We have now concluded the statutory review hearing for the Crondall PC v SoS H,C & LG matter. This case has been big news for ELF as we have remained in place as the instructing party to see the case to its conclusion, something we haven’t done before. Last month our instructed QC Robert McCracken took his arguments before Dove J with Horatio Waller who had been advising all along, both of FTB, assisting Robert. It has been a really wonderful example of team work, between the PC, barrister and ELF. ELF supported the litigation but with the PC covering practical matters such creating court bundles, we have worked effectively. By staying in position ELF has been able to support a PC who would not otherwise have been able to continue with the litigation due to the financial implications.

CPC came to ELF in September last year over a Planning Inspector’s decision to allow permission for 30 new dwellings to be built outside of the settlement area of Crondall village, a historic village in Surrey. With emerging and previous planning policy to limit development in the open countryside, when the Inspector approved permission against local policy, the PC sought ELF’s assistance. The enlightened decision of the ECJ judgement “People over Wind” which has been a very important judgement for nature meant that the Inspector’s decision not to consider whether there was a requirement for a Habitats Regulation “Appropriate Assessment” was questionable, the site being near to the Thames Basin Heaths SPA, a European Protected site. The People over Wind case, says that mitigation can no longer be taken into account when assessing whether there will be significant effects on a European protected site. This ECJ case has recently seen changes made to the National Planning Policy Framework at para 177. Para 177 of the NPPF, mentions appropriate assessment and habitats, and in line with the ECJ ruling has been amended so that the presumption in favour of sustainable development will not apply where there are effects on a European site, unless an appropriate assessment concludes that negative impacts will not occur.

As in this instance, Harts District Council local planning policy requires the provision by developers of Suitable Alternative Natural Green Space (SANGS) as mitigation, where there are potential impacts on European sites. A financial contribution in this instance towards SANGS mitigation had been previously accepted by the local authority. Arguing that the proposed mitigation was inadequate, the chair of the Parish Council, in detailed analysis through the submission of a Witness Statement illustrated that in fact the SANGS that was proposed to mitigate against recreational impacts of the development on the SPA, was wholly inadequate in this instance and actually more generally a failing policy. When scrutinised, with one entry point for the SPA being half the distance from the development as the proposed SANGS, it was at least arguable that the SANGS mitigation was unlikely to act as an alternative recreational area, thus making the SANGS meaningless.

Horatio Waller explains : Whilst argument (a) is an argument commonly run in environmental law cases, argument (b) is of nationwide importance because success in the case carries the potential of causing knock-on-effects on a wide range of residential development schemes, which might have to wait for more robust assessment of potential adverse impacts on special protection areas. Because of this, the case was labelled by the High Court as significant and listed before Mr Justice Dove, a highly experienced planning law judge.

In addition we argued that the Parish Council was entitled to rely on the Aarhus Convention and therefore the costs capping regime. In a judgment by the High Court, which may also potentially have significant consequences, the court accepted that the Parish Council was permitted to rely on the Aarhus Convention and therefore its potential costs liability to the defendants should be capped at £10,000. This was a significant decision for the PC and we hope for future Parish Councils.

We would like to acknowledge the contribution that the young barrister who played such a vital role in this matter, gives to ELF. We want to thank Horatio Waller for all he does for the organisation and those that he assists through ELF.

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 1^stworld 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

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.

ELF was recently contacted by a resident of Guildford, wanting to re-instate a bench that had been removed from land behind the London Road Station car park. While this initially appeared to be a simple request, the discovery that the land in question is unregistered complicated the matter enormously.

Where land is unregistered, the only place to find title and ownership of the land is in the paper title deeds which are unlikely to be electronically filed; these are traditionally kept by the property owners at the property itself. The law of unregistered land is not a subject very frequently visited by property lawyers anymore and, as is evident from this case, the path to finding these title deeds is not a simple one.

In this case, our first line of advice to finding the title deeds was for the client to contact a number of potential owners including the local councils and neighbouring properties. Our client had already received responses from the Borough Council and various local authorities who stated that they had no records of the land being owned by them or of the public right of way running through the land. This was an unexpected response, considering that the footpath is properly paved and the land itself looks well-maintained.

