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Campaigners secure important tree protections

R (Wellingborough Walks Action Group) v North Northamptonshire Council & Stanton Cross Developments LLP [2024] EWHC 1225 (Admin)

The High Court has confirmed that the tree preservation regime and planning regime must work hand in hand and that developers relying on the planning permission exception to the tree preservation regime do not have free rein.

This is welcome news for environmental campaigners, particularly those in Wellingborough and members of WWAG, some of whom were arrested and cautioned by the Police for protecting the beloved ‘Walks’, an historic boulevard of lime trees.

Dan Kolinsky KC, sitting as a deputy High Court judge, clarified that, “[t]o the extent that the planning permission can be carried out in a way which does not necessitate the loss of trees, then the exception will not be available”. In other words, the requirement for any felling to be ‘necessary’ to implement a planning permission (regulation 14 of the Town and Country Planning (Tree Preservation)(England) Regulations 2012), is a strict one.

The judgment also confirms that all relevant planning conditions must be discharged before the exception can be relied upon. This is not only correct in law it is also pragmatic, given that it may assist in determining whether it is indeed ‘reasonably possible’ to save further trees.

This judgment should act as a reminder to local authorities, including NNC, that they have a vital role to play in safeguarding protected trees and must scrutinise closely developers’ claims that trees need to be felled, when in fact it is simply expedient to do so.

While no enforcement has taken place against the developer for the unlawful felling of 16 protected trees, the Court recognised the gravity of the developer’s actions in ordering the Interested Party to contribute to the Claimant’s costs.

The judgment of the High Court is available at:

Alice Goodenough of Goodenough Ring Solicitors acted for WWAG instructing Will Upton KC of Six Pump Court Chambers.

Increased fairness in the DCO regime but no relief for Ramsgate residents and environmental campaigners

R (Dawes) v Secretary of State for Transport and RiverOak Strategic Partners Ltd [2024] EWCA Civ 560

Following the judicial review brought against the Secretary of State for Transport for the approval of a DCO granting approval for the re-opening of Manston Airport, the Court of Appeal has made an important clarification to the Infrastructure Planning (Examination Procedure) Rules 2010.

The Secretary of State and Interested Party had argued that Rule 19 of the 2010 Rules – which requires the Secretary of State to consult where new evidence or facts mean that the Minister is inclined to disagree with the examining authority – do not apply after the examining authority has published its report.

In departing from the ruling of Dove J in the High Court, Lord Justice Lewis, with whom Lord Justice Jackson and Lord Justice Warby agreed, held that Rule 19 applies at any time after the completion of the examination and before a decision is reached. This conclusion flowed from the clear wording of the Rule and ‘reflects the purpose underling the rule’, the aim of which is ‘to ensure procedural fairness’.

This is a welcome clarification and ensures increased fairness in the DCO process where the Minister intends to depart from its expert advice, as was the case here.

Regrettably for Ms Dawes, the residents of Ramsgate and climate campaigners, the Court did not find that the new evidence was a reason for the Secretary of State’s decision. Instead, the report submitted by the applicant, which relied on 24 interviews that were never published, and which the Secretary of State’s examining authority considered should be given little weight as a result, was held to be the basis for the decision.

Given the woeful economic outlook for Manston Airport, as almost every other expert agreed, it is unlikely the airport will succeed. This is, however, of limited comfort given the social and environmental harm that is likely to be caused in the interim.

Alice Goodenough of Goodenough Ring Solicitors acted for the Claimant instructing Richard Harwood KC and Gethin Thomas, both of 39 Essex Chambers.

Solar farms – recent judgment – the green and the blue

R (Galloway) v Durham County Council and Lightsource SPV 215 Ltd [2024] EWHC 367 (Admin)

Judgment is at:

Susan Ring of Goodenough Ring solicitors acted for the Claimant in this judicial review instructing Richard Harwood KC of 39 Essex Chambers. This was a judicial review of Durham County Council’s decision to grant planning permission to a BP PLC joint venture company for the installation and operation of a ground mounted photovoltaic (PV) solar generation system (solar farm), battery storage facility, electrical substation and associated infrastructure at Land to the East of Edge Lane, Maiden Law, Burnhope DH7 0RY under reference DM/22/01769/FPA .

The proposed solar farm was to be on restored open cast mining land next to a former mining village on the top of a steep hill where the only safe and level walking routes were on the restored land; ecology was another issue, the RSPB having objected on the grounds of adverse impact on nesting birds through loss of habitat and wholly inadequate habitat mitigation.

Local residents had urged the planning applicant not to take so much land for the solar farm in this ex-mining hill top village as this would adversely impact nesting birds and the much used footpaths on the land.

The Planning Committee members at the meeting to consider the planning application expressed concern about the huge amount of land take for the solar farm.

