Our expertise covers contentious and non-contentious planning and environmental law issues relating to residential, commercial and mixed use development, transportation, agricultural and waste and minerals.
We regularly deal with planning applications and appeals, advocacy at planning and other inquiries and before Planning Committees, planning and highways agreements, environmental impact assessment, enforcement proceedings, CPO procedures, highways and rights of way issues, town and village green registrations, common land consents, advertisement consents, contaminated land, environmental permit applications and appeals and environmental prosecutions.
An aspect of the development process that has formed a cornerstone of this firm’s practice for over 30 years (and continues as a real strength) is site promotion. We work with landowners and developers providing essential advice and assistance as to the likely planning requirements and how best to position a site within an evolving planning policy context to maximise the potential for the site’s ultimate adoption in the Development Plan and its future development.
This might involve an early application for planning permission or a more measured approach with representations being made to the Local Planning Authority. Our planning team works with colleagues in the firm’s property teams to assist on producing development or promotion agreements, joint venture agreements and options, as appropriate.
We have the capability and experience to advise from initial representations to a Local Planning Authority all the way through to site development, construction and eventual sale of finished units.
Applications & Appeals
There is seldom a question or problem relating to planning applications and appeals that at least one of our team has not dealt with in the course of their planning careers. Our clients are able to draw on that expertise in a variety of ways. Some clients require a brief informal view on a point of law before deciding on a course of action or a more formal opinion that may be used to determine what course to take or to assist in persuading another party that a particular planning position is correct. Such matters have in the past included:
- Whether development has been lawfully commenced
- The drafting of or the meaning of planning conditions
- Whether planning permission is needed
- The consequences of a defect in the process of making an application and how to remedy such a defect
We also regularly advise applicants and appellants on the legal aspects of planning applications and appeals. That may involve assisting a client, a planning officer or a consultant or, in appropriate circumstances, taking the lead to effectively “project manage” the process of an appeal including advising the consultant team and others on their evidence, liaising with the Planning Inspectorate, producing or advising on the necessary statement of case and other appeal documentation and acting as advocate at inquiry.
Environmental Impact Assessment
We regularly advise clients in connection with the provisions of the Environmental Impact Assessment Regulations. This includes advice on “screening” and whether a particular proposed development is caught by the Regulations and also advice on “scoping” including on the various matters to be covered in the chapters contained in an Environmental Statement.
We also advise on the content of Environmental Statements in order to ensure that they are compliant with the Regulations and, accordingly, that they are unlikely to be susceptible to a successful legal challenge by way of Judicial Review. This includes the “legal vetting” of Environmental Statements, particularly relating to development schemes which are known to be contentious or where there is the threat of legal challenge from local residents, pressure groups or rival developers.
Planning & Highways Agreements
Whether as part of an application for planning permission or on appeal or, more unusually, to resolve an issue of concern, our planning team has experience of drafting and negotiating planning and highways agreements. Our expertise ranges from large complex agreements for new communities of several thousand dwellings or urban extensions requiring comprehensive infrastructure to single issue agreements or unilateral undertakings where what counts most is speed and accuracy to ensure an application or appeal can proceed.
Hand in hand with the requirement to resolve planning issues are the highway constraints which major (and sometimes not so major) developments bring. The planning team deal with such issues on a daily basis not only progressing standard form highway agreements in an efficient and effective manner but also handling the unusual aspects of highway law that can easily cause a development scheme to flounder. We help to find practical solutions for both developers and landowners and also for highway authorities.
In the present uncertain economic environment, we have gained significant knowledge and expertise in drafting agreements that are future proofed against uncertainties in terms of viability and economic performance. This has allowed developments to proceed that might otherwise have stalled.
Our regular clients include housebuilders, Registered Providers and commercial developers, landowners and individuals and Local Planning Authorities and other public sector organisations.
Community Infrastructure Levy
This new development land tax is slowly being introduced across the country. However, it is also constantly evolving as the Government refines its application via a constant stream of amendments to the Community Infrastructure Levy Regulations. Our role is to keep our clients up to date with these changes and how they may affect development proposals.
