PLANNING
Housing - Applications, Appeals, Examinations and Judicial Review
Morag regularly advises on application strategy including EIA issues and appears at planning inquiries and hearings on many types of housing projects. Recent examples include:
C3 Housing Schemes
Tattenhall, Cheshire West and Chester: s.78 conjoined inquiry for Taylor Wimpey, promoting 120 houses simultaneously with 2 similar schemes . The appeals were recovered for the Secretary of State's determination. Issues included 5 year supply and the neighbourhood plan. Related litigation, on which Morag advised, concerned the judicial review of a neighbourhood plan.
South Sebastopol, Torfaen: s.78 inquiry for consortium of Taylor Wimpey, Barratt and the Welsh Government, recovered for determination by the Minister. Promoted 1200 housing led urban extension of Cwmbran. Issues included 5 year supply, landscape, highways and the relationship with the emerging Local Development Plan / call in powers of the Welsh Government.
Michaelston Road, Cardiff: s.78 inquiry for Charles Church South Wales for c.80 family houses outside the City settlement boundary. Issues included 5 year supply, landscape, countryside and heritage, as the site lay in the St Fagan's Conservation Area.
Morag appeared on behalf of Persimmon Homes East Wales and PMG to resist a renewed application for permission for judicial review of a planning permission for c.1200 homes at Cardiff. Issues included Best and Most Versatile agricultural land and bias.
Advisory work on many major housing applications in England and Wales includes: a joint project between Taylor Wimpey and Oaklands College, St Albans, promoting enabling development for the College as Very Special Circumstances in the Green Belt which is due to go to inquiry later in 2016; a proposed urban extension in Hampshire involving an Ancient Woodland enhancement and management scheme; a recent grant of permission on a large brownfield site at the former Arjo Wiggins Site, Cardiff.
Specialist Forms of Housing
Morag is experienced in the particular issues which relate to specialist housing for older people. She appeared in a s.78 appeal at Liphook on behalf of Renaissance Urban Villages, promoting an extension to a CCRC. Issues included affordable housing and the decision established that a financial contribution was appropriate due to management issues.
She also advises Pegasus Life generally in relation to their specialised models of older persons’ housing and appeared for them in a s.78 inquiry at Harpenden, where a financial contribution, assessed by reference to viability considerations, was appropriate for management reasons. Other issues included design (taller builidngs) and effects on Conservation Area and Green Belt.
Kingston Town Centre: s.78 inquiry for Goldcrest Land for a student housing/mixed use scheme in the Town Centre regeneration area. Issues included design (tall buildings) and the relationship of the scheme to emerging wider proposals and policies of the Local Planning Authority, potential for compulsory acquisition and the lawfulness and / or weight of an emerging planning brief.
Haringey Communal Warehouse Living / Working: enforcement appeal hearing on behalf of owners of former warehouses on an industrial estate. Issues included Use Classes, loss of employment , need for live/work space for those working in London's creative industries, emerging London Plan and Borough Plan policy / representations and residential amenity standards. This is the first case in which precisely this specialist mix of requirement s / lifestyles has been considered.
Strategic Land / Development Plan Examinations / Neighbourhood Plans
Morag promoted c.25 development plans for local authorities in England and Wales under the Town and Country Planning Act 1990 and therefore has huge experience on which to draw in advising on the promotion of strategic sites through the 2004 Act process, including challenges to plans in the Courts. She promoted the West Northamptonshire Joint Core Strategy through its resumed Examination and defended High Court challenges to the Lichfield Plan Strategy and Nottingham, Gedling and Broxtowe Aligned Core Strategies. She is currently acting in relation to development plans on behalf of a wide range of clients around the country, including: Taylor Wimpey, Redrow, Bovis and St John's College Cambridge.
Lichfield Local Plan Examination: promoted major Green Belt release on behalf of land owner/developer consortium. Issues include exceptional circumstances, national policy and guidance and objectively assessed needs. There has been related litigation in which Morag appeared (with Harry Phillpot) for Taylor Wimpey in the judicial review IM Properties v. Lichfield District Council [2014] EWHC 2440 (Admin) concerning the scope of s.113 Planning and Compulsory Purchase Act 2004, predetermination/bias, green belt and its relationship to the sustainable development duty in s.39 of the Act adn the subsequent s.113 challenge [2015] EWHC2077 in which Cranston J considered, amongst other matters, the scope of power to make Main Modifications.
