Update: planning

Protective costs orders

A recent decision in the High Court, just upheld by the Court of Appeal on essentially the same grounds, has ruled that the modifications to the accepted principles on which protective costs orders (PCOs) can be made in environmental cases as set out in Garner v Elmbridge Borough Council [2010] EWCA Civ 1006 only apply where article 10A of the EIA directive 85/377 has been successfully engaged. To many, the court's decision in Garner represents a significant relaxation of the Corner House rules which apply to applications for protective costs orders and reciprocal cost caps in environmental litigation.

On considering the appropriate test to apply when deciding whether the costs of environmental litigation are 'prohibitively expensive' for the purposes of the directive, it found that the applicant's financial resources should not be considered on a 'purely subjective' basis, and the claimant does not necessarily have to provide evidence of their funds available to meet the costs of litigation.

The applicants in R (oao) Coedbach Action Team v Secretary of State for Energy and Climate Change and Helius Energy plc [2010] EWHC 2312 sought to rely on Garner; their previous application for a PCO having been refused in the absence of sufficient information as to their means. The action team established a limited company to object to two unrelated proposed biomass generating stations in Wales and sought a PCO in relation to its challenge to the grant of consent for a 100MW biomass plant at Avonmouth Docks, Bristol. The challenge was brought in the hope that it would prevent the consent becoming material to planning appeals on the two other schemes.

The application was successfully defended by both the secretary of state and Helius plc. The High Court in Cardiff refused the application principally because CAT was not 'a member of the public concerned', one of the pre-requisites for directive 85/377 to apply. CAT took no part in the determination process for the grant of consent and had no direct interest in the scheme, meaning it also lacked the sufficient interest needed to engage the directive. Because the group lacked the necessary standing the Corner House principles were applied in their unmodified form, and, again, because of CAT's lack of interest in the Avonmouth decision, the order was refused.

The claimant's status as a limited company attracted obiter comments from the judge. Even adopting an objective approach, a potential liability of £70,000 would require a contribution of around £3,000 for each of the 25 members and this was not considered to be 'prohibitively expensive'. The ability of a limited company to cap or extinguish its liability by dissolution was also noted, meaning a PCO would be rendered superfluous.

Disturbing the species

The Court of Appeal has reached a decision in Morge v Hampshire County Council [2010] EWCA Civ 608 relating to the deliberate 'disturbance' of protected species which will be welcome to developers; though it is the subject of an appeal to the Supreme Court. Planning permission was granted by Hampshire for a rapid bus route and cycle lane along the line of a disused railway cutting. Construction of the route would entail clearing a swathe of vegetation from the floor of the cutting which had matured during 40 years of disuse. Importantly, several species of European protected bats and nationally protected badgers foraged and/or lived in this wildlife corridor.

It was common ground that the development could impact on protected species and their potential habitat, leading the Court of Appeal to consider the test of deliberate disturbance under article 12(1)(b) of the directive, and deterioration or destruction of breeding sites breeding sites or resting places under article 12(1)(d). In considering the purpose of the directive provisions, and drawing on European guidance on the directive and case law of the European court, the judgment provides a useful summary of the nature and application of the directive in this respect.

To constitute deliberate disturbance, the court found that there must be disturbance having a detrimental impact which affects the conservation status of the species at a population level. Disturbing one, two or three members of a species is unlikely to satisfy this test, although it will be a matter of fact and degree to be assessed by the decision maker in each case.

The scope of article 12(1)(d) encompasses both direct and indirect effects on breeding sites or resting places. However, the court held that this protection does not extend to potential breeding sites or resting places where the ecological functionality of actual sites is unaffected, which was borne out on the evidence in the instant case. In particular, potential interference from the bus route with routes used by bats to forage would not be covered by article 12.

The Court of Appeal's guidance will provide welcome clarity to planning authorities in their approach to the directive, which is vital to their role in having 'due regard' to its provisions following the introduction of the Conservation of Habitats and Species Regulations 2010. In this instance the court was satisfied the planning authority had properly considered the directive.

