Tag Archives: Planning

Part 4 of the Police, Crime, Sentencing and Courts Bill and Article 14 of the ECHR

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The Police, Crime, Sentencing and Courts Bill (which I will simply call the bill) is nearing the end of the Parliamentary ping-pong process. It is at the report stage in the House of Lords, having had its three readings in the House of Commons. Although there is still time for further amendments, it is highly likely that the bill will be passed in something resembling its current form. Many aspects of the bill have been seriously controversial and experts have commented at length on the merit or otherwise of the proposed legislation. I would like to ask an analytical question. How would Part 4 of the bill, if enacted, be interpreted by courts? In particular, is it compatible with Article 14 of the European Convention on Human Rights, which guarantees freedom from discrimination?

Part 4 is entitled “Unauthorised encampments”. The long title of the bill appears to allude to Part 4 somewhat euphemistically as aiming “to make provision about the removal, storage and disposal of vehicles”. The aim of Part 4 is to address the perceived problem of members of the Gypsy, Roma and Traveller communities moving their homes onto land without the permission of the landowner and causing nuisance and distress to the landowner and others in the area. (I will use GRT as shorthand for Gypsy, Roma and/or Traveller, without wishing to elide the differences between distinct cultures.) Part 4 seeks to achieve this aim by creating a new offence, which is again named euphemistically the “offence relating to residing on land without consent in or with a vehicle”, and by creating associated powers for the police to confiscate property, including vehicles, belonging to anyone suspected of committing an offence.

The formal history of these proposals, in brief, is that the government consulted from April to June 2018 on proposed powers to deal with unauthorised development and encampments. The then Secretary of State for Housing, Communities and Local Government, the late James Brokenshire, published a consultation response in February 2019. This did not propose the creation of a new offence. Later in the year, a second consultation was launched, this time by the Home Office. This consultation ran from November 2019 to March 2020. This consultation proposed the criminalisation of unauthorised encampments. The Home Secretary, Priti Patel, published a response in March 2021. This coincided with the publication of the bill. Interested readers can compare the responses to the 2019 consultation questions with the 2021 government response and the proposals in Part 4 of the bill.

Part 4 of the bill comprises three clauses. They were originally numbered 61 to 63 but are now numbered 63 to 65, which is how I will refer to them. The bill can be read in its current form here. It is mainly clause 63 (that is the original clause 61) with which we must concern ourselves.

Clause 63 inserts a new offence at section 60C of the Criminal Justice and Public Order Act 1994, entitled the “Offence relating to residing on land without consent in or with a vehicle”. I will simply call this the offence. Clause 63 also adds sections 60D and 60E to the CJPOA. Section 60D creates powers for police to seize and retain property involved in the suspected commission of the offence. Section 60E provides for forfeiture orders in cases of conviction of the offence.

The new offence created by the proposed section 60C is a little fiddly, but the main part of it, which is formed by clause 63(1)–(4) at pp. 58–59 of the bill, can be summarised as follows:

A person P, who is over 18, commits an offence if:

  1. P resides, or intends to reside, on land without the consent of the occupier, O, and
  2. P has, or intends to have, a vehicle with them on the land, and
  3. O or a police officer requests P to leave the land and/or remove P’s property from the land, and
  4. Either
    1. P fails to comply with the request, or
    2. P enters the land within 12 months of the request with the intention of residing there with O’s consent and with a vehicle on the land, and
  5. Either
    1. P’s residence on the land has caused or is likely to cause significant damage or disruption, or
    2. P’s offensive conduct on the land has caused or is likely to cause significant distress.

In summary, the proposed section 60D means that, if a police officer reasonably suspects that the offence has been committed, they may seize any relevant property, including any relevant vehicle, to be retained for three months. If notice is given that no prosecution will be brought, the property must be released, but if a prosecution is brought, the property may be retained until the conclusion of proceedings.

In summary, the proposed section 60E means that, if someone is convicted of the offence, any property that was seized under the proposed section 60D may be subject to a forfeiture order. Forfeiture means that the property is permanently taken from the offender.

As I have already said, the aim of these proposed provisions is to address the perceived problem of members of the GRT communities moving their homes onto land without the permission of the landowner and causing nuisance and distress to the landowner and others in the area. GRT communities are culturally distinct groups which share some traditions, primarily a nomadic lifestyle that is nowadays predominantly maintained in caravans (although not all GRT individuals lead a nomadic lifestyle). GRT communities are the subject of a high level of racism in the UK, which is more widely socially accepted than most forms of racism and which is in large part based on a prejudiced association between GRT individuals and crime and antisocial behaviour. The situation of GRT families is complicated by a long-standing shortage of allocated sites for encampment, following the abolition (by section 80 of the Criminal Justice and Public Order Act 1994) of the statutory duty (in section 6 of the Caravan Sites Act 1968) on local authorities to provide such sites. 

That is the context of the proposals. Their effect at face value is that, if a traveller family were to move their home onto a patch of land, and a police officer reasonably suspected that they had been asked to go away and had refused to do so, and they also suspected that the family’s presence was causing significant disruption, the officer could seize the family’s home and all its contents and hold onto it for three months, or until it was certified that no one in the family was to be prosecuted, or until the conclusion of proceedings if they were prosecuted and acquitted, or potentially forever if they were prosecuted and convicted.  

The context is relevant because it might inform how a court would interpret the proposed provisions. The offence, while applying to everyone, targets a specific group of racial and cultural communities. This raises the question whether there is anything in the United Kingdom constitution that could influence the interpretation of the offence in order to avoid a discriminatory effect.

The UK constitution is famously characterised by Parliamentary sovereignty. There is no written bill of rights that limits legislative power. The orthodox view is that primary legislation that tramples on fundamental rights, any way conceived, remains legally valid, with possible exceptions around institutional questions such as attempted abolition of courts. However, there is one well-established constitutional safeguard against discriminatory legislation. It is provided by section 3 of the Human Rights Act 1998, which requires courts to interpret legislation as far as possible so that it is compliant with the rights contained in the ECHR, which, at Article 14, include the right to non-discrimination in the enjoyment of the other protected rights. There is a second, more speculative, constitutional protection from discrimination. This is the constitutional principle of equality to be found in the common law. It is controversial whether such a principle exists, and, if it exists, what are its content and nature. Even if its existence were accepted, it would be unlikely to produce a different outcome in this case from Article 14 of the ECHR. Analysis of it is best left for another day.

In the recent Court of Appeal decision of R (Kaitey) v Home Secretary [2021] EWCA Civ 1875 at paragraph [91], Singh LJ summarised the process to be followed when section 3 of the Human Rights Act might come into play as follows.

91. I would summarise the approach which needs to be adopted in the following order:

(1) First, ascertain the ordinary meaning of legislation, having regard to all the usual aids to interpretation. This is not a purely linguistic exercise but seeks to give effect to the purpose of the legislation. The aids to interpretation include the presumption that Parliament does not intend to put the UK in breach of its international obligations, including those under the ECHR.

(2) If – but only if – that ordinary interpretation would give rise to an incompatibility with the Convention rights, section 3 requires a different interpretation so far as possible. This is a strong form of interpretation, which is not the same as ordinary interpretation.

(3) If, even then, it is not possible to give the legislation a meaning which is compatible with Convention rights, the court has a discretion to make a declaration of incompatibility under section 4 of the HRA (if it is one of the courts specified in that section).

So the first stage is to find the ordinary meaning of the legislation. This we have done. The second stage is to see whether that meaning is incompatible with Article 14. The Joint Committee on Human Rights of the House of Commons and the House of Lords published a report on 2 July 2021, which states, at paragraph 39, that it is “likely” that the proposed provisions would contravene Article 14. (The report also raises the possibility of  incompatibility with other Articles of the ECHR, but we will not discuss that today.) The report does not contain any structured analysis of Article 14, which would be necessary to establish incompatibility. We can do this ourselves. The relevant four-stage test was given by Lady Black in R (Stott) v Secretary of State for Justice [2018] UKSC 59; [2020] AC 51 at [8] as follows:

In order to establish that different treatment amounts to a violation of article 14, it is necessary to establish four elements. First, the circumstances must fall within the ambit of a Convention right. Secondly, the difference in treatment must have been on the ground of one of the characteristics listed in article 14 or “other status”. Thirdly, the claimant and the person who has been treated differently must be in analogous situations. Fourthly, objective justification for the different treatment will be lacking.

