Grassroots Triumph

In the heart of the Isleworth Riverside Conservation Area lies a green treasure: the historic Park Road Allotments, one of London’s oldest. Five years ago, the Duke of Northumberland, the UK’s sixth richest person, attempted to replace this beloved local green space with 80 private homes and substantial parking space. This existential threat spurred the Isleworth Society and Environmental Law Foundation (ELF) into action, securing pro-bono legal help to fend off the planning application.

What followed was a triumphant example of grassroots mobilisation and local resistance. A media campaign, supported by local MPs like Ruth Cadbury, councillors such as Salman Shaheen, and the Isleworth Society, was launched. It generated significant attention, with nearly 1,000 objection letters penned and numerous demonstrations held to protect this historic site.

In the face of mounting pressure and widespread media coverage, the Duke’s appeals were ultimately dismissed. But this victory was not just about preserving an allotment; it was about upholding the values of community, heritage, and environmental justice.

The Community’s Fight for Environmental Justice

Fast forward to the present, and the Duke of Northumberland has once again set his sights on the Isleworth Allotments. His renewed appeal against refusal of planning permission, took place last week and came amid an even stronger community backlash. The Isleworth Society once again played a significant role by taking Rule 6 Status. This time the Allotment Holders also took Rule 6 status. The campaign to preserve the allotments has garnered substantial media attention, with stories highlighting the mental health benefits of allotment holders, the historic significance of the area, and the community’s vehement resistance to the proposed development. The allotments are designated Local Open Space and are registered as a Community Asset.

Despite the Duke’s wealth and resources, the power of local resistance has proved formidable. The Aarhus Convention, which upholds the public’s right to participate in decisions that impact the environment, serves as a beacon of hope. . As the community have once again stood against the Duke’s appeal, the Isleworth Society and ELF are reminding us that environmental justice is not just a theoretical right; it’s a powerful tool that communities can wield to protect their heritage and environment.

The story of Isleworth is an inspirational tale of a community’s resilience in the face of adversity. Allotment holder Grace Gray calls her plot a “lifesaver,” a testament to the immense personal and community value of these green spaces.

This appeal serves as a timely reminder that public rights regarding access to information, public participation, and access to justice in environmental matters as laid out by the Aarhus Convention (link to report) are not just theoretical – they have real, tangible impacts on the ground. Access to these rights must be protected.

Preserving Heritage Amidst the Claws of Wealth

In this tale of what feels like ‘David vs Goliath, Round Two,’ the stakes are high, but so is the spirit of the community. The story of Isleworth is not just about preserving an allotment; it is about safeguarding local heritage, ensuring environmental justice, and demonstrating that even in the face of immense wealth and power, the voice of the community will be heard.

With round two completed, we must now wait till September for the closing statements from the parties. The Inspector’s decision will follow thereafter. Win or lose, the local community know they have been able to give it their best shot. With many thanks to the legal team from 1COR, Rajkiran (Kiran) Barhey and Lucy McCann, without whose significant support throughout, the Isleworth Society would not have been able to put in such strong representations. ELF is proud of their contribution. ICOR have always supported the communities that ELF refers to them and more especially in the Public Inquiry setting. For which we at ELF are enormously grateful.

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The Biodiversity Net Gain Policy and Its Challenges

In 2021, the Environment Act gave life to a significant policy that aimed to create a sustainable balance between urban development and nature conservation: Biodiversity Net Gain (BNG). BNG strives to ensure that post-development, the natural environment is in a better state than previously, measured through a system that sets a natural baseline and expects a 10% improvement from the development proposals. But the effectiveness of this policy is threatened by the potentially flawed assessment of baseline conditions. The Wenny Road Meadow controversy in Chatteris, Cambridgeshire, offers a vivid illustration of this conundrum.

Wenny Road Meadow: A Case of Mismatched Assessment

Wenny Road Meadow, the last remaining large green space in the land-locked rural town of Chatteris, has been under threat from a proposed housing development. Despite being home to a significant number of UK priority species and priority habitats, the most recent local plan, though somewhat out of date, includesthis area for development. The local community, understandably concerned about this loss of natural space and biodiversity, has been battling to protect it.