Back planning

The revocation of planning permissions is a difficult area of planning law, with few cases outside of the minerals planning regime dealing with the issues. The recent Court of Appeal decision in HSE v Wolverhampton City Council [2010] EWCA Civ 892 provides important clarification on the lawfulness of part revocation and the relevance of the need to pay compensation.

The planning authority granted detailed planning permission for development of four student accommodation blocks. The development site neighboured an existing LPG storage facility and HSE had objected to the application. The permission was granted and part built when HSE went to court by way of judicial review.

One key issue before the court was whether the council was entitled to give weight to the requirement to pay compensation when deciding whether to use their powers under section 97. In Alnwick District Council v Secretary of State for the Environment [2000] 79P&CR 130, the High Court had previously held that compensation was not a material consideration for the court when considering whether to revoke a planning permission. Conversely, in the recent case of Usk Valley Conservation Group v Brecon Beacons National Park Authority [2010] EWHC 71 (Admin), the High Court held that the level of compensation payable was a factor a planning authority could give weight to when deciding whether to use its powers under section 97.

The Court of Appeal was split on the issue. Sullivan LJ (giving the leading judgment) and Longmore LJ held that the approach in Usk was correct and the compensation payable could be a material consideration. As Sullivan LJ put it, decisions to revoke planning permissions were not taken in a vacuum and there was nothing in the planning acts which prohibited an authority from having regard to the statutory obligation to pay compensation.

Pill LJ in an extensive dissenting judgment considered Usk to have been wrongly decided; in his view the same approach to material considerations that applied to general planning should also be applied to decisions regarding revocation. If planning permissions could be revoked for financial reasons a deterrent for facile decision making would be removed.

As Pill LJ argued, allowing planning authorities to take into account the need to pay compensation is likely to make revocation orders even less common than is already the case. The case also provides a rare example of a local authority not following HSE advice on the safety of residential accommodation. It is notable that the HSE felt strongly enough about the issue to go to court.

Supermarket sweep

Section 226 of the Town and Country Planning Act 1990 provides a tool for local planning authorities to acquire land compulsorily if the planning authority believes it will facilitate the carrying out of development, redevelopment or improvement. This power has been at the heart of regeneration projects and town centre redevelopments up and down the country for many years. The local planning authority typically chooses a development partner who agrees to underwrite the compensation for land acquired under the powers, and to buy the land from the planning authority on a back-to-back basis.

A classic objection from landowners is to argue that they have their own development plans and that these should be integrated into the council's scheme in a cooperative way, avoiding the need for compulsory purchase. Councils and their development partners normally have the clout to defeat this argument in front of the inspector at the compulsory purchase inquiry, on the basis that to do so would not deliver the best scheme and that the objector's plans and funding are not secure.

Sometimes, however, the two competing developers and their schemes are self-evidently the same in credibility and the criteria for judging which should win can become difficult. An important aspect of the council's approach is that under section 226(1A) it must hold the view that the proposed acquisition of private property rights is likely to promote or improve the economic, social or environmental well-being of the area.

In R (on the application of Sainsbury's Supermarkets Limited) v Wolverhampton City Council [2010] UKSC 20, the Supreme Court heard how Tesco and Sainsbury's each owned part of the same site in Wolverhampton. Sainsbury's owned by far the larger part.

Both wanted to construct a supermarket on the same land in the city centre so they both brought schemes to the city council for planning permission. However, as neither was prepared to sell its part of the site to the other both schemes required the council to use its compulsory purchase powers to break the deadlock.

In this zero-sum game the question for the council was which supermarket would prevail and which would lose its land. To differentiate between the schemes the council gave weight to Tesco's plan to enter into a planning obligation to redevelop a rundown site it owned across the other side of the town which was in need of regeneration.

The Supreme Court, however, ruled that the council's reliance on the cross-town development was too fanciful and too remote: it did not offer a real connection with the land to be compulsorily acquired and was therefore outside section 226(1A). Tesco's general approach is not ruled out in principle by this decision, but on the facts of this case it was stretched too far.