Inquiries

Southport retail call-in inquiry

08/09/2015

A call-in inquiry into the proposed development of an out-of-centre superstore for J Sainsbury on land at Meols Cop Retail Park, Southport. Tesco & Asda appear as Rule 6 Parties to resist the proposed development on grounds relating principally to retail impact. Significant issues of interpretation arising in respect of existing & emerging TC retail policy. Inquiry adjourned to June 2016.

Simon Pickles represents Asda Stores Ltd.

Inquiries

Birney Hill Garden City extension rejected

13/01/2015

Inquiry into a proposal for an exemplar Garden City extension to Ponteland, near Newcastle, on a site within the Green Belt and featuring Listed Buildings. The proposal was promoted on the grounds of strategic regional requirement for executive housing, underwritten by a shortage of housing land supply more generally. The Secretary of State resumed jurisdiction to determine the appeal and dismissed it.

Simon Pickles represented Northumberland County Council.

Inquiries

Draft Neighbourhood Plan trumped by sustainability concerns

27/11/2014

An inquiry into residential development (approx. 40 units) in a rural settlement. The proposal was supported by the then draft Neighbourhood Plan but attracted resistance from the local planning Authority on the grounds, amongst others, that the proposal was for unsustainable development.

Simon Pickles represented Colchester Borough Council.

Inquiries

Eco Park FP Diversion (& April 2013)

28/01/2014

The second of two inquiries into modifications to the Definitive Map to alter the alignment of a footpath to accommodate development of an Eco Park comprising gasification plant, anaerobic digestion plant, bulking facility & recycling facilities on land at Charlton Lane, Halliford nr Shepperton.

Simon Pickles represented Surrey County Council.

Inquiries

Land r/o Amwell Street, Islington

26/11/2013

A hearing into proposals for residential and community use conversion of the Pump House and other listed buildings associated with the Reservoir constructed in the sixteenth century close to what is now Angel to provide fresh water supplies to London. The appeal resulted in a split decision.

Simon Pickles represented the London Borough of Islington.

Inquiries

Large scale tourism development rejected in AONB

01/10/2013

An inquiry into large scale tourism/leisure/retail development proposals including an art gallery & Chinese garden on land at the Chantry, East Horkesley, partly within the Dedham Vale Area of Outstanding Natural Beauty. The proposals generated very considerable local public opposition; and they were dismissed.

Simon Pickles represented Colchester Borough Council.

Inquiries

Landmark Chambers at forefront of United Kingdom Greenhouse Gas Emissions Trading appeals

23/05/2011

2010 – 2011 has seen a number of determinations of appeals under the Greenhouse Gas Emissions Trading Scheme Regulations 2005 (“the 2005 Regulations”). Prior to this year the only appeal determinations in England and Wales under the 2005 Regulations were one made by the Welsh Ministers in the Alphasteel case (ENDS 2008, 401, 64-65) against a civil penalty notice and one by an Inspector in England against the refusal to allocate allowances from the missing and late reserve under reg. 22A of the 2005 Regulations (APP/ETS/06/02 University Hospital of North Durham v Defra).

This year DECC has made the following determinations under the 2005 Regulations, all were appeals against revocation notices:

1. Wienerberger Limited – Determination Notice
2. Premier Foods Group Limited – Determination Notice
3. Premier Foods Group Limited – Supplementary Determination
4. White’s Recycling Solutions Limited – Determination Notice
5. White’s Recycling Solutions Limited – Supplementary Determination

While the determinations are available on the DECC website the more detailed reports (all by David Hart QC following non-statutory inquiries) on which the determinations are based have not been published.

The EU ETS is the key policy introduced by the EU to help reduce the EU’s greenhouse gas emissions. The EU ETS is based on Directive 2003/87/EC which established a scheme for greenhouse gas emission allowance trading within the Community. The Directive is implemented by the 2005 Regulations. Regulation 7 provides that: “No person shall carry out a Schedule 1 activity resulting in specified emissions, except under and to the extent authorised by a greenhouse gas emissions permit.” Paragraph 1 of Schedule 1 sets out the activities and “specified emissions” which require operators to hold a greenhouse gas emissions permit. The specified emissions are “carbon dioxide”.

Regulation 16 provides for the surrender of a permit:

“(1) Where an operator has ceased carrying out in an installation all of the Schedule 1 activities authorised by a greenhouse gas emissions permit in relation to that installation, the operator shall apply to the regulator to surrender the permit.
(2) An application under paragraph (1) shall be made before the expiry of one month beginning on the date on which the operator ceased to carry out the activity or activities in the installation to which the greenhouse gas emissions permit relates…
(3) Paragraph (1) shall not apply where-
(a) an approved national allocation plan provides for all allowances allocated under these Regulations in respect of any installation in which a Schedule 1 activity is no longer carried out to continue to be issued to the operator of such installation during the scheme phase to which the approved national allocation plan relates;
(b) an approved national allocation plan provides that, if conditions specified in that plan are met, an operator which ceases to carry out a Schedule 1 activity in an installation may retain the allowances allocated in respect of the installation under these Regulations and the operator has, before the expiry of a period of one month beginning on the date on which the operator ceased to carry out the Schedule 1 activities or of the date on which the approved NAP Regulations in relation to the scheme phase for which the allowances are allocated enter into force, whichever is the later, made an application to retain its allocation under regulation 24(1)”

Regulation 17 deals with the revocation of permits and provides materially:

“(1) Subject to paragraph (3), the regulator may at any time revoke a greenhouse gas emissions permit by serving a notice (“a revocation notice”) on the operator…
(2) Without prejudice to the generality of paragraph (1) the regulator shall serve a notice under paragraph (1) where an operator fails to comply with an obligation under regulation 16(1).”

