condition’s purported restriction on the premises’ use for the “elderly” was invalid on grounds of uncertainty.
  • Whether upholding the enforcement notice would result in unjustified discrimination on grounds of age, contrary to Article 14 ECHR taken together with Article 8.
  • Whether, having regard to the expert mental healthcare, noise, traffic and planning evidence, the use of the premises for persons other than the “elderly” and/or as a community mental hospital would cause demonstrable harm to the amenity of neighbouring properties and/or amount to inappropriate development in the Green Belt.

Following the inquiry, on 21 October 2014 the Inspector published her decision allowed both appeals.

Sasha White QC and Charles Banner appeared for the appellant, Henley Healthcare Ltd, instructed by Woolf Bond Planning LLP.

Rupert Warren QC appeared for the Council, instructed by the Solicitor to the Royal Borough of Windsor and Maidenhead.

:

Inquiries

Apple Hill care home, Henley

29/04/2014

This was a five day inquiry into two appeals, the first under s.174 of the Town and Country Planning Act 1990 against an enforcement notice issued by the Council of the Royal Borough of Windsor and Maidenhead against the use of a residential care home in breach of a condition restricting the use to the “elderly”, and the second under s.78 of the 1990 Act against the Council’s the refusal of planning permission for the premises also to be used as a community mental hospital.

The issues included:

  • Whether the condition’s purported restriction on the premises’ use for the “elderly” was invalid on grounds of uncertainty.
  • Whether upholding the enforcement notice would result in unjustified discrimination on grounds of age, contrary to Article 14 ECHR taken together with Article 8.
  • Whether, having regard to the expert mental healthcare, noise, traffic and planning evidence, the use of the premises for persons other than the “elderly” and/or as a community mental hospital would cause demonstrable harm to the amenity of neighbouring properties and/or amount to inappropriate development in the Green Belt.

Following the inquiry, on 21 October 2014 the Inspector published her decision allowed both appeals.

Sasha White QC and Charles Banner appeared for the appellant, Henley Healthcare Ltd, instructed by Woolf Bond Planning LLP.

Rupert Warren QC appeared for the Council, instructed by the Solicitor to the Royal Borough of Windsor and Maidenhead.

:

Inquiries

Newmarket retail inquiry

26/02/2014

This was a six day inquiry into an appeal by Unex (No 3) Ltd against the refusal by Forest Heath District Council of planning permission and listed building consent for a retail-led regeneration scheme on the edge of Newmarket town centre, including a 3716sqm ASDA food store, 4 retail units, a cafe and restaurant, an art gallery and the restoration of a complex of highly dilapidated listed buildings on the High Street frontage.

The issues included:
1) whether the development would be in breach of development plan policies designed to safeguard the horse-racing industry in Newmarket, having regard to the site’s former use as a racehorse training establishment;

2) whether those policies were compliant with the NPPF, having regard to the judgment of Kenneth Parker J in Colman v SSCLG [2013] EWHC 1138 (Admin);

3) whether the impact of the development on the conservation area within which it would be located would be substantial or less than substantial, and whether the appropriate test in NPPF paras 133-134 to justify the degree of harm was satisfied; and

4) whether the scheme’s impact on the viability and vitality of the town centre would be beneficial by virtue of clawing back trade lost to out of centre locations (as alleged by the appellant) or harmful by virtue of its cumulative impact taken together with recently consented out of centre retail schemes proposed by Tesco and Morrisons (as alleged by the Council).

Charles Banner and Heather Sargent appeared for the Appellant, instructed by Savills and The Unex Group.

:

Inquiries

Runcorn Energy from Waste

21/01/2014

This was an inquiry into the refusal by Halton Borough Council to vary a condition on the planning permission for the 810,000tpa Runcorn Energy from Waste facility limiting the amount of refuse derived fuel to be transported by road (as opposed to by rail or by water) to 85,000tpa. The EfW is operated by Viridor and designed to meet c.30% of the electricity demands of Ineos Chlorvinyls’ chlorine manufacturing plant in Runcorn, which has the greatest electricity demand of any single site in the UK. The evidence presented on behalf of Ineos and Viridor was that if the condition was maintained then the EfW would either operate at under-capacity (meaning that it would divert significantly less waste from landfill) and/or it would be forced to source waste over long-distance rail journeys which would generate greater greenhouse gas emissions than short-distance road journeys, and therefore the condition was environmentally counter-productive as well as threatening the economic benefits of the EfW in securing a nationally significant industrial plant with a vast electricity demand from fluctuations in the energy market.

