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Ormondroyd C.,Francis Taylor Building
Journal of Planning and Environment Law | Year: 2011

The article examines the position as it stands for practitioners who have to deal with applications for Protective Costs Orders (PCO) and also to offer some insight into broader trends and developments nationally and internationally regarding environmental justice. The judgment of the Court of Appeal in Garner was delivered in late July 2010, by Sullivan L.J. It was an appeal against a refusal to grant a PCO at first instance. The substance of the case concerned a challenge to the grant of planning permission for redevelopment of land across the Thames from Hampton Court Palace. The development in question was subject to the need for Environmental Impact Assessment (ETA). Potentially of more effect are decisions emanating from the European Union (EU), which can have binding effect. The EU itself is a signatory of the Aarhus Convention, and on this basis it has in the past been suggested that the provisions of Aarhus should therefore be directly effective here. Source

Humphreys R.,Francis Taylor Building
Journal of Planning and Environment Law | Year: 2011

The article examines the effect of recent case law concerning the proper interpretation of planning permissions and draws attention to the decision in Stevenage BC versus Secretary of St ate for Communities and Local Government. The High Court in Stevenage BC v Secretary of State for Communities and Local Government, by contrast, was faced with a decision notice which referred merely to external alterations6 to various retail warehouse units but the accompanying plans also showed a sub-dividing wall in one of the units. Since planning law is entirely the creature of statute, statutory provisions are, therefore, regarded as crucial indicators of Parliament's intention. The notification requirements are plainly an indicator. The reader of the site notice, advertisement or letter would, and should, reasonably assume that a description referring only to external alterations, without a word concerning subdivision of units, let alone the removal of conditions, relates simply to external alterations. Source

Humphreys QC R.,Francis Taylor Building
Journal of Planning and Environment Law | Year: 2011

Richard Humphreys examines what constitutes material change in land use and whether reference to character is required. An approximate definition of character, in the context of land use, may be said to be an attribute, feature or quality or combination thereof of the use. Thus, a change in the use from a previous 'definable character' may be material even though it is not possible to describe it differently. One may look in vain, however, at the 1991 Act for any indication by Parliament that the previous case law was being overruled and that the description of use may remain unchanged and yet a material change in the use may occur. The origin of the reference to character appears to be Fortescue. The reference to character in the test of material change does not appear to be justified by any statute. It is not defined and is imprecise. Source

Humphreys QC R.,Francis Taylor Building
Journal of Planning and Environment Law | Year: 2011

The rationale for immunity or lawfulness appears to rest largely upon the notion that the lack of action by the local planning authority signifies that no harm has resulted from the breach of planning control. Experience suggests that few, if any, local planning authorities carry out systematic, let alone regular, surveys of their areas. Enforcement action generally depends upon a complaint being made to the local planning authority, or the local planning authority happening upon the breach whilst dealing with another issue, for example a planning application. Where the appellant is untruthful, by the time this comes to light, if it does at all, further enforcement action may well be too late. What, too, of the landowner/occupant who previously made false statements and then asserts at the enforcement inquiry that the true position is in fact to the contrary and has now been the position for 10 years. Source

McCracken R.,Francis Taylor Building
Environmental Law and Management | Year: 2012

The article covers two broad topics environmental assessment's (EA) and nuisance. Some of the cases are so hot that the Supreme Court has been unable to decide whether they are not too hot to handle and has been sitting on permissions to appeal for some time and it is notable in this context that some of the Court of Appeal decisions discussed below may yet be subject to review by the Supreme Court. The Court of Appeal held that those decisions of the Court of justice (CJEU) where there did appear to be observations to the contrary were cases that had been brought against Member States, and therefore the Court of Justice was the only Court that could make such decisions. There is tremendous scope for those who suggest that the decisions of specialist or democratically accountable regulators are material, albeit not decisive, to what is acceptable in an area. Source

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