by Hardwick Legal | Jul 24, 2015 | Purpose Built (LexisNexis)
What is the significance of the Supreme Court’s decision that the pre-2013 system of recovering success fees and after the event (ATE) insurance premiums from the losing party is compatible with the European Convention on Human Rights (ECHR)? David Bowden, freelance independent consultant, examines the judgment and talks to Alex Bagnall, associate and costs advocate of Just Costs, as well getting reaction from Mr Coventry and his solicitor Joanne Pooley, partner of Pooley Bendall & Watson.
Source: LexisNexis Purpose Built
The cost of Coventry v Lawrence
by Hardwick Legal | Jul 17, 2015 | Purpose Built (LexisNexis)
At the UK Environmental Law Association’s (UKELA) annual conference in Liverpool from 3-5 July 2015, Dr Nicola Notaro, Deputy Head of Water, DG Environment took us through key aspects of the Water Framework Directive 2000/60/EC (WFD).
He explained in practical terms the way in which the overall status of surface water and groundwater bodies is assessed, ie against a series of elements, such as macroinvertebrates, aquatic flora, fish etc.
The Weser Case – interpretation of ‘deterioration’
Hot off the press, he referred to the Court of Justice’s decision in Case C‑461/13 Bund für Umwelt und Naturschutz Deutschland eV v Bundesrepublik Deutschland [2015] All ER (D) 15 (Jul) of 1 July 2015, which concerned dredging the River Weser in Germany to enable larger container vessels to call at German ports. The dredging had hydrological and morphological consequences for the river.
The Court delivered a preliminary ruling on whether the concept of a ‘deterioration of the status’ of a body of surface water in art 4(1)(a)(i) of the WFD should be interpreted as covering:
- only detrimental changes which resulted in a lowering of the overall status of that body of water (the status classes theory); or
- any detrimental change to the body of water at issue (the status quo theory).
The Court upheld the status quo theory, ruling that there is ‘deterioration’ of a water body as soon as the status of at least one of the quality elements, within the meaning of Annex V to the WFD, fell by one class, even if that fall did not result in a fall in the overall classification of the water body.
WFD exemptions
Dr Notaro also reminded us of two significant exemptions from the environmental objectives of the WFD, which apply where certain conditions are met:
- Article 4.6 exemption—applies where there is a temporary deterioration in the status of a water body resulting from ‘natural causes’ or ‘force majeure’ which are exceptional or could not reasonably have been foreseen (eg extreme floods and prolonged droughts, accidents which could not reasonably have been foreseen)
- Article 4.7 exemption—applies where there is a failure to achieve good status or to prevent deterioration as a result of new sustainable human development activities (new projects)
The Water Framework Directive 2000/60/ EC (WFD) sets the legal framework for protecting inland surface waters, transitional waters, coastal waters and groundwater in the European Union. It provides an integrated river basin system, which is underpinned by the use of environmental standards to assess water quality and identify the improvements required to bring waters back into a good condition.
The Water Environment (Water Framework Directive) (England and Wales) Regulations 2003, SI 2003/3242 implement the main requirements of the WFD in England and Wales, including the introduction of river basin districts, river basin management plans and a programme of measures to achieve environmental objectives.
This table provides a brief summary of the key European Directives which relate to water quality, including the WFD.
Source: LexisNexis Purpose Built
Defining “Deterioration” – Water; Weser; and the WFD
by Hardwick Legal | Jul 17, 2015 | Purpose Built (LexisNexis)
Earlier this month, I had the pleasure of attending the annual UK Environmental Law Association (UKELA) conference in Liverpool. The theme was “Water, Water everywhere” but - much to the delight of the delegates - not a drop of rain fell the entire weekend.
Not so lucky were the intrepid group of UKELA ‘recyclists’ who cycled 180km to the conference…Caught in a heavy downpour they were forced to take refuge in a field shelter! Nevertheless, they ploughed on gallantly and raised over £1300 towards the upkeep of Law and Your Environment.
For the usual suspects, there was an atmosphere of contentedness as friends and colleagues tracked each other down for their annual catch-up. For those new to the conference, there was an enthusiastic vibe as they met new people and anticipated the events ahead.
The plenaries
Any doubts as to whether a water-themed conference would be of interest to all members were quickly dispelled. The seminars flowed together seamlessly (forgive the pun), reminding us of the pervasiveness of water and its impact on other areas of legal practice, such as flooding, energy and nature conservation.