Before addressing the four-stage test, we need to identify precisely the different treatment or difference in treatment, the hypothetical claimant, and their comparator. This is stage zero.

The European Court of Human Rights has held that Article 14 prohibits indirect discrimination, that is a general measure that has a disproportionately prejudicial effect on a particular group: DH v Czech Republic (2008) 47 EHRR 3 at [175]. This means that we do not need to frame the different treatment clumsily as: GRT individuals are subject to criminalisation and the confiscation of property for pursuing their traditional way of living, that is nomadism, to a greater extent than other individuals are penalised for pursuing their traditional way of living, that is permanently in settled accommodation. Instead, we can say: The offence has a disproportionately prejudicial effect on GRT individuals because it criminalises behaviour associated with their traditional way of living, that is nomadism. Our hypothetical claimant is a GRT individual who commits the offence, because they must be demonstrably affected by the impugned measure: Buckley v United Kingdom (1997) 23 EHRR 101. Their comparator is an individual who occupies or intends to occupy another’s land without a vehicle and who causes or is likely to cause significant disruption. For the sake of example, a wild camper in a tent. The vehicular element is the distinguishing feature of the offence and of the way of living threatened by the offence.

Does the offence fall within the ambit of a Convention right? Yes. This is a low hurdle. The ambit of a Convention right consists of both the rights protected by an Article of the Convention and any additional rights falling within the scope of an Article that a state decides to protect: Fábián v Hungary (2018) 66 EHRR 26 at [112]. It is established that Article 8 (right to private life) protects the right of GRT individuals to practise their itinerant cultural tradition: Chapman v United Kingdom [2001] 33 EHRR 399 at [96]. The offence makes it more difficult for GRT families to do so, and it interferes with their use of their homes. So it seems that the offence falls within the ambit of both Article 8 and Article 1 of Protocol 1 (right to peaceful enjoyment of possessions) of the ECHR.

Is the difference in treatment on the ground of a characteristic listed in Article 14? Yes. The difference in treatment is on the ground of “association with a national minority”, because GRT individuals are members of a minority group in the UK, and the criminalised behaviour is associated with that minority group.

Are the hypothetical claimant and their comparator in analogous situations? Yes. Again, this is a low hurdle. Unless there are obvious relevant differences between the (hypothetical) claimant and the comparator, we should proceed to the fourth stage of the test: AL (Serbia) v Home Secretary [2008] UKHL 42; [2008] 1 WLR 1434 at [25]. There are no obvious relevant differences between a GRT individual who occupies another’s land with a vehicle and causes or is likely to cause significant disruption and a camper who causes or is likely to cause significant disruption. It cannot be argued that the presence of a vehicle makes a difference because that is more disruptive, since both hypotheticals involve actual or likely significant disruption.

Is the difference in treatment objectively justified? Then burden now passes to the state to show that the difference in treatment is objectively justified. This involves the application of well-trodden proportionality analysis. The relevant four-stage test was given by Lord Reed in in Bank Mellat v HM Treasury (No. 2) [2013] UKSC 39; [2014] AC 700 at [74] as follows:

(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the right, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom is applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.

In an Article 14 case, it is not the measure as a whole, that is the offence, that must be justified. Rather, the different treatment itself has to be justified: A and others v Home Secretary [2004] UKHL 56; [2005] 2 AC 68 at [68].

Finally, the state enjoys a margin of appreciation with respect to justification, which means that its decisions about when differences justify different treatment must be accorded a level of respect that depends on the circumstances: Carson v United Kingdom (2010) 51 EHRR 13 at [61]. Different factors within the whole set of circumstances may pull in different directions in this regard: R (SC, CB and eight children) v Secretary of State for Work and Pensions [2021] UKSC 26; [2021] 3 WLR 428 at [130].

With these points established, we can undertake the four-stage proportionality analysis.

Is the objective of the measure sufficiently important to justify the limitation of a protected right? The government’s March 2021 consultation response, referred to above, introduced “the case for action” as follows:

Unauthorised Encampments can, in some cases, cause harm and misery to those affected by them and it can be time-consuming and costly for local communities to have them removed.

Some of the harms and problems that are caused can include:

  • interference with electricity, water or gas supplies
  • animals out of control or attacking people using the land or passing nearby
  • animals defecating on the land without owners subsequently clearing up
  • excessive noise pollution as a result of behaviour such as playing loud music or revving the engines of motor vehicles
  • improper deposit of human waste or sewage (such as bath water)
  • failure to remove excessive litter
  • disposal of clinical waste

The response also refers to the costs incurred by local authorities and private individuals in addressing the enumerated harms and problems.

The objective of addressing these problems, which can collectively be described as antisocial behaviour associated with unauthorised encampments, at first appears to be sufficiently important to justify the limitation of the right to non-discrimination. However, it would have to be demonstrated by evidence that these problems are in fact associated with unauthorised encampments, that is with trespassers with vehicles, as opposed to those without vehicles: Re A (Children) (Contact: Ultra-Orthodox Judaism: Transgender Parent) [2017] EWCA Civ 2164; [2018] 4 WLR 60 at [109]. Analysis of such evidence is beyond the scope of this blog post, but it would be necessary for a state seeking to discharge the burden of justification to base its case on evidence. The association of unauthorised encampments with antisocial behaviour of the kinds described by the government, if based on anything less than indisputable evidence, would simply constitute racial prejudice against GRT individuals. The aim of addressing the problems associated with unauthorised encampments would then not be legitimate. We can proceed with the analysis, not assuming that such evidence exists, but in order to know what the answer to our question would be if it did exist.

Is the measure rationally connected to the objective? The measure intends to dissuade the establishment of unauthorised encampments and to quickly bring to an end any that are established. This would contribute to the achievement of the objective of preventing antisocial behaviour associated with unauthorised encampments. Again, if and only if the state can show based on evidence that unauthorised encampments are associated with the problems it describes, there would be a rational connection.

Could a less intrusive measure have been used? Three alternative approaches to addressing the problem present themselves. First, if the police powers associated with the offence were less harsh, for example if pre-conviction or even pre-charge confiscation were not available, the effect on GRT families would be reduced. Those who would temporarily lose their homes could, in theory, be limited to those genuinely causing significant disruption. This would be less intrusive, although still seriously intrusive. However, it is arguable that the deterrent effect of the offence would then be reduced. Second, the perceived problem of unauthorised encampments is capable of being addressed through the planning process rather than through the criminal law. If local planning authorities allocated sufficient sites for GRT encampments, there would be no need for unauthorised encampments. Third, the requirement of being on land with a vehicle could be removed. This would still criminalise being seriously disruptive on another’s land, but it would not target GRT individuals in any way. This would significantly reduce, if not eliminate, the discriminatory effect of the proposed provisions. However, it is unclear if this would qualify as a suitable substitute measure, since the objective of the provisions is to address the antisocial behaviour associated with unauthorised encampments specifically. Given the complexity of this issue, it is likely that a court would refrain from putting itself into the place of the legislative decision-maker by deciding that an alternative measure would have been equally effective. But this is uncertain.

Has a fair balance been struck between the offence’s effects on GRT individuals’ rights and the importance of the objective? We have reached the crux of the proportionality exercise, where the margin of appreciation is relevant. The greater the margin of appreciation, the less convincing must be the objective justification of the measure. In cases involving general economic or social policy, such as welfare benefits cases, the court applies a manifestly without reasonable foundation standard. This is a wide margin of appreciation, where a measure will only be held to be disproportionate if it is manifestly without reasonable foundation: R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16; [2015] 1 WLR 1449 at [92]–[93]. This is not such a case. On the contrary, this case concerns discrimination on the basis of ethnic origin, which is considered a form of racial discrimination, and which, whether direct or indirect, requires a very narrow margin of appreciation to be accorded to the state: Biao v Denmark (2017) 64 EHRR 1 at [94], [131] and [138]. Very weighty reasons unrelated to ethnic origin must be shown to justify the discriminatory effect of the offence.

