Environmental justice and a mighty victory for the Park Road Allotments, Isleworth – (David and Goliath doesn’t come close)
At the beginning of the year ELF was approached by the Isleworth Society. Having secured Rule 6 Status at a forthcoming public inquiry in October 2018 they were looking for some pro-bono assistance. ELF was lucky enough to secure for them through the ELF scheme Charlotte Gilmartin and Jonathan Metzer, both of 1 Crown Office Row.
Following a planning inquiry that lasted 8 days during October, the team for the Rule 6 Isleworth Society, with amazing input from the Society, and that of the ELF barristers and experts, we yesterday learnt that both appeals had been dismissed. This is amazing news for the whole of the community, important local allotments saved for the community and the wildlife that thrives there, and the preservation of the Grade 1 historic and protected garden.
The planning appeals concerned proposals by the Northumberland Estate (Duke of Northumberland) of two linked planning applications, refused at committee though recommended for approval by the local planning authority. The first application was for the construction of 80 plus private rented homes (no affordable housing) and significant car parking to be built on the Isleworth allotments site, some of the oldest allotments in London. The justification for the house building scheme was that the historic Syon House, also owned by the Duke needed upkeep going forward and that this development would pay for it. Some £9 million was said to be required to bring the house back into good repair. The second linked application proposed relocating the allotments into the Grade 1 listed Syon Park, within the grounds of Syon House. Isleworth allotments replaced with Park Road allotments.
The allotments had been taken back into management by Northumberland Estates and run down, 6 month tenancies offered and such other cynical tactics. Local residents were distressed at the prospect of losing the historic 1stworld war allotments that made up part of the local green corridor, located within a Conservation Area. There was also some unrest expressed, not least because there has already been significant commercialization of Syon Park, and despite the applicant already having had previous s106 obligations for the maintenance of the house on previous commercial development in the Park, concerns were widely expressed that such obligations have not been met.
Charlotte Gilmartin and Jonathan Metzer, both in David’s Hart’s team at 1 Crown Office Row, with Charlotte leading have done a first class job. ELF is extremely grateful to them as young ELF professional members who do so much to promote access to environmental justice for communities
Woodlings Update
When ELF is approached by a community looking for assistance, often ELF will remain involved with that community for a long while, seeing out a relationship that sometimes lasts for years.
The next story is one of attrition, waged by a single individual on the woods that many in Glossop had grown up knowing to be their community woods, where children had roamed free for decades. Until this local person started trying to take possession of the woods for their own personal gain. After years of onslaught, fencing put up, trees removed without permission, various planning applications local people become so fed up that direct action was taken and the Woodlings occupied the wood. ELF was able to find the group assistance through the generosity of Constance Bell at Kings Chambers in Manchester.
This is an update from the Woodlings:-
Over the past few months, the Adverse Possessor (AP) still emboldened and showboating regarding his ‘success’ at court last January had approached the council making demands and requesting permission to remove several saplings we planted. He had done this in the past and after petitioning the local community the permission was refused, but apart from the refusal, no other comment or guidance was included.
As you know the Woods has the protection of a Tree Preservation Order/Local Green Space and is designated a conservation area and the council’s response to the AP this time is a much more assertive and resounding ‘no’ together with a comprehensive document explaining why.
The review emphasizes the fact that the Woods is protected, it should and can only be treated as such, a public amenity and the council will not consider any request that has an impact on the flora and fauna unless an accredited woodlands management plan is submitted and that plan should include public access, for the Woods to be enjoyed as a local amenity for the public to access, whomsoever might own/possess the land.
OK this doesn’t give us possession (we’re still working on that and thanks again for your help) but the review published by the council does address the core issue – public access.
ELF has recently referred this matter to Peter Scott, long-time friend and ELF solicitor member and he has been helping the Woodlings to explore the title with a view to review what documents exist for a legal opinion on whether it is possible to identify the current owner(s) of the George Street Wood site with sufficient confidence for them to approach the Land Registry and register the site. And so we go on.
In July of this year ELF was approached by local friends groups and campaigners regarding their on-going campaign to save protected areas of woodland in Sydenham, Lewisham. A Lewisham Council led scheme for affordable housing would have resulted in the felling of many trees and building on a SINC. With ELF’s assistance and that of the London Wildlife Trust, but as importantly a well led campaign by the various friends groups has seen the Council withdraw their plans.