Pursuant to regulation 24, operators which cease to carry out a Schedule 1 activity in an installation may apply to retain these allowances where provided for in the NAP (regulation 24(1)). These are referred to as “rationalisation applications”.

Regulation 32(2) provides that “a person…on whom a revocation notice…is served may appeal to the appropriate authority…” in England that is the Secretary of State for Climate Change, in Wales it is the Welsh Ministers and in Northern Ireland the Planning Appeals Commission.

Regulation 20(1) provides that “the Secretary of State shall develop a national allocation plan in respect of the second scheme phases and in respect of each subsequent scheme phase”. Regulation 20(3) states that “[t]he Secretary of State shall publish in England the national allocation plan developed for each scheme phase…” The Greenhouse Gas Emissions Trading Scheme (Miscellaneous Provisions) Regulations 2007 (“the 2007 Regulations”) came into force on 1 May 2007. Regulation 2 provides that for the purposes of the 2005 Regulations, “the document entitled “EU Emissions Trading scheme: Approved Phase II National Allocation Plan 2008-2012″ published by the Secretary of State on 16 March 2007 is specified as the approved national allocation plan for the five year period beginning on 1st January 2008” (“the NAP”).

Section F of Appendix D to the NAP deals with closures of installations. Pursuant to paragraph 71 “[a]n installation is considered to have closed when the Annex I activity at the installation has ceased operating”. Paragraph 72 provides that the operator of an installation that is closing is required to inform the regulator in order to surrender its permit. Paragraph 73 sets out the procedure by which an operator may apply for the temporary closure of an installation. It states as follows: “An operator must also notify the regulator if an installation temporarily ceases an Annex I activity and this temporary closure is intended to be, or becomes, 50 days or longer. The regulators will use their discretion to distinguish between permanent closure and cases where a temporary period of closure has occurred during the normal course of business. Closures that are outside the “normal course of business” would be treated as having permanently ceased operation.”

There has also this year been a determination on a revocation notice appeal in Northern Ireland (Commission Reference: 2010/IP001) in respect of which both the determination and the Planning Appeals Commission report is available. The case concerns Ibstock Brick Limited.

Landmark Chambers has been involved in all the above appeals under the 2005 Regulations:

James Maurici acted for the Environment Agency in the Alphasteel, Wienerberger Limited, Premier Foods Group Limited and White’s Recycling Solutions Limited appeals.
David Forsdick acted for the NIEA in the Ibstock Brick Limited.
Simon Pickles acted for the appellants in the White’s Recycling and University Hospital of North Durham appeals.

Inquiries

Certificate of Appropriate Alternative Development

21/09/2010

A Certificate of Alternative Development is granted relating to land taken pursuant to a Compulsory Purchase Order having regard to the potential for its development as part of a wider site.

Simon Pickles acted for the RC Diocese of Southwark.

Inquiries

Certificate of Appropriate Alternative Development

20/09/2010

A Certificate of Alternative Development is granted relating to land taken pursuant to a Compulsory Purchase Order having regard to the potential for its development as part of a wider site.

Simon Pickles acted for the RC Diocese of Southwark.

Inquiries

Enforcement and planning contribution

01/08/2010

The local planning authority issued an enforcement notice whose principal aim was the recovery of appropriate planning contribution, the residential development concerned having included additional dwelling units. A revised planning obligation was agreed with the Appellant during the course of the inquiry, and the notice consequently withdrawn.

Simon Pickles acted for the London Borough of Barnet.

Inquiries

Inquiry into a major integrated waste facility in Essex

10/03/2010

The Secretary of State has granted planning permission, following the Inspector’s recommendation after an inquiry held in September & October 2009, for a major integrated waste management facility (known as the eRCF) at the former Rivenhall Airfield, Essex.

The development, which provides a flexible and sustainable waste management facility, in accordance with PPS10 and current design guidance, was promoted by Gent Fairhead with the support of Essex County Council and includes:

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

The Developer was represented by David Elvin QC and Simon Pickles, instructed by Linklaters.

To read the decision letter please click here.

Inquiries

Enforcement Notice withdrawal

24/02/2010

An Enforcement Notice was withdrawn at the close of a public inquiry, it having been made apparent that the allegation in the Notice would result in unintended lawful uses on this site in the Metropolitan Green Belt.