On 5 March 2015 the Inspector published her decision allowing the appeal together with a full award of costs in favour of the Appellant.

Nathalie Lieven QC and Charles Banner appeared for the Appellant, Ineos Chlorvinyls, instructed by Zyda Law LLP.

:

Inquiries

Land at Garden Farm, Blofield, Broadland District

19/12/2013

This was a two day inquiry into an appeal by the Generator Group against the refusal of Broadland District Council to grant it planning permission for a 75 dwelling development on an unallocated greenfield site in Blofield. The issues included (i) the approach to be taken to quantifying the Council’s objectively assessed five year housing needs and to calculating its supply of deliverable sites, (ii) whether the scheme should be refused on grounds of prematurity pending the Council’s Site Allocations DPD, and (iii) the proper application of the presumption of sustainable development in NPPF paragraph 14. On 16 January 2014, the Inspector published his decision in which he allowed the appeal, granted permission for the development and made a full award of costs in favour of the Generator Group.

Charles Banner appeared for the Appellant, the Generator Group.

:

Inquiries

Rutland Site Allocations DPD Examination in Public

19/11/2013

This stage of the EiP into the Rutland Site Allocations DPD considered the issue of compliance with the relevant legal requirements. The DPD contained no allocations for the Council’s second biggest settlement, Uppingham (contrary to the Council’s Core Strategy, which expressly envisaged that it would), on the ground that such allocations would be set out in the emerging Uppingham Neighbourhood Plan, if adopted.

Larkfleet Homes, the owners of significant development interests in Uppingham, objected to this approach on the basis that (i) it was contrary to the Planning and Compulsory Purchase Act 2004 and the Local Plan Regulations 2012 for the DPD completely to hive off the question of allocations for part of its area to the Neighbourhood Plan and (ii) the Sustainability Appraisal for the DPD had failed to assess the environmental effects of the policy vacuum resulting from the absence of allocations for Uppingham until such time as a Neighbourhood Plan was adopted and/or the environmental effects of the reasonable alternatives to this approach (in particular, the approach originally envisage by the Core Strategy of the DPD containing allocations for Uppingham) and/or the cumulative effects of the DPD and the Neighbourhood Plan in combination.

Charles Banner appeared at the EiP on behalf of Larkfleet Homes, instructed by Marrons Shakespeares LLP.

:

Inquiries

Land adjacent to Sims Metals, near Pebworth, Worcestershire

12/11/2013

This was a six day inquiry into an appeal by Codex Land Promotions Ltd against the refusal of Wychavon District Council to grant planning permission for a mixed use development including 380 dwellings, 5000 sqm commercial floorspace and  community/leisure facilities adjacent to the Long Marston Depot site (nr Pebworth) where St Modwen have obtained planning permission for a 500 dwelling mixed use development which is in the process of being built out.

The primary issues on which the inquiry focused were whether the Council was able to demonstrate a five year supply of deliverable housing sites to meet its objectively assessed needs, whether the site was in an ‘unsustainable location’ as contended by the Council and whether granting permission was premature pending the adoption of the emerging South Worcestershire Development Plan, which was intended to be the future development plan for the area.

Charles Banner acted for the Appellant, Codex Land Promotions Ltd, instructed by Foxeley Tagg Planning.

On 2 July 2014, the Secretary of State, in accordance with the Inspector’s recommendation, allowed the appeal and granted planning permission.

:

Inquiries

Land off Wyngates, Blofield, Broadland District

16/10/2013

This was a two day inquiry into an appeal by Norfolk Homes Ltd against the refusal of Broadland District Council to grant it planning permission for a 64 dwelling development on an unallocated greenfield site in Blofield. The issues included (i) the approach to be taken to quantifying the Council’s objectively assessed five year housing needs and to calculating its supply of deliverable sites, (ii) whether the scheme should be refused on grounds of prematurity pending the Council’s Site Allocations DPD, and (iii) the proper application of the presumption of sustainable development in NPPF paragraph 14.

Charles Banner (instructed by Iceni Projects) appeared for the Generator Group, the promoters of a further 75 dwelling development the inquiry into which was listed to be heard a few weeks afterwards by the same Inspector, with both appeal decisions to be listed on the same date.