On Tuesday 9thOctober 2018, Lewisham council issued a press release saying
“Lewisham Homes and Lewisham Council have today (9 October) taken a joint decision to withdraw the planning application for the proposed Hillcrest housing development scheme in Sydenham. Following extensive public consultation and after listening to local concerns about existing green space at the proposed site, Lewisham Homes and the Council commissioned further research which was undertaken by an independent ecological expert. The decision comes as part of Mayor Damien Egan’s focus on how to best meet our council priorities and ambitions. Cabinet Member for Housing, Paul Bell, said: “The environmental research results were inconclusive, however, in order to deliver on our ambition to achieve 1500 new social homes by 2022 in partnership with local communities, we have decided to err on the side of caution. “We remain wholly committed to developing much-needed new social homes across the borough, including in Sydenham.”
Hillcrest Woods has a priority habitat for wildlife including song thrushes, tawny owls and stag beetles. Hillcrest Woods are an important surviving part of an ancient wooded landscape. For many centuries, until at least the 16thcentury, what is now Upper Sydenham was part of the Great North Wood known as Westwood, as it was on the western edge of the Manor of Lewisham. In 1531 Henry VIII became Lord of the Manor of Lewisham and he began felling the trees in Westwood and transporting the timber to Deptford dockyard for ship-building. A few parts have been continuously wooded since this time, surviving the construction and demolition of a railway line, and the subsequent construction of the Estate in the 1960s. Veteran and ancient oak, hornbeam, sweet chestnut, wild cherry and hazel all have roots dating back to the 16thcentury. Ground flora include ramsons, bluebell and creeping soft-grass – all of these are indicators of ancient woodland.
Mathew Frith, Director of Conservation at London Wildlife Trust, said: “The woodland at Hillcrest Estate represents one of the last surviving fragments of ancient woodland in this part of London; and is an important part of the Great North Wood….New planning rules came into effect on 24thJuly 2018 giving ancient woods and trees the highest level of protection from insensitive and unnecessary development.”
https://www.gov.uk/government/publications/national-planning-policy-framework–2
Asked why she thought the campaign had been successful, Kathleen Towler, of Friend of Hillcrest Woods said:-
“All the local groups involved and local residents felt very strongly about keeping their trees and wildlife. For me, the Chris Packham People’s Walk For Wildlife was a stark warning about what we were about to lose and why we had to stand up and fight for it. The guidance and help from you ELF was invaluable because it came at a time when we felt under enormous pressure with very little political support. We had a tight team of 3-6 people who worked on it intensively and a wider group of 10-15 people who were fully committed to seeing the campaign through to the end. When a larger group was needed to attend stakeholder meetings or on-site meetings, the smaller group rallied the support of all stakeholders to attend. Individuals worked hard on the areas they wanted to work on for the campaign and reported back by email or in person back to the small group and periodically to the whole stakeholder group. People were galvanised by what would be an awful change to our living environment. It quickly became apparent that everyone felt the same and had written their own individual objections but we were being totally ignored. In frustration, I wrote a letter expressing all our concerns, jointly signed by myself, Annette Elliot-Dunn, Chair of Longton Avenue Residents Association, Dave Colling, Planning Committee Sydenham Society, Natasha Ahamad, Friend of Hillcrest Woods, Monika Mitchell, Chair of Sydenham Wells Park and Pat Trembath MBE, President of the Sydenham Society, and presented the letter in person to our 3 local Sydenham Councillors at one of their open forum events – Cllrs Liam Curran, Tom Copley and Chris Best. It was also sent our new Mayor of Lewisham, Damien Egan, Ellie Reeves MP and Len Duvall, GLA Member for Greenwich and Lewisham.
The joint letter was turned into an on-line petition on change.org and Hillcrest Estate residents went door to door gathering a hand-written petition. Together the 2 petitions gathered 855 signatures of local people against the development and these were presented in person by the campaign group to the Full Mayor and Cabinet meeting on 3rdOctober 2018. The petitions called upon the council to refuse planning permission for these three proposed developments and demanded the council, its officers and agents fully acknowledge and list the unique environmental characteristics of the estates ancient woodland and veteran trees as forming part of the Great North Wood and do everything within their powers and strategic policies to preserve and protect these irreplaceable natural assets for the benefit of current and future generations We asked that a copy of these two petitions to be given to all Planning Officers and elected Councillors responsible for making a decision on the Hillcrest Estate planning applications.
We got local press coverage in the Mercury, the News Shopper and a reader’s letter in the Evening Standard. We also contacted Sir William Worsley, Michael Gove’s appointed National Tree Champion for DEFRA but he couldn’t comment until later in the process.