To complicate the matter further, occupying the land are a collection of WWII tank traps or ‘dragon’s teeth’ which were erected in 1941 according to the Surrey County Council Ordinance Map. This indicates that even if the land is not owned by a local council, they must have some knowledge about the history and use of the land.

From this information, we also considered the prospect that the land might be categorised as common land for the purposes of the Commons Act 2006. It is possible for land to be registered as common land despite ownership remaining unclaimed; in these cases, the land will be protected by the local authority who may, in turn, be able to approve the bench. Our research also identified that during WWII some areas of common land were requisitioned for military use which may have been the case here when the tank traps were employed. It is for these reasons that we recommended the client revert back to Surrey County and Guildford Borough Councils with this information in order for them to check what records they hold about the land.

Thus, the majority of our research involved looking for practical solutions for finding the owner of the land. However, our investigation did bring us back to the question: what can be done if the owner of the land cannot be found? Legally, it is not possible simply to register the land in your own name without title deeds and valid proof of title. The only remaining option for ownership of land belonging to another is adverse possession (factual possession with intention to possess and without owner’s permission). However, in these circumstances we strongly advised against this as it would be almost impossible to show factual possession of the land considering the tank traps and its location.

Hence, somewhat disappointingly, we could not come to any clear conclusions for the client. However, we do hope that she continues her investigation with our guidance leading her down the right path to find the owner of this unregistered land.

ELF was contacted in May 2017 by Cranleigh Civic Society (CCS) about ongoing pollution from a sewage works into Cranleigh Waters, in Surrey. CCS is concerned that the situation will be made worse by planned housing developments and that the issue is not being properly addressed by the authorities in breach of Water Framework Directive requirements. CCS has been campaigning on this issue for more than three years with no legal guidance up to now.

Cranleigh Waters, a stream (classified as a “main river” by the Environment Agency as it is under its jurisdiction rather than that of the local authority) and an outflow from a sewage treatment facility operated by Thames Water, has a multitude of historic licence and permits for sewage effluent discharge to facilitate the dilution of effluent.

Over the last few years the stream has stopped flowing, particularly in the summer months, due to changes in rainfall patterns caused by climate change, low aquifers and increases in population. If the flow is too low the stream can’t dilute the sewage effluent sufficiently and Cranleigh Waters has now become eutrophic. This results in a water body rich in phosphates, nitrates, and organic nutrients and encourages the proliferation of plant life which kills fish and other animals by depriving them of oxygen.

In light of this, CCS has particular concerns over the amount of development proposed for their village and surrounding area. Waverly Borough Council (WBC) has granted planning permission for 1,320 homes and at least 5,000 new homes are proposed to discharge into Cranleigh Waters. This would represent an 86% increase in the discharge of effluent from current levels. The local angling society already has evidence of significantly dwindling fish stocks downstream and CCS considers additional housing projects are likely to cause further impacts.

CCS believes that the baseline data in the June 2017 version of an Amec Foster Wheeler report on Cranleigh Waters carried out on behalf of WBC, is based on a mean value for the period 2010 – 2015. A water expert working with CCS considers that this cannot be described as ‘current’, yet is used as a basis for all modelled predictions. For example, it is indicated that fish are at good or high status whereas locally provided information from an authoritative source would indicate their virtual absence in 2016.

Two weeks ago ELF was urgently notified by CCS that they had been presented with an opportunity to present oral representations at WBC’s local plan examination. Part of those submissions was to be mitigation measures that CCS proposed for Cranleigh Waters in the context of the local plan. ELF sought urgent assistance from our pro-bono professional membership network and John Bates, barrister at Old Square Chambers, long time ELF member and water law specialist, kindly agreed to assist.

Amongst many lines of discussion with John, of particular interest was the finding of the EU court in the Bund für Umwelt case. This found that there was an “obligation of the Member States not to authorise a project that may cause a deterioration of the status of a body of surface water”.

However, having gone to considerable effort, it was with great disappointment that 12 hours before CCS were due to present their submissions, they were told the Inspector no longer wanted to hear from them. This was extremely disappointing. CCS hope that the Inspector will consider their written representations although feedback from one attendee indicated that the environment was not on the table for discussion.