In 2021, an ecology report highlighted a potential biodiversity loss of between 25% and 36%, depending on the habitat classifications used. However, recent assessments failed to consider the significant invertebrate population on the site, which includes numerous scarce species. This omission has led to fears that the Net Biodiversity Assessment may either understate the environmental impact or be ignored by the council.

The Need for a Dispute Resolution Mechanism in BNG Assessment

In this case, a dispute has arisen between the Wildlife Trust’s assessment of the baseline habitat conditions and the developer’s ecologist’s assessment. When these assessments are inputted into the BNG metric, they generate starkly different outcomes: a neutral outcome or a massive biodiversity loss, according to the Wildlife Trust. This discrepancy underscores the need for a mechanism to resolve disagreements in assessments, a need that becomes even more pressing as a 10% Biodiversity Net Gain will soon become mandatory.

Council’s Role in BNG

The council’s Wildlife Officer, in an email exchange in December 2022, acknowledged this disagreement but refrained from passing judgement. He emphasised that the views of the Wildlife Trust should hold equal weight as his own but ultimately deferred to the Biodiversity Mitigation Hierarchy, which demands demonstration of minimum possible biodiversity loss.

However, despite this recommendation, the planning officer’s report did not give equal weight to the Wildlife Trust’s views, choosing instead to lean on the Wildlife Officer’s lack of objection. This reveals an alarming discrepancy in the interpretation of expert opinions and underscores the pressing need for a dispute resolution mechanism when interpreting the BNG.

Whitehawk Hill: Negligence in Nature Conservation

While the Wenny Road Meadow case shows the challenges of interpreting the Biodiversity Net Gain policy, another example from Brighton shines a light on how the planning system needs improvement to protect our valuable natural habitats effectively.

The Whitehawk Hill in Brighton, a designated Local Wildlife Site (LWS), has become a battleground between development interests and local conservationists. This case involves, the shocking mishandling of a large reptile population that was displaced due to a nearby development at a Site of Nature Conservation Importance (SNCI) in Portslade.

Consequences of Hasty Translocation: The Unfortunate Case of Displaced Reptiles

Thousands of reptiles were hastily translocated to Whitehawk Hill, a site already under threat of development, without any preparation or monitoring. The unfortunate reptiles were translocated in winter, which likely resulted in mass deaths due to cold conditions. What is even more alarming is that these reptiles were translocated to a site that itself is destined for development, a negligence that is hard to comprehend.

Protecting LWS: Efforts and Failures

This incident followed previous attempts by the Sussex Wildlife Trust (SWT) and the Environmental Law Foundation (ELF) to exclude Whitehawk Hill and other local wildlife sites from the Brighton Local Plan. Despite their best efforts, Brighton City Council allocated half of their LWS for development, threatening local wildlife. This series of events reflects a troubling trend of disregarding nature conservation in the planning system.

Dr. Allen Stewart, Professor of Ecology at Sussex University, states:

“This is an example of the worst practice, but I fear it’s all too frequent. In my experience, these ‘translocations’ are very rarely followed up with any monitoring to see if they have actually worked in terms of the animals surviving.”

BNG: Need for Checks, Balances, and Transparency

This story, along with Wenny Road Meadow, underlines the need for robust checks and balances in the planning system to uphold Biodiversity Net Gain policy. It’s vital that planning and development consider all factors impacting biodiversity, ensure transparency and public participation, and take to heart the objective of improving the state of the environment post-development. Our biodiversity, once lost, can never be regained. This fact should be at the forefront of any development planning discussion.

Conclusion: Safeguarding Natural Spaces

This situation at Wenny Road Meadow and Whitehawk aren’t isolated, and the current trend appears to see developers undermining the BNG by submitting inaccurate information. Without a robust system for assessing baseline conditions and resolving disputes, the government’s BNG policy may fail to protect the very natural habitats it is designed to enhance.

If we’re to safeguard our natural spaces and prioritise nature, it’s crucial to put mechanisms in place that uphold the true spirit of policies like BNG. Cases like Wenny Road Meadow underscore the urgency of doing so. We must ensure that these mechanisms consider all factors impacting biodiversity, allow for transparency and public participation, and ultimately strive for an environment in a better state post-development.

