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Planning High Court Challenges webinar session 1: Planning and environmental issues — Transcript

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0:00Welcome to Landmark Chambers uh webinar
0:02planning by court uh challenges uh
0:05session one which is covering uh
0:07planning and environmental issues. Uh
0:10we're delighted um so many of you could
0:12join the session today and we hope you
0:15find the presentations to be useful. Um
0:17this is as I think Richard Turney
0:19remarked on LinkedIn uh possibly the
0:2218th year that we have run um this
0:24seminar now uh webinar um and uh I'm
0:28glad so many of you still find it uh
0:30useful. Um my name is um James Marici um
0:35Kings Council um and I'm going to chair
0:38the session today uh joined by a number
0:40of my colleagues who I'm going to
0:41introduce to you formally uh in a
0:43moment. Uh first of all um Ben who's
0:46going to be dealing with uh recent
0:48habitats case law. Uh Ben specializes in
0:51planning, public and environmental law.
0:53Uh he's ranked for planning and
0:54administrative law by uh chambers and
0:56partners and as a leading uh junior in
0:58legal 500. Um he um he's also on the
1:02attorney general's a panel of council
1:04and he regularly appears in the high
1:06court and the court of appeal uh on
1:08behalf of environmental campaigners,
1:10residence groups, developers, local
1:12authorities and the secretary of state.
1:15Uh Nick uh is going to be dealing with
1:17SEA and EIA case law. Uh Nick's a
1:20planning and environment specialist. Uh
1:22he he was Planning Magazine's top junior
1:24barrista and top junior barristister
1:26under 35 in 2026. Um and he's ranked in
1:30both chambers and partners and legal 500
1:32for planning and environment. Uh his
1:34cases include cases such as uh Finch and
1:36Fry in the Supreme Court CPR Kent on the
1:41scope of the new AM duty uh and Rotham
1:44and Mole Valley on the approach to gray
1:46belt and and and green belt and his
1:48policy work includes having advised the
1:51government on the uh MPPF uh versions
1:5423, 24 and 26.
1:57Um Margarita is dealing with climate
2:00change litigation in the in in the high
2:02court. Um Margarita specializes in
2:04environmental law with a particular
2:06focus on climate related issue and human
2:08rights. Um she's ranked in chambers and
2:10partners and and shortlisted in this
2:12year's planning and environment genius
2:13category. um on she's on the attorney
2:16general uh C panel uh of public
2:19international law and on the equality
2:21human rights um commission panel and she
2:24practices in public law and
2:25environmental group claims domestically
2:27and is impered in most of the cl uh the
2:29climate proceedings before the ICJ uh
2:33and uh regional human rights uh courts.
2:36Um Odet is dealing with section 106 uh
2:39high court case law. Odette specializes
2:42in planning and environmental law. She's
2:44ranked by legal 500 in chambers and
2:46partners as one of the top planning
2:47juniors by planning magazine. She's also
2:49on the attorney general C panel and she
2:51regularly appears in the high court and
2:53court of appeal and at planning
2:54inquiries and hearings.
2:56Um and then uh finally uh Poppy um who's
3:00going to be uh talking to us about the
3:02uh environmental principles in the
3:04environment act and their and their
3:05application in planning high court
3:07cases. Uh Poppy specializes in planning
3:09and property law, particular interest in
3:12the overlap between those two areas. She
3:14regularly appears at planning inquiries
3:16um and she has recently been involved in
3:19a high-profile judicial review led by
3:21Richard Turning involving a significant
3:24uh um infrastructure project. Um and uh
3:28she is a writer for the um J um JPL
3:31JPEL. Um so um those are our speakers.
3:35Um and uh without any uh further delay,
3:39I'm going to hand you over to our first
3:41speaker. Um that's Ben.
3:44>> Uh good morning everyone. Um as you can
3:47see from the very long title, I'm talk
3:48to you about habitats regulations. I'm
3:51going to start with in fact most of my
3:53time will be taken up with a a review of
3:55the year in terms of significant
3:57judgments on the habitat's regulations
3:59and then I will end unless I get red
4:01carded with uh a look forward to
4:04potential challenges to um uh measures
4:08made under the uh the relatively new
4:10planning and infrastructure act. So um
4:13hoping I can now control the slides.
4:16There we go. Um, so these are the five
4:18cases I'm going to be uh talking to you
4:21about. They've been handed down since
4:22October of last year. And I'll start off
4:25with um there's a sort of timeline of
4:28them. Um I'll start off with uh CG Fry
4:31and Sons. So this was Judgment Handed
4:34down in October of last year. So it may
4:36well have featured in last year's um
4:39last year's roundup as well. But since
4:42given its significance, I thought it's
4:43worth worth just touching on again. A
4:46number of you probably now familiar with
4:48the issues in that case, but it it
4:50concerned a large mixeduse development
4:52in Somerset. Um an outline planning
4:54permission was granted in 2015. Reserve
4:57matters approval for phase three of the
4:59project approved in 2020 subject to
5:02various conditions um relating to the
5:04need to for the council approved details
5:06of things like surface water, drainage,
5:08construction, environment management
5:09plan, etc. The site was in the river
5:11tone which feeds into the Somerset
5:13levels rams site and after the reserve
5:16matters approval natural England
5:19published its guidance on nutrient
5:20neutrality which I'm sure you're all
5:22familiar with but the effect was that of
5:24that was that local planning authorities
5:26were advised to take a a nutrient
5:28neutral approach development. So
5:30development shouldn't be approved if it
5:31was going to increase the um level of
5:34nitrates or phosphates in the protected
5:36sites.
5:38Um so the council refused to discharge
5:41the conditions on the basis of the
5:42absence of an appropriate assessment
5:44showing nutrient neutrality would be
5:46achieved. Um the developer appealed for
5:48non-determination. A planning spectre
5:51agreed with the local council,
5:52determined that what was then paragraph
5:54181 of the MPPF um which afforded RAMs
5:57sites equivalent protection to other
5:59European sites um applied at the
6:02condition approval stage to require
6:03appropriate assessment and that the
6:06interpretation of Habitat's regulations
6:07post Brexit still fell to be carried out
6:10in light of the Habitat's directive and
6:12CJU case law. That was challenged in the
6:15high court. It eventually reached the
6:16Supreme Court which looked at two
6:17issues.
6:19So the first uh was whether appropriate
6:22assessment was required before the local
6:24planning authority decides uh to
6:25discharge conditions at reserve matters
6:27stage and the second was the effect of a
6:30grant of outline planning permission and
6:32the impact of the policy protection
6:34given to Ramsar sites. And so in
6:36relation to um issue one
6:40uh you can see that um the habit the
6:43court found the habitats regulations
6:45full to be interpreted in line with the
6:46CJU case law before Brexit the directive
6:50and its intention and um the overall
6:54purpose was to provide a high degree of
6:56protection for vulnerable habitats and
6:58sites. that regulation 63 used
7:00deliberately broad language um and to
7:04make a uh and to hold that um it wasn't
7:08necessary or it wasn't possible to to
7:10require appropriate assessment at the
7:13reserve matter stage that that could
7:14only be carried out at the with a formal
7:16grant of planning permission would
7:19defeat the purpose of the habitat's
7:20regulations. Um, interestingly, the
7:23court made no finding on the question of
7:25whether it was necessary to conduct a
7:27habitat's regulations assessment at the
7:30earliest opportunity as it is with EIA.
7:32So, it left that question open. Um, in
7:36issue two, it actually allowed the
7:37appeal on on issue two. So, at the time,
7:40the uh uh the Ramsar site was only
7:43protected by virtue of policy in the
7:45MPPF that said it should be treated as
7:47if it were protected by the habitat's
7:49regulations. the MPPF as a material
7:52consideration at the time of granting
7:53planning permission. But the court said
7:55that relationship between the MPPF and
7:58the and the development fundamentally
7:59changed once planning permission had
8:01been granted. Once planning permission
8:03been granted, there was a right granted
8:05to develop the land um which was not
8:07made defeasible depending on government
8:09policy. So where outline permission is
8:12granted, it's not open to a planning
8:13authority to revisit matters which have
8:15been approved in principle at the
8:17outline stage and some element of
8:19development must be acceptable within
8:21the ambit of the outline permission and
8:23in this case and that's not what
8:25happened since um the council had
8:28approved but then natural England's
8:30guidance had changed. Um but as a matter
8:32of policy that the court found um was
8:35not something that could stand in the
8:37way of development at all uh of the
8:40site. Um
8:42and so whilst issue two is of widest
8:44interest regarding the extent to which
8:46planning authorities are entitled to
8:47refuse applications to discharge
8:49conditions um the particular relevance
8:52in relation to rams sites is now
8:53slightly academic or entirely academic
8:55because schedule six of the planning and
8:57infrastructure act has now afforded them
8:59equal protection as a matter of law to
9:01other habitats regulation sites. So
9:03that's uh CG fry. Um next case is beyond
9:08GM.
9:09Um so this was a case uh relating to um
9:13precision bred organisms or PBOS's which
9:17are modifi which are organisms modified
9:19using modern biotechnology in a way
9:21which is stable which could have arisen
9:23through traditional breeding. Um the
9:26genetic technology precision breeding
9:28act 2023 created a regulatory pathway
9:31for PBOS's in England which was separate
9:34from and was a lighter touch regime from
9:36that which applied to genetically
9:37modified organism controls and the act
9:41gave the secretary of statewide powers
9:43to regulate PBO food and feed marketing
9:46by way of secondary legislation.
9:49Uh and um
9:53so uh section 26 of that act conferred
9:56general marketing power and section 262B
9:59expressly permitted requirements to be
10:00imposed for the purposes of securing the
10:02traceability of PBO food. Um
10:07before that all PBO food incl all
10:10genetically modified organisms including
10:12PBOS had to have a label identifying
10:14them as such. That's no longer the case.
10:16So these this um was implemented by the
10:18genetic technology precision and
10:20breeding regulations 2025 and they
10:23established a food and feed
10:24authorization framework administrated by
10:26the food standards agency and as I said
10:29they um did not impose any mandatory
10:31labeling requirements on PBO and food
10:34and feed. that was challenged by the
10:36claimants in that case. That challenge
10:38on several grounds and one of these was
10:39that the 2025 regulations amounted to a
10:42plan or project for the purposes of
10:44regulation 63 of the habitats
10:46regulations assessment and that
10:48therefore there had been a failure to
10:50carry out appropriate assessment. The
10:52court found that in principle secondary
10:54legislation could be a plan or project.
10:56Um the concept is a functional one. It
10:59doesn't depend on the in instrument that
11:01gives rise to it. Um but there are
11:05limits and the mere fact that the
11:07measure is likely to have a significant
11:08effect on an environmental side doesn't
11:11mean it's a plan or project. The court
11:13said the outer limits can be derived
11:14from the language of article 63 of the
11:16habitat's directive. The obligation
11:18imposed by that provision is to conduct
11:20an appropriate assessment of the
11:22implications of the plan or project for
11:24a European site in view of its
11:26conservation objectives. It follows the
11:28concept of a plan or project presupposes
11:30a measure whose implications for a year
11:32site are capable in principle of such
11:34assessment. Accordingly, although the
11:36concept is to be construed broadly and
11:37purposively, it doesn't extend to the
11:39measures which lack sufficient precision
11:42or any discernable linkage to particular
11:44sites such that the implications for
11:47those sites uh can't be meaningfully um
11:50assessed. So it it's a and it dismissed
11:54the idea that the habitat's regulations
11:56did apply here. There's a good case on
11:58just understanding
12:00if you like the limits of that concept
12:02of plan or project and in this case the
12:05regulations were outside of the limits
12:06although it's worth noting that claim
12:08did succeed uh on other grounds. Um so
12:13next we turn to the um uh the British
12:16Association for Shooting and
12:18Conservation. I think that's one of
12:19James's um many victories. Um this was a
12:24challenge uh by the British Association
12:26for Shooting Conservation to certain
12:28conditions which Natural England had
12:29imposed on licenses for releasing
12:32feeasants and partridges near um spas.
12:34So European sites. In essence, since
12:382021, section 14 1B of the Wildlife and
12:42Countryside Act 1981 made this an
12:45offense to release feeasants and parters
12:47into the wild. Uh but section 16 gives a
12:50power to issue a license uh which if
12:52adheres to disapplies the criminal
12:54offense. So quite familiar um regime in
12:57in the habitat's world. Um section uh 16
13:02of the wildlife and countryside act um
13:04provided that licenses could be subject
13:05to compliance with specified conditions
13:09and um natural England imposed a
13:11condition restricting the keeping of
13:13feeasants and partridges in control
13:15zones being spas in a 15 me buffer zone
13:18from them and the purpose of that was to
13:20to reduce the risk of bird flu
13:21transmissions. Um the claimant submitted
13:24that the condition went beyond the
13:26statutory purpose of section 14 because
13:28that only dealt with the release or the
13:29escape of birds not their keeping.
13:32Natural England argued among other
13:34things that section 14 needed to be
13:36interpreted in light of the habitat's
13:38regulations uh under which it had a duty
13:40to exercise functions which are relevant
13:42to nature conservation so as to secure
13:45compliance with the requirements of the
13:46directive and the wild birds directive.
13:49Um
13:50the court um allowed the claim. It
13:54confirmed that the environmental
13:56protections under the habitats
13:57regulations don't confer any additional
13:58licensing powers beyond those authorized
14:00by the relevant uh legislation.
14:04The court said in my judgment the
14:05habitat's regulations do not affect the
14:07proper interpretation of section 14.
14:09They both have the same narrow purpose
14:11but the regulations cannot widen or
14:13enhance the scope of criminality under
14:15section 14. the EU directives no longer
14:17have any relevance. In addition, there
14:19is no duty to interpret domestic law
14:21consistently with EU law. The principle
14:23of supremacy um has been uh repealed.