For me, the most valuable presentation was from Dr Nicola Notaro, Deputy Head of Water, DG Environment. He took a practical look at the Water Framework Directive, and gave us a run down on the recent decision of the Court of Justice in the Weser Case. For a summary of his presentation, see the separate blog piece: Defining “Deterioration” – Water; Weser; and the WFD.
For many, the most memorable presentation was Lynda Warren’s quirky, engaging and impassioned ‘rant’, as she called it, on marine conservation and marine protected areas. A refreshingly active and visual session highlighting the challenges of protecting the habitat of ubiquitous species, such as the harbour porpoise whose range covers much of the European continental shelf, and expressing frustration around efforts to protect less attractive, but environmentally critical species. Importantly, she reminded us of the significance and diversity of the marine environment, which for many, is nothing more than a vast expanse of water.
A cryptic conclusion
On Saturday evening, the formal part of the conference concluded with the annual Gala Dinner. This year it was held in the world-renowned Lutyens Crypt - part of the grandest building never built…
Before descending to the spectacularly decorated venue, delegates received an exclusive tour of the Cathedral, learning about its fascinating history and Sir Edwin Lutyens’ original design for the building.
But, without a doubt, the highlight of the evening was Guest Speaker, Bishop James Jones, who gave a captivating talk about his environmental pursuits, and in particular how he visited local schools to see how much the future of the environment concerned them. The results were striking.
We were left stirred and reinvigorated for another year pursuing our environmental law careers in an ever changing market.
The Water Framework Directive 2000/60/ EC (WFD) sets the legal framework for protecting inland surface waters, transitional waters, coastal waters and groundwater in the European Union. It provides an integrated river basin system, which is underpinned by the use of environmental standards to assess water quality and identify the improvements required to bring waters back into a good condition.
The Water Environment (Water Framework Directive) (England and Wales) Regulations 2003, SI 2003/3242 implement the main requirements of the WFD in England and Wales, including the introduction of river basin districts, river basin management plans and a programme of measures to achieve environmental objectives.
This table provides a brief summary of the key European Directives which relate to water quality, including the WFD.
Source: LexisNexis Purpose Built
Learning and Leisure in Liverpool – UKELA 2015
by Hardwick Legal | Jul 14, 2015 | Purpose Built (LexisNexis)
In light of the release of the Department for Environment, Food and Rural Affairs’ (Defra) unredacted report (Draft Shale Gas Rural Economy Impacts paper) assessing the impact of hydraulic fracturing (fracking), Jeremy Glen, partner at Brechin Tindal Oatts solicitors, discusses the legal issues around fracking operations, and what the future may hold for this highly controversial method of extracting shale.
What have been highlighted as the potential negative effects of fracking?
Following freedom of information requests, the full report on fracking by the Department for Environment, Food and Rural Affairs (Defra) has now been released. Among the issues raised in the report are:
- the potential negative impact on house prices in the area
- unknown environmental damage
- a detrimental effect on human health due to polluted water
- the contamination of agricultural products, and
- the risk of earthquakes
One of the biggest concerns among members of the public in relation to fracking is how it will affect their property and, in particular, their homes. Although concern over the effects of fracking on house prices is commonly centred around damage caused by earthquakes, there are a host of other, perhaps more pertinent, issues which should be considered. Perceived direct effects of fracking can include changes to views, noise, traffic, airborne dust and road damage to name a few. In addition, the potential for issues such as groundwater contamination and methane gas seeps, whether realised or not, can alter the perception of houses in areas where fracking takes place and have a negative impact on house prices.
To what extent could communities or individuals claim for specific loss or detriment as a result of fracking operations? What would be the challenges in bringing any claim?
The UK government has tried to pre-empt claims by communities affected by the fracking process, by declaring that higher levels of compensation will be made available. However, if the risks which have been highlighted do manifest, the potential for claims by community members is high. Difficulties can arise in respect of both quantifying the loss suffered by individuals or households, and proving causation in respect of that loss. As so many of the effects of fracking are still unknown, it would be difficult to prove that ill health or environmental damage has been caused directly by fracking.
What are the particular challenges around claims around ill health?
There would need to be several cases of individuals suffering similar symptoms before a case could be made that fracking was the cause. As with all cases of exposure to toxins, it would be many years before the long term effects would be known—including for example, the effects on the development of unborn or young children. In addition, potential claimants would need to show that the loss sustained was not adequately compensated for by the government’s standard compensation scheme.
