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The Court of Appeal has just dismissed the actions in nuisance by residents of flats adjacent to the the Tate Modern art gallery on the south bank of the River Thames in central London. (Disclaimer: the author of this post has just moved into an apartment in the area but has no association with the flats or the residents central to this appeal.)
At the outset of this judgment, the Court observed that
the case, and this appeal, raise important issues about the application of the common law cause of action for private nuisance to overlooking from one property to another and the consequent invasion of privacy of those occupying the overlooked property.
The following discussion quotes from the Court’s own press report. References to paragraph numbers are in bold.
Dover District Council v. CPRE Kent [2017] UKSC 79, 6 December 2016, read judgment
The Supreme Court has just confirmed that this local authority should have given reasons if it wished to grant permission against the advice of its own planning officers for a controversial development to the west of Dover.
The interest is in the breadth of the decision – how far does it extend?
R (o.t.a. Oakley) v. South Cambridgeshire District Council [2017] EWCA Civ 71, 15 February 2017, read judgment
There is, I am glad to say, an insistence these days in the Court of Appeal that the giving of proper reasons is a necessary part of what can be expected of a planning authority when it grants permission: see my post here for a case last year.
And the current case is another good example. The CA, reversing Jay J, decided that the planning authority had acted unlawfully in not giving reasons in this case.
In November 2016, the Government responded in rather disappointing terms (here) to a consultation about amending its costs rules in civil cases to reflect the requirements of the Aarhus Convention.
Article 9 of this Convention says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive“. Aarhus starters may want to have a look at my bluffers guide to Aarhus – here.
First, the limited bit of good news in the governmental response.
R (o.t.a. CPRE Kent) v. Dover District Council [2016] EWCA Civ 936, 14 September 2016, read judgment
The Court of Appeal has just given us a robust vindication of the importance of giving proper reasons when granting planning permission, by way of a healthy antidote to any suggestion that this is not really needed as part of fairness.
It is, as we shall see, very context-specific, and Laws LJ, giving the main judgment, was careful not to give the green light to floods of reasons challenges – common enough as they are in planning judicial reviews. Nonetheless it is a decision of significance.
Many readers will know that I have banged on, long and hard, via this blog about the constant problem we have in the UK trying to ensure that the cost of planning and environmental litigation is not prohibitively expensive for ordinary people. The UK system has been held repeatedly to be in breach ofArticle 9 of the Aarhus Convention, which says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. For Aarhus beginners, have a look at my bluffers guide – here
So I was delighted to be asked recently to chair the Environmental Law Foundation whose main role is to help out people, for free, with their planning and environmental problems. ELF is going to have its 25th birthday next year, and this short post is an unashamed plug for the job that it does – together with an invitation to contact it (see below) if you have a problem you think they may be able to help with, or if you want to volunteer to assist on someone else’s problem.
Midcounties Co-Operative Ltd v. Forest of Dean [2015] EWHC 1251 (Admin) 6 May 2015, Singh J, read judgment here
Out of what some may think to be an everyday spat between the Co-Op (existing supermarket) and an out-of-town supermarket proposer, comes a salutary reminder from Singh J that local authorities cannot behave like private litigants when they are judicially reviewed. Different rules apply.
A little bit of context. Cinderford, like many small towns, has been subject to supermarket wars for some years. Unfortunately, the local planning authority got its reasons for supporting an out-of-town project wrong. And they were successfully challenged on judicial review – once, and then twice, and then, as we shall see, for a third time. And the response on this last occasion to the challenge – we disagree with the challenge, but we won’t appear to dispute it, and will leave it all to the supermarket to whom we gave planning permission to say why we were not unlawful in granting them permission.
Secretary of State for Communities and Local Government v. Venn, Court of Appeal, 27 November 2014 – read judgment
Back to Aarhus and the constant problem we have in the UK making sure that the cost of planning and environmental litigation is not prohibitively expensive.
Article 9 of the Aarhus Convention (to which the EU has subscribed) says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. If this means nothing to you, you might want to limber up with my bluffers guide to Aarhus – here -not least on how to pronounce it and how it fits into domestic law.
Ms Venn wanted to stop the owner of land next door to her London property “garden-grabbing”, namely building another dwelling in his garden. The local authority had refused permission, the landowner successfully appealed to a planning inspector, and on further review, Ms Venn said that the inspector had failed to have regard to emerging planning policy in determining the appeal against her.
Lang J gave Ms Venn a protective costs order (PCO), limiting her costs exposure to £3,500 if she lost. The CA reversed this. As ever, the devil is in the detail. Had her appeal been by way of judicial review, she would have got an order in her favour. So why didn’t she?
