A decision relating to a legal challenge by CPRE Kent is disheartening for those seeking to protect our natural environment, writes Hilary Newport
Supreme Court ruling confirms cost risks faced by people who challenge planning decisions… this was a headline in one of the most widely read professional planning journals. It’s not the sort of story that attracts much attention outside the planning profession, but it is one that could have severe repercussions for environmental protection.
If you – or any would-be developer – make an application for planning permission that is turned down, you have the right to appeal that decision. However, in UK law, there is no third-party right of appeal once a planning decision is made (we think there ought to be, but that is a story for another day).
If you believe that a grant of planning permission is just plain wrong, the only recourse you have to challenge it is to take it to the courts and ask for permission to have the decision independently scrutinised – in other words, a Judicial Review (JR).
Permission for a JR won’t be granted if you simply don’t like the fact that planning permission was granted; to successfully take a decision to JR you must be able to demonstrate that the decision, or the manner in which it was taken, was flawed.
We used this principle when in 2017 we challenged the grant of planning permission for more than 600 homes in the Kent Downs AONB at Farthingloe, near Dover.
Although we were unsuccessful at the JR stage, we believed so strongly that the decision process in this case was flawed that we took the case to the next step of the legal process, the Court of Appeal, where eminent judges agreed that a planning decision that would clearly cause substantial harm to a protected landscape must be accompanied by substantial reasons to justify that harm and, since these were lacking, they quashed the permission. The local authority then appealed the case to the Supreme Court, where we were again successful.
Embarking on a JR process is daunting, and expensive; it’s something that we would never take on lightly, but where such important principles are at stake we will do all we can to uphold them.
One of the reasons we felt able to take on the challenge was the Aarhus Convention: it establishes the right of the public and organisations to challenge legal decisions that cause harm to the environment and, in doing so, it places a cap on their financial liability for legal costs should their challenge fail.
Another such example was our challenge to the legality of Maidstone Borough Council’s decision to include in its Local Plan in 2017 a policy that allocated a greenfield site near J8 of the M20 for warehousing. That site and another nearby had already been the subject of planning appeals brought by applicants wishing to build there; in both cases, the appeals were soundly dismissed by independent inspectors who drew specific attention to the harm that would be caused to the important landscape qualities of the area.
So when a large part of one of these sites was subsequently allocated in the 2017 Local Plan we took the difficult decision to challenge the inclusion of that policy; nothing had changed to make the landscape less special, and the harm to the landscape would have been no less significant.
Unfortunately, this time the courts did not agree and judged that the policy was sound. We were protected under the Aarhus Convention, which capped our legal liability to the defendants, but the judge ruled that we should pay the costs not only of the first defendant – in this case the Secretary of State – but also the second defendant, Maidstone Borough Council, and an interested party (the site promoter).
Under normal circumstances a claimant would expect only to pay the costs of the principal defendant, and our legal team believed this was fundamentally unfair – so much so that they took on an appeal against the costs order at their own risk, first to the Court of Appeal and then to the Supreme Court.
It is highly unusual for the Supreme Court to take on a costs appeal such as this, and the fact that it agreed to do so means the court believed it raised a principle worthy of examination.
If we had won this case, it would have made a real difference to increasing access to justice for claimants on environmental grounds, removing some of the uncertainty about costs. In the end, though, the Supreme Court decided that such a matter is, in fact, properly dealt with by the Court of Appeal.
Sometimes, it is necessary to take legal action to protect the environment. We will continue to choose carefully the cases we fight and we don’t expect to appear in the Supreme Court as often as we have in recent years! We won’t win every battle, but we also won’t give up on our determination to protect Kent’s landscapes by whichever legal routes remain open to us.
Thursday, December 30, 2021