Adrian Clarke of Cranleigh Civic Society and a Fellow of the Chartered Institute of Building who has worked on several large housing and commercial projects, said:

“We are not against new building; we accept the need for new housing particularly in South East England. Our issue is that we think that local authorities should make sure that they sort out the infrastructure before approving new housing estates. In many cases, they are simply not doing that.”

Despite this latest setback, CCS’s campaign continues. The local MP Anne Milton has arranged a meeting with CCS, the Environment Agency, Thames Water and WBC on 24th July 2017 to discuss the problems at Cranleigh Waters.

ELF sees so many synergies with communities that we are working to support and we will continue working with CCS and others who campaign on issues of water quality. More generally of course this case highlights the pressures on the natural environment caused by a rapid increase in house building and the need for regulatory authorities to properly consider their statutory environmental duties in addressing them.

ELF has been assisting Somercoates Against Development Residents Action Group (SAD) in their campaign against plans for 200 houses on a site in Derbyshire with a 70-year history of contamination and adjacent to another former landfill site. Planning permission was initially refused and has now gone to appeal. The greenfield and contaminated site has been a rugby club for many years but a deal was done whereby the local rugby club got a new home, club house etc and their current site was to be built upon.

Back in June 2015, ELF was approached by Kellie Judson who lives very close to one of the sites, which is known to have serious past contamination, largely undocumented and of great concern to local people. Since then, as well as fundraising and organising local resistance, Kelly has been raising the profile of her matter.

On 20th June 2017 SAD’s matter was featured in the Radio 4 programme What Lies Beneath, the Legacy of Landfill and on 27th June a BBC news feature looked at Kellie’s case. SAD’s fight is part of a wider story about the question over building on contaminated land as the ever greater push for more house building and government targets are imposed on communities.

The site is a designated greenfield area which had been mined by opencast and quarried over many years. The resultant open pits were used to tip waste over several decades throughout the 1960s, 70s, and 80s. The tips were operated legally during the day with permitted materials including asbestos, toxic metal compounds, mercury contaminated compounds and vanadium compounds.

Many of these compounds would now be considered dangerous and not be allowed to be placed in pits in an uncontained manner under current legislation.

Local residents also claim the tips were operated illegally at night and that materials tipped during this time may have included caesium 134, cobalt 60 and dioxin 237 and 238, strontium and uranium.

This development, the community were clear, posed a threat to local peoples’ health. This site was turned down for housing by the Secretary of State in 1991 and an adjacent site turned down for opencast mining by the Secretary of State in 1989. The reasons being the danger posed by insufficient knowledge of the hazardous waste particularly dioxins that are contained in the tips.

Last year two associated planning applications for the new rugby club and housing came before Amber Valley Borough Council (AVBC). The new site for the rugby club was approved. However, the application for 200 dwellings whilst being recommended by the planning officer was refused by the planning committee. AVBC took the decision back to the committee for “another go” but it was again refused. The planning decision notice specifies, “That the application be refused due to insufficient information available on this date”. This concerned the contamination and lack of available information. Many older local people with a very worrying story to tell about how the site was contaminated spoke at the committee stages.

The applicant appealed the decision to refuse and with ELF’s assistance SAD wrote to PINS (planning inspectorate) asking that this be a full inquiry as local people were a very important component in the decision making process. However, AVBC’s request for the appeal to be a one day hearing prevailed.

SAD of course still had a role to play so ELF looked for an ELF barrister to help. A new ELF member, Stanzie Bell at Kings Chambers agreed to assist, but in the first instance recommended that instead of a barrister the group needed a contamination expert. This proved sage advice and the group through Stanzie found Stephen Fryer to present a report at the hearing although SAD had to raise funds for this.

Preparing for the hearing Kellie commented,

“Thank you so much for your help over the past almost 3 years, you have made me strong at times when I felt like giving up…. At least we know about our landfills; how many communities are fighting development in their back yards who do not have a clue what they live next to? You have been instrumental in our fight and I can only thank you for that”

UPDATE

To the delight of SAD and local residents, the Inspector dismissed the appeal on 17th August 2017.