What do the proposed changes to access laws mean for landowners?
For the communities involved, the risks are high. However, despite receiving over 40,000 objections to their consultation paper in 2014, the government has announced plans to change access laws so that landowners are not able to prevent fracking under their property. In principle, this represents a fairly radical change to homeowners’ rights in the UK, and the government claims it will avoid costly and time consuming application processes.
In practice, however, the change is less drastic. In Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35,[2010] 3 All ER 975, the Supreme Court held that while fracking operations on a landowner’s land without consent constituted trespass, it did not interfere with the owner’s enjoyment of the land. Damages to be awarded were therefore minimal. While community members would have the opportunity to object to applications for planning permission, it is unlikely objectors would be able to stop permission being granted if the government considers it to be economically viable.
The UK government has distanced itself from this report, how do you think this might affect the future of the fracking industry in the UK?
The UK government has responded to the report by insisting that it is still an internal discussion paper which is ‘not analytically robust and remains incomplete’. By trying to prevent the release of the full report, the government has exposed itself to wide spread criticism—including allegations of censoring and attempts to conceal the truth. It is worth noting here that the Scottish Government has banned fracking in Scotland for the time being, despite the potentially significant contribution it could make to the economy, announcing that they intend to carry out a full assessment of the potential risks before any fracking operations resume. In what has been a turbulent time for the energy industry in Scotland, the government’s view is that too little is known of the risks and long term impact on health and the environment.
While the UK, and Scotland in particular, may not have the vast reserves of shale gas found in the US, significant deposits do exist and the UK government is keen to ensure they are exploited. However, despite the economic benefits offered by the fracking of shale gas reserves, the process has been heavily criticised by environmental groups, local communities and other organisations who are concerned about the wider impact of the process. The extent of the political impact remains to be seen, but for the foreseeable future the fracking industry appears to have the full support of the UK government and the impending changes to access laws will most likely result in a boom in the fracking industry in the near future.
Source: LexisNexis Purpose Built
Assessing the impact of fracking for rural areas
by Hardwick Legal | Jul 13, 2015 | Purpose Built (LexisNexis)
On the 10th July 2015, the Government published its ‘Productivity Plan’ - a comprehensive statement of intent that sees planning facing yet more reforms aimed at greater deregulation and streamlining.
“This plan addresses particular challenges in the form of a planning system regarded by many as one of the most significant constraints facing the economy, bringing delay and inflexibility…”
Economics, Productivity and… Planning?
The transformation of planning is complete - it is now firmly embedded as an economic consideration in the Government’s eyes. This was not always the case. Yet here it now sits alongside such unfamiliar bedfellows as workforce issues and trading and investment. Clearly, planning is now very much seen as a critical tool in delivering ‘prosperity’. Whether this is right and whether it deserves to shoulder blame for the country’s economic shortcomings are, of course, entirely different questions.
Nevertheless, attacking an “excessively strict” planning system, the Government looks to continue along the path it first laid back in 2011 with the Localism Act, followed by its cornerstone, the NPPF, in 2012. It is ironic that the current planning reforms can trace their origins back to a piece of legislation which has at its core the concept of ‘localism’. On the one hand, there is talk of increased devolution of planning powers at a Mayoral level; on the other, the increased threat of designation for ‘underperforming’ LPAs. The latest picture emerging is one of greater centralisation, with a ‘top down’ approach at the fore which is at odds with the localism rhetoric used to champion the likes of Neighbourhood Planning. Perhaps localism is still important but not at the expense of productivity?
Areas Targeted for Reform
1. Local Plans
The dissatisfaction with the lack of Local Plans currently in place finds expression in the following measures where the Government will:
- publish a deadline by which Local Plans must be in place;
- publish league tables showing progress;
- step in to intervene where they are not produced and arrange for them to be written ‘in consultation’ with local people;
- introduce streamlining measures to reduce the length and process involved in implementing or amending a plan;
- strengthen local authorities’ duty to cooperate in respect of key housing and planning issues; and
- produce guidance and consider how policy changes might support higher density housing around key commuter hubs and the release of redundant commercial land.
2. Zonal System for Brownfield Land
Perhaps the most eye-catching of all the proposals, this focuses on house building and seeks “an urban planning revolution on brownfield sites”.
The Government will legislate to grant automatic permission in principle on brownfield sites identified on statutory registers.