14:28So a helpful case there about the
14:30interaction if you like between uh the
14:32ongoing duties particular natural the
14:35habitats regulations and other um
14:37licensing regimes. The next case is
14:40staunch campaign uh limited.
14:44Um so in that concerned a warehouse
14:46development on land which was
14:48functionally linked to an SPA. The
14:51developer identified an alternative site
14:53as a replacement to to if you like to
14:55replace the loss of functionally link
14:57land and an appropriate assessment was
14:59carried out which concluded that the
15:01loss of that land would um
15:05have an adverse effect but that
15:07replacement of the land was appropriate
15:10uh mitigation. The planning commission
15:12was granted. Um that decision was
15:14challenged by the claimant which argued
15:16that the council failed to consider
15:17whether the replacement land was
15:19genuinely mitigation or whether it was
15:21in fact compensation and if it was cons
15:24compensation that would have engaged the
15:25derrigation provisions the OPI
15:27provisions in regulation 64 of the
15:30habitats regulations. Um the court
15:34explained um that mitigation uh lessens
15:37the negative effects of a project with
15:39the aim of ensuring if possible that the
15:40integrity of the site is not adversely
15:42affected albeit that some insignificant
15:45and or transient effects might uh not be
15:48totally eliminated. Compensatory measure
15:50by contrast does not achieve that goal
15:52within the narrower framework of the
15:54plan or project itself. Rather, it seeks
15:56to counterbalance the failure to do so
15:58through different positive effects with
16:01a view to at at the very least avoiding
16:03a net negative effect within a wider
16:05framework of some description. So,
16:07that's quite helpful
16:09um guidance on the distinction between
16:10the two, not that it's always easy to
16:12identify in practice. Um it's important
16:15to stress the claim didn't say that the
16:16functioning link land was incapable of
16:18being a mitigation measure, just that it
16:20was necessary for the council to
16:21consider the matter. The court
16:23considered some of the European cases
16:25relied upon by the claimant including
16:27the Briels's case. Um it's it noted that
16:31those cases involved the loss of land
16:32within the SPA. And it said of this,
16:34it's important to realize that both
16:36Briels and Grace were cases where the
16:38project would involve development within
16:40the European site itself. In such a
16:42case, it's likely to be difficult in
16:44practice even for experts to say with
16:46the requisite degree of scientific
16:48certainty that the proposed ameliative
16:50measures will not affect the site's
16:52integrity. So the judgments need to be
16:54read in that light. And this case said
16:56the court was nowhere near the fact of
16:58those cases. In this case, nobody
17:00suggested that with the provision of
17:01alternative land there would be any
17:03significant effect on the SPA. Thus, the
17:06possibility that the proposed
17:07alternative land was compensatory didn't
17:09even enter the equation. The court
17:11placed quite significant weight on the
17:13advice of Natural England and it it
17:15rejected the claimment's contention that
17:16natural had just been providing high
17:18level advice. Um it seemed to sort of
17:22doubt that natural advice could ever be
17:23sort of treated or dismissed in that
17:25way. The court said the claimants
17:27attempt to portray natural as merely
17:28giving high level advice is without
17:30merit. Naturally as a statute consulty,
17:32its importance was specifically
17:33recognized uh by Lord Justice Sales in
17:36the Smith case where he held a relevant
17:38competent authorities entitled to place
17:40considerable weight on the opinion of
17:41natural England as the expert national
17:43agency. Um
17:46and so uh yes perhaps a salutary warning
17:49for claimants seeking to challenge
17:51decisions relating to habitats
17:52regulations where natural England has
17:53given um has given advice that it will
17:56be uh very very difficult. Um then
18:00Harris
18:02is a very recent judgment was handed
18:04down on the 9th of October. The uh the
18:07claimant was a couple who lived on a
18:09farm um in the fence took a judicial
18:13review against natural for the failure
18:14to take appropriate steps to prevent the
18:17pollution of catfield fen from
18:19agricultural runoff pursuant to its
18:21duties under regulation nine of the
18:23habitats regulations and article 62 of
18:25the directive. Um
18:28and the court considered the
18:29relationship between regulation 9 and
18:31article 62. So regulation 9 is a
18:34provision which places a duty on both
18:36the secretary of state and natural to
18:37exercise their functions so as to secure
18:41compliance with the requirements of the
18:42habitats uh directive. That was the
18:44regulation that natural was was relying
18:46on in the um game birds uh case that I
18:50described earlier. Article 62 requires
18:53them that they take appropriate steps to
18:55prevent the deterioration of European
18:57sites. The claimment made two arguments.
18:59First, the claimment argued that once
19:02notified um that the condition in the
19:05SACE, the special area of conservation
19:07had dropped below the requisite
19:08standards. Natural England had a
19:10discretion as to what steps to take but
19:13no discretion um as to the timetable in
19:15which to take them. But effectively the
19:17combination of regulation 9 and article
19:1962 required naturally to take immediate
19:22make take an immediate response and then
19:25the second ground which um Mrs. Justice
19:28Leven described as more ambitious uh was
19:30that the action naturally had taken was
19:32outside the range of reasonable
19:33responses. The court dismissed the claim
19:37on ground one. Uh the judge said the
19:39claimment's first limb of the ground in
19:41my view imposes too high an obligation
19:42on natural England. Um,
19:46council submits that natural England was
19:48and remains in breach of its duty under
19:49regulations nine and article two uh,
19:52article 62 as soon as it was first
19:54alerted to the risk of harm to the SACE
19:56and failed to take active steps to
19:58remedy the breach including by
19:59undertaking appropriate appropriate
20:01investigations. Natural England have to
20:03be given time to investigate the
20:05situation and then determine what are
20:07appropriate steps to take. It also fails
20:09to appreciate that the appropriate steps
20:11must necessarily include steps to
20:13investigate the alleged risk. There's
20:15therefore inevitably a spectrum of
20:17reasonable responses including
20:18investigation and assessment which will
20:20be highly fact specific. So naturally
20:22given a bit of discretion and I'm going
20:24to sort of now just wrap up um with a
20:28quick look at part three of the planning
20:30infrastructure act which you probably
20:31know creates environmental delivery
20:33plans and the nature restoration levy.
20:35Um it is likely that these will be the
20:37subject of litigation. Um they have the
20:40sort of they have so far that the steps
20:42towards this point have been litigated.
20:45Um
20:48we are currently I think there's one EDP
20:50in the course of being prepared. Um that
20:54has already been criticized by the OEP
20:57expressed some concern. and it doesn't
20:59yet demonstrate that intended
21:00environmental outcomes will be achieved
21:02and I would be surprised if um that
21:05didn't lead to uh litigation
21:08uh at some point in the process. It's
21:11not worth noting section 71 imposes like
21:13with many planning challenges a six week
21:15limit for challenges to EDPs. The second
21:18point I just wanted to highlight before
21:20I finish was um some of the secondary
21:23legislation implementing um these EDPs.
21:27say particularly the ED environmental
21:28delivery plans appropriate
21:30prioritization regulations 2026 the
21:32recent parliamentary committee report on
21:34statutory instruments has flagged these
21:36as being potentially ultravirus um I'll
21:40read what it said and then I'll conclude
21:41but it said that the the 2025 act um uh
21:46allows the secretary of state to make
21:47regulations setting out the appropriate
21:48prioritization by natural England of
21:50conservation measures when preparing or
21:52amending an EDP regulation three sets
21:55out which measures should be priority
21:57but then goes on to indicate that
21:58natural England should only apply that
22:00prioritization where they think it's
22:01appropriate to do so. Um and uh
22:06it goes on to say the department states
22:08that regulation 3 empowers natural to
22:10depart from the application of a general
22:12rule in a particular case where it's
22:14appropriate to do so and asserts that
22:15this is an instance of administrative
22:17subdelegation which doesn't require
22:19express authorization as it reflects the
22:21overall framework in part three of the
22:232025 act that deciding which
22:25conservation measures are appropriate
22:27for an individual EDP will be led by
22:29natural England. The committee
22:30disagrees. The enabling power expressly
22:32states that the secretary of state must
22:34make regulations setting out the
22:35appropriate prioritization allowing
22:37natural to decide whether it's
22:39appropriate to follow that
22:39prioritization is a subdelegation that
22:41of that legislative power.
22:44And so the committee says where
22:46parliament intends to convert a
22:47legislative discretion, it must do so by
22:49express words. There are no express
22:51words rebutting that presumption in
22:52section 639. The committee accordingly
22:55reports uh regulation 3 for doubt as to
22:57whether it was intraver.
22:59potential avenue for argument about
23:01those regulations. Um essentially what
23:03what this what the statute said was that
23:06um the central state had to basically
23:08make regulations about what priority
23:10natural English should give. So whether
23:11it should be avoidance over mitigation
23:13etc. But the regulations allowed natural
23:16England to exercise a discretion over
23:18that and those two things appear to be
23:19incompatible. So you know lots of
23:22potentially fertile ground in relation
23:23to the planning and infrastructure act
23:25and its implementation. Um and
23:29uh without any further ado, I'll I'll
23:31hand over to to Nick now.
23:34>> Brilliant. Thank you very much, Ben. Um
23:37whilst I wait to take control of the
23:39screen, um I'm picking up EIA and SEA.
23:44There haven't been many SEA cases in our
23:47domestic high court this year. Um there
23:50was one FDA court case which helpfully
23:54indicated that doing an EIA of something
23:56is no substitute for doing an SEA if it
23:58has to be sea and that whilst uh spatial
24:01development plans do require an SEA
24:04making a bank loan available does not.
24:06So I've rather left that um out for
24:09today. So we'll focus on EIA um starting
24:14with a few cases on the meaning of the
24:16project then some on consultation some
24:19handling arrangements and reasons for
24:20screening and then I'll come on at the
24:22very end to talk about EOS and where we
24:25are with those.
24:28So the first case that I want to pick up
24:32is Ray Shaw which is a Scottish case,
24:34Scottish minister's case. Um
24:39avid watchers may well remember lots of
24:42discussion about this when it was handed
24:44down earlier this year. Um some of the
24:46commentaries suggesting that the grid
24:49connection is that this may this shows
24:52grid connection must be part of any sort
24:54of wind farm projects. It doesn't. Um,
24:57this was a planning challenge to the
24:59planning commission without a grid
25:00connection. But what's important is what
25:02the reporter said and the reporter is
25:04the equivalent of the planning
25:05inspector. Um, and I've put that on your
25:08slide. Um, in effect he outlined the
25:12challenge that was being made. I the
25:13grid connection is necessarily part of
25:16the project and that there's been salami
25:17slicing. Uh, the reporter said no, it'll
25:21whatever will come across will be part
25:22will require planning permission. it's
25:24not part of the current proposal. Salami
25:26slicing is misconceived because that
25:28refers to an attempt to circumvent the
25:30objectives of the EIA directive etc. And
25:34it was that reasoning that was
25:35challenged. Um the court of session in a
25:38house so that's the equivalent the
25:41Scottish equivalent of our court of
25:42appeal really helpfully reviews all the
25:45authorities or all of the key ones from
25:47England and Wales from the Republic of
25:48Ireland one from Spain. um reiterates
25:51the established principle that what is a
25:53project is a matter for the decision
25:55maker but then said the reporter
25:58undertook the wrong task. So the task
26:02that's set out by case law is um set out
26:05in for example the the Ashurch case.
26:08What the reporter here had done was
26:10something different. So saying that for
26:11example the application excludes the
26:14connection just states a fact that's not
26:16a conclusion. Whether the grid
26:18connection will be subject to its own
26:20evaluation and EIA and planning
26:21permission also not the point. Um and
26:24then when there's a discussion of salami
26:26slicing, the reporter focused on whether
26:28there had been an attempt to circumvent
26:31the EIA regulations, but the court of
26:33session said that's that's the wrong
26:34framing. You're not looking at
26:35intention. You're looking at what the
26:37project is and whether part of it has
26:39been left out. So fundamentally the
26:42court uh quashed that particular
26:45permission and sent the task back to the
26:47reporter to look at and decide whether
26:51it is part of the project or not. So an
26:54important and handy principle uh handy
26:56case both a because it summarizes all of
26:58the uh relevant principles in terms of
27:01what you need to be looking for for
27:02whether something's part of the project
27:04um but also I think important to corre
27:06correct some of the misframing that's
27:08happened um as this judgment has been
27:11discussed.
27:12Now contrast that with the Shell case.
27:15So another Scottish case um Shell owned
27:19a gas pipe that crossed a quarry.
27:22The quarry had obtained planning
27:25permission to extend itself. That was
27:29subject to two conditions which related
27:31to relocation of the gas pipe. The
27:34quarry then obtained
27:37under the Scottish equivalent of section
27:3873 permission for that same extension
27:41but without complying with those
27:42conditions. Um the EIA for that purpose
27:45only contained a high level assessment
27:48an indicative route of where the gas
27:50pipeline may be relocated to. It didn't
27:54uh actually assess the route of
27:56relocation or the environmental impacts
27:58thereof. Um
28:02the claimant sought to review that. the
28:05claimant, I think in this case being
28:06Shell, who owns the pipeline, um arguing
28:10first that relocation was part of the
28:12project and therefore there was a racial
28:14mistake, racial being the case we've
28:15just looked at, and also that it was an
28:17indirect but inevitable effect and
28:19therefore needed to be assessed, which
28:20was the Finch case.
28:23Background was dismissed. Um I haven't
28:26put the reporter's notes on the slide,
28:28but effectively the court looked at what
28:30the reporter had done. he decided that
28:33high level assessment was sufficient. Um
28:35the precise effect couldn't in fact be
28:37known until a new route was determined.
28:40The reporter decided the new route
28:41wasn't part of the proposals and that
28:44was fundamentally a a judgment that was
28:46open to him. The EIA and supplemental
28:50info did what it was possible to do i.e.
