Authors:Emma Montlake
Last updated:2024-05-24
Taking on the developers
Marc Bloomfield
Description: Environmental Law Foundation
As I write this article, Pro Bono Week 2023 is approaching (6–10 November), so it seems a good time to highlight a couple of notable Environmental Law Foundation (ELF) cases from this year, where, through its pro bono assistance scheme, its lawyer members have played a significant role in protecting the environment.
The first case is that of the ongoing campaign to protect the Park Road Allotments in Isleworth. Housing development on the allotments by the landowner, Northumberland Estates (or, personified, the Duke of Northumberland), has been an ever-present threat to the community for a decade. This summer saw the second full public inquiry in five years, following another refusal of planning permission to build 100-plus houses on the allotments. ELF has been assisting the Isleworth Society (IS) during this time, culminating in the second outing for the IS as r6 party participants,1Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 SI No 1625 r6(6). See also Guide to rule 6 for interested parties involved in an inquiry – planning appeals and called-in applications (Planning Inspectorate, 6 March 2014; last updated 17 August 2023). represented by 1COR barristers Lucy McCann and Kiran Barhey, and ELF members.
With a long history of use for growing food, as evidenced by some exceptionally old fruit trees, the site is well loved, biodiverse, a designated open space and registered as an asset of community value (ACV). Support for the retention of the allotments and their importance to the community was in full evidence during the hearing. Many community members spoke at the hearing, including the local MP, councillors and members of the public.
The justification for the development of the allotments and the need to raise significant sums through the development, though not described as enabling development, is the need to pay for the upkeep of Syon House, the Duke of Northumberland’s palace next door. Indeed, as we noted at the hearing and in our closing statement, the duke owns 100,000 acres of land across the UK and we were not clear why a small plot, so important to the community, should keep being targeted.
Lucy’s penultimate paragraph in her closing statement summarised the position brilliantly:
Throughout this appeal, the appellant has sought in their terms to ‘depersonalise’ the issues. In their view a personalised approach would not be ‘fair or reasonable’. But the actions of the appellant over the past decade or so – with repeated planning applications, resisting ACV designation, refusing to let vacant plots, and by threatening to force the closure of the allotments forever – has unnecessarily led to this issue becoming deeply felt by allotment holders and the local community. Moreover, the appellant has sought to frame this issue as a choice between two local assets that no-one could deny are of personal significance to local residents. With a residential portfolio of some 100,000 acres spanning the length of this country, from the borders of Scotland to the banks of the Thames, it just is not right that one small three-acre allotment site determines the future of Syon House.
We now await the outcome.
The second matter in which ELF lawyers have played a significant role in protecting the environment comprises two associated planning applications, one for a 250-plus-bedroom hotel and one for a large surf lagoon, in Betteshanger Park in Deal, Kent. At the beginning of this year, ELF was approached by the Friends of Betteshanger, a group of local residents whose aim is to protect the wildlife and green spaces of the park from development threats.
What is especially important about this site is that it supports the UK’s second-largest colony of the nationally rare lizard orchid, and is a last bastion of turtle doves, water voles and a wide range of other rare and protected wildlife. It really is a special nature site. By way of example, the mitigation proposed for the lizard orchid colony, which is on the site of the proposed surf lagoon, is to translocate the plants to another area; statutory consultees and experts alike have said this will not work. These applications recommended for approval by planning officers represent a very depressing example of our public institutions failing to recognise the plight of our natural world and how important it is to protect what little we have left, their biodiversity duties unfulfilled.
Furthermore, ELF was able to advise on a s106 agreement2Town and Country Planning Act 1990 s106. attached to the original planning application, which obliged Dover DC to consider designating the park as a local nature reserve. It failed to do so, something with which the local community continues to take issue.
The good news is that the planning application for the hotel, despite being recommended for approval, was refused at committee stage. However, the applicant has now submitted an amended application for the hotel, and the surf lagoon application is still pending.
Both examples demonstrate the relentless fight that communities looking to protect precious green space and nature sites face when they are up against deep-pocketed developers.
1     Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 SI No 1625 r6(6). See also Guide to rule 6 for interested parties involved in an inquiry – planning appeals and called-in applications (Planning Inspectorate, 6 March 2014; last updated 17 August 2023). »
2     Town and Country Planning Act 1990 s106. »