This will introduce a zonal system bringing us in line with the likes of the United States with the hope that it will reduce delays and uncertainties.
As ever, the devil will be in the detail.
There will still be approval required for a limited number of “technical details”. We await confirmation of precisely what such details may comprise and, equally, what if any guidance is issued to address viability issues - a traditional obstacle to brownfield development.
3. Speeding up Planning Decisions
The Government wants all planning decisions to be made on time and proposes:
- legislation to bring major infrastructure projects with housing elements within the NSIP regime;
- tightening the planning performance regime and expanding it to cover minor applications;
- reducing net regulation on house builders; and
- introducing a dispute resolution mechanism for s.106 agreements.
4. Increased Devolution of Planning Powers
The Government intends to proceed with the devolution of planning powers to the Mayor in London regarding wharves and sightlines and to bring forward proposals allowing the Mayor to call-in applications of 50 homes or more (the threshold is currently 150).
There are also plans to deregulate planning further.
The Government and Mayor will consider upward extensions and removing the requirement for permission for a limited number of stories up to the height of an adjoining building.
Planning devolution will not just take place in the capital.
The future Mayor of Greater Manchester will get powers to establish Development Corporations and promote CPOs.
5. Starter Homes and Right to Buy
As expected, the Government will pursue its controversial extension of the Right to Buy to tenants of Housing Associations via the Housing Bill.
It will also “re-focus” DCLG budgets towards “supporting low cost home ownership for first time buyers”.
The Elephants in the Room
Despite their forceful presentation, the latest proposals do leave some glaring questions unanswered.
Land supply is critical to addressing housing shortfall and the zoning of brownfield land alone is not the solution. The future of Green Belt land remains a political hot potato but a failure to address it as part of the wider house building question, runs the risk of undermining the effectiveness of these reforms.
Similarly, at a more practical level, there still appears to be little formal recognition of the insufficient resourcing of many LPAs. Are designation and Government intervention in Local Plans the answer? Planning decision making is highlighted as a key component in the latest streamlining process. However, against a backdrop of dwindling resources and increasing workloads, will casualties on the front line blunt the impact of the Government’s latest productivity tools?
Source: LexisNexis Purpose Built
Planning for Reform…Again!
by Hardwick Legal | Jul 10, 2015 | Purpose Built (LexisNexis)
Last night the LexisNexis PSL Property team and their guests enjoyed a unique evening at the 20 Fenchurch Street Sky Garden (view photographs here).
What do you see when you look down on London from an elevated position Tall buildings? The river? Famous sights such as the London Eye or the palace?
Richard Wentworth CBE, as he explained to us yesterday, sees none of these things. When he looks down on London, he sees you. In fact, he sees all of us.
There is, however, no need to cast an anxious glance skywards. You won’t find Richard flying by in a helicopter with a high-powered telescope.
As an artist and a curator, he is known for challenging the accepted function of (often everyday) objects. Similarly, when Richard looks down on London he doesn’t see an immovable “snapshot” that can be described as a list of “things”.
Instead, he sees the current - but constantly changing - result of millions of decisions made by other humans over the course of our history. In the form of a building, for example, he sees the dreams of an architect; the skill of a craftsman; and of course the professional guidance of a property lawyer or two! This applies equally to the height and location of a tree or the colour of a London bus.
The fluidity that results from this can be seen in the changing face of London’s landmark buildings. To illustrate this, Richard contrasted two buildings by another Richard (Rogers) – the “practically hand-built” Lloyd’s Building (“probably the last ‘arts and crafts’ building in London) and the “digital meccano” of its more modern neighbour, the Cheese Grater’.
It was with this new-found perspective that those of us lucky enough to be at the Sky Garden bar yesterday evening took in the panoramic view from the 35th floor of the “Walkie Talkie”.
We hope it will augment your experience as much as it did ours the next time you’re looking down over the city.
Finally, with more good weather in store for London, we’ll leave you with the same two bits of advice Richard ended on:
1. Seen an interesting building? Try the door-handle - you may be suprised how many buidings are publicly accessible (as are many of London’s “secret” gardens); and
2. Remember to look up - there’s always a chance that, above that chain restaurant, you’ll find some interesting architecture!
(Article: Panicos Iordanou Images: Rachel Buchanan)
Source: LexisNexis Purpose Built
An artist and a lawyer walked into a bar…London through an artist’s eyes
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