28:52assess what it was possible to assess
28:54assess at this point but fundamentally
28:56it had been looked at properly by the
28:57reporter which is where the contrast is
29:00with the ray shore case.
29:03One final point um on the scope of the
29:06directive um
29:08reiterating this a woon region case is
29:11CJU case but it reiterates something
29:12that we've taken for granted for a
29:14while. This was a challenge to a descend
29:16to decision to extend the life of a wind
29:18farm. There was no public participation.
29:20The CJU held that was not a breach of
29:22the EIA directive. Um because it's
29:25apparent from the case law that simply
29:26renewing an existing permit to operate
29:28an installation cannot in the absence of
29:31works or interventions be classified as
29:33a project. Um the court in that case
29:35does go on to say it was um in breach of
29:37various ARHUS obligations and obviously
29:39ARUS is directly incorporated into EU
29:42law in a way that it's not here but for
29:44EIA purposes a helpful reminder albeit
29:47in a CJU post implementation period case
29:50that simply extending the life of a
29:52project doesn't require EIA.
29:56So moving on to our next theme which is
29:58reconultation and I'm picking up here
30:01the
30:02judicial review challenge to the new A5
30:04western transport corridor in Ireland.
30:08There were a lot of grounds put in this
30:10var variously focusing on climate change
30:12and carbon impacts. Um, one of them
30:18concerned EIA and fundamentally there
30:20had been an environmental statement and
30:22an EIA in EIA work done assessing
30:26greenhouse gas impacts.
30:28The objectives before the planning
30:30appeal commission said no no but what
30:31you haven't done is looked at um the
30:34impact of induced north south border
30:39traffic i.e. what will what traffic will
30:43this induce going north and south of the
30:45border between Northern Ireland and the
30:46republic um and assess the climate
30:49impact on those. The planning appeal
30:51commission had recommended that further
30:54work be done and be published and that
30:57further work was done and was published
30:58but wasn't consulted on. Um and the high
31:01court in that case in Northern Ireland
31:03agreed said it was new environmental
31:05information which should have been made
31:06publicly available and consulted on.
31:08They appealed to the Northern Ireland
31:10Court of Appeal.
31:12Uh they being the the Department for
31:14Infrastructure. Now the Northern Ireland
31:16Court of Appeal allowed the appeal.
31:18Article six of the EIA directive um
31:21requires the public to be given early
31:23and effective opportunities to
31:24participate. The EA itself was
31:27sufficient. The planning appeals
31:28commission had found that.
31:30who also uh in an entirely practical and
31:34sensible judgment said well the planning
31:37appeal commission has already found a
31:38vast adverse impact due to greenhouse
31:41gas emissions the new information isn't
31:44going to change that um all the PAC had
31:47suggested was requiring further
31:49publication of stat statistics and that
31:52was fundamentally done you know the
31:54justification for this scheme had never
31:56been on climate change grounds the
31:57justification for this scheme had been
31:58on highway safety grounds
32:00So fundamentally the court of appeals
32:02said there's been considerable
32:04consultation. There's been a lot of
32:05engagement on the question of GHG
32:07emissions. This wasn't a new issue left
32:10out of account unlike for example and
32:11this is that's the basis on which they
32:13distinguish Finch. Um and so
32:16fundamentally the court of appeal
32:17overturned the high court's judgment and
32:20uh upheld the grant of consent for the
32:23project.
32:28Another interesting niche, naughty bit
32:30of EIA law that uh has been discussed
32:33this year is the barber concerned
32:38uh
32:40internal handling arrangements when the
32:42LPA when when the same legal entity is
32:46the local planning authority and the
32:48applicant. So this was a challenge to
32:50the grant of planning permission for the
32:52London wall west development i part of
32:53the barban quarter. the city of London
32:56itself was both the applicant and the
32:57local planning authority.
33:00Um avid EIA watchers and I'm sure you
33:03all are will remember regulation 64
33:06which requires that there be no conflict
33:08of interest um and that where
33:12uh a single entity is applicant and
33:14determining authority, there needs to be
33:17functional separation. and a lot of um
33:20meat was put on that bone by the
33:23Holocaust memorial case of a few years
33:25ago. So in this case, what happened?
33:27Well, the city of London published a
33:29handling note um including and that set
33:32out ways and methods by which
33:34confidential LPA documents would not be
33:37stored on computer folders that were
33:39accessible to the developer. These were
33:40meant to be passcode protected such that
33:42the developer couldn't get into them at
33:44all. As it happens, uh, various
33:48documents, various LPA documents were in
33:50fact not put in those locked
33:52confidential subfolders.
33:54So those on the developers team could
33:57have in theory accessed them. But the
34:00high court found as a fact and the facts
34:02of that case that a none had been
34:04accessed by the the developer team and b
34:08even if they had been no action or
34:10outcome would have been different. So
34:13the claim was dismissed.
34:15Um it is worth rereading because there
34:18are a number of bases on which the high
34:20court does end up finding for the
34:22claimant not in terms of outcome but
34:24just in terms of some of the arguments
34:26that was put. So for example, one
34:28argument that was put by uh on behalf of
34:30the city of London was that this is
34:32about REG 64 is about designing
34:37um suitable handling arrangements. Um
34:39and you know once you've designed them
34:41and put them in place that's fine. And
34:42the court said no it's an ongoing duty.
34:44It's not just about designing the
34:46appropriate arrangements but somewhat
34:47unsurprisingly you also have to carry
34:49them out and comply with them. Um for
34:52various reasons an argument was made
34:53that there was no breach. And again, the
34:55high court said, "No, no, no. There
34:56clearly was a breach. There were
34:57handling arrangements. There wasn't
34:58functional separation." Um, so there was
35:00a breach, but the high court um refused
35:05to grant relief or remedy, i.e. didn't
35:08quash the commission, didn't quash the
35:10permission uh for three broad reasons.
35:13One, the outcome would inevitably have
35:15been the same, so there was no prejudice
35:17to the claimants. two, the claimant had
35:20been in light of that kind of simplex
35:22section 312A argument running an
35:24argument that there was a a fundamental
35:26and intrinsic defeat of a due process
35:29value. And again, the high court gave
35:30that relatively short shrift and what
35:34comes out in the third limb is that a
35:35breach of rig 64 doesn't automatically
35:39visiate the grant of planning
35:41permission. Um
35:44the question is especially where as here
35:46the breach demonstrabably had no bearing
35:48on the decision that was eventually
35:50reached. So um the Barbacan quarter case
35:54in line with the um Holocaust memorial
35:57case really helpful summary of both what
36:01needs to be done under reggg 64 to
36:03maintain functional separation and then
36:05the implications and how you assess the
36:07implications and deal with matters where
36:09there has in fact been a breach of uh
36:13that functional separation requirement.
36:18Um, next case and final interesting kind
36:21of naughty niche EIA point that's come
36:23up this year is reasons for EIA
36:27screening decisions and opinions. So,
36:29this is a Lchester case. It was a
36:30challenge to a screening opinion
36:32indicating that reforesting uh about 290
36:36hectares
36:37of not sure what the land was might have
36:39been agricultural but basically creating
36:40a new 190 hectare woodland did not and
36:43would not require EIA.
36:46So the screening opinion that was issued
36:49many of us will be familiar with the
36:50kind of screening documents that you see
36:52it included a matrix for the various
36:54aspects um you know uh heritage for
36:57example then a box that had effect on
37:00impact and then a box for mitigation and
37:02I've put one of those examples on the
37:04screen so you see um it talks about the
37:07fact there was an independent landscape
37:10uh sorry historic environment study um
37:13that in that had the benefit of input
37:15from the landscape adviser
37:17It then recites some points about the
37:19scheme and reaches a conclusion that
37:20it's UKFS compliant and the documents
37:23that were relied on to reach those
37:24conclusions. Um and the claimment the
37:28ground in this case was those were
37:29insufficient insufficiently reasoned. It
37:32was a reasons challenge. Um many of us
37:34will be familiar with the standard of
37:35reasons in normal decision-making South
37:38Bucks DC importer but of course that
37:40doesn't apply in AIA screening
37:43decisions. It's a very different, much
37:45lighter touch approach. Um, Lanchester
37:48contains again a really helpful review
37:49of the case law. So, if you're in this
37:51sort of situation, it can be your your
37:53one-stop shop. Um, but in terms of how
37:56it's analyzed and assessed, these the
37:58high court said in isolation, yes, the
38:00the decision and that checklist
38:02contained no reasons, but this is a
38:04screening opinion, so one can and must
38:06look wider. Here the matrix explicitly
38:11um referred to the various um LCA and
38:14heritage type impact assessments. So one
38:17can infer that it adopted the
38:18conclusions of those assessments both on
38:20the discrete issues and more widely.
38:23You'll you'll recall that uh there's a
38:25reference to being UKFS compliant. UKFS
38:28is the UK forestry standard. That in
38:29itself is another standard. Um and the
38:32court because of its content, the court
38:34said that indicates um the protection of
38:36woodland heritage features that that
38:38there was a conclusion sorry that the
38:40proposal would protect woodland heritage
38:42features and adequately address the
38:44landscapes and that the assessments that
38:46we're talking about that were
38:47incorporated by reference were all
38:49suitably detailed. So um helpful
38:52indication um of being yellow carded by
38:55James but that's good because I'm coming
38:56to the end of this talk. Um, so last bit
39:00then, environmental outcome reports.
39:01Where are we now? To be honest, not I
39:04don't know, not very far. Not much has
39:06changed since March 2026. The government
39:08set out its road map to reform in March
39:10earlier this year. Three phases of
39:12reform. Setting the outcomes, reforming
39:14the process, and then transitioning and
39:15testing. Not entirely clear when it's
39:18going to happen. The planning act 2008
39:20guidance on pre-application steps though
39:22says it's expected, these are expected
39:23to be in place in 2027. We'll see. I was
39:26specifically asked to consider likely
39:28legal grounds of challenge. That's
39:29obviously
39:31really hard out given how far out we are
39:33and without seeing the details of these
39:36um the kinds of things that we'll
39:38usually see whether they've got any
39:39merit or not is a different question but
39:40we'll usually see whether there's a
39:42breach of the trade and cooperation
39:44agreement and obviously for that you
39:45need to be thinking not just if there's
39:46a regression in environmental terms but
39:48the uh economic and market consequences
39:51of it because that's the second part of
39:53the the the test in the TCA. Of course,
39:55that in itself not directly necessarily
39:57applicable in the UK anyway, whether
39:59there was sufficient focus on the EPs,
40:03the environmental principles policy
40:04statement, um, or the kind of challenge
40:07we see all the time, a generalized
40:09breach that there was a breach of the
40:10Aahus convention. Again, I'm not sure
40:12that one would get very far, but let's
40:14wait and see. So, that is a very quick
40:17roundup of EOS, and I will hand over to
40:20Margarita.
40:25Thank you, Nick. Um, hello everyone.
40:27I'll now turn to recent decisions in the
40:30high court touching on climate change in
40:32the planning context. I'll start with a
40:35very quick refresher on Finch, which I'm
40:37sure you all know of, and then I'll look
40:38at how that case has shaped decisions
40:41following it. Uh, in particular, the
40:43Gatwick challenge, uh, decided in June
40:45this year. I'll close by stepping back
40:47and reflecting on the climate challenges
40:49we've seen to national policy on climate
40:52change um starting with the net zero
40:54challenges and offer you some brief
40:56thoughts on where we might see things go
40:58next. So turning first to Finch I can
41:02get the slides to work.
41:05Yes. Oops. Um now that case concerned
41:10the approval of a project to extract oil
41:13uh from a wellside in Suriri. The issue
41:16before the court was whether the
41:18greenhouse gas emissions which will
41:19occur occur when the oil extracted from
41:22a well after being refined is burnt as
41:25fuel. Uh whether those emissions must be
41:28included in the EIA required before the
41:31development consent may be given for
41:32extraction of oil. The Supreme Court uh
41:35found that the obligation deriving from
41:37the 2017 environmental impact assessment
41:40regs did require assessing downstream
41:42combustion emissions of fossil fuel
41:45projects. Uh and in particular the court
41:47noted that direct and indirect effects
41:49must be assessed. Uh and that means that
41:52the regulations have a wide causal reach
41:54and that there's no principle that that
41:56if environmental harm is exported then
41:59it might be may be ignored. Um it
42:02concluded that uh combustion emissions
42:05are uh environmental effects and so do
42:08require assessment. Um its decision
42:11turned on the definition of the word
42:13effect in the phrase significant effects
42:15on the environment. The Supreme Court
42:17disagreed with the Court of Appeals
42:19ruling that whether something is an
42:21effect of the project is a matter of
42:23degree which requires the
42:24decision-making authority to evaluate
42:27whether there is a sufficient causal
42:29connection between the project and the
42:31putitive effect. Um it considered that
42:34that concept was intrinsically vague and
42:37unhelpful.
42:38uh and instead it found that what are or
42:42are not effects of a project is to state
42:44the obvious a question of causation. Uh
42:48and and it noted that that an effect is
42:50the obvious of a cause. Um it considered
42:54that it was not necessary to consider
42:56what is meant by likely uh because on
42:59the facts of that case it was an agreed
43:01fact that if the project does did go
43:03ahead the chain of events and the
43:06resulting effects on climate were not
43:08merely likely but inevitable.
43:11Um, and it noted at paragraph 80 that
43:14where X is both the necessary and both
43:17necessary and sufficient to bring about
43:19Y, that is the strongest possible form
43:22of causal connection, much stronger than
43:25is required as a test of causation for
43:28most legal purposes. and that uh and the
43:31court considered that that form of
43:33causation was made out on the facts
43:35because the extraction of oil was
43:37considered to be both necessary and
43:39sufficient to bring about comi com
43:41combustion emissions downstream.