Whilst it is often difficult for communities to overcome local environmental development threats, a well-orchestrated local campaign can be effective and as we know increasingly, we have more to fight for, Kathleen’s summary serves as a good example of well organised local campaign.
ELF has received three more new enquiries in the last month regarding farming intensification impacts. Concerns about the impacts of industrial farming appear to be growing.
As we reported previously, ELF has been assisting a community in Devon afflicted by an industrial sized dairy unit, with a herd of 1,000 cows, unregulated development predominating. There are many environmental impacts associated with these matters that have not been dealt with, the local authority seemingly powerless to grapple with the problem. With numerous retrospective applications, prosecutions by the Environment Agency, repeated failures to comply with planning conditions, the final straw came in January 2012 (over the Christmas break) when the owner built an earth banked 7 million gallon capacity slurry lagoon without planning permission. This remains an outstanding issue, not yet decided by the local authority despite years of activity by local residents to stir them to action.
The community has set up a campaign Too Much Slurry in the hope that other communities similarly and increasingly affected, can have a central hub of information and access to assistance. Too often separate communities fight these matters alone, without knowing of those who have already fought these battles with experience of what works and what doesn’t. ELF is pleased to be working with these communities and we are developing plans to do more.
ELF is also organising a farming conference to take place in Exeter in 2018, more details available soon. With partners from Larcomes, an ELF member firm, and Exeter University, we plan to draw on the experience of communities, regulators and farmers to identify steps to address the damaging impacts from industrial farming methods.
Photo: toomuchslurry
In November 2017, East Sussex County Council (ESCC) awarded Village Green status to the Hollycroft Field in the hamlet of East Chiltington. This was the end of a long saga – nearly four years after the initial application was submitted. It was the result of both the determination of local residents, and the support of the fantastic work of a pupil barrister provided through the ELF pro-bono professional network.
The Hollycroft Field is located next to a cluster of council and former council housing in the centre of the Parish. On a daily basis, people walk their dogs, and in the summer play sports and games, on the field. Every year, it is the venue for annual parish parties, bringing together this otherwise dispersed rural community. There are few other facilities: no shop, no village hall, no school, so the Hollycroft Field is very important to residents.
The Parish Council first applied for Village Green status in December 2013. However, the landowner, Lewes District Council (LDC), objected to the application, arguing that the field had been used ‘by right’ rather than ‘as of right’, and drawing on the R (Barkas) v North Yorkshire County Council (2014) judgment in support of this. The Parish Council contested LDC’s objection, suggesting that the evidence to support it was incorrect, and presenting new evidence to prove this. However, when LDC responded with a barrister’s submission in further defence of its objection, the Parish Council realised that it also needed legal help.
The Chair of the Parish Council got in touch with ELF, who suggested a pupil barrister at FTB, Joe Newbigin, whose services were offered at a subsidised rate – funds that were raised within the village. Joe then worked together with residents, turning a vast amount of detailed evidence, unearthed through extensive archival research, into a compelling legal case. ESCC employed independent Counsel to adjudicate on what had become a complex set of arguments. This Counsel agreed with the Parish Council’s case and it was on his recommendation that ESCC’s Commons and Village Green Registration Panel finally, and unanimously, decided to award Village Green status.
In the process, residents of East Chiltington have learned a great deal about both the history of the Parish and legal argument. They were always convinced that their case was a strong one, but it was Joe’s attention to detail and painstaking construction of the argument that made the difference to the success.
Picture: eastchiltington.net
ELF has assisted a community group in Lancashire to issue legal proceedings challenging planning permission for a development which fails to comply with local public open space (POS) requirements.
The group, ‘Save our Stanah’, have been fighting a proposed major housing development at a derelict pig farm on the outskirts of their village, and approached ELF in October 2017. Located in open countryside and with a number of sensitive nature features including being close to a European protected site, the proposal had been controversial.
When considering the original outline application, the council noted that the provision of POS within the development was insufficient and did not comply with the local planning policy, but stressed that this could be dealt with at the reserved matters stage. Permission was subsequently granted for the outline application on appeal, with a condition that the appearance, landscaping, layout and scale of the development be reserved matters.
At the reserved matters stage, the council again noted that the provision of POS was insufficient. However, on this occasion, the council’s planning officer stated that the council was unable to consider the matter because it should have been dealt with at the outline stage. The local community were left feeling extremely frustrated.