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A Case Study of the Successful Campaign to Stop the Red Route and Shift Welsh Policy Towards More Environmentally Conscious Priorities

Introduction

The cancellation of the Red Route project in Flintshire, Wales has been welcomed by many and provides a strong example of the power of public pressure and community activism in protecting local environments. Through the mobilization of their members and supporters, North Wales Wildlife Trust (NWWT) and Stamp Out The Red Route were able to influence the Welsh Government’s decision-making to put the environment first. The success of their campaign also highlights the importance of resilience and perseverance in the face of seemingly insurmountable obstacles.

The Red Route Proposal

The proposed Red Route which aimed to alleviate congestion but would have caused severe damage to ancient Welsh woodlands, local farmlands, and native habitats. This damage would have been felt for decades to come, and the cost immeasurable. Despite this, alternative options such as the use of public transport, staggered start times for commuters, and building cycle lanes had not been explored.

Mobilization and Campaigning

NWWT and Stamp Out the Red Route rightly felt that these alternative options would cause far less damage to the environment and be easier to implement. The Red Route would have caused native species to lose access to their nesting grounds, and the introduction of traffic to a previously wild location would have brought about the possibility of road deaths for rabbits, foxes, badgers, and other native wildlife.

The campaign to prevent the development of the Red Route road began in 2017 when the NWWT and several local campaign groups launched objections to the local council. These objections not only revealed miscalculations on the cost of the proposed route, but also the lack of consultation with local people who would be adversely affected by the introduction of such a road. In 2020, NWWT connected with the Environmental Law Foundation (ELF), which, along with Sioned Davies, provided regular consultation to NWWT and Stamp Out The Red Route as they fought for the protection of their local environment.

Significance of the Campaign

For some, the success of the Red Route campaign is seen as a call-to-action to support other environmental movements , and to use their skills, resources and knowledge to protect habitats, species and landscapes from degradation. Going forward, campaigners hope to use the example of the Red Route to encourage a more sustainable approach to transport and infrastructure planning, and to reduce their negative impacts on the environment.

Outcomes and Implications

The cancellation of the Red Route project is a sign of progress, in many respects. It is a win for the environment, a success for the communities of Flintshire, and a reaffirmation of the importance of public community activism in protecting local habitats and ecosystems. In addition, the Welsh Government’s decision to halt construction sends a strong message to the rest of the UK that Wales will no longer accept proposals that are damaging to the environment, and that their commitment to protecting nature is stronger than ever.

The Red Route campaign has also inspired and invigorated activists across Wales to work together towards achieving more sustainable development, and towards creating a more equitable and environmentally conscious future. It is essential that we act on the lessons of this successful campaign, and continue to fight for environmental conservation and justice. This case study shows us the importance of community engagement and activism in achieving positive outcomes in the face of challenging odds.

Looking Forward

The success of the Red Route campaign should serve as a model for activists in Wales and beyond. It demonstrates that with collective action and strong leadership we can drive change that benefits both people and the environment. We must build on the success of this example and continue to fight for environmental conservation and justice. Calls for decision-makers to be held accountable for their actions, and for a demand for more environmentally conscious policies, must be kept alive in Wales, and across the UK.

The Red Route campaign is an important example of how public pressure can be leveraged to achieve positive outcomes, even in the face of daunting odds. Every community and organization involved in the campaign should be commended for their work and commitment. Ultimately, the Red Route campaign is a powerful testament to the power of collective action and community activism in protecting local environments and fighting for environmental justice. Going forward, this should serve as an inspiration to all those working for a more sustainable and equitable future.

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In January and March 2022, ELF instructed Joe Thomas of Landmark chambers in a Public Inquiry to decide the fate of a Town Green registered under the Commons Act 2006, and Local Wildlife Site, in the Green Belt. Registered as a Town and Village Green (TVG) in 2008 after a lengthy inquiry, Woodcock Hill VG in Borehamwood has been under the careful stewardship of local people and in particular the Woodcock Hill Village Green Committee (WHVGC) for many years. In 2020 the Borehamwood community received notice from Taylor Wimpey (TW), the owner of the Woodcock Hill Village Green, that they intended to seek de-registration of part of the TVG status which they duly did. A community in uproar, ELF was approached for assistance (see an earlier piece here). Working with Nick Grant initially and latterly Joe Thomas both of Landmark chambers and the wonderful characters of the WHVGC, it was an amazing experience for ELF to play a role in a public inquiry.