43:44Importantly,
43:46the court disagreed with the submission
43:48that had been made on behalf of the
43:49developer that downstream emissions
43:51caused by the combustion of oil cannot
43:54in law be regarded as effects of the
43:56activity of extracting. Uh because of
43:58the need for the intermediate process of
44:00refinement uh to take place before the
44:03oil the oil can be used. uh the Supreme
44:06Court held that given the process of
44:08refining oil is one which is always
44:11expected and intended that the oil will
44:14undergo and which it is it was agreed
44:16there that the oil produced would
44:18inevitably undergo. Uh it would be
44:20unreasonable to regarded as breaking the
44:22the causal connection between the the
44:24extraction of oil and its use. Um, it
44:28also rejected the argument that the
44:30indeterminacy of future use of oil meant
44:33that downstream emissions could not be
44:35mean meaningfully assessed. And in so
44:37doing, it drew it drew a distinction
44:39between oil and commodities like iron or
44:42steel, which the court considered have
44:44many possible uses and could be
44:46incorporated into many different types
44:48of end products used for all sorts of
44:51different purposes. The court considered
44:53that that was not the case uh for oil.
44:56um and that that ruling is at paragraph
44:59121 of its judgment. So in summary, the
45:02Supreme Court clarified that downstream
45:05GHG emissions of a particular
45:07development require assessment under the
45:102017 regulations so long as those are
45:13capable of meaningful assessment. And
45:15this concept of capable of meaning
45:17meaningful assessment is one that does
45:19come up quite a bit in in subsequent
45:21case law. So I'll emphasize it now as a
45:24starting point. I now turn to look at uh
45:28Finch's impact on case law that followed
45:30it and I start with with Gatwick. Now
45:34what was being challenged there was the
45:36secretary for of state for transport's
45:39decision to make the Gatwick airport
45:40northern runway project development
45:42consent order 2025. That order
45:46authorized uh dual runway operations at
45:49Gatwick Gatwick airport through through
45:52altering the existing northern runway
45:55lifting restrictions that had been in
45:57place since 1979 on the northern uh
46:00runways use. The Gatwick challenge
46:03proceeded on numerous grounds um and
46:05I'll only focus on some of those. The
46:08first ground I want to look at is uh
46:10ground one brought brought by
46:12communities against gatwick no noise
46:15emissions. In it in its decision on this
46:17ground the sorry on this ground the
46:20claimant had argued in summary that the
46:22secretary of state's decision that the
46:24emissions brought about by the
46:26development were significant but
46:28nonetheless acceptable was contradictory
46:30and irrational. The court disagreed with
46:33the claimment and held that there is a
46:36distinction between two stages to the
46:38secretary of state's decision. The first
46:41stage is the determination of
46:43significance of of the emissions
46:45themselves. And within this first stage
46:47is a distinction between whether the
46:50proposed development will have
46:51significant effects on the environment
46:53by virtue of GHG emissions and whether
46:56the increase in GHG emissions resulting
46:59from the proposed development will be so
47:01significant as to have a material impact
47:04on the government's ability to meet its
47:06carbon reduction targets including uh
47:09the carbon budgets. Uh and that that's
47:11at paragraph 195 of the judgment. Now
47:14the second stage of the decisionmaking
47:17concerns the acceptability of a
47:19development proposal in light of the
47:21significance of those emissions. So the
47:23secretary of state forms two views.
47:25First on the significance of emissions
47:28in light of the government's net zero uh
47:30target and trajectory and second on the
47:34acceptability of a development proposal
47:36in light of the significance of those
47:38emissions. The court considered that
47:40this distinction was supported
47:43by the Yema guidance, the guidance
47:45provided by the Institute of
47:47Environmental Management and Assessment,
47:49uh to which the court gave significant
47:52weight. Um so at paragraph 210 it held
47:55that it was neither illogical nor
47:57contradictory for the SST to conclude
48:00that the proposed development does not
48:02merit refusal of development consent on
48:04the basis that it would have a material
48:07impact on the ability of government to
48:08meet its carbon reduction targets. her
48:11judgment that the proposed development
48:13is compatible with the Jet Zero strategy
48:16and can be managed within the
48:18government's overall strategy for
48:20meeting net zero and relevant carbon
48:22budgets does not contradict her finding
48:26that by virtue of the scale of its
48:27effects the project will fall short of
48:30fully contributing to the UK's
48:31trajectory towards net zero.
48:36So there was a clear distinction between
48:38the significant environmental effects of
48:40the proposed development and in light of
48:42those effects the acceptability of the
48:45proposed development on the application
48:47of policy. In summary, therefore the
48:50secretary of state could lawfully rely
48:51on the existence of the jet zero
48:53strategy and of the government's overall
48:56strategy for meeting net zero to
48:58conclude that despite the significance
49:00of the development's emissions, the de
49:02the development was nonetheless
49:04acceptable.
49:07Now I see the fourth ground uh brought
49:11by uh the community against gatwork
49:14noise emissions as to some extent
49:16related to their first ground. In their
49:19fourth ground of challenge they argued
49:21that the risks to delivery of the jet
49:23zero strategy were relevant to the
49:26secretary of state's decision on the
49:28acceptability of the proposal and that
49:30the failure to take them into account
49:32was legally flawed. particularly in
49:35light of the significant uh uh
49:37uncertainties of the effectiveness of
49:39that strategy. The court disagreed with
49:42that argument applying the ruling in the
49:44Boswell A12 case. It agreed on the basis
49:48of Boswool that the climate change act
49:50regime should not be duplicated in the
49:52context of development consent. So, as I
49:56will come to in a moment, risks to the
49:58delivery of national climate policy are
50:01addressed as the preceding process under
50:03the climate change act and should not be
50:06relied upon again at the development
50:08consent stage.
50:12Gatwick also provides an example of how
50:14the ruling on in Finch that effects that
50:16are capable of meaningful assessment
50:18must be assessed is applied in practice
50:21uh in a different sector. So here we're
50:23looking at aviation as opposed to oil
50:25and gas. Um now Kenya had argued by way
50:28of its second round that the secretary
50:30of state unlawfully failed to assess the
50:33emissions from inbound international
50:35flights including against the
50:37government's carbon budgets. It relied
50:40on Finch to argue that those downstream
50:42emissions had to be assessed. Now, while
50:44the Secretary of State accepted in
50:46principle that following Finch,
50:48downstream emissions had to be accounted
50:51for, it agreed with the developer that
50:53it was not possible to carry out a
50:55meaningful assessment of those
50:56emissions, nor that it was appropriate
50:59to compare those emissions to the
51:01government's domestic carbon budgets
51:04given uh the treatment of uh of aviation
51:07emissions in in international carbon
51:10accounting. Um the court disagreed with
51:13the claimment and held that
51:15circumstances may arise in which the
51:18decision maker undertaking an EIA
51:20identifies a project as giving rise to
51:22likely effect or effects which acting
51:25reasonably. They nevertheless judge
51:28either to be either not to be capable of
51:31meaningful assessment or to be capable
51:33of meaningful assessment only to a
51:35limited or qualified extent. provided
51:38that in making that judgment the
51:40decision maker has given proper
51:42consideration to the possibility of
51:44assessment that does not amount to a
51:46failure to fulfill the requirements of
51:48the EIA regulations. So in essence a
51:52decision maker can reach a conclusion
51:55that a particular effect cannot be uh
51:58meaningfully assessed so long as proper
52:00judgment is exercised in reaching that
52:02decision.
52:06Finally, I wanted to briefly touch on
52:09two further aspects of the challenge in
52:11Gatwick. Uh the claimants had argued
52:13that there was a failure to properly
52:14assess non CO2 emissions due to the
52:17failure to assess them quantitatively
52:19and also that there was a failure to
52:21assess the cumulative emissions
52:23consequent on Heathrow expansion. Now,
52:25both grounds were dismissed. On the
52:28issue of non CO2 effects, the court held
52:30that the assessment of non-CO2 effects
52:32was also a matter of evaluative
52:34judgment. The Secretary of State was
52:36entitled not to assess these
52:38quantitatively even if the claimment
52:40said that a methodology to do so had
52:43become available. Um on cumulative
52:46emissions, uh the Cordon Gatwick relied
52:49on the Boswell challenge relating to
52:51three road schemes along the A47.
52:54Um the court in Gatwick endorsed the
52:57ratio in Boswell namely that the
52:59assessment of cumulative emissions is
53:01also largely a matter of the decision
53:04makaker's evaluative judgment.
53:08Just briefly in in Boswell um the the
53:12decision maker maker there had assessed
53:15the emissions of each of the three road
53:17schemes against the carb carbon budgets
53:19individually individually but it hadn't
53:22assessed the emissions cumulatively
53:24against the carbon budget. The claimant
53:26argued that had the secretary of state
53:28done so uh it would have realized that
53:31the schemes together took took up about
53:330.5% of the national budget. and so the
53:37assessment of significance and
53:38acceptability would have differed. Um
53:41the court disagreed with that argument
53:43and it held that the secretary of state
53:45had been entitled to proceed as it had
53:48and it made two key points in reaching
53:50that finding. First uh it held that the
53:53assessment of cumulative emissions and
53:56their assessment against a particular
53:58judgment uh benchmark such as a carbon
54:00budget was a matter for the decision
54:03makaker's evaluative judgment. So
54:04there's no obligation uh to assess uh
54:08emissions against a particular
54:10benchmark. It's permissible but not
54:12required. Second, the secretary of
54:14state's approach had been lawful here
54:16because um there were good reasons not
54:19to assess the cumulative emissions
54:21against a national budget including
54:23because of the nature of GHG emissions
54:25as a global as opposed to local
54:28localized phenomenon.
54:31Very briefly, I'll move past this slide
54:33very fast. Uh the Jack Door decisions in
54:36Scotland, Scotland are a direct example
54:39of the impact of Finch. Um of course,
54:42now those decisions uh have been
54:44overturned by government, but query
54:47whether we might be might see uh any
54:50further challenges uh in a postfinch
54:54world. Um, very briefly, uh, Katherine,
54:58I wanted to point this out because this
55:00is an example of Finch applying outside
55:02the climate context and it's it's an
55:04example of a rare challenge that
55:06succeeded on the basis of of of Finch.
55:10So, so what what what was at stake here
55:12was um a poultry unit, an intensive uh
55:16uh farming unit. Uh and the question
55:19here was whether um there had been
55:22appropriate assessment of the
55:23environmental effects of uh uh raw manu
55:27manure and digested which would be uh
55:30produced as a result of the operation of
55:32the uh of the poultry unit. Um the the
55:36challenge succeeded in part and the key
55:38point that I wanted to point out here um
55:41is that while what the court uh held in
55:44caffin is that while the decision maker
55:46has a discretion so can exercise
55:49evaluative judgment as as to the
55:52significance of of environmental effects
55:54um following Finch um it had to exercise
55:58that judgment uh on the facts here the
56:01court found that the decision maker had
56:03failed to do so at all uh with respect
56:06to raw digest digested because they
56:10hadn't assessed spreading on third party
56:12land and so I think this case is a is an
56:15illustration of the very narrow
56:16circumstances where challenges are
56:19likely to succeed uh so not uh where uh
56:23there's there's arguments around whether
56:25that the exercise of that evaluative
56:26judgment uh was good enough uh which
56:29courts appear unlikely to be uh willing
56:32to interfere with But whether that
56:35judgment was exercised at all, where a
56:37judgment was not exercised at all, um a
56:40challenge is more likely to succeed.
56:44So, taking a step back and looking at
56:46cases, and I'm being yellow carded, so
56:48I'll wrap up quickly. Um I just wanted
56:51to to remind everyone of um uh claims
56:55challenging government policy,
56:57government climate policy directly. Um
57:00now those were the friends of the earth
57:02challenges to the net zero strategy and
57:04the carbon budget delivery plans. Um so
57:07essentially what what the courts decide
57:09there is that uh section 14 reports
57:12under the climate change act must enable
57:15the parliament and the public to assess
57:17polic policies. Uh and so uh there there
57:21needs to be a reasonable degree of
57:23specificity in in those uh section 13
57:26and 14 uh reports. uh and one important
57:29ruling is that an obviously material
57:31consideration in uh coming to coming up
57:34with policies and proposals under
57:36section 13 is risk to delivery of
57:39individual policies and proposals and to
57:41the achievement of the carbon budgets
57:43and the 2050 targets. Um so we see there
57:46that that there is a window of
57:48opportunity to challenge national policy
57:50on climate change uh where there's been
57:52a failure to assess risk to delivery.
57:55Importantly
57:56um as I mentioned earlier um that does
58:00not mean that risk to delivery comes
58:02into challenges to development consent.
58:06The true regimes are different and
58:08that's the bos 12 case and gatwick. Um
58:11and on this slide here uh are a number
58:13of more recent decisions following uh
58:17the netzero strategy challenges which
58:19show the limits uh of of of that of that
58:23case. So possible and global feedback
58:25are a good example of where challenges
58:28uh have failed. Um so to to conclude
58:32looking forward where are we now? Um it
58:34seems that um consent challenges on
58:37carbon grounds are very difficult. Uh
58:41quite a lot is a matter for the decision
58:44maker and for the decision maker's
58:46evaluative judgment. So it seems
58:48difficult to succeed in challenging
58:50decisions to approve developments uh
58:53where the decision maker has uh properly
58:56turned his or her mind to the issue of
58:59how uh GHG emissions uh whether and how
59:02GHG emissions might result in in in
59:04environmental effects. Uh one one uh
59:08point to raise at this stage is that we
59:11have seen movement in the regional human
59:13rights courts and international courts
59:16which uh continue to emphasize that
59:18states that the that the margin of
59:20discretion afforded to states in in
59:23climate ma matters is narrow and that
59:26states have to operate under stringent
59:29due diligence standard. So one question
59:32that I've been asking myself is will
59:34this produce more intensive review and
59:37less deference to decision making
59:40domestically? Um something to be seen
59:42perhaps in the next few years. Thank you
59:45very much and I'll pass over to Odette.