When SOS approached ELF we also found it difficult to understand the decision and thought that the advice given to the planning committee that it could not consider the provision of POS at the reserved matters stage may be wrong as a matter of law. With the sterling efforts of barrister Ben Fullbrook at Landmark Chambers acting under the ELF pro bono scheme, a local resident has issued proceedings seeking permission to challenge the decision. We await the decision of the Administrative Court at Manchester on whether permission has been granted.
Photo: Save our Stanah.
An important new case has clarified the law on consultation where changes have been made to an original planning application, thanks to ELF support.
Last year ELF was approached by Del Brenner (DB), secretary of the Regent Network (RN), over the redevelopment of Eagle Wharf on the Regents Canal. A timeless canal side area, where old industrial buildings, locally listed including an artists photographic studio had existed since the 1960s providing low rent space for the creative industries.
RN campaigns for London’s waterways, to bring them back to life, with a focus on the protection of London’s canals and inland waterways. RN, over many years has received substantial support from ELF with various matters concerning development impacts on the Regents Canal and other inland waterways. A planning application was made in July 2015 for the redevelopment of Eagle Wharf, demolition of much of the site and a 50-unit development. DB objected. However, 10 months later following substantial changes to the application, the council approved the application without further public consultation.
Instructing Hannah Noyce, then at 1COR, ELF sent a pre-action protocol letter in December 2016 regarding this failure to re-consult, amongst other matters. A decision was quickly made to judicially review the council. We were also aware that Holborn Studios Ltd, were also challenging the decision. Permission was granted and as we moved towards a hearing date in October 2017, ELF instructed Ian Graves at Shakespeare Martineau, a new and most welcome ELF member, to handle the case alongside a newly appointed barrister, Jessica Elliott of 1 COR.
The court held that the failure to re-consult the public had been unfair and the planning permission was quashed. ELF is delighted with the success of the challenge. This is a good decision and clarifies the law on when re-consultation should take place. ELF would like to say a very big thanks to our ELF members, all of whom acted pro-bono. R (on the application of Holborn Studios Ltd) v Hackney LBC; .R (on the application of Del Brenner) v Hackney LBC [2017] EWHC 2823 (Admin), John Howell QC sitting as a High Court Judge
You can read more analysis here on the 1COR Human Rights Blog.
ELF sees all sorts of enquiries from members of the public, each requiring their own individual response. A recent case involving concerns about the potential loss of a substantial length of hedgerow on a housing estate is illustrative of this variety.
One Friday we received an urgent request for assistance from a litigant in person who had received no legal advice up to that point.
He needed some guidance about how to apply for a judicial review renewal hearing. This had to be with the court by 4pm that day. We were able to give some very basic guidance to facilitate the enquiry and the renewal was duly made. However ELF had not been able to give any guidance regarding the substance of the claim and we were a little concerned.
The matter was in itself an interesting case of a social housing estate in Kirklees where, following a consultation with local residents and an unclear result, the local housing association had decided to remove 546 metres of hedgerow from around the estate.
The main reason for the removal was maintenance costs. The hedge was to be replaced with metal fencing. The results of the consultation was in dispute and there was much bad feeling.
In between the renewal being made and the proposed resumption of the removal of the hedges, the local residents started to protest in earnest.
Following a morning protest which prevented the works beginning on the following Monday, a street meeting was held with senior managers of Kirklees Council, keen to avoid further trouble. Up to this point the local authority had not been involved.
Following this meeting, it was decided to suspend the works and offer a series of around-the-table consultation meetings between themselves and the local action group before any move to restart works to remove the hedges. This was a significant result for the local community.
ELF provided research to the enquirer on local planning policy regarding hedges and gave the wider health and wellbeing context – in fact Kirklees Council had produced a paper on the benefits of hedges over trees in their combating of air pollution. Whilst we did not think the Hedgerow Regulations were applicable, there was local guidance and we were able to supply all this to the enquirer for local dissemination and information for the forthcoming round of consultative meetings with local residents.
There are many local communities at the moment, fighting against hedge and tree removal, with costs being a justification by the body removing them. This is not a dissimilar fight to that taking place in Sheffield, where thousands of street trees have been removed to placate costs.
This maybe a small localised fight but none the less is of huge significance to the local residents.
It is just the sort of matter that ELF can assist with – for more information about getting help, see here.
UPDATE
ELF is delighted to report that the group we assisted in Cwmfelinfach, South Wales, the Lower Sirhowy Valley Residents Group, learnt yesterday that Natural Resources Wales have refused to grant an environmental permit for the proposed waste plant in their valley. When the group first came to ELF in August of last year, planning permission had already been granted and NRW were indicating that they were likely to grant an environmental permit in early September. Local residents had serious concerns over the health impacts of the proposed waste plant.