The VG has been managed by many active members of the community of Borehamwood, with the purpose of wildlife and habitat conservation and is a natural place, of unimproved grassland, unusual in that urban environment so close to people’s homes. It has provided the setting for many community events and activities during a long history of use. It is a typical village green and lies at the heart of the Borehamwood community. The community have loved, treasured and maintained this wild Local Wildlife Site and Village Green for years enhancing the conservation and biodiversity value, digging ponds, as well as holding cultural events, schools nature studies, and scouts.

Sadly, TW withdrawing their permission for the community to maintain the land for conservation in 2018, including no longer allowing them to access the site for the annual mowing, and the removal of the cuttings, needed to maintain the special grassland site for which it was designated a LWS, has led to encroachment and succession onto the grassland.

Village Green law is an idiosyncratic area of the law and a de-registration application unusual. In the long term TW want to build houses on this site. Under section 16 of the Commons Act 2006, in order to de-register the site TW had to propose replacement land instead of Woodcock Hill VG and demonstrate that the replacement land is at least as good, if not better than the land to be lost. The public interest test of both sites was under scrutiny. The purpose of the Inquiry was for TW to prove that the replacement land met the public interest test and was at least of equal value.

WHVGC’s main argument against de-registration was that the replacement land did not match the nature value of the de-registration land and would be wholly different in its natural aspects; that the de-registration land because of its wild nature fostered a different experience for users than the heavily grazed replacement land would do. TW have proposed many ecological improvements to the replacement land, including introducing formal infrastructure. WHVGC argued this would be like other anodyne open green park spaces in the area; what was special about the VG was its wildness.

The community also argued that conservation activity was a “lawful pastime” as required under legislation along with the walking, bird watching and wild play activities that take place on the Green.

The community presented evidence about a shifting in the gravity of those who benefit from the current siting of the Village Green. When the VG was originally designated the neighbourhood was defined. The Borehamwood neighbourhood who directly access Woodcock Hill Village Green currently are of a lower social demographic than the neighbouring Elstree. The replacement land moves the VG’s centre of gravity to the Elstree neighbourhood and so removes the benefit from the neighbourhood for whom the village green designation was originally granted. Unfortunately there is no definition of neighbourhood in the Act but in reality this is a major impact for the community.

It became evident from TW that despite the designation as a LWS for its grassland, the incentive for the owner to degrade the site was recognised and even admitted at the Inquiry. Indeed TW stated that they would oversee the decline of the nature value of the LWS as they would allow no nature conservation and so the site would lose its nature value thus diminishing the public interest of the site. The objective for a developer landowner to develop land is of course better made if the site has less nature value.

Something that did come out of the inquiry which has to be viewed as a positive and certainly was by the Inspector, if not the community, was Taylor Wimpey’s commitment half way through the inquiry, on top of the £100,000 already proposed, to pay a further £370,000 towards ecological improvements to the replacement land.

On the 24^th May it was hugely disappointing to learn of the Inspector’s decision to allow the de-registration of part of the Woodcock Hill Village Green which will pave the way for a planning application for hundreds of homes.

To say the heart will be ripped out of the community by this decision is no exaggeration. Woodcock Hill has been maintained and looked after by a community voluntarily, hundreds of thousands of hours of their time over the decades into their stewardship, because they love Woodcock Hill. By this decision the Inspector has removed that love. The community made clear that they have no relationship with the replacement land, have no history with it or investment into it and they will not have the same motivation with the new site to love and look after it. The Inspector didn’t even touch on this loss of community goodwill. WHVGC argued that the community feeling for the site should not be overlooked and indeed the very nature of the registration of a VG should not then be reduced to an administrative process to de-register whenever a landowner wanted a VG site. ELF believes the decision  sets a dangerous precedent and will be noted by developers.