Calverton PC v. Nottingham CC and Others [2015] EWHC 1078: Morag appeared (with Annabel Graham Paul) for the defending local authorities. Issues included exceptional circumstances/Green Belt/sustainable development/OAN and the relationship of release through the Core Strategy to boundary change work in Part 2 plans, SEA of alternatives and the nature of aligned Core Strategies.
Cheshire West and Chester Local Plan Examination: promoted major Green Belt release at Chester on behalf of consortium. Issues concerned objectively assessed needs and the relationship to Green Belt and sustainability policies.
Newport LDP (with Annabel Graham Paul): objected to gypsy / traveller allocation in vicinity of major strategic housing allocation on behalf of owners / developers of the housing site. Issues included Welsh planning policy for traveller accommodation, Strategic Environmental Assessment / Sustainability Appraisal, viability / compulsory acquisition.
Torfaen LDP: objected to removal of strategic allocation from draft plan on behalf of consortium of owners / developers. Issues included housing land supply, soundness and Welsh Government powers to call in plan.
Chalfont Parish Council v. Chiltern District Council (2014) EWCA Civ. 1393: defended s.113 challenge to adoption of Core Strategy in High Court and Court of Appeal on behalf of Local Planning Authority. Issues included Strategic Environmental Assessment / Sustainability Appraisal and whether or not a proposed landswap was a reasonable alternative for the purposes of the Council's duty to test such alternatives under the SEA Directive and Regulations, and the Inspector's reasoning . The case was heard together with a connected judicial review to the grant of planning permission to redevelop a former school site for housing and nursing home, which considered, amongst other matters, factual error in the context of planning determinations and the scope of E v. Secretary of State for the Home Office.
Daws Hill Neighbourhood Forum v. Wycombe District Council and Taylor Wimpey plc (2014) EWCA Civ.228 (Suzanne Ornsby QC appeared for the LPA): appeared for Taylor Wimpey in first challenge to a decision concerning the designation of a Neighbourhood Area under the neighbourhood planning legislation in the Planning Act 2008 and associated Regulations. The case concerned, amongst other matters, the relationship of neighbourhood planning to strategic district-wide planning and the breadth of the local planning authority's discretion in relation to the purposes of the legislation.
R (Persimmon Homes) and O'rs v. Vale of Glamorgan Council [2010] EWHC 535 (Admin): appeared for the Local Planning Authority defending judicial review of decision of the Council to promote a particular strategy for their plan. Issues included predetermination / actual / apparent bias on the part of officers, Strategic Environmental Assessment / role of external consultants and officers, officers' reporting duties.
Minerals and Waste
Practice in Wales in particular has involved Morag in many matters concerning minerals. She promoted the Mid Glamorgan Minerals Plan (Limestone) as well as dealing with safeguarding policies in other development plan promotional work in South Wales.
She promoted opencast mining at Varteg, Torfaen at a s.78 appeal (issues of policy, exceptional circumstances, noise, dust and buffer zones) and is currently advising Energybuild plc in relation to EIA matters and generally on their planning application to expand their existing drift mine at Neath.
Drift Mine at Hirfynydd, Neath: Morag appeared for Energybuild plc, the operators of a drift coal mine at a s.78 inquiry into a windfarm proposed to be sited above the Mine's expansion area. Issues included stability, liability for subsidence, mitigation measures and the required Coal Authority licence. Morag is also advising Energybuild in relation to their minerals planning application for extension of the mine.
Gelliargwellt Uchaf, Gelligaer, Hengoed: s.78 appeals on behalf of operator, Bryn Compost and Bryn Quarry for Anaerobic Digester and retention of waste sorting facilities. Issues included policies for site selection / countryside location, links with associated established quarry, landscape and visual impact, need, residential amenity.
Morag has advised Neath Port Talbot and Bridgend Councils in relation to enforcement and other matters concerning the former Margam and East Pit opencast sites.
Retail / Associated Uses
Rushden Lakes s.77 inquiry (with Hugh Flanagan) on behalf of Rule 6 Party comprised of a consortium of three local planning authorities. This was the first major inquiry to consider retail policy in the NPPF. Issues included scale / relationship to development plans, sequential test / Tesco v. Dundee, vitality and viability / prejudicing planned investment.
Bromley Town Centre extension: s.78 inquiry for appellants Intu promoting extension of town centre to provide modern restaurants. Issues included loss of open space, residential amenity, design / heritage considerations.
S.78 appeal on behalf of J Sainsbury at Braintree, involving vitality and viability, sequential test and design issues.
Currently advising Aldi in relation to application for a new store in North Wales.
Advising a Local Planning Authority on relationship of permitted development rights for change of use from pub to shop in context of Asset of Community Value nominations.
