Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger, William Upton and Mark Davies consider Michael Gove’s comments on the establishment of a ‘Commission-like’ body post Brexit, the importance of re-consulting when a planning project is amended and the impact of air quality considerations on housing development.

Michael Gove suggests setting up a ‘Commission-like’ body post Brexit

On 31 October 2017 Michael Gove gave evidence to the Environmental Audit Committee where he set out a number of views on the potential future of environmental policy post Brexit. He has concluded there will need to be some form of body or bodies that would be capable of holding government to account on environmental issues, effectively replacing the roles of the Commission and the ECJ. He considered that the case that such a body was necessary to negate the risk of weakening environmental standards was “well made”.

He went on to state that he suspected that judicial review on its own would not be enough to ensure adequate environmental protection (in contrast perhaps to the impression that has been given to date by the Government). Yet, in a riposte to those that fear the weakening of environmental protection post Brexit, he specifically highlighted the fact that the EU cannot be judicially reviewed. In his view a combination of judicial review and the appropriate means of holding government to account had the potential to provide a stronger and more effective system of ensuring environmental protection in the UK than currently exists in the EU.

Whilst superficially attractive, as always the devil will be in the detail. By way of example, the Commission currently considers environmental complaints and petitions directly from EU citizens, providing an effective route for any person, irrespective of whether they have standing to bring a legal case, to raise concerns about environmental protection. The Commission also requires regular reports, not just on the implementation of environmental law but also on the effect of law in practice. The majority of EU infraction proceedings against the UK have concentrated on the latter issue.

There was little detail of the way in which the functions of the Commission would be replicated by this proposed independent body. Instead, this proposal would need to be the subject of detailed consultation. He stated that this proposal would need to be the subject of considerable consultation. Importantly, there was no indication of when such a body or bodies would be in place. Consultation will occur whilst the UK remains a member of the EU but come exit day, there is no guarantee that these proposals will be in place.

The importance of re-consulting when a project is amended

Last week’s decision in the case of R (oao Del Brenner) v London Borough of Hackney [2017] EWHC 2823 (Admin) has provided a timely reminder of the need to act fairly when considering whether to carry out further consultation when amendments are made to an application for consent.

The Court had to consider two judicial reviews regarding the grant of planning permission to redevelop Eagle Wharf on the south side of Regents Canal in Hackney. Various revisions were made to the plans (including a series made in May 2016) and permission was eventually granted in July 2016. The May 2016 revisions proposed a reduction in the residential aspect of the development by 22% and an increase in the B1 use (business) space of 34%.

Mr Brenner argued he (as a Member of the Mayor’s Waterways Commission) and other members of the public should have been re-consulted as to the impact of the May 2016 revisions on the general area, including the Canal as a Site of Interest for Nature and Conservation.

The Judge found that the correct test to apply is one of fairness in each case. Mr Brenner, and the public more generally, were prejudicially deprived of the opportunity to make submissions. The May 2016 revisions were, in the words of the Judge, “…on any view… not insignificant.” A brief letter inviting additional comments to be made before the committee was not an, “…effective substitute for re-consultation on the amendments to the application,” and that, “…the time for providing representations on what was a major application in a sensitive location was short.”

This case is a useful exposition of the principles governing the duty to re-consult, particularly when sensitive environmental areas are concerned.

Nicholas Ostrowski appeared for the London Borough of Hackney.

Air quality and housing development

The main news on air quality has been dominated by the recent ClientEarth litigation, and indeed they confirmed last week that they are going back to court again – this time to challenge the substance of the national air quality plan on NO2 published in the summer.

But this issue is becoming increasingly important in individual planning decisions, particularly in areas where there are already air quality problems. What was once simply a matter of offering some mitigation, can now become a reason for refusal. The Planning Court has now being asked to consider a challenge to an inspector’s refusal of planning permission for new housing on air quality grounds – Gladman Developments Ltd v SSCLG and Swale BC [2017] EWHC 2768 (Admin), 6th November. At the inquiry, the developer and the Council had agreed a sum that would be paid in order to mitigate the adverse effects from the traffic likely to be generated by the scheme (of some £9,000 per house). They also prayed in aid the new national Air Quality Plan. CPRE, acting as a third party, brought evidence to dispute this. The inspector agreed with them, and found that there was no clear evidence before him to demonstrate the likely effectiveness of the measures proposed to mitigate the adverse impacts. The court has upheld his decision.

Whilst this can be seen as healthy reminder that the developer’s evidence may not satisfy an Inspector, even when agreed by the local authority, the case is also important for the court’s confirmation that the planning authorities are entitled to consider the local evidence and not simply assume that the new national AQ Plan will mean that the UK will soon become compliant with the Directive. As the Secretary of State himself argued in court, the Inspector was not required to assume that local air quality would improve by any particular amount within any particular timeframe.

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