ELF would like to thank Joe Thomas of Landmark chambers for steering us all so expertly though the inquiry. We heard from our local experts from amongst the community including Pat Strack, extraordinary local woman, who has chaired the WHVGC for years and always been at the heart of her community, Clive Butchins, likewise a stalwart of the community. Pat gave evidence on the heritage and landscape values of the site and how it has been used for generations by local groups and scouts, for religious and civil gatherings alike. Matt Dodds conservation lead at Herts and Middlesex Wildlife Trust, gave important evidence on behalf of the community regarding the lack of a biodiversity net gain assessment from the applicant and why it was important to understand the respective nature values of the sites. The Inspector didn’t agree. Other local experts included Chris Berry of Borehamwood CPRE. ELF would like to thank all who gave up so much of their time to this important matter.

Woodcock Hill is a typical ELF, David and Goliath case. Despite the Inspector’s decision we maintain the replacement land is in no way comparable to what will be lost to the community. Sadly the Inspector didn’t agree. WHVGC are now considering their options.

Threat to Local Wildlife Sites, a case study

By Kiran Mayer at ELF

ELF recently assisted a local community in Hastings to successfully protect a local wildlife site from targeted development. We must celebrate success when it comes.

We have previously written about destruction to local wildlife sites (LWS) in relation to a City LWS in Cambridge. Since that time, we have seen record levels of enquiries from communities relating to planning applications on LWS. Due to their fragile status and lack of protection under the law LWS are coming under increasing threat from development. While Sites of Special Scientific Interest or Special Areas of Conservation/ Special Protection Areas are afforded high protection under domestic and European law, LWS are locally designated sites of nature conservation which fall within a local council’s specified selection criteria. Their importance is recognised at a local level and they often make up wildlife corridors, forming key components of ecological networks and nature pathways linking up other nature sites. Their importance is underestimated.

Assisting concerned residents regarding a permission in principle planning application on a LWS in Hastings, this particular LWS has been threatened now with development for some years. The site which forms part of the Clive Vale LWS, was a high value, wooded stream valley with significant wildlife interest and forms an important greenspace with an abundance of flora and fauna. Sadly it has been regularly cleared by the landowner. Indeed was cleared last year, followed by an ecological survey and the planning application in principle submitted thereafter.

The planning authority’s local plan has specific policies in place to protect and enhance the local biodiversity and geological resources, including LWS and to ensure development proposals within LWS will only be permitted where the local need outweighs any harm to the nature conservation interest. The planning application on the LWS was a permission in principle, which is an application to remove the designation of a site (in this case a LWS designation) to allow it to be reallocated as a development site. The applicant proposed seven to nine homes to be built on the LWS and had undertaken coppicing approximately every decade, which actually enhanced the site’s biodiversity.

ELF wrote an objection letter to the local planning authority on behalf of residents. This raised serious issues such as the irreparable harm which development will cause to the LWS, the amenity of local residents using the wildlife site and loss of an important wildlife corridor. ELF also raised concerns regarding the inadequacy of the preliminary ecological appraisal, which failed adequately to assess the species onsite as surveys were undertaken outside of the optimum survey seasons. Taking advice from ELF adviser Dr John Feltwell, the appraisal failed to meet Chartered Institute of Ecology and Environmental Management’s standards of practice for planning applications and overall, failed to capture a complete assessment of the LWS.

Biodiversity net gain was another concern. The applicant’s ecology appraisal asserted that the loss of the LWS, including habitat value, biodiversity, and displacement of species, could be compensated through the biodiversity net gain metric. It was argued this  would create a designated area purportedly of higher biodiversity than the LWS. ELF did not agree with this assessment. In reality the applicant did not provide the metric report or information on the designated area to show how the loss of the LWS would be compensated and made no attempt to address biodiversity net gain as expressed in the National Planning Policy Framework, Paragraph 174. ELF highlighted to the local council that it would be wholly unacceptable to determine the magnitude of loss should the LWS be developed without an accurate biodiversity net gain metric report. Our letter also highlighted to the planning authority that permission would directly contravene both local and national planning policies.