:

Inquiries

The Garden House, Hampstead Heath, LB Camden

24/09/2013

This was a two day inquiry into an appeal against the decision of Camden LBC’s Planning Committee, against officer advice, to refuse planning permission for alterations and extensions to the well-known Garden House building in the Vale of Health. The appeal scheme is designed by the award winning architect James Gorst and, in conjunction with two certificates of lawfulness for permitted development under Part 1 of Schedule 2 to the General Permitted Development Order, would result in the creation of dormer and basement extensions along with the cladding of the entire building in slate. The site is in Metropolitan Open Land, which attracts the same protection as Green Belt, and the issues at the inquiry include the proper interpretation of the exemptions to inappropriate development in the Green Belt under paragraph 89 of the NPPF, including the new sixth bullet relating to “the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use… which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development”.

The application and appeal attracted considerable local attention, following litigation of a previous planning permission for redevelopment of the Garden House which had been the subject of litigation which reached the Court of Appeal in R (Heath & Hampstead Society) v. Camden LBC [2008] 3 All E.R. 80.

On 30 October 2013 the Inspector published his decision letter accepting the entirety of the Appellant’s arguments and allowing the appeal.

Charles Banner appeared for the appellant, Mr Alex Vlachos, instructed by Lee Bolton Monier Williams LLP.

:

Inquiries

Former Fremington Army Camp, Military Road, Fremington, North Devon

16/04/2013

Six day inquiry into proposed 277 dwelling residential development, raising highway safety and heritage issues.

Charles Banner appeared for the Rule 6 Party, Army Camp Safe Access Group, instructed by PCL Planning Ltd.

:

Inquiries

Holywell Spring Farm, Ashby de la Zouch, North West Leicestershire

19/02/2013

This case concerns an appeal by CLB (Ashby) Ltd against the refusal by North West Leicestershire District Council of their application for planning permission for a 400 dwelling urban extension to Ashby de la Zouch.

The Council’s draft Core Strategy, due for submission to the Secretary of State in summer 2013, proposes that Ashby’s housing needs should be met by means of a 605 urban extension on another site, controlled by the Money Hill Consortium (comprised of Bloor Homes, Cogent Land LLP and Taylor Wimpey).

The Council refused planning permission on the basis that the development was contrary to the saved policy of its Local Plan resisting development in the countryside and is in any event premature and prejudicial to the emerging Core Strategy which proposes that future growth in Ashby should be at the Money Hill site. The appellant’s case is that the development’s ability to meet an alleged shortfall in the Council’s five year housing supply outweighs those considerations. The Money Hill Consortium supports the Council’s case on breach of the Local Plan and prematurity/prejudice to the Core Stategy.

A four day inquiry was listed to commence 19 February 2013. On the second day of the inquiry, the Inspector accepted the submissions advanced on behalf of the Money Hill Consortium that, in the light of the suggestion for the first time in the appellant’s rebuttal proof of evidence that the two urban extensions were not in fact mutually exclusive but could come forward side-by-side, the screening opinion excluding the need for Environmental Impact Assessment of the development was deficient since it failed to have regard to potential cumulative effects of the two developments in combination. The Inspector therefore adjourned the inquiry in order for a fresh screening opinion to be undertaken and, if necessary, the development to be subject to EIA. Following the adjournment of the inquiry the appellant withdrew the appeal.

In the meantime, the Money Hill Consortium have applied for planning permission for their proposed urban extension in accordance with the emerging Core Strategy.

Charles Banner is acting for the Money Hill Consortium, instructed by Iceni Projects.

:

Inquiries

Charlie Butler Public House, Mortlake High Street, London

05/02/2013

This case concerned the proposed demolition of public house and erection of an architect-designed block of 9 apartments adjacent to the Mortlake Conservation Area. The Council’s putative reasons for refusal (the appeal having been brought against the non-determination of the application within the required period) included the alleged impact of the development on the Conservation Area, design, impact on the privacy of nearby properties, and the impact on a TPO’d tree on Mortlake High Street.

Following a two-day inquiry, the Inspector’s decision letter dated 26 March 2013 allowed the appeal and granted planning permission.

Charles Banner acted for the successful appellant, Languard Homes 2020 LLP, instructed by KR Planning.