How severe are the effects of the measure on GRT individuals’ right to non-discrimination? They are severe indeed: GRT individuals can lose their homes because a police officer suspects that they intend to reside on another’s land without the occupier’s consent and that this would cause significant disruption. GRT individuals can suffer life-changing consequences as a result of a police officer’s suspicion. That suspicion could be informed by anti-GRT prejudice. Even if a decision by a police officer to confiscate property were later shown to be flawed because it was based on prejudice and so not on reasonable suspicion, serious damage would already have been done to the family whose home was confiscated. This harm applies overwhelmingly to GRT individuals because the requirements of the offence apply overwhelmingly to those who lead a nomadic lifestyle that is part of GRT communities’ cultural heritage. In short, the discrimination is very grave.

How important is the objective to the extent that the difference in treatment will achieve it? The harm that persistent antisocial behaviour can cause should not be underestimated. Addressing that is an important objective. However, it is the choice to specifically criminalise GRT individuals that must be justified. Given the level of justification the state must show in a case of discrimination on the basis of ethnic origin because of the inherently unacceptable nature of such discrimination, and the gravity of the effects of the discrimination in this case, the objective of addressing antisocial behaviour associated with unauthorised encampments is not sufficiently important to justify the discrimination at hand. In other words, the discrimination is disproportionate.

That is the end of the Article 14 analysis. Since we have concluded that a court is likely to find that the proposed provisions are incompatible with Article 14, we can move on to Singh LJ’s stage 2 of statutory interpretation (see Kaitey above). We apply section 3 of the Human Rights Act to interpret the provisions to avoid incompatibility, if this is possible.

There is a lot of case-law on what kind of interpretation is considered possible under section 3. In Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust [2016] EWCA Civ 607; [2016] ICR 903, Underhill LJ quoted Sir Andrew Morritt C’s summary of the law from Vodafone 2 v Her Majesty’s Commissioners of Revenue and Customs [2009] EWCA Civ 446; [2010] Ch 77 at [37]–[38]. In short, a section 3 interpretation can depart from the literal meaning of legislative words and can read in additional words. However, a section 3 interpretation must be compatible with the underlying thrust of the legislation. Nor can it require the court to make decisions which it is unequipped to make. 

How could the proposed provisions be interpreted in order to avoid the discrimination that we have found? The problem is that the provisions are directly, although not explicitly, targeted at GRT individuals. The discrimination is not a side-effect of the legislation. It is a fundamental feature. This means that a section 3 interpretation is unlikely to be possible. Interpretive amendment of the provisions would need to create some kind of exception for GRT individuals, which would entirely defeat the purpose of the legislation. It would go against the grain because the grain is discriminatory.

This means that a court’s only remedy would be to make a declaration of incompatibility under section 4 of the Human Rights Act. This would not have the effect of striking down the provisions or otherwise rendering them ineffective. Under the UK constitution as predominantly understood, that is not possible. It would send a message to the government, to Parliament, and to the public about the non-compliance of the legislation with human rights.

As we have seen, the discrimination against ethnic minority individuals inherent in this legislation is remarkable. It may be that it prompts the courts to take an unusual step in the defence of the constitutional value of equality, which is at least arguably ambient in the common law as well as crystallised in Article 14 of the ECHR. However, the law as we understand it would permit the proposed offence and the attached police powers to be effective. The constitutional function of section 4 of the Human Rights Act in such a situation is to encourage the legislature to think carefully about whether it wishes to legislate contrary to human rights. Analyses such as this, if they are sufficiently rigorous, can pre-emptively serve a similar purpose in an informal way. It remains to be seen whether this Parliament is susceptible to such encouragement.

Image from Friends, Families & Travellers.

What I’ve been doing over the holidays…

My new year’s project is to learn to play chess properly. This is proving to be harder than I thought it would be and probably much harder than if I had taken it seriously ten or fifteen years ago. I have made a start on Fundamental Chess Openings by Paul van der Sterren, which is very engaging so far. Recommendations of books, strategies or states of mind are most welcome.

Planning to Level Up  

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Last month Tewkesbury Borough Council lost their challenge against the decision by a planning inspector to grant permission for 50 homes at Gotherington, after an appeal by developers JJ Gallagher and Richard Cook against the local authority’s initial refusal of permission. Under paragraph 74 of the National Planning Policy Framework (July 2021 version), a local planning authority is required to maintain a five-year supply of deliverable housing sites, designed to meet its local housing requirement calculations. Paragraph 11 establishes that, where a local authority has failed to maintain such a land supply, the so-called “presumption in favour of sustainable development” applies and planning permission should usually be granted.

The central issue in Tewkesbury Borough Council v Secretary of State for Housing Communities And Local Government [2021] EWHC 2782 (Admin) was whether a local authority which had previously delivered more homes than its own average annual delivery target suggested were needed during the earlier part of its Local Plan period was: a) entitled; and b) required to factor that past oversupply into its future housing land supply calculations. The council claimed that, when past delivery across the plan period was taken into account, they had a land supply of 4.37 years, but the inspector disagreed, estimating that the local authority had just 1.82 years’ supply and consequently applying the presumption in favour of sustainable development and approving the Gotherington application.  

The council appealed, and the High Court was therefore required to consider a question upon which the NPPF and Planning Practice Guidance on Housing Supply and Delivery are both silent, namely how authorities should treat past oversupply. The Court upheld the inspector’s decision in this instance, but before hard-pressed local planning authorities throw up their hands in despair, they should turn to the judgment of Mr Justice Dove. Although Dove J was clear in his rejection of the claimant local authority’s contention that they were required by law to factor past oversupply into their future housing land supply calculations [42], he did not go so far as to state that it could never be a relevant consideration. Rather, he held that “the question of whether or not to take into account past oversupply in the circumstances of the present case is, like the question of how it is to be taken into account, a question of planning judgment which is not addressed by the Framework or the PPG and for which therefore there is no policy” [47]. It will therefore be for local authorities and inspectors to consider the relevance of previous housing delivery levels to current local planning policies, applications and appeals on a case by case basis, doubtless creating plenty of work for planning barristers in the process.

The nave of Tewkesbury Abbey

This judgment does result in considerable ongoing uncertainty. However, one can see why Dove J declined to offer a rigid legal precedent on this issue, holding that it would be inappropriate “to introduce, by way of inference, text into the policy of the Framework which does not exist” [45]. The interpretation of planning policy will always be contingent upon local circumstances and the application of an overly legalistic blanket approach to decision-making will rarely be appropriate. Moreover, the imposition by the Court of a mandatory rule one way or the other on this issue might have had a deleterious effect on the ability of local authorities to meet housing need in their area. If councils were never allowed to factor any past delivery into their future housing land supply calculations, it might create a perverse incentive for some authorities which would otherwise be proactive about promoting development to meet local need, to delay the allocation of land for housing, the granting of planning permission, and potentially the supply of social housing until later in the plan period, to maintain their rolling housing land supply. Conversely, if authorities were always required to take past oversupply into account, this could potentially put an unnecessary constraint on their delivery ambitions. In either case, it would be deeply unfortunate if an overly prescriptive approach to paragraph 73 of the NPPF were to prevent local authorities from housing people on their waiting lists.

Also raising important questions about the relationship between past delivery and future housing need in the last couple of weeks was the first report of the Building Back Britain Commission, entitled ‘Levelling up and the housing challenge‘. Established by six commissioners from organisations across the housing and construction sectors, this Commission has suggested that the Government’s methodology for calculating housing need requires a radical overhaul if the levelling up agenda is to be achieved.  

The standard methodology for calculating “objectively assessed need” (OAN) for housing, as set out in the PPG on Housing and Economic Needs Assessment has four stages:

  1. First, local planning authorities are required to set a baseline figure according to household growth projections for their area.
  2. Second, they adjust that figure according to the local housing affordability ratio, so that areas with the biggest gap between earnings and house prices are required to deliver the most homes.
  3. Third, an authority may cap the upwards adjustment of its housing need figure, provided that it has up to date strategic policies in place, including any relevant policies contained in a spatial development strategy.
  4. Fourth and finally, in the twenty most populated urban centres in England a further 35% uplift is applied after the cap in Stage 3.