Cherkley Campaign Ltd, (R o.t.a ) v. Longshot Cherkley Court Ltd, Court of Appeal, 7 May 2014 read judgment
The Court of Appeal has reversed the robustly expressed view of Haddon-Cave J (see my post here) that the grant of planning permission to a proposed “exclusive” golf club in Surrey should be quashed.
The local planning authority had originally granted permission by the barest of majorities – 10-9, and against its planning officer’s recommendation. The judge had thought that the authority’s decision was irrational, and had misinterpreted or misapplied the concept of “need” in the applicable planning policies.
The Court of Appeal roundly disagreed with these and the other grounds on which the judge quashed the decision.
Commission v. UK, judgment of CJEU, 13 February 2014 – read judgment – UPDATED
Litigation costs are troublesome, but they are particularly difficult in environmental cases where the claimant is not necessarily pursuing his private interests. This case is the result of a long-running and successful campaign by NGOs to persuade the EU Commission to investigate UK environmental legal costs. The main finding may not bother the UK too much, because wisely it saw this one coming and changed costs rules in environmental public law cases. A subsidiary ruling about cross-undertakings has also been more recently included in a rule change.
All of this comes from Article 9 of the Aarhus Convention (to which the EU has subscribed) which says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. Continue reading →
Lanner Parish Council (R ota) v. the Cornwall Council [2013] EWCA Civ 1290 read judgment
This planning judicial review tackles the problem posed by an authority who says one thing in its formal reasons granting planning permission, and another thing in the court proceedings when the grant is challenged.
Coastline wanted to construct 25 affordable dwellings in Lanner. The Parish in Lanner objected, on the basis that 25 was too many. It referred to a local planning policy (H20) which said that there should be no more than “about 12” houses on any new development in a large village such as Lanner.
The planning officer supported the grant of planning permission, and the Council agreed. The Council’s reasons for grant said that the proposal “accords with” policy H20. But it didn’t, because the policy referred to 12 houses, and the proposal was for 25 houses, and this error in the reasons was one of the Parish’s main points on the judicial review.
Commission v. UK, Opinion of Advocate-General Kokott, 12 September 2013 read opinion here
Forgive me for returning to this case, but it raises all sorts of questions. On the face of it, it concerns 2 specific environmental directives, but it has implications for costs generally in environmental cases.
And why do I go on about costs? Because the prospect of being seriously out of pocket deters even the most altruistic environmentalist if they lose. Some may be purely NIMBYs, but most have a rather wider sense of the things that matter and that is not just about protecting their own assets. Claimants are normally up against public authorities and/or developers, so the balance of power has to be struck in the right place between them.
Cherkley Campaign Ltd, (R o.t.a ) v. Longshot Cherkley Court Ltd, Haddon-Cave J, 22 August 2013 read judgment
This is a successful judicial review of the grant of planning permission to a proposed new golf club in leafy Surrey – where one central issue was whether, in planning policy terms, there was a “need” for the club. The local planning officers had advised the council against the proposal, but the members voted in favour of it (just), hence this challenge. It succeeded on grounds including perversity, which is pretty rare, especially in the planning context, but, when one looks at the judgment, you can readily see why the judge concluded as he did.
The judgment contains some pungently expressed reminders that the planning system is not just about facilitating “business” but requires a proper assessment of the public interest. And dressing up the provision of very very expensive golf to a few very very rich people as “need” does not wash.
Commission v. UK, Opinion of Advocate-General Kokott, 12 September 2013 read opinion here
“It is well known that in United Kingdom court proceedings are not cheap” – a masterly understatement opening this opinion from our pictured AG to the CJEU about whether the UK system on legal costs complies with the obligation now in two EU Directives about environmental assessment and pollution control. The AG thinks that our way of doing costs is not up to scratch – with the origin of this obligation to be found in the UN-ECE Aarhus Convention to which the EU has subscribed (albeit abstemiously when the EU comes to its own affairs – funny that).
Bit of context – the EU has been warning the UK about costs for some years, with formal warnings going back to 2007 – and the Aarhus Convention Compliance Committee has been doing likewise from Geneva. But the EU courts are more scary – all the ACCC can do is wrap the odd knuckle. And on this topic, we have one individual case which has been to the CJEU (Edwards, where the UK does not look in good shape – see my post), and now this case saying that the UK has a systemic problem with excessive costs.
But one thing we must remember. The law according to the AG looks at the law before the UK had a go at sorting the problem out – see my post, as above. on the new UK regime. There is some important stuff about how the old system did not comply, which will have implications for the new rules.
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