:

Inquiries

Former Everest Sports Ground, Andrews Lane, Cheshunt (Broxbourne BC)

13/11/2012

On 13 November 2012 Broxbourne Borough Council’s Planning and Regulatory Committee resolved to grant Crest Nicholson Operations Ltd planning permission (subject to completion of a satisfactory s.106 agreement) for a 96 dwelling residential development on a 3.6ha site in the Green Belt at the Former Everest Sports Ground, Andrews Lane, Cheshunt. Despite the presumption against inappropriate development in the Green Belt, the Council accepted Crest’s case that “very special circumstances” existed to justify the development in accordance with para. 88 of the National Planning Policy Framework and Policy GB2 of the Broxbourne Local Plan. The Council agreed with Crest that that harm which would be caused by the development was “clearly outweighed” by the substantial benefits that the scheme would deliver, in particular the provision of a significant amount of market and affordable housing (including a valuable provision of number of new family houses with gardens) of a particularly high quality design and containing innovative energy efficiency measures, in a sustainable location which is within an area which had already been identified by the Broxbourne Submission Core Strategy as suitable for meeting the Council’s strategic housing needs.

Charles Banner advised Crest on legal and strategic issues throughout the preparation and determination of the application.

:

Inquiries

Unauthorised commercial car park at 10 Crooked Stone Road, Crumlin, Co Antrim

22/08/2012

This is one of a number of high profile enforcement appeals in recent months and years concerning unauthorised large scale commercial car park operations on agricultural landholdings near Belfast International Airport. Following the conclusion of the hearing, the Planning Appeals Commission wrote to the parties to express concern about the term used in the enforcement notice – “use as a commercial car park” – given that prior to the unauthorised operations there was legitimate parking taking place on the site which was incidental and ancillary to the lawful use of the land for (commercial) agriculture and for an animal feeds business. A further hearing was therefore convened to hear submissions upon whether the terms of the enforcement notice were in accordance with the requirements of Article 68A of the Planning (Northern Ireland) Order 1991 as amended and, if not, whether the PAC could exercise its powers under Article 70(2) to amend the notice.

Charles Banner appeared for the Department of Environment at the reconvened hearing, instructed by the Departmental Solicitor’s Office.

:

Inquiries

Costa Coffee shops at 14 Gloucester Road and 123-125 Whiteladies Road, Bristol

24/07/2012

This was a conjoined inquiry into appeals relating to two separate conversions of premises within primary retail frontages in Bristol city centre to mixed A1/A3 use as Costa Coffee shops. In the first case, Council Members had rejected an officer recommendation to grant planning permission for the change of use, and an enforcement notice was subsequently issued. The franchise holder, South West Coffee Ltd, appealed against both these decisions. In the second case, no planning permission had been sought or obtained for the conversion and the Council issued an enforcement notice, which was also subsequently appealed.

The issue in each case was whether the introduction of the mixed A1/A3 use, and in particular the substantial A3 element (which represented about 70% of sales at each premises), harmed the viability and vitality of the shopping areas in question by diluting its retail character to an unacceptable level, having regard to the existing A3 uses in the vicinity.

Charles Banner acted for Bristol City Council.

:

Inquiries

Bath Road, Thatcham, West Berkshire

06/03/2012

In this case, the appellant, Newbury Property Investment Ltd, sought the modification under s.106A-B of the Town and Country Planning Act 1990 of planning obligations that had been entered into in 2005 which required the payment to the local planning authority, West Berkshire Council, of financial contributions towards local infrastructure. The basis of the appellant’s argument was that, following changes in the Council’s supplementary planning guidance on infrastructure contributions, lower financial contributions were now justified than those which were contained in the relevant planning obligations.

Accepting the Council’s submissions, the Inspector held that, following the judgment of R (Renaissance Habitat Ltd) v. West Berkshire Council [2011] EWHC 242 (Admin), the question in the appeal was simply whether the obligations continued to serve a useful planning purpose which would not be served as well by the modifications, and that this was not the same as asking whether the obligations were strictly necessary to make the development acceptable. She accepted the Council’s evidence that the obligations did continue to serve a useful planning purpose, and that reducing the amount of the financial contributions would not serve that purpose as well. The appeal was therefore dismissed. The Inspector also ordered the Appellant to pay the Council’s costs.

Charles Banner appeared for West Berkshire Council. He also previously appeared in High Court in the Renaissance case (with Tom Jefferies).

:

Inquiries

Proposed windfarm at Bavington Hill Head Farm, Kirkharle, Northumberland

16/05/2011

This is an inquiry into proposals by RWE Npower Renewables Ltd for a 4 turbine windfarm with associated development. The pre-inquiry meeting took place on 16th May 2011 and the inquiry is due to sit for up to 3 weeks in July-August 2011.