Simon Pickles acted for the Appellant.

Inquiries

Inert waste recycling permitted in Green Belt

21/09/2009

In the course of granting planning permission on appeal for concrete crushing and screening, and inert waste recycling (B2 use) on land at Poyle Manor Farm, Poyle, Berks (APP/J0350/A/09/2096331, dated 21 September 2009), the Inspector observed that:

‘There … seems to me to be a clear shortfall in construction and demolition waste recycling capacity in Berkshire, when compared with the targets for this capacity and for the use of secondary aggregates. Furthermore, the Waste Local Plan targets have not been met, unlike the prospects at the time of the 2000 appeal, and policy emphasis has changed since 2000. The shortfall appears to be particularly acute in the central and eastern parts of Berkshire, around the appeal site. The appeal development would go some way towards addressing this shortfall, and would accord with the South East Plan. I give all of the above matters significant weight in my decision.

The appeal development would make more efficient use of a facility which could, whatever the outcome of the appeal, provide substitute materials to replace land won aggregates. The appeal development would therefore be beneficial in relation to sustainable development. The appeal site has excellent access to the primary highway network and lies in close proximity to west London and adjoining counties, within which I have been referred to many shortfalls. It is therefore well located. I give each of these matters significant weight in my decision.’

Simon Pickles appeared on behalf of the Appellant, Wiggins Transport Limited

Inquiries

Town centre mixed use scheme approved

18/09/2009

In the course of granting planning permission on appeal for mixed commercial and residential development at High Street, Walton-on-Thames, Surrey (APP/K3605/A/09/2100740, dated 18 September 2009), the Inspector noted that:

‘The Council does not dispute that the development is, in itself, of a high quality design or that its modern appearance and materials would be appropriate in its location. I have no reason to disagree with this stance and I have found that its scale would be appropriate to its setting and that it would not appear cramped. Bearing in mind the poor quality appearance of the site and many of its buildings at present, I conclude that the scheme would thus enhance the character and appearance of the area.’

Simon Pickles appeared on behalf of the Appellants, Travis Perkins and Paragon Community Housing Group

Inquiries

A2

17/06/2008

Acting for Nationwide Building Society on its appeal against the refusal of planning permission to establish a new flagship branch in Leeds City Centre.

Inquiries

Lakeside Leisure Lodges

03/06/2008

Appeared for Follett Property Holdings on its appeal against the refusal of planning permission for 21 leisure lodges and a water sports headquarters building on its land at the Harbury Estate, near Stratford.

Inquiries

Marks & Spencer, Portsmouth & Newbury

01/05/2008

M&S objected to Compulsory Purchase Orders affecting their town centre stores in Portsmouth and Newbury, and these CPOs went to inquiry in March and May 2007. I was instructed to advise on the evidence to be presented and on-going negotiations about how their objections might be resolved. Both objections were settled, avoiding the need to appear at inquiry. I was instructed by Duncan Field and Daniel Farrand of SJBerwin on behalf of Marks & Spencer.

Inquiries

Nightclub/restaurant use of former cinema

26/03/2008

Appeared for the owners of the former Odeon cinema, Cheltenham, on their successful appeal to change its use to that of a nightclub and restaurants, Luminar Leisure as the prospective nightclub operator.

Inquiries

Retail warehouse development

11/03/2008

Appeared on behalf of the owners (British Land) of Teeside Retail Park, one of the largest retail parks in the country,  and I have been instructed on behalf of its owners, British Land, at an inquiry into its proposal for additional (out-of-centre) bulky goods retail floorspace.

Inquiries

Teesside Retail Park, Stockton

01/03/2008

Teeside Retail Park is one of the largest retail parks in the country and I have been instructed on behalf of its owners, British Land, to conduct their appeal at inquiry (March 2008) against the refusal of planning permission for additional bulky goods retail floorspace. This raises difficult issues about out-of-centre retail policy and floorspace. I am instructed by Craig Blatchford and Jonathan Best of Blue Sky Planning on behalf of British Land, owners of the retail park.

Inquiries

Energy from Waste Plant, Newhaven, East Sussex

29/01/2008

This is a major project involving the development of an Energy from Waste Plant to serve East Sussex, including Brighton & Hove. I was originally instructed pre-application to advise on the Environmental Statement. Planning permission was granted in November 2007 without call-in and I have been re-instructed to advice on proposed claims for Judicial Review. I am instructed by John Houghton & Patrick Wetherall of Bond Pearce on behalf of Veolia, the County Council’s waste contractors.

Inquiries

Sustainable Social Housing Scheme

07/01/2008

Acting for Paradigm Housing Association on its successful appeal for planning permission for a high quality, sustainable housing scheme on former allotments in Hillingdon.

Inquiries

Oxford Westgate CPO Objection

11/09/2007

Brief appearance for Primark at the inquiry into objections to the Oxford Westgate CPO, Primark having reached terms with the promoter based upon their undertakings.