This methodology was first introduced in the 2018 revision of the NPPF, at which point it comprised only stages 1–3. The Government has since attempted to tweak the method to bring it into line with its national ambition to deliver 300,000 homes per year. (One might question whether a methodology designed to result in a predetermined figure can really be said to be measuring housing need at all, but that is an argument for another post!) The first proposal from what is now called the Department for Levelling Up, Housing and Communities (formerly MHCLG) was to place an even greater emphasis on local affordability indices to determine the uplift required after initial household projections were calculated, but this was extremely controversial and faced a great deal of backlash, including from Conservative backbenchers. Eventually the Government abandoned this approach and adopted the new “top ups” for large urban centres instead, fixing on the 35% level to bring the overall figure into line with the 300,000 homes per year goal.

This adjustment brought the numbers up on a national level but did nothing to address one of the underlying issues with the current methodology, namely that it produces local housing need calculations which are higher in areas where the market is already overheated and lower in areas where it is depressed. Planning policies based on these calculations will inherently reinforce market forces rather than doing anything to proactively shape the housing market or rebalance the economy away from the South East and from major urban centres and towards other regions of England and smaller cities and towns. At present, for example, the OAN standard methodology leaves councils in the London commuter belt attempting to meet ever more ambitious housing targets, within the constraints imposed by Green Belt and AONB designations, while many post-industrial towns in other parts of the country are deemed to need far fewer new homes, despite having a good deal of brownfield land which would be ripe for redevelopment.

Planning policy could be a powerful tool in the Government’s armoury as it pursues its levelling up agenda. The opportunity is there, especially with regards to brownfield sites. In the latest of its series of reports on the subject, published in October of last year, CPRE calculated that there are currently enough sites on local authority brownfield registers to build 1.3 million new homes, of which 53% already have planning permission. A large proportion of these sites are in the North and Midlands, and in smaller urban centres as well as major cities. The Building Back Britain report recognised this opportunity and called for a new national housing strategy, which would be explicitly aligned to the levelling up agenda. Rather than calculating housing need on the basis of historic growth, this strategy would proactively identify more deprived areas of the country which would benefit most from future investment in housing. It would also involve explicit targets for the delivery of affordable homes and the greater implementation of ‘Modern Methods of Construction’ (MMC), to speed up housing delivery and reduce its environmental impact relative to traditional construction.

A post-Covid world seems like an ideal time to put some of these ideas into practice. As Sam highlighted in his post last week, more of us than ever before are now working from home on a full- or part-time basis, and with the increased possibilities allowed by remote working, smaller towns in less well-connected areas of the country might seem like increasingly attractive places to live. The Government should seize this moment, while the agglomerative forces binding large portions of the workforce to major cities and to London in particular are at their weakest in a generation, to promote a truly transformative planning agenda, which directs investment to where it is most needed rather than following the market.

There have been some signs that developments on this front might be in the pipeline. Appearing on the 2nd November before the House of Lords’ Built Environment Committee, Housing Minister Christopher Pincher told members of the committee to “watch this space” on the possibility of the Government introducing new methods of land value capture to encourage and support local authorities to start building homes again [p. 18]. Meanwhile, Planning Resource magazine ran an article on 5th November reporting that the Building Back Britain Commission proposals for a national housing strategy has been backed by Secretary of State Michael Gove.

It is always as well with proposed planning changes not to get ahead of oneself. The last few years have seen a wide variety of proposed alterations and overhauls to the NPPF make it to the consultation stage only to be abandoned. But right now there does seem to be a window of opportunity for the government to introduce a more equitable method of calculating housing need, which would help direct public and private investment towards areas which are most in need of it. As the Tewkesbury judgment shows, it is not enough to rely on past delivery statistics. There is now authority for the fact that these cannot serve as an excuse for future under-delivery on a local level. Neither should they be used to predict and direct future policy for housing delivery on a national scale. As we emerge from the pandemic, it is time for  a more interventionist approach to planning, informed by a genuine levelling up agenda. The Government should remember the old adage and know that if they build it, we will come.    

What I’ve been up to recently…

I was very happy to have the opportunity be one of the judges for the first round of the City Law School GDL moot recently. A year ago, the first round of the 2020/21 competition was my first ever experience of mooting and an excellent way to get more comfortable with the process before tackling any external competitions. So it was really nice to come full circle and have the chance to offer some advice to students just starting out on their GDL adventures.

Not remotely fair: When you need planning permission to work from home

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The pandemic revealed that many jobs could be done more or less effectively from home. Inevitably, the phenomenon has become controversial on a number of fronts. Does working from home improve quality of life by cutting out commuting, or does it erode the boundary between work and leisure to the detriment of the latter? Are home-workers environmentally responsible, or are they reckless towards the livelihoods and institutions that rely on their presence in an office? Is it only the insufferable hipster laptop class that can enjoy the new possibilities, or only an older generation that luxuriates in large studies? Does working from home improve accessibility to certain jobs, or does it rob junior workers of opportunities to learn from their peers and their seniors? What kind of TW&T are you?

More attention has been paid to whether we should work from home than to whether we may work from home. This was understandable in March 2020, when there seemed to be little choice. But now we can reflect. Planning law regulates the use of land, including the use of one’s home. The change in the use of land since this time two years ago has been enormous. It would be odd if the law had nothing to say about this.

The issue arose in a recent High Court case, Sage v Secretary of State for Housing, Local Government and Communities (sic) [2021] EWHC 2885 (Admin). Before we look at the case, it is helpful to set out some of the relevant law and policy provisions. There is nothing very complicated.

Section 57(1) of the Town and Country Planning Act 1990 sets out the general rule that “planning permission is required for the carrying out of any development of land.” Section 55(1) gives the general definition of “development”: “the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.” It is the last part that is relevant to us. So our starting-point is that, if you want to make a material change in the use of a building or land, you need planning permission.

Section 55(2) provides exceptions to the definition of development. One of these is as follows, in section 55(2)(d):

the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such

So, if you want to make a change to the use of your home, there are two questions. First: Is the change material? Second: Is the new use incidental to the enjoyment of your home as a home? If the change is material, and the new use is not incidental, you need planning permission. If the change is not material, or the new use is incidental, you do not need planning permission.

In order to answer these questions in the context of a particular case, we need to flesh out the two rather obscure terms, material and incidental. Judges have opined on the meaning of each of these terms and others that are of importance in planning law. However, this is not very helpful to laypeople, who need practical advice in an accessible form. To this end, the government publishes Planning Practice Guidance online alongside the National Planning Policy Framework, which is the government’s planning policies for England.

Each piece of Planning Practice Guidance addresses a different issue. One piece of the Guidance is entitled When is permission required? This contains two passages that are helpful in our context. First, there is a passage entitled When does a change of use require planning permission? The passage is as follows:

A change of use of land or buildings requires planning permission if it constitutes a material change of use. There is no statutory definition of ‘material change of use’; however, it is linked to the significance of a change and the resulting impact on the use of land and buildings. Whether a material change of use has taken place is a matter of fact and degree and this will be determined on the individual merits of a case.

This gives us limited guidance about what material means.

Second, there is a passage entitled Do I need planning permission to home work or run a business from home? The passage is as follows:

Planning permission will not normally be required to home work or run a business from home, provided that a dwelling house remains a private residence first and business second (or in planning terms, provided that a business does not result in a material change of use of a property so that it is no longer a single dwelling house). A local planning authority is responsible for deciding whether planning permission is required and will determine this on the basis of individual facts. Issues which they may consider include whether home working or a business leads to notable increases in traffic, disturbance to neighbours, abnormal noise or smells or the need for any major structural changes or major renovations.

This first sentence of this paragraph appears to address the term incidental, while the phrase in brackets describes the term material.  The second and third sentences appear to be of general application. The overall impression that this paragraph makes is that the two questions whether a new use of land is incidental to the use of a home as a home and whether a change of use is material are two ways of looking at the same question, and that the kinds of factors relevant to answering that question have to do the impact of the change of use on others in the area. Based on this paragraph, you could assume that planning permission to work from home would not be required if the change did not disturb the neighbours.

Finally, if you want to confirm that how you are using your home is lawful, you can apply to your local planning authority for a certificate of lawful use under section 191 of the Town and Country Planning Act 1990. If the authority refuses the application, you can appeal under section 195 to the Secretary of State (for Levelling Up, Housing and Communities). The appeal would be considered by an Inspector on behalf of the Secretary of State. If the Inspector dismisses your appeal, you can make a further appeal to the High Court under section 288. An application to appeal in this way requires permission from a judge to proceed to a full hearing, based on the merits and importance of the appeal.  