The principal issues to be considered at the inquiry relate to:

  • the landscape and visual impact of the proposed windfarm;
  • the impact on cultural heritage (in particular nearby listed buildings);
  • noise impacts;
  • potential interference with the civilian air traffic control radars servicing Newcastle International Airport;
  • potential interference with the military air traffic control radars servicing RAF Spadeadam; and
  • the extent to which the developments would beneficially contribute to the production of renewable energy, and the weight to be given to that contribution.

Charles Banner is acting for the Ministry of Defence, who have become a Rule 6 party at the inquiry in order to ensure the safeguarding of its interests at RAF Spadeadam.

:

Inquiries

Project Pinewood, Pinewood Studios, S Bucks

08/04/2011

Five week planning inquiry into Pinewood Studios Ltd’s proposal to create Project Pinewood, a groundbreaking living and working community for the creative industries next to the world famous film studios, involving 15 different streetscapes representing a variety of international cities (avoiding the time, expense and carbon emissions of travelling to film ‘on location’), together with 1400 residential units. The economic growth in the creative sector that would be generated by the scheme was anticipated to generate at least £2.7billion additional value to the UK’s GDP over thirty years. Pinewood Studios Ltd’s case was that these economic benefits, coupled with the other the scheme’s other advantages, constituted ‘very special circumstances’ which justified granting permission despite the site’s Green Belt status.

The Secretary of State’s decision is awaited.

Christopher Katkowski QC and Charles Banner appeared for Pinewood Studios Ltd, instructed by Travers Smith LLP.

:

Inquiries

Proposed new Motorway Service Area on the A1(M) in North Yorkshire

02/11/2010

This public inquiry, which commenced on 2nd November 2010 and is scheduled to last until February 2011, will hear evidence on whether there is a need for a new MSA (including the views of the Highways Agency, who consider that there is a need, and objections from Harrogate Borough Council and Moto Hospitality Ltd, who operate other MSAs in the region) as well as evidence on the four competing proposals for the location of the new MSA in the event that a need is established.

Four of the eight parties at the inquiry are represented by members of Landmark:

John Litton QC is appearing on behalf of Jaytee Rainton Ltd, the promoters of a proposed new MSA at Baldersby Junction (instructed by DPP).

Charles Banner is appearing on behalf of Heather Ive Associates, the promoters of a proposed new MSA at Kirby Hill (instructed by Marrons LLP).

Robert Walton is appearing on behalf of Harrogate Borough Council, the local planning authority.

Guy Williams is appearing on behalf of North Yorkshire County Council, the local highway authority.

:

Inquiries

Proposed windfarms at Burnthouse Farm and Floods Ferry Farm, Cambridgeshire

14/09/2010

This was an inquiry into two separately promoted windfarm proposals (3 and 9 turbines) with associated development at Burnthouse Farm and Floods Ferry Farm, Fenland District, Cambridgeshire.

The inquiry considered the effect of the proposed windfarms on the residential amenity of local residents, the cumulative effect on the character and appearance of the local landscape, and the potential interference with the Air Traffic Control Primary Surveillance Radars at RAF Cottesmore and RAF Lakenheath.

Charles Banner appeared for the Ministry of Defence, who were a Rule 6 party at the inquiry and sought the imposition of planning conditions on any grant of permission in order to protect against interference with its radar systems.

:

Inquiries

Land to the South of the Railway Line, Westerfield Road, Ipswich

06/04/2010

Three-week ‘recovered’ inquiry into an appeal by Mersea Homes and CBRE in respect of a proposed 1,085 dwelling urban extension to form the first phase of the new Northern Fringe of Ipswich, which is earmarked for up to 5,000 new homes in Ipswich Borough Council’s draft Core Strategy..

The scheme was opposed by the Council and Crest Strategic Projects Ltd, a Rule 6 party to the inquiry with an interest in one of the other main sites within the Northern Fringe.

