Fighting for the countryside: Supreme Court ruling means it can be a costly business

CPRE Kent challenged 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

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.

  • Fore more on the fight to protect land around junction 8 of the M20, see here and here

Thursday, December 30, 2021

Pond Farm: now we wait

CPRE Kent was involved in Wednesday’s Court of Appeal hearing (pic BBC)

We hope to hear soon the outcome of Wednesday’s (May 8) Court of Appeal hearing of Gladman Developments Ltd’s Pond Farm challenge.
The decision is viewed as hugely important in the battle to have air quality considered fully in planning policy.
CPRE Kent was at the court last week as an Interested Party supporting the Secretary of State for Communities and Local Government’s renewed defence of an inspector’s dismissal of two linked appeals made by the developer.
They had been made by Gladman against Swale Borough Council’s non-determination of planning permission for a housing scheme at Pond Farm, Newington.
To give you the backdrop to events, back in November 2017 the High Court dismissal of Gladman’s appeals against an earlier planning decision represented the first instance of air quality proving a critical factor in such a judgment. CPRE Kent had given evidence in that hearing.
The saga had begun with the council’s rejection of Gladman’s plans for up to 330 homes and 60 residential and care units at Pond Farm on the grounds of harm to the landscape and increased air pollution, the latter factor relating specifically to the impact on the council’s Air Quality Management Areas at Newington and Rainham.
Gladman subsequently challenged that decision, but the Secretary of State’s inspector dismissed both of its appeals because of “the substantial harm that the appeal proposals would cause to the character of a valued landscape and their likely significant adverse effect on human health”.
Not content with that, Gladman then contested that dismissal on the grounds of the inspector’s treatment of future air quality and mitigation; the decision in relation to the Newington air quality action plan; and the decision’s claimed conflict with the emerging development plan for the village.
And (in November 2017) Mr Justice Supperstone of the High Court ruled that none of Gladman’s grounds of appeal had succeeded and dismissed its latest challenge.
However, Gladman subsequently won permission to take its case to the Court of Appeal, hence Wednesday’s hearing.

Pond Farm: the story so far…

  • Swale Borough Council refuses Gladman planning permission for 330 homes and 60 residential and care units
  • Gladman makes two linked appeals against council’s refusal
  • Planning inspector dismisses both Gladman appeals
  • Gladman challenges inspector’s dismissal of its appeals
  • Gladman challenge is dismissed in High Court
  • Gladman takes case to Court of Appeal
  • Court of Appeal case heard on Wednesday

Monday, May 13, 2019

Pond Farm… here we go again

Pond Farm…back in the firing line (pic Vicky Ellis)

You might be getting used to long-running planning battles that can seem to become mired in near-unfathomable legal complexity.
One such is the battle for Pond Farm at Newington, which is due to re-emerge at the Court of Appeal next week.
Back in November 2017, the dismissal in the High Court of a developer’s appeal against an earlier planning decision represented the first instance of air quality proving a critical factor in such a judgment.
CPRE Kent had been in the High Court giving evidence as the Secretary of State for Communities and Local Government defended a planning inspector’s dismissal of two linked appeals made by Gladman Developments Ltd against Swale Borough Council’s refusal of planning permission for its scheme at Pond Farm.
The saga had begun with the council’s rejection of Gladman’s plans for up to 330 homes and 60 residential and care units at Pond Farm on the grounds of harm to the landscape and increased air pollution, the latter factor relating specifically to the impact on the council’s Air Quality Management Areas at Newington and Rainham.
Gladman subsequently challenged that decision, but the Secretary of State’s inspector dismissed both of its appeals because of “the substantial harm that the appeal proposals would cause to the character of a valued landscape and their likely significant adverse effect on human health”.
Not content with that, Gladman then contested that dismissal on the grounds of the inspector’s treatment of future air quality and mitigation; the decision in relation to the Newington air quality action plan; and the decision’s claimed conflict with the emerging development plan for the village.
And (in November 2017) Mr Justice Supperstone of the High Court ruled that none of Gladman’s grounds of appeal had succeeded and dismissed its latest challenge.
However… Gladman subsequently won permission to take its case to the Court of Appeal and it is due to be heard next week on either Wednesday 8 or Thursday 9, May.
CPRE Kent will be involved as an Interested Party supporting the Secretary of State’s position.

Monday, April 29, 2019

Victory as judges quash planning permission at Farthingloe

We are delighted that we have today (14 September) won an important victory in our lengthy legal battle to save an Area of Outstanding Natural Beauty at Farthingloe near Dover.

Two judges at the Court of Appeal have quashed the planning application to build 521 homes and a 90 apartment retirement village.

Lord Justice Laws and Lord Justice Simon allowed the appeal against last December’s judicial review on the basis that Dover District Council’s planning committee failed to give legally adequate reasons for granting permission, contrary to an officers’ recommendation which had made “trenchant criticisms” of the density, layout and design of the proposed development.

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Council planning officers had made huge efforts to mitigate the harm while ensuring the scheme was still financially viable. They recommended a reduction in the number of homes to 375 and changes to the density and design to protect the most sensitive part of the landscape. This was ignored by both the developer, China Gateway, and the planning committee.

CPRE Kent Chairman Christine Drury said: “This is excellent news – we have been absolutely determined to save this beautiful and historic area of countryside. The developer and planning committee knew the scale of the development – one of the largest ever proposed for an AONB – would cause severe damage but rejected all efforts to mitigate this. This case is not just important to the people of Dover but for the principles of planning law because AONBs have the highest possible level of protection.”

In his judgment, Lord Justice Laws acknowledged that it was “an unusual case” and that “the scale of the proposed development is unprecedented in an AONB”. He said: “A local planning authority which is going to authorise a development which will inflict substantial harm on an AONB must surely give substantial reasons for doing so.”

He went on to conclude: “I consider that the Committee (Dover Planning Committee) failed to give legally adequate reasons for their decision to grant planning permission.”

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CPRE Kent, Natural England, the Kent Downs AONB Unit and the National Trust all opposed the decision at the time and it is astounding that the case was not called in by the Secretary of State despite the strongest advice to do so from his own advisors.

Christine Drury added: “This is exactly why CPRE is here – we will never give up on the countryside. I would like to thank our legal team, our members and everyone who supports us in our campaigning.”

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Read the judgment here.

September 14th 2016