Inquiries

Retail Trade Park Enforcement

05/06/2007

Appearing for Scottish Widows on its appeal against Enforcement Notices affecting occupiers of Hedge End trade Park, near Southampton. The case involved close analysis of the uses involved and the appeals succeeded.

Inquiries

Hedge End Trade Park, Southampton

01/06/2007

Eastleigh Borough Council served Enforcement Notices on 5 occupiers of premises at Hedge End Retail Park, a modern out-of-centre park focussed on trade as opposed to retail sales. Appeals against 4 of these Notices went to inquiry in June 2007, with unusual issues arising from the nature of the uses involved. The appeals were successful. I was instructed by Douglas Evans of Addleshaw Goddard on behalf of Scottish Widows, the owners of the site.

Inquiries

Rail Freight Interchange

24/04/2007

Appeared for the promoters (Astral) of a regional freight interchange to serve the North West at Newton Park Farm between St Helens and Wigan at a call-in inquiry to consider an application for development of a residential enclave around a Listed Building within the interchange site (but in other ownership) and conflicting with that proposal.

Inquiries

Waste Enforcement

03/04/2007

Acted for Capital Demolition on its successful appeal against an Enforcement Notice issued by Surrey County Council concerning the treatment of inert waste materials.

Inquiries

Newton Park Farm, St Helens, Lancs

01/04/2007

Newton Park Farm is the site of a major proposal to accommodate a regional freight interchange to serve the North West between St Helens and Wigan. The principal planning application was before the planning authorities and an application was submitted for the development of a residential enclave around a Listed Building within the site but in other ownership. That application was called in; and I represented the interchange promoter at the subsequent inquiry (April 2007). This was in the nature of a skirmish ahead of consideration of the principal application. I was instructed by Morag Thomas of Marrons on behalf of Astral (John Rhodes (below) was the planning witness).

Inquiries

M&S CPO Objections

31/03/2007

Advising M&S in respect of their objections to Town Centre CPOs affecting their stores in Portsmouth and Newbury, both objections being withdrawn and attendance avoided on the basis of terms agreed in the run-up to their appearance.

Inquiries

Riverside, Bexley (High Court)

01/02/2007

Inquiries

Greenhouse Gas Trading Scheme Appeal

12/12/2006

Acting for Haden Building Management (in relation to University Hospital North Durham) on the first and successful appeal against a refusal by the Environment Agency to allow an applicant to join the GGTS.

Inquiries

Olympics 2012 CPO Objection

25/05/2006

Appeared at the inquiry into objections to the Olympics CPO. During the course of the inquiry, the scheme was altered insofar as it affected the objection site concerned rendering the objection unviable. The objection was withdrawn and the promoter ordered to pay the objector’s costs

Inquiries

Associated British Foods, Standon

13/04/2006

Represented ABF at the Local Plan inquiry, seeking the allocation of former factory premises for residential redevelopment.

Inquiries

North West Development Agency

23/02/2006

Represented the NWDA at an inquiry concerning a proposal to landfill household waste at Sandyforth Farm, Wigan, at which its concern was that the position regarding the availability of grant aid should be clear.

Inquiries

Residential Development at Cranfield

17/01/2006

Acted for Mid Bedfordshire District Council, who resisted a proposal by Cranfield University to develop over 300 dwellings on land at the Airfield contrary to the recently adopted Local Plan Review.

Inquiries

Central London Energy from Waste Plant

06/09/2005

Acted for the promoter (RRRL Ltd) as junior counsel in two inquiries into objections to its proposals for a regional-scale incinerator at Bexley to serve the needs of Central London

Inquiries

Residential development at Tongham

02/08/2005

Acted for Oakdene on their successful appeal for residential development at Tongham, near Guildford.

Inquiries

Quarry Restoration Enforcement

21/06/2005

Appeared for Hertfordshire County Council at an inquiry into an appeal against Enforcement Notices relating to the restoration of land at Hollingson Meads Quarry, north of Harlow.

Inquiries

British Sugar Factory, Ipswich

16/11/2004

Appeared for British Sugar at the Babergh Local Plan inquiry concerning its proposals for the comprehensive redevelopment of its site at Ipswich.

Inquiries

Wembley CPO Objection

19/05/2004

Appearance at inquiry into objections to Wembley CPO, following which the Order was modified by the Secretary of State to exclude the objection site and adjoining properties.

Inquiries

Definitive Map Modification – BOAT

23/03/2004

Appeared for Northumberland Estate at an inquiry following which a claim that the Definitive Map should be modified on the basis that historic evidence indicated the existence of a BOAT going back to Roman times was rejected.

Inquiries

Definitive Map Modification – Footpath

19/02/2004

Acted for Northumberland Estates and Rothbury Golf Club in successfully resisting a user-based claim to modify the Definitive Map to show a footpath running alongside and in part across the golf course.

Inquiries

Central London Energy from Waste Plant

01/07/2003

Acted for the promoter (RRRL Ltd) as junior counsel in two inquiries into objections to its proposals for a regional-scale incinerator at Bexley to serve the needs of Central London.