A number of issues were examined in evidence and submissions, including:

1) Whether the application was premature pending the adoption of the Council’s Core Strategy and the subsequent SPD masterplanning process.
2) Whether the scheme would have an unacceptable impact on the separate identity of Westerfield Village.
3) Whether the scheme would prejudice the ability to provide a bridge over the railway which currently separates the site from the Crest land, which was widely recognised as a crucial feature for the comprehensive development of the Northern Fringe.
4) The adequacy of the Design and Access Statement submitted with the outline application.
5) The impact of noise and vibration from the railway line on the living environment of dwellings abutting it.
6) The implications of the scheme for the current and future educational infrastructure in Ipswich.

On 1st September 2010 the Secretary of State dismissed the appeal, in accordance with the Inspector’s recommendation, upholding Crest’s objections to the scheme.

Charles Banner acted for Crest Strategic Projects Ltd, instructed by Davies Arnold Cooper LLP.

:

Inquiries

Middlewick Ranges, Colchester

25/01/2010

Two-day inquiry into footpath diversion order required to enable the Ministry of Defence’s strategically important live firing ranges at Middlewick to be enclosed by a security fence.

The proposal was hotly contested by a number of local residents on the basis that the public would be excluded from open space to which they had enjoyed permissive access for many decades.

Charles Banner appeared for the Ministry of Defence, calling Lt Col Simon Lloyd MBE RA (Commander of Defence Training Estate – East) and Colonel Tom Fleetwood (Commander of Colchester Garrison) to explain why security and health & safety issues necessitated the erection of the fence and the diversion of the footpath.

On 23rd April 2010 the Inspector issued his decision, upholding the Ministry of Defence’s submissions and confirming the Order.

:

Inquiries

Proposed windfarms at Nutsgrove Farm and Wryde Croft, Peterborough

24/11/2009

This was an inquiry into two separately promoted windfarm proposals (a 7 and 6 turbines) with associated development at Nutsgrove Farm and Wryde Croft, Peterborough.

The main issues for inquiry were the effect of the windfarms on the Primary Surveillance Radar at RAF Cottesmore and the Precision Approach Radar at RAF Wittering, the effect of the windfarms on the landscape and the residential amenity of local residents, and the extent to which the developments would beneficially contribute to the production of renewable energy.

Charles Banner appeared for the Peterborough City Council, the local planning authority, who supported the applications subject to the imposition of satisfactory conditions and planning obligations.

On 1st April 2010, the Inspector granted permission for both schemes.

:

Inquiries

Proposed inert waste recycling and landfill facility at the former Hurstpierpoint Sewage Treatment Works, West Sussex

10/11/2009

Two-day inquiry into substantial waste recovery & disposal scheme that would deliver 10% of the additional recycling capacity that West Sussex is required by the South East Plan to achieve by 2015.

The waste planning authority, West Sussex County Council, refused planning permission on the basis that a sufficient visibility splay could not be provided to the south of the site access onto the Cuckfield Road, meaning that there would be an unacceptable threat to highway safety. On appeal, the principal issues at the inquiry were:

(1) What was the extent of the visibility splay necessary in order to avoid the risk of collisions?
(2) Would the highway authority have power to undertake the necessary works to the hedge adjoining the road which was currently interfering with visibility to and from the site access?
(3) Insofar as the Council was right that the achievable visibility splay was less than what ought normally to be provided, was that outweighed by the proposed highway safety improvements together with the various socio-economic and environmental benefits associated with the scheme?

On 16th December 2009, the Inspector appointed by the Secretary of State issued her decision allowing the appeal and granting planning permission for the scheme.

Charles Banner appeared for the successful Appellant, Edburton Contractors Ltd, instructed by Richard Walker Planning Consultancy.

:

Inquiries

Proposed Industrial Workshop in Metropolitan Green Belt at Smiths Farm, Northolt, LB Ealing

19/05/2009

Inquiry into proposal for demolition of old agricultural barns (now used as warehouses) and their replacement with a purpose built workshop to be used in connection with Thames Materials’ waste management activities.

The Inspector dismissed the appeal, concluding that the impact on the character and appearance of the Metropolitan Green Belt was not clearly outweighed by the alleged environmental improvements to the site and the employment opportunities generated by the proposal.

John Male QC appeared for the Appellants, Thames Materials Ltd. Charles Banner appeared for the local planning authority, Ealing LBC.

:

Inquiries

Proposed 13 & 11 Storey Towers at 6 Paris Garden and 20-21 Hatfields, LB Southwark

21/04/2009

Two-day inquiry into proposal by JG Paris LLP and the Central School of Ballet for two 13 & 11 storey towers for the relocation of the Central School of Ballet and 196 units of student accommodation.