Depending upon the charging schedule for the relevant Local Authority, developments which previously would not have attracted planning obligations may now be faced with paying the levy. In other cases, the payments under planning agreements may still be required by a Local Authority in addition to the levy. We regularly advise on whether your development will be liable for the levy and whether a Local Authority is entitled to seek planning obligations in addition to the levy.
We can also advise on how a development can be arranged to ensure that it attracts the appropriate amount of levy. In areas where the levy has yet to be introduced, we can assist in putting together objections to the preliminary draft charging schedule and with representations made to the examiner to ensure that the final schedule is robust and complies with statutory requirements.
Highways & Public Rights of Way
Some highways issues and, in particular, public rights of way are often overlooked until a development scheme is well advanced or even until after it has planning permission. This can lead to long and costly delays, particularly where there are objections and the matter has to go to public inquiry. We can assist in identifying these issues at an early stage and, where a right of way needs to be diverted or even stopped up, on the best approach to take towards the Authority that will be responsible for processing the required order. Members of the team have the experience and expertise to draft the notices and orders and to guide a Local Authority through the process where they are unfamiliar with it.
Similarly, an application to register a new public right of way can stop or, at the very least, delay development. We can advise on steps to take to prevent such a claim arising in the first place or, if it is made, on the evidence required to defeat the claim. We also have the expertise to assess the strength of evidence which the Local Authority will consider and can, if required, appear before Committee or at inquiry to contest footpath and bridleway orders.
AONBs, Green Belt, SSSIs, SACs, SPAs & other Protected Designations
We provide advice to developer and landowner clients in connection with habitats, protected species and other protected designations including Sites of Special Scientific Interest, Special Areas of Conservation and Special Protection Areas under the Habitats Regulations, Areas of Outstanding Natural Beauty, Green Belt and other local designations.
Our advice is provided in the context of proposed development schemes which have the potential to affect such designations and also, in connection with the designation of land after it has been acquired for development, to object to a proposed designation or where the Appropriate Assessment regime has been engaged, on the compensation that will be payable should the planning permission be modified or revoked.
Where a designation is in place at the time that a planning application is made, we advise on the prospects of planning permission being granted and on mitigation that might be pursued in order to make a development acceptable, to be secured either by way of planning condition or in a planning agreement.
Whilst listed building and conservation area consent is frequently dealt with as part of the process of obtaining planning permission, it is a separate regime subject to its own rules. Failure to adhere to listed building requirements can result in a planning permission being quashed following a successful Judicial Review or in prosecution or other enforcement action being taken if works are undertaken without consent. We can help you to ensure that you do not find yourself in such a situation or, where prosecution or a Works Notice has been threatened, we can advise on what steps to take to avoid the Local Authority taking further action, drafting representations, attending meetings and liaising with the Local Authority on your behalf. Where action is brought we can assist with any defence or appeal, as required.
We also advise on what is required to secure immunity from listing, what works may or may not require listed building consent and what to do if your building is suddenly “spot listed” or classified as a scheduled ancient monument.
Town, Village Greens & Common Land
An application to register land as a town or village green (TVG) has frequently been used to prevent development taking place when other objections have failed. Whilst recent changes to the legislation have eased the situation for developers, many opportunities still exist for land to be designated. We have extensive experience of dealing with TVG claims and can advise not only on what steps a landowner should take to avoid the possibility of a successful claim in the first place, but also on the strength of evidence both for and against a claim and the evidence required to defeat a claim. Our involvement can range from considering the evidence and drafting an objection to preparing witness statements, briefing Counsel or appearing as advocate at a public inquiry, if required, and defending or mounting a High Court challenge to a TVG decision.
Whilst the prohibition on development of common land is not as rigid as for TVGs, there are nevertheless a number of legal procedures which must be strictly observed to obtain the necessary consents. Currently, much of England and Wales operates under a dual system and timely legal advice as to which provisions apply is crucial. We have advised extensively on the steps required to obtain consent to do work on common land or to de-register common land to enable development to proceed, including dealing with the rights of commoners.