That is the background. On with our case.

Ricki Sage is a personal trainer who lives in Beckenham. He has a shed in his garden that contains, among other things, gym equipment. Starting in 2016, Mr Sage’s clients would come to his home and use the shed and the equipment in it. Clients would access the garden and the shed from a passage between the house and the neighbouring house. Mr Sage did not apply for planning permission to use his home in this way, presumably because he did not think he needed it. Instead, he applied to his local planning authority, the London Borough of Bromley, for a certificate of lawful use to confirm that his use of his property was lawful. Bromley rejected the application. Mr Sage appealed to the Secretary of State. 

The Inspector described the issue that he had to decide as follows:

whether the appellant has shown that use of a residential outbuilding as a one-to-one personal training studio is ancillary to the residential use of the dwelling and has not amounted to a material change of use requiring planning permission.

We can see here the two issues we identified earlier, although the statutory term incidental has been replaced with the word ancillary.

The Inspector referred to the passage of Planning Practice Guidance entitled Do I need planning permission to home work or run a business from home? and focussed on the issue of noise highlighted in that passage. The Inspector considered that there was no or negligible noise resulting from the use of the property for personal training. The Inspector was more concerned by the clients’ comings and goings, using the passageway between the properties and arriving and leaving by car. He said the following about this:

Given the residential setting, this is likely to have caused a noticeable increase in general noise and disturbance in and around the property. Consequently having regard to the number, frequency and duration of the training sessions the studio use is materially different in character to use as a home gym by occupiers of the dwelling and it has appreciably changed the manner in which the property is being used.

The Inspector’s conclusion was that using the shed and garden for personal training sessions did constitute a material change of use of Mr Sage’s home. His appeal was dismissed.

Mr Sage responded to this decision by making a second application to Bromley for a certificate of lawful use. In this application, Mr Sage intended to address the deficiencies of his first application, which he considered had been rejected solely because of the disturbance caused by the comings and goings of his clients. He provided the hours in which his property was accessed by clients, the means of transportation that his clients used, letters from neighbours stating that they were not disturbed by any noise from his clients, and a report by an acoustics expert stated that the clients’ arrival and departure created no discernible noise or disturbance.

Bromley rejected Mr Sage’s second application. Having asked local residents, it found that the opinion that Mr Sage’s clients’ comings and goings caused no disturbance was not universally shared. Based on the information it had gathered and that provided by Mr Sage, Bromley considered that the use of the shed and garden for personal training had “the potential to have a negative impact on existing residents.” As such, that use was sufficiently different in character from the use of Mr Sage’s home as a home to change the character of the use of the land.

The Inspector who considered Mr Sage’s appeal against the refusal of his second application said that the issue was whether Mr Sage’s use of his shed and garden was “incidental to the residential use of the dwelling or represents a material change in that use, that requires planning permission.” The Inspector accepted that the impact of the personal training in terms of noise was negligible. However, this was not the only issue. In her decision letter, the Inspector said as follows:

18. I acknowledge that the training sessions themselves appear to be well controlled, and this is a view supported by the acoustic report and evidence provided by local residents about the lack of noise. Nonetheless to my mind, noise is not the only factor to consider. The comings and goings that arise from at least 4 to 5 clients a day, in addition to those individuals who would usually be expected to visit a dwelling, can also cause disturbance to neighbours. Any disturbance is exacerbated by the tight knit design of the properties and need for callers to use the narrow access and small rear garden, which is clearly visible [from] the rear windows and gardens of the neighbouring dwellings.

19. For the above reasons, in this compact residential setting, I do not consider that the scale of the business related training sessions, both at the time of the application, and at the reduced level, can reasonably be considered to be either de minimis or incidental to the enjoyment of the dwelling house. Accordingly, a mixed use has occurred. I am satisfied that this finding accords with the advice found on the Planning Portal and referred to in the appellant’s statement.

20. Consequently, in the particular circumstances of this case, I find that as a matter of fact and degree, the use of the outbuilding for business related training sessions on this scale, is not incidental to the use of the dwelling and results in an overall change in the character of the property.

In summary, the Inspector decided that the level of disturbance other than noise created by the personal training, primarily the visible passage of clients into and out of Mr Sage’s property, means that the use of the property for this purpose was a material change of use and was not incidental to Mr Sage’s use of his home as a home. It followed that Mr Sage’s appeal was dismissed.

Mr Sage appealed against this decision to the High Court. He was granted permission to proceed to a full hearing by Timothy Mould QC, sitting as a Deputy High Court Judge. Mr Mould said as follows:

This claim raises an arguable issue about the materiality of environmental and amenity considerations to the question whether the use of a building within the curtilage of a dwelling house is for a purpose incidental to the enjoyment of the dwellinghouse as such, within the terms of section 55(2)(d) of the Town and Country Planning Act 1990.The issue is of some importance given the increasing use of the home as a place of work and business. The court will be assisted by the parties’ submissions on the correctness in law of the current Planning Practice Guidance on that question.

Mr Sage appealed against the second Inspector’s decision on three grounds. First, he argued (or his barrister, Kate Olley, argued on his behalf) that visual disturbance was an immaterial consideration in this case, and that the Inspector had erred by basing her decision on this. Second, he argued that the Inspector’s reasoning was legally inadequate: in particular, she had not explained why it was more visually disturbing for a client to visit Mr Sage’s home than for a friend to do so. Third, he argued that the Inspector’s decision on disturbance was irrational because the evidence was not capable of supporting a conclusion that Mr Sage’s use of his land disturbed anyone, either aurally or visually.

The judge who heard the appeal was Sir Duncan Ouseley, a retired High Court judge with experience in planning law who stills hears cases occasionally. He rejected Mr Sage’s first ground of appeal. It is true that the passage of Planning Practice Guidance entitled Do I need planning permission to home work or run a business from home? does not list visual disturbance as a relevant issue. However, the list is non-exhaustive. Visual disturbance was not immaterial. The judge also rejected Mr Sage’s second ground of appeal. In the context of the decision letter as a whole, the nature and extent of the visual disturbance caused by Mr Sage’s clients was perfectly well explained. Finally, the judge rejected Mr Sage’s third ground of appeal. The Inspector’s treatment of the issue of visual and aural disturbance was well within the scope of permissible planning judgment. If she erred, it was in favour of Mr Sage. It followed that Mr Sage’s appeal was dismissed.

Having dispensed with the appeal, the judge dealt with two remaining matters. First, he addressed serious deficiencies in Mr Sage’s application form for a certificate of lawful use, which could have resulted in his case failing even if one of his legal arguments had succeeded.

Second, and it appears that this is why Mr Mould granted permission to appeal, the judge addressed the passage of Planning Practice Guidance entitled Do I need planning permission to home work or run a business from home? The passage (again) states as follows:

Planning permission will not normally be required to home work or run a business from home, provided that a dwelling house remains a private residence first and business second (or in planning terms, provided that a business does not result in a material change of use of a property so that it is no longer a single dwelling house). A local planning authority is responsible for deciding whether planning permission is required and will determine this on the basis of individual facts. Issues which they may consider include whether home working or a business leads to notable increases in traffic, disturbance to neighbours, abnormal noise or smells or the need for any major structural changes or major renovations.

Two things about this passage concerned the judge. First, the first sentence is a confusing statement of the law. Just because a property is “a private residence first and business second” does not mean that the business use will be “incidental” to the use of the home as a home. And the two distinct questions, of material change and incidental use, are blurred. Second, the third sentence suggests that the focus of these questions is on environmental impact such as might affect neighbours. This is misleading. Environmental impact may be one of many factors. As the judge said at paragraph 82: “The crucial test is whether there has been change in the character of the use.” This may be measured by having regard to disturbance produced, but no disturbance is required is order for land to be used differently from before.

This is important for any home-workers whose conventional place of work would be an office. Such work, in general, would create significantly less disturbance than personal training, and would not tick any of the boxes in the guidance. A computer-based home-worker could easily infer from the guidance that they would never require planning permission to work from home. Following this High Court decision, that is in doubt.

