Localism vs Europe

While the midnight euro-bailout conferences drag on and the media beats its eurosceptic drum, those of us lucky enough to practise in the field of planning law are reminded of Lord Denning's metaphor in Bulmer v Bollinger (1974): 'When we come to matters with a European element, the Treaty [of Rome] is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back, parliament has decreed that the treaty is henceforward to be part of our law. It is equal in force to any statute.'

Over the past year, a significant tranche of the most important case law in planning has flowed from the UK's European commitments and those who too easily speak of this country's particularism and fixate on localism should note the depth of our integration into European cooperation.

A number of planning cases reveal the extent of Lord Denning's prophecy, particularly in relation to European Commission (EC) directives about the environment. Save Britain's Heritage v SoS [2011] EWCA Civ 334 proved we can have just as much impact on it by knocking a building down as we have when we put it up, while R (on the application of Morge) v Hampshire CC [2010] EWCA Civ 150 narrowed the scope for argument against those seeking to derail a development for ecological reasons, but left applicants at the mercy of an environment quango whose resources have no chance of meeting the demands placed upon it.

Save Britain's Heritage v SoS

In 2009 a planning inquiry began into a proposal for a massive redevelopment of the centre of Lancaster. It was opposed by both English Heritage and Save Britain's Heritage who said it would have an adverse effect upon a conservation area, the setting of listed buildings as well as resulting in the loss of unlisted buildings close to the conservation area; particularly those associated with the Mitchell's Brewery site. Ultimately the application was refused by the secretary of state.

The point of interest, however, related to the brewery buildings. Applications to list them had been made and rejected twice before and they lay outside the conservation area which was acknowledged to be long overdue for review. Following the inquiry the owners decided to demolish the buildings. English Heritage encouraged the council to serve a building preservation notice but declined to indemnify the local authority. The owners wanted to go ahead and the council decided no prior notice was required under the EC Demolition Directive 1995.

However, at judicial review Save said demolition of a building could not take place without the requirement for 'screening opinion' from the council as to whether it was 'environmental impact assessment development' and there had been a failure to transpose the relevant European Union (EU) directive. Save Britain's Heritage sought declarations that parts of the 1995 directive were unlawful and that Lancaster had unlawfully reached a decision allowing for the demolition without a screening opinion under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.

Before the Administrative Court in Manchester, the claim failed. However, shortly before it moved to the Court of Appeal, a judgment was issued in a similar case involving infraction proceedings against the Irish Republic for failing to transpose the same directive in relation to demolition. The claim succeeded (European Commission v Ireland (C-50/09)) and therefore Save's job in the Court of Appeal became significantly more straightforward.

The Court of Appeal followed the Irish judgment, holding that the directive had to be interpreted in a 'purposive' way.

The effect has been considerable; in the past demolition in many cases escaped the scrutiny of the planning system altogether, whereas now there is a need to screen any significant demolition to determine whether it comprises EIA development, if it does then there will be need to consider the effect before a development consent can be granted.

So, a project involving any significant demolition requires a screening opinion from the local planning authority and if that is positive (i.e. an environmental statement is required) then an application for planning permission is needed, regardless of whether it's a small part of the development or not.

This case is already adding months to the development process through the requirement for notifications and demolition methodologies to be submitted where they were not required before.

Save Britain's Heritage was quick to recognise it had a significant weapon capable of hampering the demolition of buildings it perceived to be of importance but which local planning authorities wished to allow to be redeveloped.

For example, the demolition of significant numbers of late Victorian and Edwardian housing in areas of perceived housing market failure has understandably generated controversy as part of the housing market renewal initiative which was dear to the last government. A recent series of Channel 4 documentaries, The Great British Property Scandal, highlighted the acres of demolished terraced housing which are now a feature of many northern cities. In 2010 Gateshead MBC indicated its intention to demolish 118 houses as part of the HMRI. An injunction was sought, granted and later discharged (Save Britain's Heritage v Gateshead [2010] EWHC 2919).

However, following the Court of Appeal decision the High Court was once again asked to rule that the demolition was unlawful, by which time 38 of the homes were still standing. The secretary of state agreed to the quashing of the decision (taken by the previous government) to revoke the screening directions that he had initially issued, but the council declined to settle the case in the light of Save Lancaster and demolished the remaining homes. Mr Justice Collins declared that the demolition had been unlawful.

Of bats and buses

The case of R (on the application of Morge) v Hampshire CC was summed up by Ward LJ as: 'Bats, badgers, Beeching and busways.'

Mrs Morge sought to challenge the decision of Hampshire CC to grant planning permission for a new guided busway along the track of a disused railway '“ presumably closed by Dr Beeching.

Along the line of the busway were a number of trees frequented by a number of bats, a European protected species. The line of the busway itself was used by the bats for foraging, and, presumably, commuting. Accordingly both the construction of the busway and its operation could, it was argued, impact on the foraging habitat.

The central allegation in the case was the extent to which in granting planning permission Hampshire CC had failed to comply with the EU Habitats Directive, article 12(1)(b) of which provides that: 'Member states take all requisite measures to establish a strict protection for the [protected species] in their natural range, prohibiting'¦ (b) deliberate disturbance of the species particularly during periods of breeding, rearing, hibernation and migration'¦'

There are a number of cases which stand out as helpful in persuading clients that the law is not altogether crackers and this is one of them. The Court of Appeal held that article 12 concerned 'species' and not habitats and concerned disturbance to 'species' and not individual 'specimens of species'; after all, one bat does not a summer make.

Thus in judging whether there is disturbance to species, there is no general approach that ought to be taken; rather the circumstances must be considered on a case-by-case and species-by-species basis.

The Supreme Court, however, overturned the approach of the Court of Appeal, and concluded that disturbance under article 12 is not limited to examination of impact on the 'conservation status of the species at population level'. Had the position remained unaltered then challenges alleging impacts upon a protected species would themselves have become increasingly rare and endangered. Fortunately for the legal profession the Supreme Court chose to provide something of a fudge which still leaves arguments open in each case. However, the landscape for such challenges in the future has now become much more hostile.

The conclusions of the majority of the Supreme Court is that a planning authority may lawfully grant planning permission except where it has determined that the proposed development would be likely to offend article (1), and that it would not be likely to be licensed by Natural England (the public body responsible for protecting and improving the country's natural environment).

The decision of the Court of Appeal in Morge provided real optimism that what councils most craved was being provided; an easily applied test which could not be breached save in the most exceptional of circumstances and which would prevent those opposed to a development for ecologically unrelated reasons from raising the issue as an excuse to derail an otherwise acceptable development.

However, the Supreme Court also concluded, in Lord Brown's judgment, that in determining whether a planning proposal did not offend against the directive a council could rely upon the conclusions of Natural England as the relevant body with 'the primary responsibility for ensuring compliance with the directive': if Natural England is happy and it is the expert a council can rely on that opinion.

This is cold comfort; Natural England does not have the resources to consider and be consulted on the vast number of applications that have potential Habitats Directive impacts.

In a situation where Natural England won't pick up the phone councils have to resort to the FAQ section of the agency's website. It is a worrying time when the European Habitats Directive is dealt with in the same way as your home broadband connection.

The implications for planning lawyers of both Save and Morge are significant; the struggle for a sensible interpretation of certain European Commission directives has in certain cases added months to the development process. These cases highlight the tension between the government's stated commitment to a strategy for growth through development and the common understanding of localism.

The coalition's ambition to be Britain's greenest government may have Save and Morge to thank for its legacy '“ or lack of one.