John Austin

#NPPFconsultation is here! And now onshore wind is back in business this can be #renewableswatch I commented on a podcast last week that I would like to see the text of NPPF 163(b) changed, because I don’t understand what “approve the application if its impact are (or can be made) acceptable ...” actually means.   I wanted a stronger presumption …. We  may have it . Proposed text: “Local planning authorities should support planning applications for all forms of renewable and low carbon development ….” and “give significant weight to the proposal’s contribution to renewable energy generation and a net zero future.” Does that mean that “unacceptable” proposals should be consented? Of course not. Nor does it provide the force of NPS EN-1 and the strong presumption for NSIP energy projects even where (for example) there is substantial harm to a heritage asset. But it must be a step in the right direction if we’re going to achieve #netzero ? I look forward to seeing the commentary on #byebyebeautiful #greybelt, and no more #4YHLS nonsense…

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Like buses, you can wait years for a Supreme Court judgment on the law of nuisance and three come along at once! The latest is the long running litigation between The Manchester Ship Canal Co Ltd v United Utilities (Water) Ltd [2024] UKSC 22. Judgment was handed down yesterday. In a nutshell, the Supreme Court held: 1. The discharge of polluting effluent into a privately-owned watercourse is capable of being an actionable nuisance at common law; 2. Nothing in the Water Industry Act 1991 authorises the commission of what would otherwise be a nuisance or prevents enforcement of a claimant's private law rights; 3. Injunctive relief has the capacity to conflict with the regime in the 1991 Act for the regulatory approval of capital expenditure and the charges imposed on the sewerage undertaker’s customers. However, this does not exclude common law rights of action and the courts may make an award in damages; 4. This decision does not conflict with Marcic v Thames Water Utilities [2003] UKHL 66 because that case did not concern the limits on the authority conferred on sewerage undertakers by the 1991 Act and the defendant sewerage undertaker had not created or adopted the relevant nuisance. Marcic was therefore distinguishable. https://lnkd.in/eRBfZFpz Bonus points if you know the name of this bridge... #supremecourt #nuisance #propertylitigation

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Update on the Building Safety Act 2022 (‘BSA 22’). The First Tier Tribunal (‘FTT’) has discretion in deciding whether to make a Remediation Order (‘RO’) The (FTT) granted an RO under section 123 of the BSA 22, requiring the freeholder to fix building safety issues.   The building, constructed around 1960, was converted to residential use around 9 years ago. The individual flat leases require the landlord to maintain the structure. The Freeholder acquired the freehold around 6 years ago (post conversion), whilst building safety issues, were then identified in 2019.   An RO requires "a relevant landlord to remedy specified relevant defects in a specified relevant building by a specified time". The Freeholder was a relevant landlord and the building a relevant building. The Applicant and the Freeholder had agreed a specification of relevant defects and remedial works.   The FTT "may, on an application made by an interested person, make a remediation order under section 123 …". The key issue in this case was whether the FTT had a discretion to make an RO, where pre-qualification criteria were satisfied.   The Freeholder argued that this was the first case where both a building contract for the remediation works and a grant funding agreement (‘GFA’) were in place and so this meant that an RO was neither necessary, or desirable.   The FTT granted the RO, confirming that:   -     The FTT has a discretion whether to make an RO. -     If the pre-qualification criteria apply and there are relevant defects, it is likely that the FTT will make an RO. -     It was impractical and even unreasonable to expect the Freeholder to forward-fund the works. The current Freeholder was not the original developer, so was not responsible for creating the relevant defects. It would have been a huge risk to carry out the works and claim public funding later. -     The Freeholder had already entered into a building contract and the GFA, which reduced the need for an RO. However, given the works were expected to take a further 17 months to complete, the RO was a backstop to give some comfort to the leaseholders (who were not party to the building contract or the GFA). Although ultimately the Freeholder failed in it’s attempt to avoid the RO, this decision makes it clear that the FTT retains a discretion and in the appropriate circumstances will exercise it. The threshold perhaps remains a little unclear, as barring the length of the timetable to complete works, it is difficult to see what more the Freeholder could have done. This is not an Upper Tribunal decision and so remains only persuasive, as an authority, although one does not see an Upper Tribunal diluting the discretion found, perhaps only fine tuning the circumstances in which it may be exercised in avoidance.

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*GUIDANCE ON POINTS OF DISPUTE IN COSTS PROCEEDINGS GIVEN* The SCCO has looked at the requirements of Points of Dispute in inter parties costs proceedings in light of the decision in Ainsworth which saw Points of Dispute struck out where they were found to be too vague. Deputy Costs Judge Roy KC in Wazen v Khan [2024] EWHC 1083 (SCCO) (19 March 2024) set out the requirements for particularity in general points within the Points of Dispute as follows: "As to the first requirement, in my view that will require identifying, by reference to item numbers and/or filtering in an electronic bill, which items are under challenge. The second requirement, in my view, can be rather more broad brush. The paying party is entitled to go to say in terms, "We offer x at grade A and y at grade D", or whatever the case may be. It does not have to, at that stage, specify precisely which items are being allowed on its case and to what extent. In many cases it will not be practical to do so. For example it might be said there is duplication, in which case there is no hard and fast formula and we just have to take the two duplicate items together and say allow x for both of them, partial duplication. Sixthly, when identifying which items are under challenge, I fully accept that a degree of grouping or clumping together of items under challenge is acceptable. Again, that is clear from Precedent G itself. However, there are limits to quite how broad that type of grouping can be if it is not to fall foul of the touchstone requirements identified in paragraph 38 of Ainsworth. Again, the level of particularity required is going to be a case-specific question of fact and degree." In Wazen the Defendant had raised points as to disclosure and ADR time but crucially had failed to identify any items by number and had not made clear how their offer split between different fee earners. It would be impossible to quantify or consider reasonableness of the paying parties' allowance without this information. This approach was "far too broad brush". The Court held that the lack of particularity was unfair to the Claimant and would not enable them to respond to the disputes. It was stated that "the Claimant simply does not know which items are being challenged or disputed". Nor did it allow the Court to do so without going through all of the documents which would not be a proportionate approach. The points raised in relation to disclosure and ADR were struck out. Permission to appeal was refused. Some really useful and helpful guidance on how Points of Dispute should be constructed and the approach to be taken where there is a failure to comply. Judgment link in the comments. Carter Burnett #costs #law #legal #costslaw #litigation

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