Planning, Environment and Property Newsletter - Autumn 2023 Edition

Welcome to the Autumn 2023 edition of the 39 Essex Planning Environment and Property newsletter. At the opening of this Legal Year in particular we also welcome and congratulate our new Lady Chief Justice Carr on her momentous appointment. Perhaps heralding a term of change and progress, on 18 September 2023, the long awaited National Policy Statement for water resources infrastructure was finally designated, and the Levelling Up and Regeneration Bill (‘the LURB’) has had its third reading in the House of Lords, notably with the Government’s attempt to introduce a provision which would override the Habitats Regulations in respect of nutrient neutrality and direct decision makers to ignore them in effect was given short shrift and blocked by Peers.

In this edition Kerry Bretherton KC starts us off with her views on the developing area of the certification regime under the Building Safety Act 2022. We are also pleased to welcome our new tenants and first-time contributors Celia Reynolds and Ella Grodzinski who respectively discuss the decisions in Fry, on nutrient neutrality and the continued applicability of Article 6(3) of the Habitats Directive and which may well have triggered the ill-fated attempt to amend the LURB, and Boswell, on the assessment of the cumulative climate impacts of road schemes where James Strachan KC and Rose Grogan acted for the successful Defendant. On top of this we have articles on the following recent decisions:

• James Burton addresses the limits of s.73 of the Town and Country Planning Act 1990, a question outstanding, and a practical suggestion for local planning authorities in light of the case of Fiske in which he acted for the successful claimant;
• Daniel Kozelko covers the decision in AHGR Limited on the Court of Appeal’s interpretation of a ‘live/work’ condition in a long lease covenant and the importance of clarity;
• Lastly, Christopher Moss writes on the case of City Portfolio where Mr Justice Fordham considered whether, and if so how, costs should be awarded to a Claimant who withdrew their claim for judicial review after they achieved practical, if not necessarily legal, success out of court.

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

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