Local Authority round-up 04/11/22

Regulatory

Government announces delay on new environmental targets under Environment Act 2021

On 28 October 2022, the Department for Environment, Food and Rural Affairs (Defra) published a written statement on the delay to its environmental targets for England under the Environment Act 2021 (EA 2021). Defra consulted on the targets in March 2022 but could not lay the legislation before Parliament by 31 October 2022, as required by the EA 2021. It indicates that it will lay draft statutory instruments as soon as practicable. The delay has been caused, it says, by the volume of responses to the consultation. Thérèse Coffey, Secretary of State for Environment, Food and Rural Affairs, said “We remain committed to our future target to halt the decline in species by 2030 as included on the face of the Environment Act, and to bring forward the wider suite of targets specified under the Act.”

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Council chiefs call for better net zero guidance

Council chiefs have urged the Government to introduce a clear policy and investment framework that can help councils measure and reduce carbon emissions. A report published by the Public Accounts Committee (PAC) has criticised the Government for what it describes as the ‘poor quality’ of emissions measuring and reporting across central government. The committee said that responsibility for emissions reporting is split across three central government departments and the guidance issued is ‘too vague’. The PAC also said that it was not convinced that the Government or the wider public sector – which it said should ‘lead by example’ – were using emissions data to drive decision-making.

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International Trade

International Trade Committee urges improvements to scrutiny and ratification of free trade agreements

On 27 October 2022, the House of Commons International Trade Committee (ITC) published a report which reflects on its experience of scrutinising the UK’s first two post-Brexit free trade agreements (FTAs) and urges the government to improve the process of scrutinising and ratifying FTAs going forward. While the report welcomes the government’s commitments to supporting scrutiny to date, they say that these do not go far enough. The report’s key recommendations include for the government to:

• Undertake a full review before the next parliamentary session of how it informs and engages with others, including Parliament and the ITC, pre, during and post-trade negotiations. This must include a review of (and proposed amendments to) Part 2 of the Constitutional Reform and Governance Act 2010 (CRaG), which the ITC considers unfit to scrutinise FTAs post-Brexit. Although the objective of the review is to achieve long term improvements, the report urges the government to accept its other recommendations for immediate improvements now, as well as building these into the long term vision.
• Overhaul the ratification process for FTAs by formally committing to accept timely requests for a debate on a substantive motion (allowing the House of Commons to vote for or against ratification) during the period in which the House of Commons retains the power to delay ratification of an FTA under CRaG.
• Publish a single trade strategy document outlining what the government wants to achieve from trade negotiations and how the FTAs under negotiation will collectively support this.
• Confirm which “non-trade issues” it will seek to include or omit from future FTAs. Where “non-trade issues” that were previously found in FTAs are omitted, such as human rights, the government should confirm what steps it is taking to ensure they are adequately addressed.
• Leave more time between publishing negotiating objectives for future FTAs and starting trade negotiations, to enable proper debate and review by ITC. Similarly, the government should act on its previous commitment to allow sufficient time after conclusion of negotiations to enable the ITC to complete its report on the FTA before the CRaG ratification process is triggered.

The government is due to respond to the ITC’s report by 6 January 2023.

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Planning and housing

Judge rejects claim brought by developer against local planning authority

Developer Primavera has lost a High Court claim for negligence brought against Hertsmere Borough Council over planning decisions. Primavera had claimed damages of some £1.7 million, but Mr Justice Leech held that the council did not owe Primavera any duty of care although it had been negligent in some respects. Hertsmere twice granted planning permission, but these were quashed by judicial reviews brought by a neighbouring landowner, who had originally also wished to develop the Radlett site. Permission was granted on a third application and Primavera alleged negligence by Hertsmere for failing to grant a lawful permission within a reasonable period. Leech J said no assumption of responsibility by Hertsmere towards Primavera could be inferred from the manner in which the council behaved. He said “I am satisfied that no such inference can be drawn and no assumption of responsibility can be implied from the communications between the parties. This was because officers and councillors did not give any commercial or legal advice to Primavera or its agent Fusion on which either relied on the first application and that Mr Down “took a calculated decision not to appeal against the non-determination of the second application in the knowledge that the position was uncertain and changing.”

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Council and developer win appeal over quashing of planning permission for 210 homes

The Court of Appeal has overturned a High Court ruling in a case concerning the distinction between the interpretation and application of planning policies. It allowed appeals by Mid Suffolk District Council and developer Bloor Homes against a ruling in favour of Thurston Parish Council. Singh LJ in his lead judgment agreed that Mid Suffolk’s decision to grant Bloor planning permission for 210 homes did not involve any misinterpretation of a neighbourhood plan. He held that Timothy Mould QC in his earlier ruling fell “into the error of confusing the interpretation of a planning policy with its application.” Singh LJ said Mid Suffolk had been entitled to reach the conclusion it did in accordance with the terms of section 38(6) of the 2004 Act. He said the main issue was whether Mid Suffolk was misled by its planning officers as to the correct interpretation of a policy in the Thurston Neighbourhood Development Plan, which said new development should be sited within the existing settlement. Singh LJ said “It is well established that, while the interpretation of a planning policy is a question of law and is one therefore for the court to determine, the application of a policy is not a question of law and is entrusted to the relevant decision-maker, subject to review only on the ground of irrationality.” He said the question of whether proposed development accorded with a planning policy may raise both questions of interpretation of that policy and questions of its application and it was “important to keep that distinction well in mind.”

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Upcoming events

Webinar: Housing Management Law School – Autumn term

The latest Autumn term of our Housing Management Law School will be held online via Zoom on 17th November at 10am. The Law School is free to attend and exists to deliver training to Registered Providers of Social Housing across the country, educating and updating their housing management staff with the essential legal knowledge that they need. As usual during this session, we will feature a roundup of recent pertinent case reports, alongside the regulatory and legislative changes affecting the housing law world. Our revision topic this term is succession in Social Housing: A timely revisit to the succession rules for secure and assured tenancies, the background law, the practical aspects and the all-important paperwork. The hot topic for the upcoming Autumn session is the charter for social housing residents. The social housing white paper was published in November 2020 and promised to improve the safety and quality of social housing, increase transparency of landlords, and provide tenants with an voice. We will look in detail at what the government has done, and proposes to do to meet these commitments.

For more information or to book a place please click here.

Webinar: Nutrient Neutrality – eight months on

In February of this year the government received robust advice to protect our internationally important water bodies and habitat sites. After eight months of Nutrient Neutrality we are keen to discuss how this advice has affected the planning and development sector. In this webinar we will discuss the key changes to be aware of, identifying the challenges and providing some practical suggestions for your organisations.

For more information or to book a place please click here.

Seminar: Public sector property update

Taking place on the 29th November at 8am, the seminar will feature members of our dedicated public sector property team. They will ensure you are up-to-date with the latest developments and changes affecting property, land and estates in healthcare and the wider public sector. The Seminar is taking place in person in our offices at Sandgate House.

For more information or to book a place please click here.

If you have any questions about the issues raised in this update, please do not hesitate to get in touch.