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

Campaigners seek help in air-quality challenge

Air quality is causing serious concern in Canterbury

Canterbury air-quality campaigners are asking for your help in their bid to raise £10,000 to challenge the government in the Supreme Court.
Emily Shirley and Michael Rundell launched their case against the government in February 2017, saying it had not complied with environmental legislation because of the “dangerous levels” of air pollution in Canterbury. 
They will need help with their funding, however, and have set up a crowdfunding page, which can be reached here:
Emily said: “More than 40,000 people die prematurely of air pollution annually in the UK. Thousands of others, especially the young and the elderly, suffer from diseases partly or fully caused by air pollution, such as asthma, cancer and dementia.
“There are 16,000 new homes and other developments planned in and around Canterbury, a city already crippled by unlawful air pollution. These new developments will obviously make the situation worse.
“Our case seeks to establish that the government is responsible for ensuring that air pollution does not breach legal limits and, when it does, the government must ensure levels are reduced to legal limits as soon as possible.
“If we succeed, the dangerous air pollution levels that plague hundreds of other cities and towns across the UK will also have to improve. The government will no longer be able to shirk from its duties. 
“We believe we have excellent grounds for a hearing in the Supreme Court, but to do so we need to raise a further £10,000 to meet all our legal costs.”

Monday, June 3, 2019

Farthingloe Valley saved as CPRE Kent wins battle in Supreme Court

Saved! Farthingloe Valley, on the outskirts of Dover

CPRE Kent is delighted and relieved to announce that it has successfully defended the Appeal Court’s decision to quash a planning permission in the Kent Downs Area of Outstanding Natural Beauty (AONB) in the Farthingloe Valley near Dover.
The Supreme Court agreed with the Appeal Court that the Planning Committee at Dover District Council did not give legally adequate reasons for granting planning permission for more than 600 homes, which they acknowledged would cause significant harm in a protected landscape.
CPRE Kent Director Hilary Newport said: “This is the best possible news: we have been absolutely determined to save this beautiful and iconic area of countryside. Such significant harm to the AONB cannot be justified purely for economic benefit.
“This case is not just important to the people of Dover but for the principles of planning law; AONBs merit the highest possible level of protection. Today’s judgment confirms that not only was the decision flawed, but so was the planning committee’s decision-making process.”
When the application was originally considered, Dover District Council planning officers recognised the adverse impact and put forward comprehensive proposals to limit the damage to the landscape. Councillors rejected those mitigation proposals and granted permission anyway.
This permission was quashed by the Appeal Court in 2016 on the grounds that the planning committee did not give legally adequate reasons for permitting a scheme, against their officer’s advice, that they acknowledged would harm the AONB. The Supreme Court has now confirmed that the permission is quashed.
Kristina Kenworthy of CPRE Kent’s solicitors Richard Buxton Environmental and Public Law said: “This decision brings much needed clarity to the need for public authorities to give reasons for their decisions. The Supreme Court has confirmed that planning is not a special case: the need for transparency and scrutiny means that people are entitled to know what has been decided and why, and if necessary enable effective recourse to the courts. This decision should lead to more rigour, better planning – and less argument.”
CPRE Kent Chairman Christine Drury said: “We will never give up on our countryside. This was a really bad proposal which the planning officer tried hard to improve, and it should never have received permission. I would like to thank our legal team, our volunteers, our members and everyone who support us in protecting our countryside.”

Wednesday, December 6, 2017

See the judgment here: uksc-2016-0188-judgment