Prior to the inquiry Southwark LBC had granted planning permission for an alternative scheme comprising two 13 & 9 storey towers. The main issue before the inquiry was whether the 11 storey block on the Hatfields side had an unacceptable impact on the character and appearance of the area, compared to the 9 storey block in the already approved scheme.

Having considered the planning and design evidence before the Inquiry, the Inspector dismissed the appeal on the following basis:

“23. I conclude that the appeal scheme would have a detrimental impact on the character and appearance of the area, contrary to the relevant national and local planning policies, most notably Southwark Plan policy 3.13i ii and iii which requires that consideration should be given to designing proposals that are appropriate to the local context and which do not dominate their surroundings inappropriately; to have regard to the existing urban grain and to their local context. I conclude that the scheme would not meet the objectives of this policy.

24. I have weighed this against the appellants’ submissions that the additional floors represented by the appeal scheme would create greater ‘certainty and flexibility’ of the scheme proceeding in the current financial climate. I am aware that the Central School of Ballet requires a new site in the immediate future and that their relocation on the appeal site would realise significant benefits to the locality through their Outreach Programmes. I have no evidence however that the approved scheme would not deliver all these benefits. These matters would not outweigh the harm that I have identified.”

David Elvin QC appeared for the Appellants, JG Paris LLP and the Central School of Ballet. Charles Banner appeared for the local planning authority, Southwark LBC.

:

Inquiries

Proposed ‘eco-village’ at Dunsfold Park

10/03/2009

A four week-inquiry inquiry into The Rutland Group’s proposals for the UK’s first ‘eco-village’ at Dunsfold Aerodrome in Surrey.

The scheme – a new settlement comprising 2,601 dwellings (including 910 affordable homes) alongside substantial business development, together with a groundbreaking package of sustainability measures to reduce carbon emissions – is billed as the UK’s most sustainable settlement. It will achieve an average carbon footprint per resident of between a third and half of the average UK resident.

The inquiry is considering Waverley Borough Council’s objection to the scheme on locational and transportation grounds. It is the first planning inquiry in the UK to consider the Government’s much publicised draft policy on Eco-Towns.

Christopher Katkowski QC and Charles Banner are appearing for the Appellant, Dunsfold Park Ltd (a SPV subsidiary of The Rutland Group). Tim Mould QC is appearing for Waverley Borough Council.

:

Inquiries

Land adjacent to Lady Forester Nursing Home, Much Wenlock

29/07/2008

Two-day inquiry into proposals for 33 dwellings within the curtilage of Lady Forester Nursing Home, in Much Wenlock. Against the advice of Officers, the Environment Agency, and the highways authority, members of Bridgnorth District Council’s Development Control Committee voted to refuse planning permission on grounds relating to arboriculture, flooding and highways. The Council pursued these grounds at appeal, although following concessions made in cross-examination the flooding reason for refusal was withdrawn before the close of the inquiry.

On 19th September 2008 the Inspector allowed the appeal and awarded costs to the Appellant.

Charles Banner appeared for the Appellant, Lioncourt Homes Ltd, instructed by RPS Planning (Bristol).

:

Inquiries

Hardwick Views, Sedgefield

08/07/2008

Six-day inquiry into proposals for a holiday park comprising 330 static caravans and 48 lodges, together with associated infrastructure, at an 88ha site adjacent to the historic Hardwick Park in Sedgefield (a registered historic park and garden, and a conservation area which included the Grade II listed Hardwick Hall).

The scheme was designed with the specific objective of enhancing the historic landscape of Hardwick Park, in particular by (inter alia) the removal of unattractive and prominent farm buildings on the appeal site and the restoration of certain historic views. The caravans and lodges were proposed to be arranged in clusters which would be fully screened by over 10ha of new woodland planting. A condition was proposed whereby no caravans or lodges would be sited until the new planting had been in place for five years, thereby ensuring that the screening was effective.

Despite support from English Heritage and Durham County Council (the owners of Hardwick Park), Sedgefield Borough Council refused to grant planning permission, against its Officers’ advice. The six-day inquiry held into the developer’s appeal against this decision considered the following principal issues:

  1. The effect the proposal would have on the character and appearance of the local countryside, including its ecology and wildlife, bearing in mind national and local planning policies relating to tourism and rural development.
  2. The impact of the proposal on the character of Hardwick Park as a Grade II* registered historic park and garden; on the setting of Hardwick Hall as a Grade II listed building; and on the character and appearance of the Hardwick Park Conservation Area; and
  3. Whether the scale and nature of
    the proposal would result in environmental, economic and social benefits for
    the area, including reference to highway safety, community resources, services
    and the living conditions of local residents.

