Welcome to the latest issue of Planning Ahead, Winckworth Sherwood's monthly update on planning law.  Here we comment on the latest changes to the law, and the important topical issues of the month.  If there are any particular issues that you feel should be covered, please do let us know in the feedback section below.   Committee on Climate Change – First Report The Committee on Climate Change (CCC) was established under the Climate Change Act 2008. The committee's purpose is to advise the Government on achieving the targets set out in the Act and to produce the carbon budgets. On 1 December 2008 it produced its first report. The report contains detailed recommendations on how to achieve the Governments aim to reduce green house gas emissions by 80% by 2050 and the levels of the first three carbon budgets for 2008 - 2022. The report also considers the implications of the carbon budgets on the competitiveness of particular industry sectors and whether the budgets should include carbon dioxide or all greenhouse gas emissions. The report can be found on the CCC's website – www.theccc.org.uk   Proposed replacement of Energy Performance of Buildings Directive The European Commission published a draft Directive on the 13 November 2008 that will, if adopted, repeal and replace the Energy Performance of Buildings (EPB) Directive. The draft Directive retains the principles and objectives of the previous EPB Directive but is wider in its scope.   The draft Directive introduces minimum energy performance requirements for technical building systems, such as lighting and heating. The size threshold for renovations would also been removed; therefore all renovations would be subject to minimum energy performance requirements.   In addition to any buildings sold or let, Energy Performance Certificates will also be required by 31 December 2010 for all buildings in which a public authority occupies over 250 square meters of the total useful area.   The draft Directive places focus on the public sector leading by example. If approved, public sector buildings must comply with the requirements by 31 December 2010. All other buildings must comply by 31 January 2012.

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Permission for B1 industrial use of the land had been granted. The local authority had subsequently issued an enforcement notice requiring noise from the site to be below a certain level. The levels specified were unrealistic and as a result breach the notice was unavoidable. The local authority indicated that it would not seek to enforce the notice at the specified levels but refused to withdraw it. The applicant, aware of the blight on the land caused by the notice, applied for planning permission to build the houses. Permission was refused by the local authority and on appeal. The applicant applied to the court to have the inspector's decision quashed. The court found that the decision to refuse to withdraw the notice was an entirely irrational decision; however the dismissal of the inspector's decision to refuse planning permission could only be allowed if the inspector had made and error of law. The court held that it was not appropriate to allow planning permission which should otherwise not be granted because of the intransigence and irrationality of the local authority.  The decision of the inspector was upheld. The applicant was directed to apply for judicial review against the local authority's decision to refuse to withdraw the enforcement notice.

Boggis v Natural England [2008] EWHC 2954 (Admin)

This case concerned the desire of homeowners in Suffolk to protect their homes from coastal erosion and with the conflict between them and Natural England who designated the area as a SSSI.   The claimants were ultimately successful in challenging the designation on the ground that they won leave to argue in the Court of Appeal.   The notification of the SSSI which included a formal statement of Natural England's intention not to consent to the claimant's sea defences in future constituted a "Plan" within the meaning of Article 6(3) of the Habitats Directive and as such should have been the subject of an appropriate assessment.

Graham v Easington District Council (2008) CA (Civ Div)

This case concerned a dispute between a developer who had acquired industrial land subject to a covenant restricting its use to a coach depot which had been imposed by a local authority.  The developer subsequently obtained planning permission and applied to the Lands Tribunal to discharge the restrictive covenant.  The local authority challenged the tribunal's decision to discharge the covenant.  The court held that the Tribunal had been entitled to find that the argument that there was no longer a need for residential development in the area was not sufficient to justify the continuation of the covenant.  The Tribunal had correctly found that the issue of planning permission was persuasive evidence in favour of the discharge but not determinative of the matter.

The Local Democracy Economic Development and Construction Bill

Plans for Costs for Written Representation Appeals