Heritage
Barnwell Manor Wind Energy Ltd. v. East Northamptonshire DC, English Heritage and National Trust (2014) EWCA Civ. 137 in which she acted for the three claimants in a s.288 challenge to an inspector's decision to grant planning permission for a windfarm in the setting of, amongst others, Lyveden New Bield, a Grade 1 listed building. The issues were the proper interpretation and application of s.66 Listed Buildings Act 1990 and the application of policy tests in relation to substantial and less than substantial harm, and setting.
Morag appeared for the National Trust in the Roseland s.78 inquiry into a windfarm proposal in the setting of Grade 1 listed Scheduled Ancient Monument Hardwick Hall and its Registered Park and Garden. Issues included substantial/less than substantial harm and planning materiality of 'community project'.
Morag appeared for the Welsh Government in Powys CC v. Welsh Ministers [2015] EWHC 3284 defending the decision of the Minister to disregard National Policy Statements on Energy in the determination of a s.78 appeal under the Town and Country Planning Act. The case raised issues relating to the constitutional position of the devolved Welsh Government, the source and nature of policy and the consideration of Welsh heritage policy relating to Scheduled Ancient Monuments.
Morag appeared in the Court of Appeal in R (oao Gerber) v. Wiltshire Council [2016] EWCA, a judicial review of a decision to grant planning permission for a solar farm in the setting of a listed building. The issues in the Court of Appeal concerned legitimate expectation and discretion.
Morag is leading the team and appear for the Welsh Government on their project to promote Road and Compulsory Purchase Orders under the Highways Act 1980 for a new offline link of the M4 between Newport and Cardiff. This is a major national infrastructure proposal, which, in England, would proceed as a NSIP. The proposed route lies over the Gwentloog Levels, an estuarine/coastal area of land reclaimed in Roman times, which is subject to multiple ecological designations. Further complex issues arise as a result of the line crossing Associated British Port's working port at Newport.
She appeared for Pegasus Life, calling Prof. Robert Tavernor as her witness, in a s.78 inquiry at Harpenden where design and effect on the Conservation Area of a new tall building were central.
Most of Morag's ecclesiastical work involves listed buildings. Her Judgment in Eastry St Mary the Virgin considered in depth the relationship of unauthorised works to a Grade 1 listed buildings to the Ecclesiastical Exemption.
She is instructed by the Church Commissioners to appear at a non statutory public inquiry under a Parliamentary Convention into the proposed demolition of a redundant listed church at Birch, Essex.
Athlone House Ltd v Secretary of State for CLG [2015] EWHC 3542, in which Morag appeared in the High Court with Ned Westaway, arose out a public inquiry in which she appeared for the London Borough of Camden in relation to a proposal to demolish an unlisted house in a Conservation Area on the edge of Hampstead Heath and the Metropolitan Open Land and replace it with a mansion designed by Robert Adam. Issues included the enforceability and materiality of s.106 covenants to restore the building.
INFRASTRUCTURE AND DCOs
DCOs under the Planning Act 2008
Morag was part of a team of lawyers who worked on the Hinckley Point DCO application. She gave strategic advice on procedural aspects of the application including EIA, compulsory acquisition of interests, the assessing of alternative options for various aspects of the scheme, scope of MMO consents, preparatory works / overlap with planning applications and 'connected development'
She is currently instructed on behalf of the Highways Agency to promote a nationally significant improvement to the A63 at Kingston Upon Hull.
In 2015, Morag appeared on behalf of London Paramount at a s.77 call in inquiry into an energy from waste proposal at Swanscombe, objecting to the proposal because of its impact on the London Paramount NSIP.
At a critical stage of the DCO hearings on the Thames Tideway Tunnel, Morag was brought into the team to provide written advice to the Examining Authority on underground commons rights relative to DCOs.
Morag acted as part of the team in the recently consented Hirwaun Power Station and has advised Wrexham Energy Centre, both under the Planning Act 2008 regime.
Morag is acting for the landowners in the vicinity of the proposed Garden Bridge over the River Thames.
On the local authority side of NSIPs, Morag acted for Merthyr Tydfil County Borough Council in relation to the Covanta proposal at Brig y Cwm, which was withdrawn by its promoters partly because of the issues raised on behalf of the Council by Morag at an early DCO hearing. She has recently been instructed by Camarthenshire County Borough Council in relation to the Brechfa Forest Connection Project.
Morag is also very familiar with the promotion of major public and other infrastructure projects under other regimes as detailed below.