Inquiries

Southport retail call-in inquiry

08/09/2015

A call-in inquiry into the proposed development of an out-of-centre superstore for J Sainsbury on land at Meols Cop Retail Park, Southport. Tesco & Asda appear as Rule 6 Parties to resist the proposed development on grounds relating principally to retail impact. Significant issues of interpretation arising in respect of existing & emerging TC retail policy. Inquiry adjourned to June 2016.

Simon Pickles represents Asda Stores Ltd.

Inquiries

Birney Hill Garden City extension rejected

13/01/2015

Inquiry into a proposal for an exemplar Garden City extension to Ponteland, near Newcastle, on a site within the Green Belt and featuring Listed Buildings. The proposal was promoted on the grounds of strategic regional requirement for executive housing, underwritten by a shortage of housing land supply more generally. The Secretary of State resumed jurisdiction to determine the appeal and dismissed it.

Simon Pickles represented Northumberland County Council.

Inquiries

Draft Neighbourhood Plan trumped by sustainability concerns

27/11/2014

An inquiry into residential development (approx. 40 units) in a rural settlement. The proposal was supported by the then draft Neighbourhood Plan but attracted resistance from the local planning Authority on the grounds, amongst others, that the proposal was for unsustainable development.

Simon Pickles represented Colchester Borough Council.

Inquiries

Eco Park FP Diversion (& April 2013)

28/01/2014

The second of two inquiries into modifications to the Definitive Map to alter the alignment of a footpath to accommodate development of an Eco Park comprising gasification plant, anaerobic digestion plant, bulking facility & recycling facilities on land at Charlton Lane, Halliford nr Shepperton.

Simon Pickles represented Surrey County Council.

Inquiries

Land r/o Amwell Street, Islington

26/11/2013

A hearing into proposals for residential and community use conversion of the Pump House and other listed buildings associated with the Reservoir constructed in the sixteenth century close to what is now Angel to provide fresh water supplies to London. The appeal resulted in a split decision.

Simon Pickles represented the London Borough of Islington.

Inquiries

Large scale tourism development rejected in AONB

01/10/2013

An inquiry into large scale tourism/leisure/retail development proposals including an art gallery & Chinese garden on land at the Chantry, East Horkesley, partly within the Dedham Vale Area of Outstanding Natural Beauty. The proposals generated very considerable local public opposition; and they were dismissed.

Simon Pickles represented Colchester Borough Council.

Inquiries

Landmark Chambers at forefront of United Kingdom Greenhouse Gas Emissions Trading appeals

23/05/2011

2010 – 2011 has seen a number of determinations of appeals under the Greenhouse Gas Emissions Trading Scheme Regulations 2005 (“the 2005 Regulations”). Prior to this year the only appeal determinations in England and Wales under the 2005 Regulations were one made by the Welsh Ministers in the Alphasteel case (ENDS 2008, 401, 64-65) against a civil penalty notice and one by an Inspector in England against the refusal to allocate allowances from the missing and late reserve under reg. 22A of the 2005 Regulations (APP/ETS/06/02 University Hospital of North Durham v Defra).

This year DECC has made the following determinations under the 2005 Regulations, all were appeals against revocation notices:

1. Wienerberger Limited – Determination Notice
2. Premier Foods Group Limited – Determination Notice
3. Premier Foods Group Limited – Supplementary Determination
4. White’s Recycling Solutions Limited – Determination Notice
5. White’s Recycling Solutions Limited – Supplementary Determination

While the determinations are available on the DECC website the more detailed reports (all by David Hart QC following non-statutory inquiries) on which the determinations are based have not been published.

The EU ETS is the key policy introduced by the EU to help reduce the EU’s greenhouse gas emissions. The EU ETS is based on Directive 2003/87/EC which established a scheme for greenhouse gas emission allowance trading within the Community. The Directive is implemented by the 2005 Regulations. Regulation 7 provides that: “No person shall carry out a Schedule 1 activity resulting in specified emissions, except under and to the extent authorised by a greenhouse gas emissions permit.” Paragraph 1 of Schedule 1 sets out the activities and “specified emissions” which require operators to hold a greenhouse gas emissions permit. The specified emissions are “carbon dioxide”.

Regulation 16 provides for the surrender of a permit:

“(1) Where an operator has ceased carrying out in an installation all of the Schedule 1 activities authorised by a greenhouse gas emissions permit in relation to that installation, the operator shall apply to the regulator to surrender the permit.
(2) An application under paragraph (1) shall be made before the expiry of one month beginning on the date on which the operator ceased to carry out the activity or activities in the installation to which the greenhouse gas emissions permit relates…
(3) Paragraph (1) shall not apply where-
(a) an approved national allocation plan provides for all allowances allocated under these Regulations in respect of any installation in which a Schedule 1 activity is no longer carried out to continue to be issued to the operator of such installation during the scheme phase to which the approved national allocation plan relates;
(b) an approved national allocation plan provides that, if conditions specified in that plan are met, an operator which ceases to carry out a Schedule 1 activity in an installation may retain the allowances allocated in respect of the installation under these Regulations and the operator has, before the expiry of a period of one month beginning on the date on which the operator ceased to carry out the Schedule 1 activities or of the date on which the approved NAP Regulations in relation to the scheme phase for which the allowances are allocated enter into force, whichever is the later, made an application to retain its allocation under regulation 24(1)”

Regulation 17 deals with the revocation of permits and provides materially:

“(1) Subject to paragraph (3), the regulator may at any time revoke a greenhouse gas emissions permit by serving a notice (“a revocation notice”) on the operator…
(2) Without prejudice to the generality of paragraph (1) the regulator shall serve a notice under paragraph (1) where an operator fails to comply with an obligation under regulation 16(1).”

