Planning and environmental law: the view from Landmark Chambers

Planning & environmental law

Three barristers from Landmark Chambers explain what planning and environmental law is, give an insight into what's going on in these areas of law, and advise on how to get into the field.

 

What is planning law, what is environmental law and how do the two overlap?

James Maurici QC: Planning law is the law regulating development of land. Defining the scope of environmental law is more difficult and is much debated by academics. It goes much wider than planning law; it includes access to environmental information, air quality, carbon emissions trading, climate change, contaminated land, energy, environment impact assessment, environmental permitting and regulation, habitats and species protection, statutory and common law nuisance, strategic environmental assessment, utilities, village greens, and waste and landfill projects. There is a considerable overlap, with environmental issues often arising in planning law. Sometimes a client seeking to develop land needs planning permission and other environmental consents.

Jacqueline Lean: I would say that planning law is concerned with the regulation of the development and use of land, whereas environmental law regulates the impact of human activity on the environment. There is a considerable degree of overlap, not least given the increasingly wide definition of 'environment' (for example, under the new Environmental Impact Assessment Regulations 2017, an environmental statement is required to consider effects on population, health and cultural heritage), but the two are not wholly coterminous. If anything, environmental law is probably the wider of the two disciplines in terms of its scope – see, for example, the recent litigation related to the government’s air quality plan, the disputes surrounding the EU Emissions Trading Scheme, and frequent disputes before the Information Commissioner and First-Tier Tribunal regarding the scope and application of the Environmental Information Regulations.

What are the highs and lows of practice?

JM: Planning and environmental law encompass some of the most important issues facing society today. On the downside the hours can be long and the detail involved scary.

Robert Walton: The highs include working on hugely varied and endlessly fascinating projects with experts in many different disciplines, as well as getting up to speed on complex cases and backing yourself to persuade a judge that you are right. It pays well too. The lows are few and far between, but you can sometimes do without working another weekend or spending another night in a not terribly glamorous hotel.

JL: The high point is the fact you are often dealing with something prospective – it is incredibly satisfying to get to the end of a case (if successful!) and realise that you’ve played a role in bringing about a new development or infrastructure project. The low point? The boxes! Planning inquiries (and preparation for those inquiries) do seem to generate an extraordinary amount of papers.

Can you describe your latest case. What was the client's problem? What was your role?

JM: I am about to start a five-week planning inquiry on an appeal against the refusal of planning permission for a new settlement of over 2,000 houses in Surrey on which I am lead counsel. There are numerous parties opposing and the issues raised include the Green Belt, transport, habitats, air quality, heritage, landscape and visual impacts.

RW: I'm acting for an NHS Trust helping it to get planning permission for a new hospital in the Green Belt. The problem was trying to persuade the council’s planning officers to buy into the concept – we failed. So we looked instead to persuade the council’s planning committee (consisting of local politicians) – we succeeded. It was a very interesting case because of the planning complexities – there is a strong presumption against the grant of planning permission for pretty much any new development in the Green Belt.

What are the different parties you are likely to liaise with during a case?

JM: Junior counsel, instructing solicitors, environmental consultants, clients, the opposing side, the Planning Inspectorate and expert witnesses.

JL: It depends on the nature of the case and who you are acting for. In a planning inquiry, you will often be liaising with the local planning authority (their representative and/or officers) and/or the developer, and any rule 6 objectors, which can range from a statutory consultee (such as Historic England or Natural England, who will often be legally represented) to an association of local residents who are particularly concerned with the proposal at issue, and who may or may not be legally represented.

What makes the field of planning and environment unique? How might you compare it to other careers at the Bar?

RW: Planning and environmental law is unique: it is highly specialised but affects people’s everyday lives. It matters. Other areas of the law can be much more academic, whereas planning is very much grounded in decisions which have a real influence on our towns, cities and landscapes.

JL: A planning case is often just the start of a bigger project, and in the following years will result in a new development or infrastructure project being constructed.

What personal qualities make a good environmental/planning lawyer?

JM: Hard work and an ability to think laterally.

RW: To be a good lawyer you need to be able to get up to speed on complex cases quickly, be able to work out the best strategy for your client and to present your client’s case simply and effectively. To be a good planning lawyer you need to do all this and also be able to master a very wide range of specialist subjects, be a very good team player and have a real enthusiasm for the field.

On your latest case, how did you spend your days?

JL: It varied from day to day. By way of illustration, on the first day I started the day in conference with our witnesses (and QC) with final preparations for evidence in chief, but was also dashing in and out to liaise with other parties and ensure that we had sufficient copies of any documents which needed to be provided to the inquiry that morning. During the course of the inquiry proceedings, my primary responsibilities were taking notes of key points we might need to pick up on later in the inquiry, either with our witnesses or in submissions, finding any references or documents which the QC required, and (as necessary) liaising with other members of our team who were liaising with other parties outside the inquiry room if points arose on which we required clarification or a document. I spent the last couple of hours of the first day’s proceedings in the bar of the hotel where the inquiry was being held (the only place we could find where we couldn’t be heard in the inquiry!) in conference with the expert we were calling the following day. When the inquiry closed for the day, there was a short conference with the whole team to pick up any points arising that we needed to action overnight and to prepare for the following day. Then I spent some time in the evening preparing a note we had said we would submit to the inquiry and working on the closing submissions.

What is the most interesting case you have worked on?

JM: In the environmental field I have been advising the government since 2011 on expansion of airport capacity in the South East. This raises many varied and interesting issues.

RW: Trying to persuade the government to allow Gatwick Airport to build a new runway.

JL: The HS2 project – without a doubt.

What do you think the effect of Brexit will be on your field?

JM: In the short term it will be a boon for lawyers as the law will become more complex in the transitional period and then there are likely to be changes to existing EU law after that. There is a feeling that in the longer term Brexit will mean weaker environmental laws. The other issue is the damage to the economy Brexit will cause, which will affect planning in particular.

JL: Given the decisions which will have to be made as to whether – and to what extent – the existing legislation remains in force post Brexit, I think it is almost inevitable that there will be a myriad of issues which require consideration – including through the courts – in years to come.

Were there any landmark (excuse the pun) moments you think made your career?

JM: Highlights in the planning and environmental field include: the Alconbury litigation (2003); the Berkeley case (2001) in the House of Lords; the Barker case (2006) before the European Court; and the HS2 litigation.

How can a student prepare for a career in planning and environmental law?

JM: Go and see a planning inquiry and a case in the Planning Court.

JL: I think the best advice I could give would be to start paying more attention to what is going on around you. Look out for what is happening locally: contentious applications for small, local development can often raise issues which are not altogether straightforward, and can provide something to discuss in a future interview. Read behind the headlines in the newspapers: there is so much going on at the moment in the field of planning/environmental law – not least the decision last year to proceed with a third runway at Heathrow, the very recent decision to proceed with the A303 tunnelling project, and the ongoing debate around air quality.