Thankfully, the local planning authority refused the application on 29 March 2022 quoting the reasons for refusal as “harm to the local environment by virtue of the loss of valued open green space with a Local Wildlife Site designation and consequent net loss of biodiversity”. With ELF’s support and the strength of local opposition against the application, we were able to save a valued LWS. However across the country, LWS continue to be targeted for development and there is a sharp rise in this type of planning application. Routinely we see applicants seeking to degrade the flora and fauna thus undermining the designation of the LWS. It is this type of disregard that will lead to significant loss of LWS and some of nature’s best wildlife corridors.

Woodcock Hill Village Green is green belt land and has a wildness about it. It is to the north of Barnet Lane, Borehamwood Herts.  Proposals were first mooted for housing development in 1996 over Woodcock Hill. This land had been used by Borehamwood residents for recreation, peace and tranquillity from time immemorial, no one could remember a time when it wasn’t. The steep north facing slopes with flat land at the bottom, very important ecologically. Peace and tranquillity provided for wildlife and people. All this is threatened – read on to find out more on the application by Taylor Wimpy to deregister this 25 year old Village Green.

Around the proposals for development in 1996 a community committee was formed, Woodcock Hill Open Space 4 Ever. We sought help from the Environmental Law Foundation. Funds were raised, support and signatures collected. An ELF solicitor represented us initially, pro bono, then we were directed to Earthrights.  Evidence of use ‘as of right’ over 20 years from 1976 produced.  A public inquiry was held and our barrister convinced the inspector that Taylor Wimpey was making false representations about fenced land.  The Village Green was saved by tales of “Donkey Dave”.  He was prosecuted for not tending the donkeys and horses he had tethered on Woodcock Hill: no fences you see.  In 2008 village green status was granted and Woodcock Hill Village Green Committee formed. Herts Countryside Management Services supported us with a Management Plan and organised monthly working parties. Since that time we have loved and looked after the land, have worked to increase its biodiversity with notable successes, dug ponds and planted trees. We have gathered together for festivals and community heritage events. Woodcock Hill it is not untrue to say is in our soul.

Jump forward over 20 years from the village green being registered to 2019 and we were made aware for the first time that Taylor Wimpy who still own the land were proposing 110 homes for the Hertsmere Local Plan. In July 2020, on the first day of lockdown Taylor Wimpey started procedures to replace part of the Village Green with replacement, “exchange land” in Elstree.  The law says that any replacement land that is proposed under the process of de-registration of a village green, has to be equal to the land to be de-registered. The “exchange land” for Woodcock Hill runs over a railway tunnel, to grazed land accessed by steep hills. This land is further away from the original beneficiaries Borehamwood residents, is poorer ecologically and beside a noisy and busy road. We consider it in no way represents an equal exchange and we have mobilised our community to say this to the Planning Inspectorate with hundreds of objections having been made. Residents have fought hard to convince the Secretary of State that the replacement land is inferior ecologically and their proposals for a rural park unacceptable for Borehamwood.

Last week we were alerted by our friends at the Open Spaces Society (OSS) that PINS had decided to hold the inquiry by written representations alone, . with no reference to the community. With help from ELF we immediately wrote to PINS insisting that this was a controversial application locally, with contested evidence that could only be examined through an oral hearing. ELF knows through its experience that a community will have a much better opportunity to properly participate in the decision making through a hearing process. 

The Environmental Law Foundation has helped a campaign to stall plans for a development of two massive intensive poultry units in beautiful Welsh countryside near the historic border town of Knighton. Read here to learn about this important and successful Judicial Review.

Local campaign group Sustainable Food Knighton sought ELF’s assistance after Powys County Council granted planning permission for the development, despite numerous objections, including from Natural Resources Wales (NRW) and the Welsh heritage agency CADW.

Barristers Philippa Jackson and Ruth Keating from 39 Essex Chambers gave their services along with Matthew McFeeley of Richard Buxton solicitors. They prepared a judicial review challenge of the decision on seven grounds and, highly unusually, received permission from the High Court to proceed on all of them.

The grounds included the failure properly to address NRW’s concerns about great crested newts, to consider air quality impacts on nearby parkland trees or the unpleasant effects of spreading poultry manure. The case also challenged the Council’s lack of consideration of the climate change impacts of the development.

Powys Council agreed to the quashing of the planning permission after the Court gave its resounding permission for the judicial review to proceed.