The guidance, as criticised by the judge, gives the impression that the threshold for requiring planning permission in these cases is higher than it is. Your home can be a home first and a place of work second, where the work is imperceptible by neighbours, and still undergo a material change of use from being purely a home and the business use not be incidental to the home use. Of course, if disturbance is not the only or even the primary factor, the question is: what are the factors to be taken into account? Does the number of monitors I set up in my home office determine whether my move to working from home is a material change of use? Or the number of days each week that I work from home? Does the size of my home office affect whether my use of part of my home as an office is incidental to the use of my home as a home? Is it about space, or time? If neither, what can we go by?

These are exactly the questions that judges in planning cases regularly decide and that planning professionals answer. We could conduct a review of the case-law to anticipate what the answers might be. But, as the judge pointed out, what is considered a normal use of a home has changed a great deal recently. Principles from the past may not be directly applicable to today’s cases. The millions of people who now work from home at least some of the time require practical, accurate and up-to-date guidance from the government so that they do not have to pay lawyers or involve themselves in litigation like Mr Sage did to ensure that they are in a legally sound position. Hopefully, the DLUHC will update its guidance so that it accurately reflects the law as it applies today and so that we can all know whether we need to ask the council’s permission to sound-proof the spare bedroom.

Finally, we have to recognise a further set of questions. If the factors determining how I can use my land go beyond the use’s effect on others, what is the justification for that limitation of my property rights? What business does the state have controlling what I do quietly within my four walls? Balancing the interests of the individual proprietor with the interests of the community is the classic rationale for planning law. The answer to the question is that the community to whose interests my rights must sometimes submit is broader that the immediate geographic area around my home. My choice to work from home affects the cafés and the air quality around my now-quiet office. It can contribute to changes in house prices; it could influence investment in infrastructure. If the government wants to put its thumb on the scales of the debate alluded to in my opening paragraph – is working from home to be encouraged or discouraged, and under what circumstances? –  one of the easiest ways it can do so is by simply making it unlawful for me to work from home. Whether this would be an abuse of state power or an appropriate displacement of the market from its decision-making role is a debate for another time. But we can probably all agree that it would be best if planning policy at least knew what it was doing.

What I’ve been listening to this week…

After the clocks go back, it suddenly feels like Advent, but it is three weeks until I can put on those albums. So I have been looking for other warming, comforting music. This week, it has been Fauré’s Cantique de Jean Racine, which may as well be Advent music to me. Who knows why, but Bruce Springsteen has been really hitting the spot too. 

And I finally saw No Time To Die, but I can’t talk about that.

A canary in the coal mine? Why the UK legal system is ill-equipped to deal with the climate crisis

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I grew up on the west coast of Cumbria, about two miles north of Sellafield nuclear reprocessing plant and eight miles south of the former mining community and port town of Whitehaven. Further up the coast near Workington, onshore wind turbines overlook the fascinatingly alien landscape of the Workington slag banks, formed from the by-products of pig iron production by the Workington Haematite Iron Company during the second half of the nineteenth and first half of the twentieth century. On a clear day, you can also see the larger offshore turbines of the Robin Rigg windfarm out in the Solway Firth.

Steel production ceased in West Cumbria in 1974 and the county’s last deep coal mine, the Haig Pit at Whitehaven, closed in 1986, but the landscape still provides an insight into the area’s industrial heritage. It also offers a clear indication as to what now sustains the economy of many of the coastal communities between Silloth and Barrow-in-Furness — the energy and especially the nuclear sector. In 2008, a public-private partnership called ‘Britain’s Energy Coast’ (since renamed ‘Building Extraordinary Communities’) launched its masterplan for the West Cumbrian economy, designed to show how it could be put on a sustainable footing by 2027 through investment in new nuclear power plants and renewable energy projects.

The view of Sellafield from Nethertown railway bridge
Workington wind turbines
Workington slag banks. The unusual shape of the rock is due to the giant ladle that was used to dump molten slag off the banks above.

But thirteen years later very little of what appeared in the masterplan has come to pass. The area’s economy is still extremely reliant on Sellafield, with research by Oxford Economics in 2017 suggesting that close to 60% of all jobs in the borough of Copeland are in some way dependent on the nuclear site [p. 21], and instead of major new renewable energy schemes generating jobs and economic growth we have the controversial Woodhouse Colliery proposal. If it goes ahead, this colliery near Whitehaven will be the UK’s first new deep coal mine in thirty years.

The company behind the project, West Cumbria Mining (WCM), started developing its plans for the extraction and processing of metallurgical (or coking) coal in 2014. The company claims that the mine would create 530 permanent jobs, of which 80% would go to local people. More controversially, it argues that it would be a ‘net zero’ emissions development, which would achieve compliance with the UK’s legally binding climate commitments via offsetting residual emissions with carbon credits certified by the Gold Standard Foundation.

It is easy to see why the prospect of a major new employer in area, creating hundreds of jobs, might seem appealing. Although wages at Sellafield are high, West Cumbria overall has faced sustained economic decline over several decades. Its working-age population is shrinking. An ever-increasing number of shops in Whitehaven town centre are shuttered up. The area is badly in need of some of the ‘levelling up’ promised by the Government.

In this context, it is perhaps not surprising that the proposal was previously approved by Cumbria County Council on three separate occasions. However, in February this year the council announced that it would be reconsidering the application for a fourth time. A month later, having previously declined to intervene, then Secretary of State for Housing, Communities and Local Government Robert Jenrick announced that he would be calling the application in for a public inquiry after all, citing new recommendations by the Government’s Committee on Climate Change as the rationale for the U-turn.

The inquiry opened on 7 September 2021 and ran for four weeks. The applicant, WCM, and Rule 6 Parties, local campaign group South Lakes Action on Climate Change (SLACC) and Friends of the Earth, appeared and were represented by counsel. Cumbria County Council did not take part in the proceedings, having decided to adopt a neutral stance on the application. Especially keen readers can find the recordings of all the sessions on the Planning Inspectorate YouTube channel.

Before being called in, the proposed development had already been subject to legal challenges on both sides of the debate. A judicial review application against the County Council’s approval of a previous version of the proposal by campaign group Keep Cumbrian Coal in the Hole received permission in February 2020, before proceedings were curtailed when WCM submitted a revised planning application. Earlier this year, the mining company itself announced that it would seek to challenge the County Council’s decision to reconsider the proposal for a fourth time, but the Secretary of State announced a public inquiry before the matter could reach the permission stage.

The entire process to date has served to highlight yet again the extent to which our legal and planning systems struggle to fully assess the climate impacts of proposed developments. Despite the UK’s legally binding obligation under s.1(1) of the Climate Change Act 2008 to reach net zero emissions by 2050 and the obligation on the Secretary of State to set regular carbon budgets (s.4, CCA 2008), the Act is not prescriptive about the actions that the Government or other relevant decision-makers must take to achieve these obligations.

The courts have also tended to be hesitant about pushing back too hard against decisions to approve individual carbon-intensive infrastructure projects. In a recent interview with The Planner magazine, barrister Estelle Dehon, who frequently acts on behalf of environmental campaign groups, suggested that this hesitation might be due in part to a political environment shaped by “many years of politicians… telling the courts ‘If you go too far, you will be knocked back. If you take liberties, we will act to ensure that you can’t do that any more. If you criticise too closely, we’ll clip your wings’.”

Finally, it is difficult to draw precise causal links between specific proposals under challenge and the vast global impact of the climate crisis. Indeed, a recent paper by researchers at the University of Oxford found that the claimants in 73% of cases surveyed across 14 jurisdictions did not even try, failing to cite any peer-reviewed evidence in their submissions. All these factors feed into an environment which makes it hard for legal challenges around climate change to succeed.

In the UK in the last two years, a number of high-profile challenges to emissions-heavy developments have been dismissed. In R (on the application of Finch) v Surrey County Council [2020] EWHC 3566 (Admin), [2021] PTSR 1160, concerning the grant of planning permission for the drilling of four new oil wells in Surrey, the High Court held that a developer’s obligation under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 to provide an environmental statement describing the likely direct and indirect impacts of a development did not extend to assessing the greenhouse gas emissions resulting from the use of an end-product originating from that development. In R (on the application of ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy [2021] EWCA Civ 43, [2021] PTSR 1400, the Court of Appeal held that then Secretary of State Andrea Leadsom had carried out the balancing exercise under s.104(7) Planning Act 2008 correctly and was entitled to conclude that the benefits of the proposed new gas-fired Drax Power Station outweighed the environmental costs [108–109].

