Planning, Environment and Property Newsletter – Autumn 2024 Edition

Welcome to the Autumn 2024 edition of the 39 Essex Planning Environment and Property newsletter as the new legal year starts. Since the last edition we have a new Government, a ‘new’ Ministry of Housing, Communities and Local Government and the immediate change made to the NPPF reversing the ‘de facto ban’ on onshore wind schemes in England. However, one Parliamentary session into the new Government, we are still waiting to see, in concrete terms, exactly what reforms are proposed to the planning system; in particular what challenges, developers and decision makers alike, will face over the “grey belt” once the new NPPF is published.

This is also our first edition since the passing of our dear friend and colleague Paul Darling KC. Paul had a tremendous generosity of spirt and was a formidable advocate, he is much missed by all of us in Chambers.

Ned Helme starts off this edition with an article looking at the evolving area of biodiversity net gain. Considering what principles can be derived from decisions before the introduction of mandatory biodiversity net gain in February 2024 and what lessons can be learned that may help in approaching the new requirements. On top of this we have articles on the following recent decisions and developments:

• • John Pugh Smith sets out a helpful overview of the recent amendments to the Civil Procedure Rules which provide that facilitating alternative dispute resolution is now an objective of civil justice and his thoughts on the practical impact of this. 

• • James Burton provides a hands-on approach to considering the availability of tort claims against sewerage undertakers following the Supreme Court’s decision in Manchester Ship Canal Company Ltd v United Utilities Water [2024] UKSC 22.

• • Celina Colquhoun addresses the recent cases of R (oao Dr Andrew Boswell v Secretary of State for Energy Security & Net Zero [2024] EWHC 2128 (Admin) and Friends of the Earth Ltd v Secretary of State for Levelling Up, Housing and Communities & Ors [2024] EWHC 2349 (Admin) and what we can learn about assessing greenhouse gas emissions in a post-Finch world.

• • Jon Darby looks at R (Strongroom Ltd) v London Borough of Hackney [2024] EWHC 1221 (Admin) and the approach to s31(2A) of the Senior Courts Act 1981, in which he acted for the successful Claimant; and Wathen-Fayed v Secretary of State for Levelling up, Housing and Communities [2024] EWCA Civ 507 on the Cremation Act 1902 in which he acted for the successful Defendant.

• • Chris Moss looks at the Court of Appeal’s decision in CG Fry & Son v Secretary of State for Levelling up, Housing and Communities [2024] EWCA Civ 730 and opines on what the new Government may have in store to tackle the difficult issue of net neutrality; and

• • Lastly, Ella Grodzinski writes on the case of R (OAO Greenfields (IoW) Ltd) v Isle of Wight Council [2024] EWHC 2107 (Admin) which covers the impact of alleged bias on a grant of planning permission following a particularly acrimonious meeting of the Isle of Wight Council’s planning committee.

Lastly, breaking news, in respect of the latest outfall from Brexit, the Government has confirmed that section 6 of the Retained EU Law (Revocation and Reform) Act 2023 which would have allowed the Courts to depart from retained/assimilated EU law is not being brought into force on 6 October. The Government has revoked the regulations enacting the section and is reconsidering the issue in the wider context of UK-EU relations. We must wait and see…

We do hope you enjoy this edition of the PEP newsletter and have a productive Michaelmas term.  

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