Mr Justice Fordham quashed the planning permission for the solar farm on the basis that the planning permission approved such a very large number and area of solar panels that they could only have a capacity under 50MW (the Nationally Significant Infrastructure Project threshold) if the panels were considerably below the power of panels conventionally used and available; the Judge also drew attention to the use of inverters to control output which may lead to an excessive number of panels if the inverters are inefficient.

The LPA failed to take this into account in granting planning permission.

Fordham J also quashed a last minute non material amendment decision designed to save the planning permission.

The community hopes there will now be proper consultation and consideration (as envisaged by the Judge) of how much land in reality needs to be taken for the blue areas for solar panel coverage and where the green areas for birds and community use and footpaths will be. Planning mediation of this dispute would clearly be in the interests of all parties.

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Triumph of community engagement at planning inquiry: recognition of the benefits of biodiversity for local and wider communities

The recent rejection of planning permission, sought by Buccleuch Properties (Kettering) Ltd, for logistics warehouses on a Local Wildlife Site (LWS) north of Kettering demonstrates what a local community can achieve on behalf of their local environment.

Under the umbrella of the Save Weekley Hall Wood (SWHW) campaign and supported by the Local Wildlife Trust, detailed ecological evidence about the environmental significance of the site was gathered by dedicated volunteers over a number of months and presented to the inquiry.

Such evidence would not have otherwise been forthcoming, the Council contesting the application for various reasons but not on ecological or biodiversity grounds. This, despite the fact that the LWS, which is a lowland meadow, a habitat designated as of ‘principal importance’ under the Natural Environment and Rural Communities Act 2006 (s.41), would have been almost entirely destroyed as a result of the development. Continue reading

A step forward in accessing environmental information

Plymouth City Council reprimanded over fee charging policy

Public bodies that think they can deter persons seeking environmental information by charging them for it should think again.

In a letter to Plymouth City Council (PCC), following a complaint made on behalf of our client, the founder of Save the Trees of Armada Way (STRAW), the Information Commissioner’s Office (ICO) has issued PCC with a strong rebuke. The ICO is clear that:

  • a blanket fee for charging after anything less than 18 hours of work (as applies under the Freedom of Information Act regime) is most likely unreasonable;
  • any fees imposed must not deter persons from requesting environmental information;
  • charges levied must not exceed the costs incurred for making the information available; and
  • crucially, it is not reasonable to charge where the information is of wider public interest, such as in this instance where PCC’s scheme involved felling over a hundred mature trees in the city centre.

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Case update: rules on members’ right to vote at council meetings considered by the Court of Appeal in July 2023 R (the Spitalfields Historic Building Trust) v London Borough of Tower Hamlets and Old Truman Brewery [2023] EWCA Civ 917, [2023] 7 WLUK 446

The basic but important legal question in this case is whether a provision in a local authority’s constitution, whose effect was to restrict voting by members (in this case a Planning Committee), was lawful.  The issue is of wide public importance.  It goes to the ability of those who are elected to exercise the powers which they were elected to use.  The power in question is the most basic one of an elected politician: the right to vote in decisions of the body to which they were elected. The case was brought by the Spitalfields Historic Building Trust (“the Trust”) who sought to challenge the controversial grant of planning permission by the London Borough of Tower Hamlets to Old Truman Brewery to develop part of the Old Truman Brewery site on Brick Lane.  The Trust were unsuccessful in the High Court but obtained permission to appeal from the Court of Appeal.

There were over 7,000 written objections.  The headline objections included concerns about the introduction of large companies to the development, creation of a shopping mall, effect on local businesses, gentrification, community cohesion, proposed land uses on the site, impact to local character and businesses, concerns of design and scale causing harm to heritage assets, obscuring of views of the Truman chimney, amenity impact to neighbouring residents including daylight and sunlight impact to Woodseer Street and the lack of a development brief for the wider estate.

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Plane wing on runway

High Court considers government’s approval of Manston airport

The hearing of the judicial review against the government’s approval of a Development Consent Order (DCO) for the re-opening of Manston airport predominantly as a freight airport for a second time began today before Mr Justice Dove.

The hearing followed the grant of permission by Mrs Justice Lieven DBE in March on two main grounds: the need for the development and climate change.

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Plymouth straw

Interim injunction against Plymouth City Council continued

Sir Ross Cranston ordered the continuation of the interim injunction obtained in the early hours of 15 March 2023 on behalf of Ms White, a Plymouth resident and founder of Save the Trees of Armada Way (STRAW) against Plymouth City Council in response to their late-night felling of 110 trees in the centre of Plymouth.

The decision to fell the trees was taken by the Leader of the Council, Richard Bingley, using urgency procedures to avoid call-in by councillors.

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