Infrastructure
Morag is leading the team and appear for the Welsh Government on their project to promote Road and Compulsory Purchase Orders under the Highways Act 1980 for a new offline link of the M4 between Newport and Cardiff. This is a major national infrastructure proposal, which, in England, would proceed as a NSIP. The proposed route lies over the Gwentloog Levels, an estuarine/coastal area of land reclaimed in Roman times, which is subject to multiple ecological designations. Further complex issues arise as a result of the line crossing Associated British Port's working port at Newport.
Morag has extensive experience of windfarm proposals under the Planning Acts and the Electricity Act. She promoted the first development plan policies for wind energy in the early '90s in the Preseli Pembrokeshire Local Plan. Since then she has appeared at numerous public inquiries in Wales and England into windfarm proposals as well as conducting relevant litigation.
England into windfarm proposals as well as conducting relevant litigation.
Morag appeared for the Welsh Government in Powys CC v. Welsh Ministers [2015] EWHC 3284 defending the decision of the Minister to disregard National Policy Statements on Energy in the determination of a s.78 appeal under the Town and Country Planning Act. The case raised issues relating to the constitutional position of the devolved Welsh Government, the source and nature of policy and the consideration of Welsh heritage policy relating to Scheduled Ancient Monuments.
She appeared for English Heritage, the National Trust and the local authority in Barnwell Manor Ltd. v. East Northamptonshire DC, English Heritage and the National Trust, a case which had a significant impact on the assessment of heritage impacts and conducted the first Welsh solar farm appeal to be dealt with by way of public inquiry.
Morag appeared in the Court of Appeal in R (oao Gerber) v. Wiltshire Council [2016] EWCA, a judicial review of a decision to grant planning permission for a solar farm in the setting of a listed building. The issues in the Court of Appeal concerned legitimate expectation and discretion.
Other examples of her cases include:
Covanta application, Brig y Cwm, Merthyr Tydfil: advised Merthyr Tydfil CBC as consultee and appeared at examination on their behalf. Issues included land control / capacity to enter into s.106 obligation, which led ultimately to application being withdrawn by the applicant. Morag also assisted officers and members in relation to impact statements and advised on issues concerning the Definitive Map (public rights of way).
Wrexham Energy Centre: preparation, jointly with Instructing Solicitors, of an Opinion for the Planning Inspectorate on 'connected development' under the Welsh legislation.
A63, Hull: advising Highways Agency promoter on the relationship of DCO to ecclesiastical law concerning the removal of a large number of interments from a Closed Churchyard.
Morag appeared for the National Trust resisting a s.78 appeal in relation to the Roseland Windfarm proposal in the setting of a large number of heritage assets including the Hardwick Hall assemblage in Derbyshire which raised many similar heritage issues to Barnwell as well as questions concerning the materiality of the 'community' nature of the project.
Bryn Llwyelyn Windfarm: appeared at a conjoined inquiry into a s.78 planning appeal and the first Welsh applications for works on a common in relation to a windfarm under ss.16 and 38 Commons Act 2006 on behalf of local residents opposing the construction of turbines on Mynydd Llanllwni in Carmarthenshire. Issues included landscape and visual impact, impact on local businesses, bird strike and commoners' rights / enforceability of s.106 management plan / planning conditions.
Awel Aman Tawe 'Community' windfarm, Gwaen cae Gurwen, Neath Port Talbot: appeared at s.78 inquiry on behalf of the Local Planning Authority where issues included landscape and visual impact / historic landscape, interpretation of Welsh national policy on SSA maps and community schemes and the materiality of the application of profits to community purposes / the charitable nature of the appellant. The latter points were subsequently litigated between the appellant and the National Assembly for Wales, the Court upholding the inspector's decision (based on the LPA's submissions) that such considerations were immaterial for planning purposes (Awel Aman Tawe Cyfngedig v. National Assembly for Wales and Neath Port Talbot Council.
Morag advised Rhondda Cynon Taf Council in relation to objections to the Pen y Cymoedd Electricity Act windfarm application; particular issues were impacts upon ecology, specifically peat reserves, and scope for conditions and costs awards.
Manor Farm Solar Farm, Llanvapley, Monmouthshire: appeared on behalf of the appellant, Camborne Energy Ltd, at s.78 inquiry. Issues included landscape and visual and heritage impacts and Best and Most Versatile Agricultural Land, the latter point requiring legal submissions on the relationship of emerging UK Energy policy to Welsh Planning policy under the Devolution Settlement.