Finally, in R (on the application of Friends of the Earth and others) v Heathrow Airport Ltd [2020] UKSC 52, [2021] PTSR 190, the Supreme Court overturned the judgment of the Court of Appeal that the Government’s Airports National Policy Statement was unlawful on climate change grounds. The Court of Appeal had held that the ANPS failed to satisfy the obligation under s.5(8) of the Planning Act 2008 to “include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change”. It defined ‘Government policy’ as being both the UK’s ratification of the Paris Agreement and subsequent statements by ministers Andrea Leadsom and Amber Rudd (Plan B Earth v Secretary of State for Transport [2020] EWCA Civ 214, [2020] PTSR 1446 at [228]). The Supreme Court dismissed these oral statements as being insufficiently clearly formulated to constitute Government policy and held that it would be unreasonable to expect civil servants to “trawl through Hansard and press statements” to identify policies [105]. One might question why the Court did not consider the Paris Agreement itself to constitute Government policy, since ratified international agreements form a clearly defined and readily identifiable list. Given the rather general wording of the agreement, however, it might not have made a difference to the outcome of the case even if the Court had held that it was Government policy to adhere to it.

The cases cited above are not an exhaustive list. Other challenges to the construction of HS2 and the design of the new UK Emissions Trading Scheme have also failed on broadly similar grounds, namely the wide margin of appreciation enjoyed by decision-makers when it comes to translating the UK’s legally binding emissions reduction targets into actual policy. This degree of discretion, coupled with the growing weight of adverse precedent, means that climate campaigners seeking to bring public law challenges against Government policy are facing an uphill battle.

Indeed, the outcomes of these cases beg the question of whether legally binding climate targets are actually enforceable in any meaningful sense. At a national level, the Committee on Climate Change calculates that the UK is not on track to meet its fourth or fifth carbon budgets, and there is an overwhelming scientific consensus that we are headed for catastrophic warming without drastic emissions reductions in the next decade, let alone by 2050. Yet on a case by case basis, it always seems possible for a decision-maker, company or industry body to argue that the emissions from a specific carbon-intensive infrastructure project will be offset by emissions reductions in other sectors of the economy and/or that the socio-economic benefits of a proposal outweigh its negative environmental impacts.

Thus, judicial review challenges brought against the lawfulness of such decisions are likely to keep failing, because of the near impossibility of proving that a particular project in isolation will prevent the UK from meeting its emissions reduction targets. Irrationality challenges seem even less likely to succeed, since the bar for such challenges is set so high (although if one asked an 18-year-old whether they thought it was rational to be constructing new coal mines, oil wells, runways or gas-fired power stations in the 2020s, one suspects they might give a rather different answer from a judge).[1]

Fortunately for campaigners against the Cumbria coal mine, the planning system offers more flexibility about how climate impacts are included in the decision-making process than the legal system does, in part because planning decisions are more explicitly informed by political considerations than legal decisions are. For example, as Estelle Dehon, acting for SLACC, submitted in her closing statement to the inquiry on 1 October 2021, the judgment in Finch v Surrey County Council relates only to whether end-use emissions must be factored in when determining the legality of an Environmental Impact Assessment. It is not authority for the proposition that such emissions cannot be a material planning consideration. In the case of a coal mine, end-use emissions are necessarily fundamental in determining the overall climate impacts of the proposed development.

The inquiry spent its first week dealing with the potential economic benefits of the scheme, its second focussing on the need for coking coal in UK and EU steelmaking, and its third considering the impact of the scheme on carbon-dioxide and methane emissions. The Rule 6 Parties lead a range expert witnesses, whose evidence challenged WCM’s assertion that the project was compatible with the UK’s goal of reaching net zero emissions by 2050. In particular, Professor Stuart Haszeldine of Edinburgh University suggested that the coal was unlikely to be of sufficiently high quality for use in the UK and EU steelmaking markets and the majority was likely to end up being exported further afield, thus negating any net emissions savings on transport, while Professor Paul Ekins of University College London stated that there was no doubt in his mind that the proposals were incompatible with the UK’s emissions targets.

A further blow to the contention that the mine could be rendered net-zero-compatible via carbon offsetting was dealt by the very organisation proposed to supply the carbon credits required to facilitate the offsetting, the Gold Standard Foundation. In a letter to Friends of the Earth and to the inquiry, the Foundation stated that:

“The latest scientific paper from the Intergovernmental Panel on Climate Change on August 9 gave a stark reminder of the pace at which the planet is warming and the unequivocal influence of human activity on this warming, in particular the extraction and use of fossil fuels.

“We note that achievement of the goals of the Paris Agreement would be rendered impossible by the already planned increase in fossil fuels (UN Production Gap Report, 2019), and that the International Energy Agency has clearly stated that further investment in fossil fuels is unnecessary, with achieving global net zero goals instead requiring a rapid reduction in their use.

“It is clear to us, in light of this evidence and reflecting the principles of the mitigation hierarchy, that a new coal mine in 2021 is an activity that must be avoided in the context of the climate emergency.”

Beyond the decision to call the application in, there have also been further signs that the tide of political opinion within the Conservative party might have turned against the project, with Energy Secretary Kwasi Kwarteng stating that there were “very compelling reasons” not to open it and MP for Penrith and the Border, Dr Neil Hudson, dropping his support for the project ahead of COP 26 and urging the Government to invest in clean energy jobs in Cumbria instead. Inspector Stephen Normington indicated that his report should be expected in late December or early January, after which the ultimate decision will rest with the Secretary of State.

Whatever Michael Gove ultimately decides, however, a legal challenge seems fairly likely, at which point all the issues around how our courts deal with climate litigation may come into play once more. All this raises the question — at what point will it become so apparent that we are not on track to meet our net zero emissions targets that the courts will feel justified in declaring new fossil fuel developments to be unlawful? At what point will the effects of the climate crisis become so severe and so unarguable that any decision to approve such a development will be held to be irrational? How many more canaries will we allow to die before we finally decide to close the coal mine?

[1] For discussion of irrationality in this context see R. (on the application of Finch) v Surrey County Council [2020] EWHC 3566 (Admin) ,[2021] PTSR 1160, [127]; R (on the application of Friends of the Earth and others) v Heathrow Airport Ltd [2020] UKSC 52, [2021] PTSR 190, [125-129].

What I have been listening to this week…

A couple of weeks ago, some eighteen months after the gig was initially scheduled to take place, I was finally lucky enough to see Nick Cave in concert at the Royal Albert Hall. I have been a fan of his music since I was a child and so seeing him live was an absolute privilege and delight. Almost the entire setlist was from two albums: 2019’s majestic, if sometimes harrowing, ‘Ghosteen’ — a meditation on love and loss written in the aftermath of the death of Cave’s teenage son in 2015 — and 2020’s ‘Carnage’, a wild and surreal lockdown album composed over just three days alongside longtime collaborator Warren Ellis. Both are exceptional in their own way and I have been listening to them and the rest of the Bad Seeds back catalogue a lot since the gig.

On a slightly more sedate note, my choir is currently rehearsing for a performance of Brahms’ Requiem in December, so I have been reacquainting myself with one of my absolute favourite choral works, and trying not to get too out of breath singing the fugue in movement six!

The Kingsland Cup 2021… Or How I Learned to Stop Worrying and Love the Moot

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Last Thursday, after a year of virtual advocacy exercises, I took part in my first ever in-person moot. The Kingsland Cup and Prize Moot is run annually by Francis Taylor Building. Named in honour of Lord Kingsland QC, it covers a wide range of public, environmental and European law topics. Participants tackle two moot problems over the course of three rounds, with a paper sift of skeleton arguments followed by two ‘live’ rounds.

The 2021 final took place last week and my teammate, Tom Lambert, and I were fortunate enough to be declared the winners after a closely matched competition with an excellent team from the University of Oxford. It was judged by Sir Keith Lindblom, Senior President of Tribunals, and Professor Alison Young, Sir David Williams Professor of Public Law at the University of Cambridge. I am extremely grateful to both of them for giving up their time and to Esther Drabkin-Reiter and Michael Brendan Brett from FTB for organising this year’s competition and setting two fascinating and finely balanced moot problems.