59:53Hi everyone. Thank you Margarita. So
59:55something then now to bring everyone
59:58slightly more back down to earth and to
1:00:00the day-to-days of of planning. Um also
1:00:03not necessarily immediately obvious how
1:00:06this relates to environmental impacts in
1:00:08the same way but in fact as many of you
1:00:10will know the majority of
1:00:14well in many cases environmental effects
1:00:16the way they are regulated in planning
1:00:18decisions is by virtue of section 106
1:00:21agreements. So these can have quite
1:00:23profound implications for the
1:00:26environment um in particular decisions.
1:00:29So I'm going to talk about some recent
1:00:30case law on section 106 agreements and
1:00:33the cases there up on the screen.
1:00:35There's been a flurry of activity over
1:00:37the last year particularly as you'll see
1:00:40there on the question of publication the
1:00:43procedural question of publication of
1:00:44section 106 agreements. Um but also some
1:00:48more substantive issues that I'll turn
1:00:49on to in due course. So the first issue
1:00:52I'm going to discuss is this duty to
1:00:55publish and the three cases that have
1:00:57been in the courts over the last year
1:01:00which is which is a lot on what was
1:01:02quite otherwise apparently a minor part
1:01:04of the the pre-procedural framework for
1:01:06planning. So just to start by outlining
1:01:09that the duty to publish is of course a
1:01:12statutory one and it's set out in
1:01:14article 43 of the DMPO
1:01:18and essentially that requires on local
1:01:21planning authorities to contain in their
1:01:23planning register in respect of any
1:01:26application not finally disposed of. So
1:01:28any application that hasn't been decided
1:01:31a copy of any planning obligation
1:01:33proposed to be entered to in connection
1:01:35with the application. So starting point,
1:01:37there is a statutory duty to publish
1:01:39section 106 obligations um for schemes
1:01:43that have not yet been decided. So in
1:01:45advance of the decision and that's if
1:01:47that's anything to take away, make sure
1:01:49that is that is the case in every scheme
1:01:52you're involved in whether from the the
1:01:54council side or the developer side.
1:01:57Um despite that statutory duty, as I
1:02:00said, it's been in the high high court
1:02:02and indeed court of appeal three times
1:02:03over the last year. Um the first case
1:02:07is a case of green fields. Um and this
1:02:11was about the essentially the
1:02:14environmental impact that was subject to
1:02:16dispute. Um was a highways contribution
1:02:20and the the quantum of the highways
1:02:22contribution.
1:02:24And as you can see there on the screen,
1:02:26council resolved to grant permission for
1:02:28473 houses subject to a section 106. The
1:02:32heads of terms were set out in the
1:02:34officer report. Um, but the permission
1:02:38was issued with no draft and no final
1:02:41agreement on the council's planning
1:02:44register on the website online. Um, and
1:02:47in fact it was only published after
1:02:49Greenfield's the claimant raised the
1:02:51breach of the statutory duty we've just
1:02:52looked at in pre-action correspondence.
1:02:55Um, and essentially in this case the
1:02:57court said there's no doubt there was a
1:02:58breach of the statutory provisions. It
1:03:00simply wasn't published. and um the
1:03:03heads of terms being in the officer
1:03:06report was was not sufficient in any way
1:03:09to discharge that duty um in particular
1:03:13in the context of the particular sum
1:03:16being a matter of contestation. And what
1:03:18the court was really looking at in this
1:03:20case is whether that failure to publish
1:03:22actually rendered the decision invalid
1:03:25um or whether something else should
1:03:27happen. So should it be quashed simply
1:03:29on the basis of that failure to publish?
1:03:31And what that required consideration of
1:03:33is case law such as the case called Seni
1:03:36from 2005 in the House of Lords. Um
1:03:39which is a public law case law more
1:03:41generally on which says you've got to
1:03:43look at what the intention of parliament
1:03:45was when it created that statute when
1:03:48you're deciding what the implication is
1:03:49of a failure to comply with the
1:03:51statutory provision. Um, and in this
1:03:54case, the court looked at the underlying
1:03:56purpose of the statutory provision and
1:03:58said it was to enable members of the
1:03:59public to know the terms of the proposed
1:04:01or agreed obligation and to enable them
1:04:04to comment. Um, so it's not a statutory
1:04:07obligation to consult, but to include
1:04:09information in the public register. And
1:04:12what the court said, it's not the case
1:04:14that any failure to comply with the
1:04:16statute would render the decision
1:04:18invalid. Um there's a wide range of
1:04:20scenarios where you could have a section
1:04:22106 agreement that wasn't published. So
1:04:24one might be it wasn't published
1:04:26properly on the council's register but
1:04:28it was in the public domain somewhere
1:04:29else and people had seen it and people
1:04:31had commented. That might be a different
1:04:32scenario. Um or it might be that the
1:04:34section 106 had sort of nothing of
1:04:36relevance in at all in terms of
1:04:38substantive merits. But in this case
1:04:41that wasn't the case. There was no
1:04:43public statement um no publication
1:04:45anywhere of the agreement.
1:04:48Um there was there was a a real chance
1:04:50that people may wanted to have commented
1:04:53on it on the substance of it in
1:04:55particular because as as it says there
1:04:57on the screen there was a £400,000
1:04:59contribution and but the officer report
1:05:02had estimated the costs of the works
1:05:04that were being mitigated to be more
1:05:06than £700,000. So there was an obvious
1:05:08reason people might wanted to have
1:05:10commented and the court concluded on
1:05:12that basis it couldn't be satisfied the
1:05:15outcome would be substantially different
1:05:16had the council properly published it.
1:05:19So that procedural failure did lead to
1:05:21invalidity and quashing of the decision
1:05:23in that case. So following on from
1:05:26Greenfields, we had two other cases. Um
1:05:29and Chidswell
1:05:32was um essentially a case that
1:05:36where um where this ground about
1:05:40publication of the section 106 agreement
1:05:42wasn't originally pleaded but after the
1:05:44court of appeals decision in green
1:05:46fields the court granted permission to
1:05:49change the grounds and to add a new
1:05:51ground relating to this procedural
1:05:53failing. relatively similar scenario.
1:05:56Outline permission for housing, in this
1:05:58case 180 homes. Um the committee
1:06:01resolved to grant subject to a section
1:06:03106 agreement. The claimment asked for
1:06:06drafts of that agreement and none were
1:06:09published at all. And
1:06:12the difference here being in in this
1:06:14case, the section 106 agreement wasn't
1:06:16about highways contributions. It was
1:06:17about adequacy of the biodiversity
1:06:19safeguards and particularly the way that
1:06:22the section 106 secured the 10% BNG that
1:06:26was proposed and that the officer report
1:06:29referred to
1:06:32and pretty similar position taken by the
1:06:34court um court said essentially the
1:06:38publication would have enabled objectors
1:06:40to comment intelligently about the
1:06:43adequacy of those biodiversity
1:06:44safeguards. Um it it went as far as to
1:06:47say that had the section 106 been
1:06:50published um people would have been
1:06:52likely to make objections and there's a
1:06:54strong likelihood it might even have
1:06:56gone back to committee. Um the court
1:06:58made clear the obligation to publish is
1:07:00not conditional on a request from
1:07:02objectors. But in this case in fact one
1:07:04was made um and on the factual
1:07:07circumstances
1:07:09it was a split decision at committee.
1:07:11three of seven committee members voted
1:07:12against
1:07:14and the court again simply couldn't say
1:07:16that the outcome would not have been
1:07:19substantially different if those me if
1:07:21other members for example had been able
1:07:23to reconsider the application with the
1:07:26benefit of the draft agreement. So again
1:07:29risk of prejudice and applying the the
1:07:32principles in synergy to whether the
1:07:34failure renders the decision invalid. In
1:07:37this case it did too and the commission
1:07:39was quashed on the basis of the
1:07:40non-publication.
1:07:42So the final case on this issue then um
1:07:46slightly different one but following
1:07:48again the the Chidswell and the
1:07:51Greenfields cases. So this was a
1:07:55planning permission for a solar farm
1:07:57development
1:07:59and the section 106 here in this case a
1:08:02unilateral obligation related to the
1:08:05issue of skylark mitigation and
1:08:08provision for for displaced skylarks
1:08:11essentially
1:08:13slightly different because in this case
1:08:16the there was a draft obligation
1:08:20published um but it was at 7 minutes
1:08:24before the committee meeting took place.
1:08:27Um, and at that meeting, committee
1:08:28resolved to publish, but there was no
1:08:30sort of substantive discussion of the
1:08:32section 106 that had been uploaded just
1:08:34before. Um, not clear that members had
1:08:37had a chance to to read and process it.
1:08:40So the the claim was brought on the
1:08:42basis that that was too short a period
1:08:48um the seven minutes
1:08:51but the undertaking following the
1:08:53meeting was then executed and published
1:08:56online on the council's register as it
1:08:58should have been um sometime after the
1:09:01committee and in advance of the formal
1:09:03decision issued by the council granting
1:09:06permission. So in this case, what the
1:09:09judge concluded was there was no breach
1:09:12of the statutory provision because the
1:09:15statuto provision is simply that you've
1:09:16got to publish on the register before
1:09:20it's finally disposed of. So before the
1:09:22actual decision is made, not the
1:09:24resolution to grant activity.
1:09:27Um the question was was there sort of a
1:09:30a breach in substance of the intention
1:09:33of the underlying statute by not
1:09:35allowing the committee to properly
1:09:36consider it even if no express breach on
1:09:39the face of the wording of the statute.
1:09:42Um the judge accepted that 7 minutes was
1:09:45too short a time to digest the document.
1:09:48Um,
1:09:50but in this case, nonetheless, the
1:09:52spirit of the article was still met
1:09:54because the seven minutes wasn't the
1:09:56relevant part of time. The relevant time
1:09:58was the 22-day window between the
1:10:01original publication and the final
1:10:03decision. Um, and in this case, the
1:10:06agreement wasn't particularly lengthy or
1:10:08complex. And after it had been
1:10:10published, there would have been
1:10:11opportunity for people to comment, for
1:10:13the committee to comment, for the
1:10:14committee to bring the application back
1:10:16to committee. reconsider it. So all that
1:10:19mattered is that that it was on the
1:10:21website in substantial time enough for
1:10:22people to digest, process, comment if
1:10:25they wanted before the ultimate decision
1:10:27was issued and not before the planning
1:10:28committee. Um but the court did
1:10:30emphasize that mere technical observance
1:10:33of the words of the theft often wouldn't
1:10:36be sufficient. Um the intention and
1:10:38spirit need to be complied with too. So
1:10:417 minutes before the final decision
1:10:43probably wouldn't have been enough. Um
1:10:46and the factors you've got to consider
1:10:48are the length of the agreement, the
1:10:50complexity,
1:10:51um you know, the accessibility of it on
1:10:54the website, the overall time allowed to
1:10:56consider it. It's a very fact-sensitive
1:10:58inquiry in a particular case as to
1:11:00whether the spirit of the requirement
1:11:02has been complied with.
1:11:05So I'm going to move on to a different
1:11:06issue now relating to section 106
1:11:08agreements. And this is something that
1:11:10has been
1:11:12um the subject of various various shift
1:11:15in government policy over the last year,
1:11:17particularly this time last year and
1:11:19over over the winter, a flurry of
1:11:22guidance from government about
1:11:24affordable housing viability and and how
1:11:27people should change section 106
1:11:29commitments to affordable housing in the
1:11:31context of affected viability
1:11:34considerations, particularly in London.
1:11:36um as viability has become such a such a
1:11:39major issue for housing developers and
1:11:42the tone of the government's guidance in
1:11:44many instances to start with at least
1:11:45was suggesting you shouldn't be using
1:11:48section 3 applications to bury
1:11:51affordable housing requirements and that
1:11:53should probably come by way of section
1:11:55106. Um but of course that guidance and
1:11:58the question for the courts is what the
1:12:01statute allows you to do. And this case
1:12:03was a was a case about whether section
1:12:0573 which allows you to vary the
1:12:08conditions on a permission was a
1:12:10legitimate way of changing the section
1:12:12106 um affordable housing requirements
1:12:16in this particular context. And so the
1:12:19section 73 was an application to vary a
1:12:22condition to remove affordable housing.
1:12:26Um and in this particular case there was
1:12:30a condition that required the housing
1:12:32type standard and floor plans to be in
1:12:34accordance with a particular affordable
1:12:37housing accommodation schedule. So if
1:12:41the section 73 was approved and the
1:12:44condition was changed, there would be a
1:12:47different condition in respect of
1:12:48affordable housing. Um the council
1:12:52refused permission for the section 73
1:12:55essentially because that would result in
1:12:57a conflicting position between the
1:12:59planning commission and the section 106
1:13:01agreement that had different provisions
1:13:04as to affordable housing requirements.
1:13:06But at the appeal, the council agreed
1:13:09without prejudice to a deed of variation
1:13:11to amend the underlying section 106. Um,
1:13:15and that deed of variation was clear it
1:13:17would only operate if the appeal were
1:13:19allowed. So the council entered into
1:13:22that without prejudice to its case
1:13:24permission should be refused.
1:13:26And at the appeal, the inspector
1:13:28identified the main issue as whether a
1:13:30section 73 application is an appropriate
1:13:33means to reduce the level of affordable
1:13:35housing previously secured. And
1:13:37essentially the answer was was yes. He
1:13:39found the there was a condition
1:13:41controlling affordable housing here um
1:13:43via the approved plans. And so there was
1:13:46no reason why the developer shouldn't
1:13:48use a section 73 application to result
1:13:51in a new permission with different
1:13:52plans.