Enforcement & Lawful Use Certificates (including Prosecution)
Although these two aspects of planning law do not necessary follow one another they are often considered together as there is an overlap between them.
In relation to lawful use certificates, we can provide as much or as little assistance as is needed in order to succeed with an application submitted to a Local Planning Authority. This might entail a brief advice note on the process and the information and evidence that will need to be assembled to support an application at one end of the spectrum through to assisting on how evidence is to be presented, reviewing and recommending changes to written statements and, if necessary, appearing as advocate at an inquiry if an appeal is needed. The level of involvement will usually be dictated by the complexity of the case.
We are often called on to assist in instances where a breach of planning control is alleged. Enforcement is a complex and very technical aspect of planning law. It can also be highly distressing and uncertain for all concerned with the potential for a requirement to modify or even remove highly valuable property assets.
We deal with enforcement cases from the earliest stages, often before any formal action has been taken or is proposed to be taken. In our experience, it is often possible to find a mutually acceptable solution for the recipient of a notice and the Local Planning Authority or to otherwise avoid enforcement action. This may be done by demonstrating that a use or development has become immune to enforcement action or that a use may be operated acceptably if controls are put in place to address concerns. We can assist throughout the process providing advocacy, if required, at inquiry and advising on a High Court challenge or appearing in prosecution proceedings where a breach of an Enforcement Notice is alleged.
Compulsory Purchase & Compensation
This area of planning law is often regarded as being a necessary evil. At its heart, is the need to balance the interests of the landowner with the needs of the wider community for infrastructure or other “public” development. With a considerable track record of acting for the “acquirer” or the “acquiree”, we understand the concerns of both sides.
In advising the acquiring authority, we promote the benefit of focussing at the outset on ensuring that the scheme is clearly and thoroughly thought through. This enables the project to be communicated to others in legible terms and avoids unwelcome surprises down the line that can lead to delays and erode confidence in the process. Our experience enables us to take projects from the formulation of the concept or identification of the need for compulsory acquisition up to the acquisition of the land and/or rights themselves and beyond.
Similarly, we can assist those who are threatened by compulsory purchase either to resist the making of an order affecting their land or to obtain the best outcome possible in terms of compensation, if acquisition becomes impossible to resist.
Judicial Review and other statutory challenges to the High Court are an increasingly used and ever more contentious area of planning law. These challenges provide third party objectors with what may be their only opportunity to challenge the grant of a planning permission.
We are often called in to assist a Local Planning Authority on behalf of a developer whose planning permission is under threat of challenge. In this regard, we can often improve the defensibility of a decision if we are able to review and comment on the report to committee but also by providing information in support of the Planning Authority’s decision to grant permission.
There are other instances where it is necessary, on behalf of our client, to bring a challenge to a decision of the Planning Authority and we are well versed in the process and requirements of these challenges.
We regularly advise landowner and developer clients in connection with the contaminated land regime which operates within the UK. This includes advising on whether or not a site is properly to be regarded as being “Contaminated Land” under the relevant legislation and guidance and, if it is, on who is the appropriate person in relation to remediation or clean-up of that land.
Our advice extends to contractual arrangements between buyers and sellers relating to the apportionment of liability and we also provide regulatory advice on the service of Remediation Notices and on civil litigation claims relating to contaminated sites. This also extends to advising on sites which, whilst contaminated, are not in such a state as to be regarded as Contaminated Land. This includes advising on pollution to air, land and water including ground water which can occur during development and on enforcement action, including prosecution, brought by the regulators.
Environmental Permitting (including Enforcement)
We regularly advise clients in connection with the Regulations relating to environmental permitting, including on whether a permit is or is not required for a particular installation or activity and on applications and appeals relating to environmental permits and permit conditions.
We deal with appeals before the Planning Inspectorate against the refusal of applications for permits, in connection with unsatisfactory conditions imposed on permits and provide advice in connection with related threats of enforcement action including advice on regulatory notices served by the Environment Agency or Local Authorities and on prosecution through the Criminal Courts.