This was an interesting matter, and illustrates the importance that a well-placed expert can have on the outcome of a public enquiry. We would urge communities to take note. Where we are used to countless technical reports produced by applicant developers, in certain technical matters, there is a lot to be said for communities fundraising where necessary in order to produce their own.

A community in north Norfolk alarmed about plans by the National Trust (NT) for a 23-acre caravan park at Middle Farm on the Blickling Estate were recently referred to ELF by the office of The Prince of Wales, our patron. Middle Farm is within a designated conservation area and the community’s overall concern was that a caravan park on this scale (143 mobile stands and 17 static pods) would radically alter the character of the area and have a devastating impact on the environment, the community and local wildlife. The proposals were presented at two meetings hosted by the Parish Councils of Oulton and Itteringham, between which Middle Farm is situated, and not a single resident of either parish was in favour of the scheme.

However, the community was keen to assist NT in achieving its goals of conserving the natural environment and mitigating climate change. They proposed transforming the site into a commercially viable ‘Climate Change Adventure Camp’, where young and old would be invited to come to a beautiful part of the country and experience what it is to live off grid as well as being given challenges relating to issues like soil regeneration and wildlife conservation. ELF gave some guidance on how they should organise themselves, what to focus on in responding to any consultation, recognising that NT might be very sensitive to its local reputation.

Last week we heard from the community who said: “Good news! Thanks to your sound guidance, we did form a pretty rudimentary action group and with formidable support from the local community, appear to have successfully convinced the National Trust to drop the idea of putting a commercial caravan park at Middle Farm on the Blickling Estate.”

In the letter NT acknowledged the need to involve the local community in reviewing the options for restoring the buildings at Middle Farm and indicated that they will be in touch with the community again later in the year.

The community member continued: “I can’t thank you enough for pointing us in the right direction and giving us the confidence to take on the Goliath of the NT ourselves. Something, which at first, seemed impossibly daunting. What you are doing is so very important. I hope you will take all due credit for helping to save one tiny corner of our benighted planet for posterity – at least for the time being.”

Local residents are celebrating in Stirchley, Birmingham, following the announcement that Birmingham City Council (BCC) have agreed to quash a controversial planning permission for a Lidl supermarket replacing a much-loved and well-used bowling alley and gym, in response to ELF’s intervention.

When a local resident approached ELF at the end of last year, we had immediate concerns over the decision to allow the redevelopment of the site from its current use as a popular community centre, to be replaced with a supermarket. The planning officer had advised the committee that the bowling alley and gym, in place for generations and used by many local residents, did not fall within local planning policy that protected against the redevelopment of sports facilities.

This states:

“The provision and availability of facilities for people to take part in formal and informal activity, that contributes to healthier lifestyles and can provide a ‘stepping stone’ into more formal sport will be supported and promoted … Sports and physical activity facilities will be protected from development, unless it can be demonstrated that they are surplus to requirements through a robust and up to date assessment of need” (underlining added).

A narrow interpretation was made of ‘sports’ activities and the planning officer stated:

“The current uses – bowling alley and fitness centre –are not classified as ‘sports’ and, as such, policies relating to loss of sporting facilities do not apply.”

With the kind assistance of Lisa Foster at Richard Buxton Solicitors and Daniel Stedman Jones at 39 Essex Chambers, both generous ELF members, ELF sent a pro-action protocol letter to BCC on behalf of the local claimant setting out concerns with the decision. In response, we learnt on 20th March that BCC would agree to quash the planning decision.

One local resident emailed and said:-

“I am gob smacked! I seriously could not believe it when I came across your email tonight along with about a dozen other emails, messages and notifications – basically at a meeting tonight with local Councillors and planning officers they announced their intention to quash the decision!! I wasn’t at the meeting but apparently the whole room erupted with cheers! This is really big news in our local area already following tonight’s public announcement.

We have spread the word via social media of your help in all this asking everyone to donate or become members of ELF (as we did when the letter of intent was sent- but this news now means the message getting shared more widely!)”

Emma Montlake of ELF said:

“I am delighted with this decision. This is a great example of ELF assisting local people to use the law to protect their local environment and an important community asset. It is very pleasing to have been part of overturning this poor decision”.

Read more from the group here – “A Lidl update”.