Powys made the concession on a single technical ground, relating to the way it had tried to overcome objections to the negative effects of spreading very large quantities of odorous poultry manure.

The decision will be quashed by the High Court and sent back to Powys for redetermination.

Although Powys accepted it had made only one of the errors alleged by the Claimants, it will need to address all the grounds of challenge when it reconsiders the application if it is to avoid a further legal challenge.

The court’s decision is encouraging news for other objectors to intensive livestock developments and for those concerned about the climate change impacts of development.

The adverse air quality and amenity impacts of intensive livestock development and the risks they pose to biodiversity are matters that planning authorities need to address on the basis of evidence and they should pay attention to objectors’ concerns.

The Welsh government and many planning authorities have declared a climate emergency, but such public posturing is not always reflected in planning decisions. In confirming that the failure to regard climate change as a material consideration was an arguable ground, the courts have shown that planning authorities may face legal challenges if they ignore the climate emergency in future decisions.

The Claimant was Camilla Saunders, one of the founders of Sustainable Food Knighton.

It has been my great pleasure this year to work with STRA on a couple of occasions. In September it came to notice that despite putting in considered submissions to the Brent Draft Local Plan consultations, STRA had not been notified about the forthcoming examination in public and therefore did not know about it. By the time they did come to know about it, their time for making submissions to appear and make representations had expired. We fought hard to be allowed to participate in the examination. And would say thanks to the administrator for recognising the importance of community representation and also fighting our corner with the Inspectors for late admittance – we understand this is not always the case. ELF was able to instruct Michael Brett a fantastic junior barrister at FTB who helps ELF a lot at considerably reduced fees for a 3 week examination. STRA had a lot to make representations on, with the result that they participated in 85% of the examination. This has been to the great benefit of the local community, amongst many local policy improvements for the community they were able to strengthen local policy on protecting important green community space from development creep, including Maybank Open Space and Vale Farm.

STRA were the only community voice in the entire 3 week examination of the draft local plan for Brent. Brent’s population is over 350,000 people and includes Wembley and Kilburn. They were a single voice. But through their effective participation, with good representation, they were able to significantly influence local policy for Sudbury and that is what a community voice has the power to do. With the Government’s proposed changes to the planning system, removing individual planning applications and thereby an important layer of community participation in decision making, with the ambition that there is total shift to good community consultation wholly at the plan making stage, it seems to me that they have a long way to go and significant resources will need to be made available to communities. 

ELF would also like to express thanks to STRA for their generous pledge last week to ELF at The Funders Network and Environmental Funders Network life pitch event. Their generous support allows us to continue the work that we do.

In 2020 we are encouraged to venerate all that is new: the fresh discovery, the cutting-edge tool, the latest scientific discovery. These can be wonderful things. Indeed without the various tests, experiments and surveys that modern technology enable, it is unlikely we would have successfully convinced the Planning Inspector to refuse would-be developers planning permission to build 516 homes adjacent to Askham Bog, a small peatbog and designated Site of Special Scientific Interest in York. But in the midst of a three week planning inquiry concerning flow rate calculations, water attenuation, eutrophication, habitat fragmentation and the catastrophic effect such a development was likely to have on a much beloved and visited site, one could have been forgiven for forgetting that Askham Bog is an ancient place.

Formed from the remnants of a retreating glacier over 15,000 years ago, Askham Bog has been described as a cathedral to conservation, and is home to 2925 non microbial species, representing over 5% of all UK species. Some of its ferns have grown there for 500 years, making them the oldest living things in York. It was thanks to the heroic efforts of the Yorkshire Wildlife Trust, who have managed the site since 1946, that the Planning Inspector, and all those who attended the Inquiry were reminded of its venerable history and significant biodiversity, described by Sir David Attenborough as “irreplaceable”.

Becoming involved in a Planning Inquiry is no mean feat. Instructions were provided by Emma Montlake at the Environmental Law Foundation; support (both practical and moral) by Yorkshire Wildlife Trust Officers Louise Wilkinson and Sara Robin; expert opinion and evidence by Sir John Lawton, Professor Alastair Fitter and Alex Jones; 7,000 signatures, 400 letters and £39,000 by individuals opposing the development; and legal representation (happily) provided pro bono by Darragh Coffey and myself, guided by the sage advice of David Hart QC  all at 1, Crown Office Row.

