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

CPRE Kent handed Thurnham heritage award for Woodcut Farm bid

All smiles at the award presentation. From left: CPRE Kent director Hilary Newport and vice-president Richard Knox-Johnston, Thurnham parish council chairman Daniel Skinner and Maidstone CPRE chairman Gary Thomas

CPRE Kent has won an award for its bid to save a stretch of countryside near Maidstone.
Our attempt to stop development near junction 8 of the M20 (Woodcut Farm) was ultimately unsuccessful, but Thurnham Parish Council recognised our efforts by naming us winner of its heritage award.
CPRE Kent had applied at the end of last year to the High Court for a judicial review of Maidstone Borough Council’s inclusion in its Local Plan of the junction 8 site as a designated site for development.
However, in February this year we were not granted permission by the Honourable Mrs Justice Lang DBE to take forward the review.
The request for a judicial review had followed CPRE Kent’s submission, in November last year, a pre-action protocol letter to the High Court against the council deciding on a Roxhill Developments planning application for the site.
Despite the letter and protest from parish councils and local groups, the council chose to grant outline planning permission for the site.
A statement on the Thurnham Parish Council website says: “The Thurnham Heritage Award was instituted in cooperation with English Heritage.
“Most awards are top down: this is the opposite. It is a parish council recognising outstanding contributions to heritage in many forms and ways by organisations or individuals. It is awarded for one year.
“The award itself was carefully made by Thomas Fattorini in Birmingham from wood grown in Thurnham Castle.”
The presentation was made at a parish council meeting on Monday, June 18, at Bearsted’s Tudor Park Marriott Hotel.
Richard Knox-Johnston, CPRE Kent vice-president, said: “I am delighted the council has chosen to recognise us, and in turn CPRE Kent was very grateful for the support of Thurnham and other local parish councils in our efforts to protect Kent’s countryside.”
Maidstone CPRE chairman Gary Thomas was at the Tudor Park hotel to receive the award from Daniel Skinner, Thurnham parish council chairman.

Friday, June 29, 2018

Permission for judicial review on Woodcut Farm is refused in High Court

Woodcut Farm… ripe for development, believes Maidstone Borough Council

CPRE Kent, in its application to the High Court for a judicial review, was not granted permission by the Honourable Mrs Justice Lang DBE against Maidstone Borough Council’s inclusion in its Local Plan of land at junction 8 of the M20 (Woodcut Farm) as a designated site for development.
CPRE had submitted a pre-action protocol letter to the High Court  in November 2017 against the council making a decision on the Roxhill Developments planning application for the site.
In spite of our action and considerable protest from parish councils and local groups, the council chose to grant outline planning permission for the site.
Richard Knox-Johnston, vice-president of CPRE Kent, said: “This is very disappointing and rejects the views of local people who are being ignored by Maidstone council.
“It also flies in the face of two inspectors at previous inquiries that the setting of the Area of Outstanding Beauty, the visual amenity and that it will be in the setting of a heritage asset were enough grounds to reject previous applications in the same area.
“We believe that the inspector and Maidstone councillors have been misinformed by their planning officers and that this will come to light in the future.
“We also believe that the dismissal of considerable evidence on deterioration of air quality in Maidstone not only affects health in the borough but is especially dangerous for young children.
“Their application, at present, is only an outline application and we shall continue to examine the details in the future, particularly those that affect the environment.”

Wednesday, February 14, 2018