The first round and semi-final involved a highly technical planning law problem, focusing on whether a Lawful Development Certificate (LDC) can be granted under s. 191 Town and Country Planning Act 1990 (“the 1990 Act”) to certify that a site has ‘nil’ planning use, and the circumstances in which a previous use may be said to have been abandoned. The claimant was a local authority, which had refused to grant an LDC to a multiplex cinema chain to certify that a recently acquired site had nil use. That refusal had been overturned on appeal by a planning inspector, who decided that s. 191 gave him the power to grant an LDC for nil use and that he was justified in granting one in the present circumstances, on the basis that the previous use of the site as an independent cinema had been abandoned. The multiplex chain appeared in the proceedings as an interested party but was not represented by counsel.

The claimant brought a judicial review on two grounds:

  1. The Decision by the Inspector was unlawful on the basis that there was no power to grant a Lawful Development Certificate under s. 191(1)(a) of the 1990 Act for a ‘nil’ use.

  1. The Inspector erred in law in concluding that the use had been abandoned.

For the first round, teams had to submit two skeleton arguments, one for the claimant and one for the defendant. Four teams were then selected to go forward to the semi-final, which took place on Zoom in April this year, with the claimant and defendant roles in each semi-final being assigned at random. Tom and I were representing the claimant local authority. Alongside a team from the Inns of Court College of Advocacy, we battled our way through some significant technical difficulties to present our submissions.

On Ground 1, which I took, the case ultimately turned on the somewhat esoteric semantic question of whether the phrase “any existing use of buildings or other land” in s. 191(1)(a) of the 1990 Act extended to cover nil use. Could “any” also encompass “none” or did it have to refer to a positive use? I was both gratified and slightly disappointed when Sir Keith Lindblom, who also judged our semi-final, beat me to the King Lear quote I had planned to include in my summing up (“nothing will come of nothing”) in one of his interventions. One of our central submissions was that, since planning enforcement action cannot be taken against a site that truly has nil use, the only possible reason the interested party could have had for wishing to obtain an LDC was to circumvent the ordinary planning process and the policies in the Local Plan designed to prevent the loss of grassroots leisure and entertainment venues.

Ultimately, although he reserved judgment, Sir Keith indicated that he was inclined to agree with the claimant’s position that the provisions of s.191 did not extend to nil use. This was primarily due to the plain meaning of the words in the statute but also because of the impossibility of enforcement action against a site that has truly been abandoned and has no planning use. 

We advanced to the final and out of my comfort zone. Having previously worked in housing policy, I was at least somewhat familiar with planning legislation and policy, even if the provisions around Lawful Development Certificates were new to me. The problem for the final, however, involved a range of legal issues with which I was less familiar, including the relationship between Article 8 and Article 10 of the European Convention on Human Rights, the nature of proportionality review and whether or not consistency should be accepted as a freestanding ground of judicial review. Perhaps inspired by a certain viral parish council meeting earlier this year, it was an appeal to the Supreme Court concerning the decision by a District Council Monitoring Officer to sanction a parish councillor for breaking the parish council Code of Conduct with an unruly outburst in an online meeting.

Though clearly inspired in part by the Jackie Weaver saga, the facts of the case and the legal issues raised were actually most similar to those in R (on the application of Robinson) v Buckinghamshire Council [2021] EWHC 2014 (Admin), where the High Court quashed the decision of a Deputy Monitoring Officer to sanction Cllr Clive Robinson over comments he had made about fellow councillors, which were said to be in breach of the PC Code. The court in Robinson held that the sanction represented a disproportionate infringement on Mr Robinson’s right to freedom of Expression under Article 10 ECHR, and therefore a violation of s. 6 of the Human Rights Act 1998.

The case in the Kingsland final centred on whether or not the decision to uphold a complaint against a councillor for saying “You do not have the authority to do this, Alice Tinker! You can’t just expel them from the meeting, face up to the accusations of incompetence, you big girl’s blouse!” was a similarly disproportionate interference with his Article 10 rights, and whether it mattered that a similar complaint against Ms Tinker had been decided differently. The grounds of appeal were:

  1. The judge at first instance erred in finding that the speech in question was not supported by case law on protection of political speech and/or that the decision to uphold the complaint was proportionate.
  1. The judge erred in finding that she could not consider consistency as a freestanding ground of review.

As the final was in person, each team was required to bring two hard copies of the bundle, one for ourselves and one for the judges. With nearly 500 pages of authorities between us, this meant that each team arrived with around 1000 neatly tabulated pages, which certainly helped add to the illusion that we were taking part in a real hearing. 

This time, Tom and I were acting for the respondent and again I took Ground 1. I submitted that the Monitoring Officer was correct to decide that the quoted portion of Cllr Trott’s outburst was not political speech and should not therefore be afforded enhanced protection under Article 10, drawing heavily on the judgment in Heesom v Public Service Ombudsman for Wales [2014] EWHC 1504 (Admin), [2014] 4 All E.R. 269, which distinguished between “matters of public administration and public concern including comments about the adequacy or inadequacy of performance of public duties by others” on the one hand and “gratuitous personal comments” on the other, and held that the former would be classed as political speech, while the latter would not [38(v)]. I characterised Cllr Trott calling Cllr Tinker a “big girl’s blouse” as a gratuitous personal comment.

I also submitted that the sanction was justified on the basis of the qualifications to the right to free expression in Article 10(2) ECHR, in light of the need to balance Cllr Trott’s Article 10 rights against Cllr Tinker’s right to a reputation under Article 8.  Finally, I submitted that proportionality is not a substitutionary review, and an appellate court should therefore uphold the decision of a lower court, provided it is satisfied that the lower court carried out the balancing exercise correctly, even if it might itself have come to a different conclusion on the facts. On this last point, I deployed a cricketing analogy, likening the process of proportionality review in an appellate court to a scenario in which hawk-eye indicates that a DRS review of an LBW decision remains “umpire’s call”.

Our opponents, Daniil Ukhorskiy and Amy Gregg, made some excellent arguments drawing on the jurisprudence of the European Court of Human Rights, about the difficulty and undesirability of disaggregating comments made in the heat of the moment and separating them into categories of political and non-political speech. Tom was extremely patient with me as I dealt with numerous judicial interventions on the plausibility of such disaggregation and overran my allotted time, leaving him with only ten minutes or so to make his submissions on whether consistency should be accepted as a freestanding ground of judicial review.

On Ground 2 the key questions were whether or not the case law indicates that consistent administration can be viewed separately from the doctrines of irrationality and legitimate expectation, and whether it would be desirable for it to stand alone as a ground of review in its own right. Counsel for the appellant submitted that the Supreme Court’s judgment in R (on the application of Gallaher Group Ltd and ors) v The Competition and Markets Authority [2018] UKSC 25, [2019] A.C. 96 was only authority for the fact that equal treatment is not a distinct principle of administrative law. It did not address the issue of consistent administration — that is the obligation for public authorities to apply their policies in a consistent way. Tom submitted in response that such a fine distinction would create unnecessary confusion in the law and that there was, in any event, no need to draw it. Decisions which might fall foul of a doctrine of consistent administration would probably be overturned anyway on the basis of irrationality or the frustration of legitimate expectations.

The judges deliberated for around fifteen minutes and, while they again reserved their judgment, they suggested on Ground 1 that the appellant’s position on the disaggregation of intermingled comments would likely be accepted, though they agreed that the role of the court in a proportionality review was not to remake the decision. On Ground 2, Sir Keith questioned whether it really mattered if consistency was officially accepted as a freestanding ground of review or not, since the facts of the case clearly indicated that Cllr Trott was not treated fairly by the Monitoring Officer and the decision might therefore have been deemed to be unsound on that basis. However, he did conclude by suggesting that the law should not be like mushrooms (a running theme throughout counsel’s submissions) and multiply grounds of review excessively.

Had this been a real case, we likely would have lost, since the judges indicated that they probably would have allowed the appeal, at least on Ground 1. Fortunately for us, however, mooting is not real life and we were declared the winners by an extremely narrow margin. Competing in this year’s Kingsland Cup has been a wonderful experience. It has taught me a great deal, both about the relevant areas of law and about online and in-person advocacy. I would highly recommend the competition to anyone with an interest in public law.