The news of our team’s success reached me in early May, as the reality of lockdown was sinking in. It was a lovely moment. I would encourage any Barrister with an interest in the environmental law to consider acting for the Environmental Law Foundation in future. Acting in this case has become one of my fondest memories since coming to the Bar.

To donate to the Yorkshire Wildlife Trust https://www.ywt.org.uk/support-us/donate or ELF https://elflaw.org/donate/

Photograph courtesy of Yorkshire Wildlife Trust

A matter that started with ELF has been successful in a Judicial Review claim, despite being a year since the decision. This is an eminently just decision for local residents and ELF would like to thank ELF members Horatio Waller and Ian Graves and congratulate them on a good result for the local community in Milton Keynes.

In December of 2018 ELF was approached by two separate individuals on the same matter. Local people in Milton Keynes had discovered that the permission for the enormous new industrial building being built meters from their bungalow homes did not have any of the amenity conditions, as should have been attached to the permission. Awareness of this had first come to light when trees that residents had thought protected, were felled. On reviewing the planning permission it was revealed that all 13 amenity conditions were missing. A sorry situation for local residents as conditions related to landscaping, light and noise were imposed to protect the amenity of neighbouring residents. As we were now over a year since the decision notice had been issued, the question was could we still JR the original decision?

ELF approached Ian Graves, ELF solicitor member at Shakespeare Martineau and Horatio Waller at FTB. Both agreed to undertake the matter under a CFA.

Horatio Waller explains more fully.  https://www.ftbchambers.co.uk/news/success-judicial-review-claim-issued-1-year-out-time

“It emerged after JR was issued that the developer and junior officers of the Council had discovered the mistake soon after the notice was issued, but residents and senior planning officers were kept in the dark for several months. When senior officers discovered the mistake they attempted to rectify the error by encouraging a second application for identical development, subject to a unilateral undertaking revoking the first permission.

Permission on a second application was approved by the DCC, but a decision notice was never issued. The reason why became public knowledge only after JR was issued. The developer had attempted to persuade the Council to drop one of the conditions on the first permission, which controlled access to the site by heavy goods vehicles (HGV), in return for it implementing a second identical permission that included the missing conditions.

This was unacceptable to the Council and the arrangement fell through. The Council then decided to impose a s102 order imposing controls on lighting, but not controlling other matters addressed by the missing conditions. This was only a partial solution, so Mrs Wardlaw issued JR out-of-time to challenge the planning permission. By the time JR was issued, over a year had expired since planning permission was granted and the development was almost complete.

The deadline for issuing JR of a grant of planning permission is six weeks, but the Court has a power under CPR 3.1(2)(a) to extend the time limit which can be sought after the expiry of the six week period. Mrs Wardlaw sought permission to issue JR out-of-time, arguing that there were “very special reasons” why the Court should do so citing Sales LJ’s judgment in Gerber v Wiltshire Council [2016] 1 WLR 547 at [49].

Reliance was also placed on the High Court decision in Thornton Hall Hotel Ltd v Wirral WBC [2018] PTSR 94 where a judicial review claim against a grant of planning permission was allowed notwithstanding that it had been brought five years out-of-time. In that case the planning permission had erroneously omitted conditions specified by the planning committee, including a five-year time limit on the permission, and the claimant had issued the claim with reasonable speed on becoming aware of the mistake. The judgment was recently upheld on appeal ([2019] EWCA Civ 737).

The Wardlaw JR settled after the developer and Council agreed to revisit the proposal of promoting a second application for identical development on the site. The developer dropped its stance that no HGV condition should be imposed and gave a unilateral undertaking that it would cease implementing the first permission and implement the second permission. Planning permission was subsequently granted.

This settlement meant that Mrs Wardlaw could discontinue her claim because the underlying issues had been resolved and the Council had agreed to pay her costs.”

This is the best result the community could have hoped for. There has been subsequent disquiet from local councillors that this building, so out of scale with local homes, was recommended for approval in the first place. At least now, thanks to a great legal team, the community have the protections that they expected.