Planning and environmental law news
10 June 2008
Land contamination - public nuisance and personal
injury
Notwithstanding comments made in previous House of Lords' cases
suggesting otherwise, it was held that the present state of the law
remained that personal injury damages could be recovered in a claim
for public (but not private) nuisance. Accordingly, a claim for
personal injuries alleged to have arisen as a result of the
disturbance and release of toxic material during the reclamation
and redevelopment of heavily contaminated land by the Council could
not be said to have no real prospect of success and the court
declined to strike the claim out. For further details, see Bailii
website - Corby
Group v Corby Borough Council [2008] EWCA Civ 463.
Listed buildings - unauthorised works
Under s.7 of the Planning (Listed Buildings and Conservation Areas)
Act 1990 the offence of carrying out unauthorised works to a listed
building arises where such works are for the demolition of the
building, or where the works are an alteration or extension "which
would affect its character as a building of special architectural
or historic interest". The court held that in relation to
alterations, the wording of this provision indicated that
Parliament intended not to criminalise all unauthorised works, but
to qualify this by reference to works of alteration which "would
affect" the building's character. The inclusion of the word "would"
denoted an element of futurity and accordingly in considering
whether an offence had been committed, where the works involved
both a stage of removal and dismantling, followed by a stage of
replacement or rebuilding, the court had to assess the effect of
the works when completed, as opposed to part way through the
process. Although the character of the building might be affected
at some stage during the works, if on completion of the works the
result was that the character was unchanged, then no offence would
be committed. The position would, however, be different if the
building was being demolished, in which case the unauthorised works
would constitute an offence without having to consider the question
of the affect on the character of the building. For further
details, see Bailii website - R
(on the application of East Riding of Yorkshire Council) -v-
Hobson [2008] EWHC 1003 (Admin).
Planning enforcement - compliance and
hardship
The test for establishing the statutory defence provided for in
s.179(3) of the Town and Country Planning Act 1990 for failure to
comply with a valid planning enforcement notice, whereby the owner
of the land has done everything he can be expected to do to secure
compliance, was whether it was within the power of the owner to
comply without the assistance of others. Any question of hardship
to the owner arising from such compliance was irrelevant. In the
present case, where a gypsy was able to comply with an enforcement
notice requiring the cessation of unlawful occupation of a caravan
by leaving the land in question, the fact that the only way to
remove the caravan from the land was by dismantling it, and that to
do so would cause significant hardship to the gypsy, was not a
proper consideration to be taken into account for this purpose. For
further details, see Bailii website - Sevenoaks
District Council -v- Harber [2008] EWHC 708 (Admin).
Transport and industry - noise mapping and action planning
(England)
The Environmental Noise (England) Regulations 2006, which came
into force on 1 October 2006, impose obligations on the government
to carry out, in relation to England, a noise mapping and action
process on a five-year rolling programme, for the assessment and
management of environmental noise from transport and industry,
requiring an assessment of the changing noise environment in
particular near major roads, railways and airports, and the
production of action plans setting out the measures proposed to be
taken for the reduction of noise pollution. Subsequent secondary
legislation (SI 2007/415) (in force 19 March 2007) identified those
large urban areas, major roads, railways and airports to be
included in the first round of the noise source mapping process for
England. (Substantially similar provision has been separately made
for Wales).
The Government has now published strategic noise maps,
accessible via the Defra website, which provide an overview of the
ambient noise environment in twenty-three large English urban areas
and from major transport sources in England, based on calculations
undertaken in 2006. Those areas and sources will be remapped in the
second round of mapping in 2012, together with extended mapping
coverage at that time for other areas and other transport sources,
based on lower population size and transport movement thresholds.
For further details, see Defra website - News Release 141/08:
Detailed noise maps available at the click of a mouse, 16 May
2008; Noise Mapping
England webpage.