1:13:54and the high court um upheld that
1:13:57approach. The inspector had a valid
1:13:59application and appeal before him which
1:14:02on the facts merited variation of the
1:14:05conditional requirement for affordable
1:14:06housing um because of the change
1:14:09viability position. And there was the
1:14:12the deed of variation ready to go
1:14:14without prejudice if the appeal were
1:14:16allowed to make sure the section 106 and
1:14:18the permission itself were all in line.
1:14:21Um however um Mr. Justice Kimlin in the
1:14:25high court was keen to emphasize that
1:14:27while not the case on these facts there
1:14:29might be cases where there is no
1:14:31relevant planning condition which
1:14:33controls affordable housing provision
1:14:35and the entire controls are within the
1:14:37section 106 only. So it doesn't say this
1:14:40case that section 73 is an appropriate
1:14:43route in every single case. It really
1:14:45depends on how the permission is
1:14:46structured and and and what the
1:14:48conditions say.
1:14:50The final case then I wanted to touch on
1:14:53another judgment of Mr. Justice Kim.
1:14:56So this was an appeal, a planning appeal
1:15:01allowed um in respect as part of an
1:15:04allocation in the development plan. Um
1:15:07and the inspector allowed the appeal and
1:15:09granted permission subject to a section
1:15:12106 agreement that did not include a
1:15:15requested infrastructure contribution
1:15:17that the council had made. So the
1:15:19council had been asking that the
1:15:21developer pay a certain amount of money
1:15:24towards the broader allocation and and
1:15:26infrastructure on it.
1:15:29The inspector refused the council's
1:15:32request for that particular sum of
1:15:33money. Um essentially the master plan
1:15:36had not yet come forward for the alle
1:15:39for that
1:15:41um
1:15:42for the allocation. The master plan
1:15:44hadn't yet come forward. So the
1:15:45inspector essentially said there wasn't
1:15:47adequate evidence to conclude that the
1:15:49amount of money the council was
1:15:51requesting um was fairly and reasonably
1:15:54related to the development um to this
1:15:57parcel of the allocation coming forward
1:15:59on its own without the wider master
1:16:00plan.
1:16:02The result was that the development made
1:16:04no contribution to the infrastructure
1:16:06costs of the whole allocation not
1:16:08withstanding the fact that there was a
1:16:10development plan policy saying bits of
1:16:13the allocation that come forward should
1:16:15make a contribution. Um but on the basis
1:16:18the inspector found that there was some
1:16:20specific some requested by the council
1:16:22wasn't justified. They granted
1:16:24permission without any sum at all. And
1:16:27of course
1:16:29the tests in regulation 122 of the SIL
1:16:32regs and the MPPPF are that any planning
1:16:34obligation any money paid that way has
1:16:37to be necessary directly related to the
1:16:39development and fairly and reasonably
1:16:41related in scale and kind to the
1:16:43development and there's pace law bishop
1:16:46um the case cited in this in this
1:16:48authority that says whether the
1:16:51contribution is necessary is not
1:16:53assessed by a but for test but it's a
1:16:56judgment assessed on a range of relevant
1:16:58policies and material considerations. So
1:17:01it is ultimately a matter of planning
1:17:03judgment for the inspector and the court
1:17:05held that it was fine for the inspector
1:17:07to conclude that the sum requested by
1:17:09the council was not justified on the
1:17:13specific facts here. However, um the
1:17:17inspector did commit a legal error by
1:17:19not then going on to consider whether
1:17:21some other level of contribution
1:17:24was reasonably necessary um by virtue of
1:17:27the development plan policy that
1:17:29requests a contribution for partial bits
1:17:32of the allocation coming forward. So
1:17:35there was a misinterpretation of the
1:17:37development plan policies by way of the
1:17:39inspector's failure to consider while
1:17:42the council sum isn't right should some
1:17:43other sum some be required to mitigate
1:17:46the environmental effects of this
1:17:48proposal. The result being permissions
1:17:50granted with no mitigation whatsoever
1:17:53with no proportionate contribution tool.
1:17:56So again the the permission was quashed
1:17:58on that on that basis.
1:18:01So finally before I turn over to Poppy
1:18:04just some final comments from me also on
1:18:08changes on the horizon. Um and just this
1:18:10is a quite a narrow issue but many of
1:18:13you will have seen in the last week or
1:18:15two uproar on on LinkedIn and more
1:18:18broadly about changes to the pins
1:18:20procedural guidance in relation to
1:18:23section 106 agreements. Um, and this is
1:18:26all under the umbrella of the new PINS
1:18:28procedural guidance for appeals for
1:18:30applications submitted from the start of
1:18:33April of this year. Um, and in
1:18:36particular, as you as you'll all be
1:18:38aware, the new approach being that the
1:18:40majority of appeals are to go down a
1:18:42part one written representations route
1:18:45where no new information is allowed to
1:18:47be submitted with the appeal. You just
1:18:49have your application and the inspector
1:18:51determines it on that basis.
1:18:54Essentially, there's been an update to
1:18:56that guidance a couple of weeks ago that
1:18:58says, and it's not said anywhere else in
1:19:01government guidance, that planning
1:19:02applications should be submitted with
1:19:05PL, sorry, section 106 agreements should
1:19:07be submitted with planning applications
1:19:09and only submitted for the first time
1:19:11with an appeal in exceptional
1:19:13circumstances.
1:19:14Um, and if in those exceptional
1:19:16circumstances, the the obligation
1:19:18submitted with the appeal. Um, if you've
1:19:20got written reps, it has to be executed
1:19:23and certified and submitted with your
1:19:25appeal. Um, and if it's a hearing or
1:19:27inquiry, a final draft 10 days before
1:19:30the event. And that's obviously very
1:19:32difficult because councils are generally
1:19:35unwilling to engage in finalizing and
1:19:38signing section 106 agreements at
1:19:40application stage if they're going to
1:19:42refuse the application anyway. Um, so
1:19:46this is potentially going to cause
1:19:48difficulty in practice. There's been
1:19:50calls on the inspectorate to have a look
1:19:53again at what they've set out there in
1:19:55that guidance. But for now, it is just
1:19:57to be aware of this this new approach
1:19:59that potentially the planning inspector
1:20:00is going to take and the need to
1:20:02frontload as far as possible section 106
1:20:05matters as early in the application
1:20:06process and the appeal process as you
1:20:09can. So, thanks very much. I'm going to
1:20:12hand over now to Poppy for our final
1:20:14topic.
1:20:15>> Um so hi I am Poppy. Um I am going to be
1:20:19talking talking about the scope for
1:20:20reliance on environmental principles in
1:20:22planning high court cases. Um there is
1:20:26well two things. The first thing is that
1:20:29and I will do this um I'm losing my
1:20:31voice. So if I sound a bit like a frog
1:20:34uh you now know why. And the second
1:20:36thing is that um we don't have lots of
1:20:38time obviously. So I have decided to do
1:20:41this talk through the lens of the Finch
1:20:43case and the Supreme Court and other
1:20:44high court planning cases which have
1:20:46applied it since. There's a bit of
1:20:47overlap with Margarita but um I will be
1:20:50looking at some cases she hasn't
1:20:52considered and also angles in those
1:20:54cases um which her talk didn't consider.
1:20:56So do stay around. Um so we have a tree
1:20:59here because Finch I consider Finch to
1:21:02be the root of all the cases that come
1:21:04next. Um and then the cases that come
1:21:07next will be the branches and the
1:21:09blossom. DC.
1:21:11So Margarita provided a very helpful
1:21:15overview of Finch. So I won't go through
1:21:17this in much detail. Um but I think just
1:21:21by way of stepping back before in any
1:21:23case before planning permission could be
1:21:25granted for a development project which
1:21:26is likely to have significant effects on
1:21:29the environment. Um, legislation in the
1:21:31UK requires an EIA to be carried out and
1:21:35the relevant legislation was the 2017
1:21:37EIA regs which requires an EIA to
1:21:40identify and describe and assess the
1:21:42likely effects sorry the likely direct
1:21:45and indirect effects of the project on
1:21:47the environment that includes the um the
1:21:50impacts on the climate.
1:21:53So as Margaret explained in this case
1:21:56there was a developer who applied to
1:21:57Sari County Council for permission to
1:21:59expand oil production from a well site
1:22:01in in Horse Hill which is near Holy and
1:22:04the proposed project would involve the
1:22:06extraction of oil from six wells over a
1:22:08period of around 20 25 years. Um
1:22:12the developer argued that when you're
1:22:14looking at the scope of um greenhouse
1:22:18gas emissions, the EIA should be
1:22:19confined to the direct releases of
1:22:21greenhouse gases from within the
1:22:23wellsight boundary um during the
1:22:25lifetime of the project. And so that the
1:22:27EIA need not include an assessment of
1:22:29greenhouse gas emissions that would
1:22:31occur when the oil was extracted from
1:22:34wells but ultimately burnt elsewhere as
1:22:37fuel. um and that was what was accepted
1:22:39by the council. Then this was appealed
1:22:41by a local resident who applied for JR
1:22:43of the decision and she argued that the
1:22:45decision was unlawful because the EIA
1:22:47was required to um but did not in this
1:22:50case include an assessment of the
1:22:51combustion emissions. So that's roughly
1:22:54what that one is about. So in terms of
1:22:57what was held by a 3-2 majority it was
1:23:00held that the council's decision was
1:23:02unlawful because the emissions that
1:23:03would occur when the oil is produced is
1:23:06and is burnt as fuel are within the
1:23:08scope of the EIA as required by law and
1:23:11in carrying out an an EIA of a project
1:23:15for the extraction of oil the authority
1:23:18has to assess as an indirect effect of
1:23:20the project the environmental effects of
1:23:22greenhouse gas emissions arising from
1:23:24the ultimate combustion of the oil once
1:23:26refined and used as fuel.
1:23:29Um it was an agreed fact that in this
1:23:31case if the project went ahead, it was
1:23:33not merely likely but inevitable that
1:23:35the oil produced from the wellside would
1:23:37be refined and as an end product would
1:23:40undergo combustion which would then
1:23:42produce the greenhouse gas emissions. Um
1:23:44and it's not and it was never disputed
1:23:45that those emissions would have a
1:23:47significant impact on the climate. So
1:23:49the question was essentially whether
1:23:51those um greenhouse gas emissions which
1:23:53are sort of further down the line from
1:23:55the um the extraction of oil would be an
1:23:58indirect or direct effect. Um
1:24:02and
1:24:04I think there are two particularly
1:24:06interesting points about this judgment
1:24:09um which I'll touch on now and also see
1:24:11how they impact the other case law. The
1:24:13first one is this point about
1:24:14intermediate steps. So it didn't matter
1:24:18that what fuel is burned what sorry the
1:24:21fuel that is burnt further down the line
1:24:23it will not be the crude oil produced at
1:24:25the well site um but it will be an end
1:24:27product which would be made at a
1:24:28separate facility where the oil is
1:24:30refined. So you have a sort of chain of
1:24:32causation between the initial drilling
1:24:35or extraction um all the way down to the
1:24:38ultimate burning. there are lots of
1:24:40stages in the process and the court said
1:24:41well that doesn't matter um because um
1:24:44here it was it was an inevitability that
1:24:47it would be burnt and there was there
1:24:49was there was a clear causal connection
1:24:51and there was a certainty of causal
1:24:52connection between the extraction and
1:24:54the combustion
1:24:56and the second point um about this case
1:24:59that is interesting is that um is this
1:25:02anywhere in the world point which is the
1:25:04court said the EIA directive does not
1:25:06impose any geographical limit on the
1:25:09scope of the environmental effects
1:25:11effects of a project which must be
1:25:12assessed. Um so the council took the
1:25:15approach that when you're looking at
1:25:17doing an EIA you have to look at the
1:25:18emissions expected to occur at the
1:25:20project site but that was wrong. Um this
1:25:23the Supreme Court said that the very
1:25:25nature of indirect effects is that they
1:25:27may occur anywhere um from their source.
1:25:29So here it didn't matter that the fuel
1:25:31might be burnt in a completely different
1:25:33country. Um that was irrelevant and it's
1:25:35sort of unsurprising actually that it
1:25:38was quite it was a landmark decision and
1:25:40interestingly I saw when I was preparing
1:25:42for this that the Guardian referred to
1:25:43it as one of the most groundbreaking
1:25:44environmental decisions of the century.
1:25:46So um clearly very important.
1:25:50The other point is that there is a
1:25:51descent which I won't go into but um it
1:25:53was a 3-2 majority. So you had Lord
1:25:56Sales and Lord Richards well Lord Sales
1:25:58with whom Lord Richards agrees um
1:26:01dissenting.
1:26:03So moving then to the Friends of the
1:26:06Earth case which as Margarita said was
1:26:08the first case to apply Finch. It
1:26:11concerned a planning application for the
1:26:12mining and processing of metallurgical I
1:26:15always struggle to say that one uh coal
1:26:18which would eventually be used for the
1:26:20production of steel. Now there are two
1:26:22arguments. So there's um sorry as an
1:26:25inquiry uh an inspector determined that
1:26:27the greenhouse gas emissions from
1:26:28burning um of this coal were not likely
1:26:31significant indirect effects of the
1:26:33proposed development and within the
1:26:34scope of the EIA. There were two
1:26:36arguments two main arguments advanced.
1:26:39The first one was the one that Margarita
1:26:40touched on to do with the breach of um
1:26:42EIA regulations,
1:26:44which was that um the secretary of state
1:26:47acted in breach of those regulations by
1:26:49deciding that the greenhouse gas
1:26:50emissions from the burning of the White
1:26:51Haven coal were not is not a significant
1:26:53likely effect of the development. And
1:26:55then the second argument is quite an
1:26:58interesting one. So the mining company
1:27:01had argued that um the emissions from
1:27:04the burning of the coal would not give
1:27:06rise to any material additional
1:27:08emissions because the white haven coal
1:27:10would replace coal otherwise being
1:27:13supplied from US coal mines to the US
1:27:15and also the European steel making
1:27:17market. So in essence what the mining
1:27:20company argued was that um if this coal
1:27:24is being extracted here White Haven then
1:27:27a broadly equivalent amount of coal will
1:27:29remain in the ground um in the US mines.