The Inspector’s decision is due in early September 2008.

Christopher Katkowski QC and Charles Banner appeared for the Appellant, Theakston Farms LLP (instructed by Nathaniel Lichfield and Partners).

:

Inquiries

Hunts Grove, Stroud District

22/01/2008

Three week ‘called-in’ inquiry into a proposed urban extension on an allocated greenfield site to the south of Gloucester comprising up to 1,750 homes together with substantial office/business development, community facilities and ancillary infrastructure.

Although Stroud District Council as local planning authority supported the proposals, and notwithstanding the site’s allocation in the Local Plan and its endorsement in the draft RSS for the South West, Gloucester City Council and the two local MPs intervened in opposition. They contended that the site was not suitable for an urban extension on the grounds (i) that it was less sustainable than sites to the north of Gloucester and (ii) that it would prejudice the policy objective of regenerating vacant and under-used brownfield sites within Gloucester City. The validity of these two contentions was the primary focus of the inquiry.

On 11th July 2008, in accordance with the Inspector’s recommendation, the Secretary of State allowed the appeal and granted planning permission for the scheme.

Rhodri Price Lewis QC and Charles Banner appeared for the applicants, Crest Nicholson Strategic Projects and St Modwen Properties plc, instructed by RPS Planning.

:

Inquiries

Oxford Westgate CPO

04/12/2007

Two-week public inquiry into a proposed compulsory purchase order which will allow the extension, redevelopment and improvement of the Westgate Centre and surrounding highways for a £500m mixed-use scheme with a substantial retail element. The scheme will not only assist in realising commercial retail aspirations for Oxford, but will support Oxford in maintaining its sub-regional status and provide a focus for regeneration of Oxford’s West End. The development will be carried out by the Westgate Partnership, of which the main partner is Capital Shopping Centres plc.

By the conclusion of the inquiry, all of the statutory objectors attending the inquiry had withdrawn their objections.

On 30th April 2008, the Secretary of State confirmed the CPO in accordance with the recommendations of the Inspector following the conclusion of the inquiry.

David Elvin QC and Charles Banner appeared for the promoters, Oxford City Council and the Westgate Partnership.

:

Inquiries

Colin Campbell Court CPO, Plymouth

08/11/2006

Two week inquiry into a compulsory purchase order made by Plymouth City Council for the provision of a shopping centre and ancillary infrastructure in the western end of Plymouth City Centre.

Christopher Lockhart-Mummery QC and Charles Banner appeared for the acquiring authority, Plymouth City Council. Christopher Katkowski QC appeared for the objectors, Thomas Estates Ltd and Plymouth & South West Co-Operative Society Ltd.

:

Inquiries

Bolnore Village, Haywards Heath

19/09/2006

Three month inquiry into proposed 785 home development by Crest Nicholson (South) in the south-western fringe of Haywards Heath, Mid Sussex.

The inquiry considered a range of issues including: the alleged ancient woodland status of one of the development cells; whether the proposed ‘buffer zones’ were sufficient to protect the adjoining woodland habitats; the adequacy of the appellants’ affordable housing offer; the provision of the final stages of the Haywards Heath relief road; the viability of various proposed construction access routes; density and open space.

On 24th January 2008, the Secretary of State for Communities and Local Government wrote to the parties to state that she accepted most of the Local Community Organisations’ and the Council’s objections (including those relating to ancient woodland, buffer zones, dedication of ecologically sensitive land, and the overall number of dwellings) and required a framework of revisions to be made to the s.106 obligations and conditions so as to address these objections (as originally suggested by the Local Community Organisations). After such revisions were made, on 28th March 2008 the Secretary of State granted permission for the development subject to the revised framework of conditions and obligations.

Edmund Robb appeared for Mid Sussex District Council. Charles Banner appeared for local community organisations. Robert Griffiths QC appeared for Crest Nicholson.

:
icon-accordion-chevron icon-arrow-left icon-arrow-right icon-chevron-down icon-chevron-left icon-cross icon-download icon-letter icon-linked-in icon-phone-outline icon-phone icon-search icon-search icon-select-chevron icon-top-right-corner icon-twitter