Gelliargwellt Uchaf Anaerobic Digester, Gelligaer: s.78 appeal for operator, Bryn Quarry. Issues included policy for site selection / countryside location, landscape and visual impact, need, residential amenity.
PUBLIC HIGHWAYS
Morag also advises widely on Public Rights of Way ('PROW') issues, both as part of development projects and independently, including applications under s. 53 Wildlife and Countryside Act 1981, stopping up orders under Highways and Planning legislation (including various public inquiries into such orders), Private Street Works matters, s.278 Agreements and obstructions. Public inquiries / Court cases have included:
South Downs National Path: successive public inquiries into public path creation order under s.26 Highways Act 1980 and associated advice on compulsory acquisition of land under Highways Act, together with associated litigation on costs awards.
Prince of Wales Road: inquiry into stopping up order under planning powers in LB Camden on behalf of developer. Issues included overlap with planning considerations, loss of open space, safety.
Parkmill Farm, Princes Risborough: appeared on behalf of Highways and Local Planning Authorities at conjoined public inquiry into planning appeal for major residential development and stopping up / diversion orders under planning powers. Issues included bridging over / routeing under a railway line, public safety, Network Rail policy, compulsory acquisition powers.
Edwards v. IGas and Others: private prosecution for obstruction of a public footpath brought by protester against Defendant company who were carrying out exploratory works connected with potential gas recovery ('fracking'). Issues included defence of 'lawful authority', liability of directors personally, status of Definitive Map and the powers of the Director of Public Prosecutions to take over and discontinue private prosecutions.)
Somerford PC v. Cheshire East Council and Richborough Estates plc (Judgment awaited): Morag appeared for Richborough Estates responding to a Judicial Review of Cheshire East's refusal to register land as a Town or Village Green on the basis that it was highway land.
CPO
Morag has longstanding experience of promoting and objecting to CPOs, including highways schemes (Blackhorse Lane, Waltham Forest; Pontypridd ring road, Rhondda Cynon Taf), economic development (Nelson Miners' Welfare Site, Caerphilly) and town centre redevelopments (Leeds and Wolverhampton). She promoted a major estate regeneration CPO at Kidbrooke for LB Greenwich (with Hugh Flanagan) and is instructed (with Rebecca Clutten) on an estate regeneration scheme.
Morag is leading the team and appear for the Welsh Government on their project to promote Road and Compulsory Purchase Orders under the Highways Act 1980 for a new offline link of the M4 between Newport and Cardiff. This is a major national infrastructure proposal, which, in England, would proceed as a NSIP. The proposed route lies over the Gwentloog Levels, an estuarine/coastal area of land reclaimed in Roman times, which is subject to multiple ecological designations. Further complex issues arise as a result of the line crossing Associated British Port's working port at Newport.
TOWN AND VILLAGE GREENS
Morag regularly drafts objections to TVG applications and appears at inquiries.
She appeared for the Registration Authority in Leeds plc v. Leeds City Council [2010] EWCA Civ. 1438, in which the Court of Appeal considered whether or not 'neighbourhood' meant one or could mean more than one neighbourhood.
Somerford PC v. Cheshire East Council and Richborough Estates plc (Judgment awaited): Morag appeared for Richborough Estates responding to a Judicial Review of Cheshire East's refusal to register land as a Town or Village Green on the basis that it was highway land. Issues included whether or not the Authority should have used its powers under s.101 Local Government Act 1972 to transfer the application to another Council as it was the landowner, perceived bias and highway status.
A full list of Morag's TVG appearances is available on request, but she has extensive experience of all the most familiar scenarios which occur, including:
- Land held for statutory purposes including public recreation and pleasure grounds and for recreational purposes incidental to housing (eg. St Andrews Gardens, Gravesend; land at Argyll Rise, Hereford)
- Land held for educational / sporting purposes (Wigwam Field, Papplewick)
- Land held for temporary recreational purposes pending development (land at Toxteth, Liverpool)
- Land held pursuant to a recreational trust (Blagrave recreation ground, Reading
- Paths (land at Kereseley; Wilson Street, Derby)
- Land used pursuant to a recreational lease (Greensquare Field, Finchley)
- Highway user (Porth y Wrach, Menai Bridge)
- Obstructions / interruptions (land outside Natural History Museum, Knightsbridge; Wigwam Field, Papplewick)
- Insufficient user (Wilson Street, Derby)
- No established locality or neighbourhood (Wilson Street, Derby; land at Kereseley)
- Implied permission (Marden cricket and hockey ground)
- Morag recently appeared in the First Tier Tribunal (Lands) appealing against a Community Asset Listing pursuant to the Localism Act.