Pursuant to regulation 24, operators which cease to carry out a Schedule 1 activity in an installation may apply to retain these allowances where provided for in the NAP (regulation 24(1)). These are referred to as “rationalisation applications”.

Regulation 32(2) provides that “a person…on whom a revocation notice…is served may appeal to the appropriate authority…” in England that is the Secretary of State for Climate Change, in Wales it is the Welsh Ministers and in Northern Ireland the Planning Appeals Commission.

Regulation 20(1) provides that “the Secretary of State shall develop a national allocation plan in respect of the second scheme phases and in respect of each subsequent scheme phase”. Regulation 20(3) states that “[t]he Secretary of State shall publish in England the national allocation plan developed for each scheme phase…” The Greenhouse Gas Emissions Trading Scheme (Miscellaneous Provisions) Regulations 2007 (“the 2007 Regulations”) came into force on 1 May 2007. Regulation 2 provides that for the purposes of the 2005 Regulations, “the document entitled “EU Emissions Trading scheme: Approved Phase II National Allocation Plan 2008-2012″ published by the Secretary of State on 16 March 2007 is specified as the approved national allocation plan for the five year period beginning on 1st January 2008” (“the NAP”).

Section F of Appendix D to the NAP deals with closures of installations. Pursuant to paragraph 71 “[a]n installation is considered to have closed when the Annex I activity at the installation has ceased operating”. Paragraph 72 provides that the operator of an installation that is closing is required to inform the regulator in order to surrender its permit. Paragraph 73 sets out the procedure by which an operator may apply for the temporary closure of an installation. It states as follows: “An operator must also notify the regulator if an installation temporarily ceases an Annex I activity and this temporary closure is intended to be, or becomes, 50 days or longer. The regulators will use their discretion to distinguish between permanent closure and cases where a temporary period of closure has occurred during the normal course of business. Closures that are outside the “normal course of business” would be treated as having permanently ceased operation.”

There has also this year been a determination on a revocation notice appeal in Northern Ireland (Commission Reference: 2010/IP001) in respect of which both the determination and the Planning Appeals Commission report is available. The case concerns Ibstock Brick Limited.

Landmark Chambers has been involved in all the above appeals under the 2005 Regulations:

James Maurici acted for the Environment Agency in the Alphasteel, Wienerberger Limited, Premier Foods Group Limited and White’s Recycling Solutions Limited appeals.
David Forsdick acted for the NIEA in the Ibstock Brick Limited.
Simon Pickles acted for the appellants in the White’s Recycling and University Hospital of North Durham appeals.

Inquiries

Certificate of Appropriate Alternative Development

21/09/2010

A Certificate of Alternative Development is granted relating to land taken pursuant to a Compulsory Purchase Order having regard to the potential for its development as part of a wider site.

Simon Pickles acted for the RC Diocese of Southwark.

Inquiries

Certificate of Appropriate Alternative Development

20/09/2010

A Certificate of Alternative Development is granted relating to land taken pursuant to a Compulsory Purchase Order having regard to the potential for its development as part of a wider site.

Simon Pickles acted for the RC Diocese of Southwark.

Inquiries

Enforcement and planning contribution

01/08/2010

The local planning authority issued an enforcement notice whose principal aim was the recovery of appropriate planning contribution, the residential development concerned having included additional dwelling units. A revised planning obligation was agreed with the Appellant during the course of the inquiry, and the notice consequently withdrawn.

Simon Pickles acted for the London Borough of Barnet.

Inquiries

Inquiry into a major integrated waste facility in Essex

10/03/2010

The Secretary of State has granted planning permission, following the Inspector’s recommendation after an inquiry held in September & October 2009, for a major integrated waste management facility (known as the eRCF) at the former Rivenhall Airfield, Essex.

The development, which provides a flexible and sustainable waste management facility, in accordance with PPS10 and current design guidance, was promoted by Gent Fairhead with the support of Essex County Council and includes:

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

The Developer was represented by David Elvin QC and Simon Pickles, instructed by Linklaters.

To read the decision letter please click here.

Inquiries

Enforcement Notice withdrawal

24/02/2010

An Enforcement Notice was withdrawn at the close of a public inquiry, it having been made apparent that the allegation in the Notice would result in unintended lawful uses on this site in the Metropolitan Green Belt.