1:27:32So it's this this substitution one for
1:27:34the other. And on this point um the
1:27:37claimments argued that the secretary of
1:27:39state's conclusion that the proposal
1:27:40would have a neutral or beneficial
1:27:42effect on um emissions um it was
1:27:46inconsistent with findings in a decision
1:27:49letter on substitution um and said
1:27:52essentially it was illogical in the
1:27:54absence of any finding um and with the
1:27:56degree any finding as to the degree of
1:27:59substitution. Effectually there was no
1:28:00evidence that this was the case.
1:28:03So then what was decided?
1:28:07So oh sorry this slide is not correct.
1:28:10I'm sorry I sent an updated ones but
1:28:12both arguments succeeded on yeah it was
1:28:15a success in part on the EIA
1:28:18regulations. It was common ground that
1:28:20the burning of coal was an inevitable
1:28:22consequence of its extraction. It was
1:28:24just like Finch. So the court held that
1:28:26the um greenhouse gas emissions from the
1:28:28combustion of coal were a significant
1:28:30likely indirect effects of the project
1:28:31which needed to be assessed as part of
1:28:33the EIA process and that this was an
1:28:36obvious material consideration that the
1:28:38secretary of state was obliged to take
1:28:40into account in determination of the
1:28:42planning application.
1:28:44And then on um the substitution point
1:28:48again here the court found in favor of
1:28:49the claimants finding that the secretary
1:28:51of state's handling of the substitution
1:28:53issue was legally flawed both
1:28:55individually and cumulatively.
1:28:58So why is this decision interesting? So,
1:29:00aside from the fact that it applies
1:29:02Finch, I think it's interesting um from
1:29:05an environmental/planning
1:29:07law perspective in its own right because
1:29:10what we see here is the high court
1:29:12really grappling um with the
1:29:14substitution issue, which is a highly
1:29:16technical and complicated issue. And so,
1:29:19you're sort of seeing the the planning
1:29:20court's willingness and ability to
1:29:22engage with detailed technical evidence
1:29:25um in relation to the environment and
1:29:27climate change.
1:29:32So also we're talking about um caffin um
1:29:35which is the application of finch into a
1:29:38completely different factual context. So
1:29:42we've seen that it was an the LPA
1:29:44granted planning permission for an
1:29:45intense intensive poultry unit. Um and
1:29:48this would have housed 200,000 chickens
1:29:51and would have produced 2,600 tons of
1:29:53manure annually.
1:29:55The case largely considered the
1:29:57downstream use and processing of the
1:29:58manure and its likely impacts on water
1:30:01courses and habitats. Effectively, the
1:30:04claimant argued that the LPA had failed
1:30:05to adequately adequately address the
1:30:07environmental effects of spreading
1:30:09manure on third party land um for the
1:30:12purposes of the IPU's EIA. In
1:30:15particular, the claimment argued that
1:30:16the nitrate and phosphate content of the
1:30:18manure posed a likely indirect effect on
1:30:20water courses as manure generation um
1:30:23and use as fertilizer were inevitable
1:30:25consequences of the IPU.
1:30:29Um
1:30:31it was held in this case that the
1:30:33council had failed to engage in any
1:30:36evaluative assessment of whether as part
1:30:38of EIA the environmental impacts of
1:30:41spreading digesture which would be
1:30:43produced as a result of this um
1:30:44development
1:30:46um had to be quantified and taken into
1:30:48account. Um, and it's interesting
1:30:51because the court held that the
1:30:52spreading of digested is not
1:30:55automatically immune from EIA scrutiny
1:30:58when it may contribute to environmental
1:31:00impacts.
1:31:02So what's important here is that the
1:31:05court is effectively saying that the
1:31:06fatal flaw in this case was not the mere
1:31:08emission of data but was the complete
1:31:10sort of lack of evaluative reasoning by
1:31:14the local planning authority as to why
1:31:16this had been scoped out.
1:31:22Finally, we've got two airport DCO
1:31:24cases. Um, so not strictly looking at
1:31:27the environment and planning law, but
1:31:29it's planning law adjacent. Um, both
1:31:32have considered Finch. You have the
1:31:34Luton case and the Barkley case. We've
1:31:36seen one of these, but I'll go through
1:31:38both of them and show you what the uh
1:31:40how they are interconnected.
1:31:42So in Luton, which concerned a decision
1:31:45by the Secretary of State for Transport
1:31:47to grant a DCO for the expansion of the
1:31:49wonderful Luton airport, um the claimant
1:31:52argued that the Secretary of State er as
1:31:55one of the grounds um in excluding
1:31:57greenhouse gas emissions from inbound
1:32:00flights in the EIA. In particular, it
1:32:02said that the secretary of state erred
1:32:04in failing to assess the significance of
1:32:06indirect effects on the claimant uh
1:32:08contrary to the 2017 EIA regs and Finch
1:32:13and it was held that um it the secretary
1:32:17of state hadn't um because unlike Finch
1:32:20where the issue was whether greenhouse
1:32:22gas emissions were a direct or indirect
1:32:24effects, it was accepted in this case
1:32:27that emissions from inwardbound flights
1:32:30were likely effects of the development.
1:32:32So the issue really wasn't about whether
1:32:34there were direct or indirect indirect
1:32:37or direct effects at all. It was whether
1:32:39it was possible to make a meaningful
1:32:40assessment of significance when in
1:32:43accordance with national and
1:32:44international practice. The appropriate
1:32:47benchmarks um on emissions were all
1:32:49calculated um for outwardbound flights
1:32:53only rather than inwardbound flights to
1:32:55avoid double counting.
1:32:57So
1:32:59the court held that um the issue as to
1:33:01which benchmark to use to assess the
1:33:04effects of aviation emissions were
1:33:07ultimately a matter for the relevant
1:33:08decision maker to determine. So the test
1:33:11here is you're not really looking at the
1:33:12application of law. It's not an error of
1:33:14law. The test is actually a Wsbury one.
1:33:17Um and that is a ground that hadn't been
1:33:19advanced. There wasn't a Wsbury
1:33:20challenge on this ground.
1:33:23Um then looking at Barkley very briefly
1:33:28just because I'm aware of time. This
1:33:30concerned um a judicial review to the
1:33:31Secretary of State decision to make a
1:33:33DCO for the Gatwick Airport Northern
1:33:35Runway project which effectively enabled
1:33:38dual runway operations to operate uh at
1:33:41Gatwick by repositioning the um existing
1:33:44Northern Runway.
1:33:46So the Greater London Authority had
1:33:49accepted um sorry
1:33:53and provided an assessment of the
1:33:54emissions of international inbound
1:33:56flights in addition to international
1:33:58outbound flights. Um it had not
1:34:01previously assessed these because of the
1:34:04recognized approach which I'd already
1:34:05mentioned of excluding such flights to
1:34:07avoid double counting. Um and that was
1:34:09just among one of the reasons. Secretary
1:34:12of State accepted this and concluded
1:34:14there were um no meaningful benchmark
1:34:16against which to assess the greenhouse
1:34:18gas emissions of international inbound
1:34:20flights. The claimant argued that this
1:34:22was an unlawful approach adopt and
1:34:24adopted a misreading of Finch. Um Finch
1:34:27did not accept this was their case that
1:34:29the absence of a meaningful benchmark
1:34:31meant there could be no assessment of
1:34:32significance at all. But the judge
1:34:35rejected this interpretation of Finch
1:34:37and it was Lord Leget in that case
1:34:39accepted that um we've had Lord Leard
1:34:42obviously that the circumstances
1:34:44sorry accepted that circumstances may
1:34:46arise where considering whether an
1:34:49effect is significant may itself not be
1:34:51capable of meaning assessment.
1:34:54Um but here that there was not an
1:34:57appropriate benchmark for significance.
1:34:59Um
1:35:01so you can see here we've got these
1:35:04finches sort of spilling out now into
1:35:06the DCO context which quite interesting.
1:35:09Um and this particular issue of inward
1:35:12inbound flights um and their
1:35:14environmental effects and sort of the
1:35:16recognized approach in practice to how
1:35:18they should be assessed is sort of
1:35:19coming to the four. Um but these are the
1:35:21two most recent cases on this and that's
1:35:25everything from me. Um, I think we will
1:35:27be handing over for Q&A now. I know some
1:35:30Q&A's have been answered in writing, but
1:35:32if you have other Q&As's, feel free to
1:35:35send them over. Thank you.
1:35:38>> Thanks, Poppy. Um, thanks everybody. Um,
1:35:41yes, so if I can just ask the speakers
1:35:42to turn their cameras on for the uh
1:35:46question session. Um, we've had a few uh
1:35:50quite a few questions in. I'm going to
1:35:51go through them in the order in which
1:35:52they were asked. So I'm going to start
1:35:55the first um couple of questions I think
1:35:57um well the first one's for Ben. So Ben,
1:36:00uh, in relation to the, um, Reyond GM
1:36:04case, um, the question is, rather like
1:36:06permitted development, is it broadly
1:36:08fair to suggest, uh, another form of
1:36:10development permitted by an order such
1:36:13as an SDO or an LDO, um, uh, would be
1:36:17caught by the habitat's regulation
1:36:18simply because it creates the parameters
1:36:20for a development uh, and that is a
1:36:22distinguishable characteristic.
1:36:26>> Yes, thanks James. I mean, I think the
1:36:28answer to that is yes. So what the court
1:36:29said in the
1:36:31um beyond GM case they said this they
1:36:34said about the the PBA regulations that
1:36:36they establish a high level and general
1:36:39policy and regulatory framework. They
1:36:41are of general application throughout
1:36:43England. They thereby necessarily apply
1:36:46to all European sites within England but
1:36:48they do not have any nexus with any
1:36:50particular site. They do not identify,
1:36:53regulate or authorize any activity by
1:36:55reference to any particular European
1:36:57site. rather they establish a general
1:36:59regulatory framework within which future
1:37:01decisions may be taken about the release
1:37:04and marketing of PBO. So these were
1:37:07regulations that applied na nationally
1:37:09no particular nexus to any particular
1:37:11site um didn't didn't establish a
1:37:13framework for authorizing any particular
1:37:15activity affecting uh European sites. So
1:37:19it is these were very general
1:37:21regulations whereas there are others
1:37:23like an SDO or an LDO which authorize
1:37:26development directly or provide very
1:37:29specific parameters for the
1:37:30authorization of development and
1:37:32therefore allow you to establish some
1:37:35kind of nexus with European side. So it
1:37:38was it was both um the kind of
1:37:40generality of the application of the
1:37:42regulations and the fact that they
1:37:44didn't they didn't provide sufficient
1:37:46detail to even allow you to really carry
1:37:47out any assessment of the effects on
1:37:49European sites that meant that in this
1:37:51case they weren't plans or projects. I
1:37:53mean some examples of other things that
1:37:56have been found to be plans or projects.
1:37:58So uh national policy statements
1:38:01for DCO purposes um were accepted to be
1:38:06uh um uh plan or project in the together
1:38:10against size case. Um the grant of
1:38:12licenses for oil and gr gas extraction
1:38:14in the North Sea was was accepted to be
1:38:18um a plan or project by the secretary of
1:38:20state in in Oceanic review case. it was
1:38:23um October 2025 I think that was handed
1:38:26down um even though the licenses
1:38:29themselves don't didn't actually grant
1:38:31or authorize any particular activity um
1:38:33just just give just a grant of a legal
1:38:36right um so so I think the more the more
1:38:39closely connected you are to protected
1:38:42sites the more you actually regulate
1:38:44development and and then if you actually
1:38:45authorize a consent those things that
1:38:47get you much closer to being a plan
1:38:48project it's still quite quite a broad
1:38:50term but there are limits and obviously
1:38:53the claimants in the ambond GM found the
1:38:57limits and not not particularly
1:38:58surprised that they did given the nature
1:38:59of that particular scheme. Thanks Ben.
1:39:02And the other thing I think Ben just to
1:39:05to raise with you, you obviously raised
1:39:06the very interesting views by the um
1:39:08parliamentary committee on the on the
1:39:10virus
1:39:12um of those EDP
1:39:15regulations. But I mean presumably you
1:39:17you couldn't actually rely on what that
1:39:19parliamentary committee said in a
1:39:21judicial review. seeking to challenge
1:39:22those regulations because of article 9
1:39:24of the the bill of rights.
1:39:26>> Yeah, I think that's right. And you
1:39:28know, we've seen lots of interest in
1:39:30that issue by the speaker over the last
1:39:32sort of year or two. I don't think you
1:39:35could rely on that as evidence in um in
1:39:38a challenge, but it doesn't stop you
1:39:39from bringing a challenge to those
1:39:41regulations on the basis on which are
1:39:44set out by the report. But you couldn't
1:39:45rely on what's said in the report as any
1:39:47kind of evidence in support of your
1:39:48claim. No, because I mean although you
1:39:50wouldn't be questioning it, you'd be
1:39:52relying on it, it would put the
1:39:53defendant in the imposter position that
1:39:55they couldn't they couldn't question the
1:39:57proceedings in parliament and argue that
1:39:59it was actually lawful. So yeah, it's an
1:40:00interesting one. Okay, Nick, there's a
1:40:03couple of things for you. I think uh the
1:40:04first one is in terms of salami salami
1:40:07slicing. If an applicant chooses to
1:40:09separate aspects of the development and
1:40:11gain planning permission for them
1:40:12independently of the DCA regime,
1:40:16um uh is there an argument uh to be made
1:40:19that it should all be considered as one
1:40:21uh for EIA purposes?