By the time the group came to ELF, they had already done a lot of work on the issue of emissions, much of it technical analysis of the applicant’s reports, and had a clear understanding of their own local environment notably the often seen weather event in their valley “temperature inversion”, a rare weather phenomena otherwise.
Local knowledge backed up by a determination to understand the technical reports, which led to them revealing many inconsistencies in the applicant’s reports, such as taking no account whatsoever of local conditions having made their readings from places as far away as 35 miles, meant the group did a phenomenal job in scrutinising the application. Quite soon it became clear that NRW had their own concerns with the application.
This is great example of where local people have the knowledge that outsiders do not have, when it comes to their local environment. And the tenacity to be undaunted by technical reports and to carefully consider them which resulted in their discovering problems with the application.
This morning we received an email from our contact from the group to say thanks to all at ELF who helped, the ELF professional members who we referred the work too – both Rory Hutchinson of JCP Solicitors and laterally Richard Buxtons solicitors.
“Counsellor Jan Jones and the group asked me to personally say thank you and Environmental Law Foundation for what you have done for us . . . the local pub was drunk dry yesterday evening from the village celebrating our good news!!”
More about this case below:
The Lower Sirhowy Valley Residents Group in Cwmfelinfach, South Wales, contacted ELF seeking help in assessing an environmental permit application from Hazrem Environmental Ltd. It wants to build a new waste processing facility to accept up to 100,000 tonnes of non-hazardous waste each year and turn it into fuel for incinerating power stations. Lorry diesel air pollutants will arise from hundreds of deliveries and collections each week, whilst the facility itself will generate high volumes of dust.
Planning permission for the building has already been granted.
Hazrem Environmental’s chosen location for the facility is a steep sided valley, well known for experiencing temperature inversions caused by cold drainage flow. Such inversions are a recurrent meteorological feature of valleys in the area, highly familiar to local people, which can trap cold air – and its pollutants – in a valley for days at a time.
The application took no account of these inversions and their potential to result in very high levels of pollutants. Its weather modelling used data from two weather stations, one on the coast at Rhose Airport, 35 miles away, the other on an open plain 7 miles away at Caerphilly.
Similarly, its air quality estimates – as the group only discovered six months after the granting of planning permission – used bias adjusted figures not from where the facility will be located, but from Caerphilly and Blackwood where, again, the topography bears no resemblance to the proposed location of the new facility.
Public Health Wales, responding as statutory consultee, has warned, “We would therefore recommend that the Regulator [Natural Resource Wales] exercise caution in considering the granting of a Permit”.
This case illustrates how difficult it can be for communities (and planning authorities and lawyers) to identify and challenge technical reports. With this in mind, ELF have begun discussions with our university partners about the possibility of involving technical and scientific departments, in their ELF clinics.
If practical, this would significantly boost the ability of communities to assess and present hard evidence on matters such as air and water quality, geological and biological impacts, and noise. Please get in touch if you can help us progress this initiative.
The photo shows a temperature inversion over Islwyn Road, Wattsvile at 8.30am – rush hour traffic. This area already exceeds the recommended level of air pollution.
At the end of last year ELF was contacted by the Friends of Tooting Common about the London Borough of Wandsworth (LBW) intentions to fell a whole avenue of trees on Tooting Common, a sweet chestnut avenue planted some 150 years ago, known as Chestnut Avenue. LBW had been granted Heritage Lottery funding to restore the common which included felling the avenue and replacing them with young trees. The Council public consultation in September regarding the fate of Chestnut Avenue received 650 responses, the majority favourable to the Council’s proposals to fell and replant.
Friends of Tooting Common have for some time been campaigning against the plans on the basis that it is unnecessary to fell all the trees at the same time and that a gradual replanting scheme would be far less damaging to the natural and amenity environment. They launched their own petition which so far has received more than 4,700 signatures.
ELF wanted to explore whether there could be grounds for a challenge to the public consultation on the grounds of fairness as the Friends had identified many older people who had been excluded and we wanted to see if the public consultation stood up to public law scrutiny.
Charles Streeten at FTB agreed to advise ELF and the Friends. While Charles thought that there would be no grounds to challenge the consultation, he did advise that the group should keep up the political pressure, and that a letter to the Heritage Lottery Fund, could create some conversation value with them. Their campaign continues.