Simon Pickles acted for the Appellant.

Inquiries

Inert waste recycling permitted in Green Belt

21/09/2009

In the course of granting planning permission on appeal for concrete crushing and screening, and inert waste recycling (B2 use) on land at Poyle Manor Farm, Poyle, Berks (APP/J0350/A/09/2096331, dated 21 September 2009), the Inspector observed that:

‘There … seems to me to be a clear shortfall in construction and demolition waste recycling capacity in Berkshire, when compared with the targets for this capacity and for the use of secondary aggregates. Furthermore, the Waste Local Plan targets have not been met, unlike the prospects at the time of the 2000 appeal, and policy emphasis has changed since 2000. The shortfall appears to be particularly acute in the central and eastern parts of Berkshire, around the appeal site. The appeal development would go some way towards addressing this shortfall, and would accord with the South East Plan. I give all of the above matters significant weight in my decision.

The appeal development would make more efficient use of a facility which could, whatever the outcome of the appeal, provide substitute materials to replace land won aggregates. The appeal development would therefore be beneficial in relation to sustainable development. The appeal site has excellent access to the primary highway network and lies in close proximity to west London and adjoining counties, within which I have been referred to many shortfalls. It is therefore well located. I give each of these matters significant weight in my decision.’

Simon Pickles appeared on behalf of the Appellant, Wiggins Transport Limited

Inquiries

Town centre mixed use scheme approved

18/09/2009

In the course of granting planning permission on appeal for mixed commercial and residential development at High Street, Walton-on-Thames, Surrey (APP/K3605/A/09/2100740, dated 18 September 2009), the Inspector noted that:

‘The Council does not dispute that the development is, in itself, of a high quality design or that its modern appearance and materials would be appropriate in its location. I have no reason to disagree with this stance and I have found that its scale would be appropriate to its setting and that it would not appear cramped. Bearing in mind the poor quality appearance of the site and many of its buildings at present, I conclude that the scheme would thus enhance the character and appearance of the area.’

Simon Pickles appeared on behalf of the Appellants, Travis Perkins and Paragon Community Housing Group

Inquiries

A2

17/06/2008

Acting for Nationwide Building Society on its appeal against the refusal of planning permission to establish a new flagship branch in Leeds City Centre.

Inquiries

Lakeside Leisure Lodges

03/06/2008

Appeared for Follett Property Holdings on its appeal against the refusal of planning permission for 21 leisure lodges and a water sports headquarters building on its land at the Harbury Estate, near Stratford.

Inquiries

Marks & Spencer, Portsmouth & Newbury

01/05/2008

M&S objected to Compulsory Purchase Orders affecting their town centre stores in Portsmouth and Newbury, and these CPOs went to inquiry in March and May 2007. I was instructed to advise on the evidence to be presented and on-going negotiations about how their objections might be resolved. Both objections were settled, avoiding the need to appear at inquiry. I was instructed by Duncan Field and Daniel Farrand of SJBerwin on behalf of Marks & Spencer.

Inquiries

Nightclub/restaurant use of former cinema

26/03/2008

Appeared for the owners of the former Odeon cinema, Cheltenham, on their successful appeal to change its use to that of a nightclub and restaurants, Luminar Leisure as the prospective nightclub operator.

Inquiries

Retail warehouse development

11/03/2008

Appeared on behalf of the owners (British Land) of Teeside Retail Park, one of the largest retail parks in the country,  and I have been instructed on behalf of its owners, British Land, at an inquiry into its proposal for additional (out-of-centre) bulky goods retail floorspace.

Inquiries

Teesside Retail Park, Stockton

01/03/2008

Teeside Retail Park is one of the largest retail parks in the country and I have been instructed on behalf of its owners, British Land, to conduct their appeal at inquiry (March 2008) against the refusal of planning permission for additional bulky goods retail floorspace. This raises difficult issues about out-of-centre retail policy and floorspace. I am instructed by Craig Blatchford and Jonathan Best of Blue Sky Planning on behalf of British Land, owners of the retail park.

Inquiries

Energy from Waste Plant, Newhaven, East Sussex

29/01/2008

This is a major project involving the development of an Energy from Waste Plant to serve East Sussex, including Brighton & Hove. I was originally instructed pre-application to advise on the Environmental Statement. Planning permission was granted in November 2007 without call-in and I have been re-instructed to advice on proposed claims for Judicial Review. I am instructed by John Houghton & Patrick Wetherall of Bond Pearce on behalf of Veolia, the County Council’s waste contractors.

Inquiries

Sustainable Social Housing Scheme

07/01/2008

Acting for Paradigm Housing Association on its successful appeal for planning permission for a high quality, sustainable housing scheme on former allotments in Hillingdon.

Inquiries

Oxford Westgate CPO Objection

11/09/2007

Brief appearance for Primark at the inquiry into objections to the Oxford Westgate CPO, Primark having reached terms with the promoter based upon their undertakings.