1:40:24>> Uh
1:40:26I suppose yes, it depends entirely on
1:40:27the facts and the the various case laws
1:40:29being clear. It's a fact dependent
1:40:31question for the decision maker at the
1:40:32end of the day. Um so the the kind of
1:40:35factors that Lang outlines in Wingfield
1:40:37and the Court of Appeal endorsed in
1:40:39Ashurch are things like whether there's
1:40:40common ownership, whether there's
1:40:42simultaneous determinations,
1:40:44um functional interdependence, whether
1:40:46one part of the development couldn't
1:40:47function without another and or
1:40:50conversely whether a development is
1:40:52justified on its own merits and could be
1:40:53pursued independently of the other
1:40:55development coming forward. So I mean in
1:40:57the in the hypothetical way it's put yes
1:41:00there's an argument but whether there
1:41:02would whether it it would succeed or not
1:41:05is going to be very fact dependent. Um
1:41:08>> yeah yeah and then I think um question
1:41:11that might might be related in some
1:41:12ways. I think there was a question about
1:41:14um Ray Shaw um and whether the case
1:41:19concluded that the grid connection
1:41:21should have been part of the application
1:41:23considered in the EIA.
1:41:25No, it said go away and look at it again
1:41:27asking yourself the right question. The
1:41:28courts have been very clear that that's
1:41:30not for them what the project is. It's a
1:41:32decision maker question. So
1:41:33>> no, although my sense of the judgment is
1:41:35it does give a pretty strong indication
1:41:37that what the answer should be the
1:41:39judgment which is that they you know
1:41:40they should have assessed it and I
1:41:42suppose given the risks around this
1:41:44people are going to have to start
1:41:45assessing stuff like like that
1:41:47presumably.
1:41:47>> Certainly it's the more sort of
1:41:49precautionary thing to do. Um, and you
1:41:52know, if it's e relatively easy to do,
1:41:53then it just takes away one line of one
1:41:55line of objection that could be taken
1:41:56against you that the IIA is deficient.
1:41:58So, if it's easy to do, then no reason
1:42:00not to do it.
1:42:02>> Yeah. And then I think there was a there
1:42:03was a a further comment that came in
1:42:06um from from Michael Stallard saying
1:42:08that he understood the the EO road map
1:42:11is on pause with government and no
1:42:13progress has been made with it. I don't
1:42:14know whether you have any knowledge of
1:42:16whether that's right or not. I don't I
1:42:19don't I mean given there's been no
1:42:20update since March, it wouldn't surprise
1:42:22me, but I I don't have any firsthand
1:42:24knowledge of it.
1:42:24>> Yeah, it's been been a change of
1:42:26government since then, hasn't there? So,
1:42:27um you know um
1:42:29>> and MHLG's got, you know, a couple of
1:42:31things on their plate at the moment.
1:42:33>> Yeah, a few things. A few things. Okay.
1:42:35Uh thank you. Um so, um Odette, there's
1:42:39a few questions on um on um uh section
1:42:43106.
1:42:45So um we just pick those up. Um is there
1:42:50an expected time frame for how long
1:42:52prior decision is being made a 106
1:42:54should be published on a planning
1:42:55register other than not seven minutes?
1:42:58>> Um well there's nothing in the statutory
1:43:01provision. So it's essentially a matter
1:43:04of judgment and in the sort of seven
1:43:07minutes wouldn't probably be enough
1:43:08case. All the court did was give some
1:43:10guidance which essentially said it
1:43:12depends on the circumstances. It depends
1:43:14on the length of the agreement, its
1:43:16complexity,
1:43:18um matters such as that. So if it's very
1:43:20short, maybe maybe a day is okay. But
1:43:23there's no there's no there's no
1:43:24guidance really. It's a fact fact
1:43:26sensitive analysis of each case
1:43:28unfortunately.
1:43:30>> Yeah. And then I think there was a
1:43:31question about whether the publication
1:43:33requirements apply to the inspector's
1:43:35final determination at a at a pee.
1:43:38>> Yeah. My I mean my understanding is that
1:43:40until it's finally disposed of the
1:43:42council does have an obligation to keep
1:43:43publishing on its website whatever it's
1:43:45got.
1:43:46>> Yeah. Although presumably I mean if you
1:43:50it would be very hard to challenge the
1:43:52inspector's decision on the basis the
1:43:53council haven't it given that it's being
1:43:55discussed at a public inquiry. I think
1:43:57that would probably dispose of the
1:43:58challenge. So I mean technically there
1:44:00might be a breach but it probably
1:44:01wouldn't go anywhere. Um, and then I
1:44:04mean I think you um you probably um um
1:44:08opened up a Pandora's box by talking
1:44:10about the um the pins guidance um which
1:44:13obviously there's been quite a lot of
1:44:15stuff out uh um on on recently in
1:44:17relation to um the well frankly
1:44:21preposterous idea that you have to
1:44:23submit um a section 106 with the
1:44:26planning application. I mean, for a
1:44:27start, most legal authorities insist
1:44:29that they do the first draft, and we
1:44:30know, as you said, they're never going
1:44:31to actually do one if they're intending
1:44:33to refuse you. Um, I mean, I think for
1:44:36my part, um, I think pins have lost
1:44:38sight of two two things. I mean, one is
1:44:41the procedural guide is a guide. It is
1:44:43not rules. They cannot use it to impose
1:44:46rules. Um, and there are some useful
1:44:48inspector decisions saying, you know,
1:44:50don't treat the guide as rules. It's not
1:44:52it's not rules. And the second thing is
1:44:54you know they're not able through the
1:44:56guide to do things which are uh unfair
1:45:00um and um you know procedurally um
1:45:04defective and frankly uh I think if
1:45:07anyone were to lose an appeal um because
1:45:11they hadn't complied with this guidance
1:45:14they'd have a very strong prospect of
1:45:15challenging that on the basis of of
1:45:17fairness. I mean pins is supposed to be
1:45:19based on the Frank's principles which
1:45:20includes fairness. Um, but I think
1:45:23someone's lost sight of that uh
1:45:24somewhere in the line. But anyway,
1:45:26that's my own my own not very strong
1:45:28views on the subject. Um, I mean it
1:45:30needs to come out the procedural guide.
1:45:32It's it's complete nonsense and it needs
1:45:34to come out and uh hopefully it will.
1:45:36>> Yes.
1:45:37>> Um, so um there are I think there was
1:45:40another uh let's just have a look. I
1:45:42think there may have been another
1:45:44>> there was one question about whether um
1:45:46you could get costs awarded for a
1:45:47council who didn't engage. So I mean the
1:45:50appeals PPG
1:45:52does say that in respect of the appeals
1:45:55part of the process lack of cooperation
1:45:58and delay in adhering to deadlines is a
1:46:01potential ground for cost. So if it's
1:46:03during the appeal itself and the
1:46:04council's not engaging at all and that
1:46:07leads to delay or you know potentially
1:46:10on a procedural basis you'd have to show
1:46:12that you had been put to expense that
1:46:16was wasted. Um, so it's sort of
1:46:18factually dependent, but but yes, if the
1:46:20council is totally refusing to engage
1:46:22during the appeals process, it's it's a
1:46:25potential avenue to look at.
1:46:28>> Yeah. Okay. Um,
1:46:32thank you. And then, um, I I think there
1:46:34might have been some other questions
1:46:35come in. I don't have a look at those
1:46:36today. We'll come come back to them if
1:46:38if you can see them on on your screen,
1:46:39but I'll I'll pass over them for now. um
1:46:42and ask um I think there were um so um
1:46:47um I think Margaret you may have
1:46:49answered one um uh in in in writing um
1:46:54but there is um a further question I
1:46:56think which says um thank you for your
1:46:59reply on downstream effects of livestock
1:47:01unit developments aside from the
1:47:02off-site disposal of manure do you think
1:47:05it would be reasonably expected for
1:47:06other effects such as greenhouse gas
1:47:08emissions arising from the
1:47:09transportation processing or sale etc.
1:47:12of animals and meat products to also be
1:47:14covered uh in the EIA.
1:47:20>> That's a very good question. I think it
1:47:23requires engaging with um the Supreme
1:47:25Court's judgment in Finch and what the
1:47:27court says about uh causality there. So
1:47:31the core question I think sort of what
1:47:32the Supreme Court helped with there is
1:47:34that it simplified the approach. the
1:47:35court of appeal had adopted an approach
1:47:36that added complexity in in seeking to
1:47:39assess the likelihood or otherwise of
1:47:41particular effects. Um so the best way
1:47:44to look at it is looking at whether uh
1:47:46the emissions uh that might result say
1:47:49from from transporting or the like are
1:47:51an inevitable consequence of the uh
1:47:54development that is being approved. and
1:47:58and and if if the conclusion if the if
1:48:00if a reasonable if it is reasonable
1:48:02conclude to conclude that they are and
1:48:04that there's no intervening uh step that
1:48:06might break that causality then I think
1:48:08it would be prudent to to assess them.
1:48:11um that doesn't necessarily mean that um
1:48:15the significance or otherwise of those
1:48:18emissions inevitably mean that the
1:48:19proposal should not go ahead. But I
1:48:21think it's it's probably safer to to
1:48:24assess uh any any effects uh including
1:48:27GHG emissions that are inevitably going
1:48:30to result from from a proposal. So it
1:48:33depends on the facts of the specific
1:48:34proposal. Um but um if if they are a
1:48:40connected uh effect then then I would I
1:48:43would consider it prudent to include
1:48:45them. I think the the distinction the
1:48:47Supreme Court draws between oil and gas
1:48:49and iron and steel is a very helpful
1:48:52factual example of what is a direct or
1:48:56indirect effect and what is not um a
1:48:59direct or indirect effect because
1:49:00there's a sort of a sort of a whole set
1:49:03of intervening uh steps um for instance
1:49:06the production of steel um that that
1:49:09break that causality.
1:49:11>> Thank you. And then there's um um
1:49:13there's a further question which I think
1:49:15possibly would be either either both of
1:49:18you and and Poppy
1:49:20um
1:49:22effectively saying given the the Finch
1:49:24judgment's emphasis on assessing
1:49:27uh likely significant environmental
1:49:29effects um down downstream and upstream
1:49:33um could that have implications um for
1:49:37um local plan making uh and the 30-month
1:49:41time limit that you've got for getting
1:49:43everything together and getting your
1:49:45plan in plan in place. I mean, I guess
1:49:47there's several questions. I mean, one
1:49:48is to the extent to which Finch applies
1:49:50within SEA as well as EIA. Um, which,
1:49:54you know, is is one element of it. Um,
1:49:57but secondly, I mean, I guess it's
1:49:58what's been driven out by the question
1:50:00is the practical difficulties that Finch
1:50:03has given rise to. Um and frankly the
1:50:06more case law that comes out the more I
1:50:08look at it and think Lord Sales was
1:50:11entirely correct uh in his judgment but
1:50:14that's my own view. Um the practical
1:50:16difficulties you know are not going to
1:50:17get smaller but I don't know whether
1:50:18either Poppy or Margarita have you any
1:50:20thoughts on on that
1:50:23>> only to say the same thing about the
1:50:24practical difficulties. Yeah I don't see
1:50:26how
1:50:27>> it's a tight time limit. Um yeah no I
1:50:31mean
1:50:31>> quite difficult.
1:50:38Okay. Um
1:50:40and um I don't know was there any other
1:50:43questions that we needed to pick up on
1:50:44yours or are you happy that we've
1:50:45covered covered those?
1:50:50>> Um there was there's just one
1:50:52um that says there confirming um was I
1:50:57confirming that the section 106 must be
1:50:59submitted prior to determination. Is
1:51:01that is that correct? Um, so I think two
1:51:06two different branches to that depending
1:51:09where you're at with the council. So if
1:51:10the council is going to approve you,
1:51:13obviously you do need to submit it prior
1:51:14to determination and it needs to be
1:51:16published on the council's website.
1:51:17That's the whole point of regulation 43.
1:51:21Um, if you're being refused, the PIN's
1:51:23guidance that James and I were talking
1:51:24about is now saying nonetheless, you
1:51:27should have a section 106
1:51:29prior to determination, but you might
1:51:31not have the ability to do that. Um, the
1:51:35safest thing with the new guidance in
1:51:37place is to try and submit it prior to
1:51:39determination. Um, because then there's
1:51:41no chance of getting into a dispute with
1:51:44pins down the line. But as James says,
1:51:45we we think it's unlikely that actually
1:51:48people are going to end up with refusals
1:51:49on the basis so we submitted the 106
1:51:52with the appeal for the first time. Um
1:51:54but safest way forward is to do it as
1:51:56early on in the process as possible. So
1:51:58there's no discussion about it.
1:52:01>> Yeah. And I mean I guess in some ways it
1:52:03doesn't really matter what you submit as
1:52:06long as you submit a section 186 because
1:52:08if you don't have to change on appeal
1:52:09because the council asks for different
1:52:11things, you can hardly be criticized. I
1:52:13mean I know it says I think the gu
1:52:14doesn't final version but I mean that's
1:52:16obviously just you know I mean that that
1:52:18that that's I think madness lies in that
1:52:20direction. So you can really possibly do
1:52:23that. Um so actually all that would
1:52:25really matter was you put something in.
1:52:26You can say oh yeah there's my 106 that
1:52:28ticks that box and then obviously it's
1:52:30going to change in the course of the
1:52:31appeal the appeal process. But I mean I
1:52:34do understand why pins is trying to
1:52:37drive efficiency in its decision-m but
1:52:40um sometimes um one goes back to um to
1:52:44Lord Akin about administrative
1:52:46convenience and fairness don't always um
1:52:48go go together and I'm afraid that's
1:52:51where I think we're heading on that. But
1:52:54um thank you very much to all of our um
1:52:57speakers and thank you um to everyone
1:52:59who's joined. I hope you found it um
1:53:01useful and um uh I look forward to
1:53:05seeing you for um some of the later uh
1:53:07sessions in this in this series. Thank
1:53:09you very much.

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