Inquiries

Retail Trade Park Enforcement

05/06/2007

Appearing for Scottish Widows on its appeal against Enforcement Notices affecting occupiers of Hedge End trade Park, near Southampton. The case involved close analysis of the uses involved and the appeals succeeded.

Inquiries

Hedge End Trade Park, Southampton

01/06/2007

Eastleigh Borough Council served Enforcement Notices on 5 occupiers of premises at Hedge End Retail Park, a modern out-of-centre park focussed on trade as opposed to retail sales. Appeals against 4 of these Notices went to inquiry in June 2007, with unusual issues arising from the nature of the uses involved. The appeals were successful. I was instructed by Douglas Evans of Addleshaw Goddard on behalf of Scottish Widows, the owners of the site.

Inquiries

Rail Freight Interchange

24/04/2007

Appeared for the promoters (Astral) of a regional freight interchange to serve the North West at Newton Park Farm between St Helens and Wigan at a call-in inquiry to consider an application for development of a residential enclave around a Listed Building within the interchange site (but in other ownership) and conflicting with that proposal.

Inquiries

Waste Enforcement

03/04/2007

Acted for Capital Demolition on its successful appeal against an Enforcement Notice issued by Surrey County Council concerning the treatment of inert waste materials.

Inquiries

Newton Park Farm, St Helens, Lancs

01/04/2007

Newton Park Farm is the site of a major proposal to accommodate a regional freight interchange to serve the North West between St Helens and Wigan. The principal planning application was before the planning authorities and an application was submitted for the development of a residential enclave around a Listed Building within the site but in other ownership. That application was called in; and I represented the interchange promoter at the subsequent inquiry (April 2007). This was in the nature of a skirmish ahead of consideration of the principal application. I was instructed by Morag Thomas of Marrons on behalf of Astral (John Rhodes (below) was the planning witness).

Inquiries

M&S CPO Objections

31/03/2007

Advising M&S in respect of their objections to Town Centre CPOs affecting their stores in Portsmouth and Newbury, both objections being withdrawn and attendance avoided on the basis of terms agreed in the run-up to their appearance.

Inquiries

Riverside, Bexley (High Court)

01/02/2007

Inquiries

Greenhouse Gas Trading Scheme Appeal

12/12/2006

Acting for Haden Building Management (in relation to University Hospital North Durham) on the first and successful appeal against a refusal by the Environment Agency to allow an applicant to join the GGTS.

Inquiries

Olympics 2012 CPO Objection

25/05/2006

Appeared at the inquiry into objections to the Olympics CPO. During the course of the inquiry, the scheme was altered insofar as it affected the objection site concerned rendering the objection unviable. The objection was withdrawn and the promoter ordered to pay the objector’s costs

Inquiries

Associated British Foods, Standon

13/04/2006

Represented ABF at the Local Plan inquiry, seeking the allocation of former factory premises for residential redevelopment.

Inquiries

North West Development Agency

23/02/2006

Represented the NWDA at an inquiry concerning a proposal to landfill household waste at Sandyforth Farm, Wigan, at which its concern was that the position regarding the availability of grant aid should be clear.

Inquiries

Residential Development at Cranfield

17/01/2006

Acted for Mid Bedfordshire District Council, who resisted a proposal by Cranfield University to develop over 300 dwellings on land at the Airfield contrary to the recently adopted Local Plan Review.

Inquiries

Central London Energy from Waste Plant

06/09/2005

Acted for the promoter (RRRL Ltd) as junior counsel in two inquiries into objections to its proposals for a regional-scale incinerator at Bexley to serve the needs of Central London

Inquiries

Residential development at Tongham

02/08/2005

Acted for Oakdene on their successful appeal for residential development at Tongham, near Guildford.

Inquiries

Quarry Restoration Enforcement

21/06/2005

Appeared for Hertfordshire County Council at an inquiry into an appeal against Enforcement Notices relating to the restoration of land at Hollingson Meads Quarry, north of Harlow.

Inquiries

British Sugar Factory, Ipswich

16/11/2004

Appeared for British Sugar at the Babergh Local Plan inquiry concerning its proposals for the comprehensive redevelopment of its site at Ipswich.

Inquiries

Wembley CPO Objection

19/05/2004

Appearance at inquiry into objections to Wembley CPO, following which the Order was modified by the Secretary of State to exclude the objection site and adjoining properties.

Inquiries

Definitive Map Modification – BOAT

23/03/2004

Appeared for Northumberland Estate at an inquiry following which a claim that the Definitive Map should be modified on the basis that historic evidence indicated the existence of a BOAT going back to Roman times was rejected.

Inquiries

Definitive Map Modification – Footpath

19/02/2004

Acted for Northumberland Estates and Rothbury Golf Club in successfully resisting a user-based claim to modify the Definitive Map to show a footpath running alongside and in part across the golf course.

Inquiries

Central London Energy from Waste Plant

01/07/2003

Acted for the promoter (RRRL Ltd) as junior counsel in two inquiries into objections to its proposals for a regional-scale incinerator at Bexley to serve the needs of Central London.