Jack Smyth is a key member of the Planning group at No5 Barristers’ Chambers.
Legal 500 awarded Jack the prestigious honour as “Legal 500 UK Regional Junior Barrister of the year” 2018. Its Judges noted:
“2017 was Smyth’s tenth year of call and he continues to punch above his weight across a number of practice areas. He frequently acts for prominent clients such as Secretaries of State and makes frequent successful appearances in the higher courts”
Jack was also rated as a Top Tier grade 1 barrister in Planning law in the Midlands in 2017.
Jack has a strong practice across the piste in Planning and Environmental law with a particular interest in High Court challenges and enforcement.
Jack has been appointed by the Attorney General as Junior Counsel to the Crown for the Midlands (formerly known as the Treasury Solicitors’ Panel). As a result, he frequently finds himself in the High Court defending the decisions of Planning Inspectors.
Jack has been appointed as a Drainage Member of the Lands Tribunal (Wales). He is the youngest appointee to the tribunal. In that role, he adjudicates on disputes which revolve around boundaries, the causes of flooding and the best solution to be found to mitigate harm. In that guise, he is experienced with scrutinising competing expert evidence in an area of the law which is both technical and fact-specific.
His forte is successfully representing Councils and residents’ groups in resisting gypsy traveller sites. He has represented residents’ groups in two high profile gypsy cases in the Midlands which have both featured on Midlands Today and in the national press: Beausale and Meriden. He often obtains injunctions.
Jack is adept at advising potential Claimants and Defendants on a wide range of High Court challenges including Judicial Reviews and statutory challenges (such as s288 and 289 claims). He has a reputation for turning work around at short notice and providing hard-headed, commercial advice to clients.
He has extensive experience of advising and providing advocacy in the area of built heritage, in particular, the impact of new development upon Conservation Areas and Listed Buildings. Recent cases include a 2-week inquiry against a Silk on behalf of a residents’ group resisting the demolition of a large building in a Conservation Area to make way for a large supermarket development (the appeal was dismissed) and successfully representing a local authority at an appeal for residential development within the setting of a listed mill. On the enforcement side, recent cases include advising an architect being investigated for unauthorised works to a Listed Building and a home owner facing a joint prosecution by Historic England and the local authority for the gutting of a Listed Building and the excavation of an Ancient Scheduled Monument.
He commonly obtains injunctive relief in respect of unauthorised breaches of planning control. This is done on an emergency basis for anticipated breaches and also to compel compliance with enforcement notices and conditions attached to planning permissions. He regularly finds himself in the High Court for injunctions and is used to advising at short notice and undertaking emergency injunctions. Recently, Jack completed a long-running injunction in respect of the illegal tipping of waste on land in the open countryside. During the course of the litigation, a witness was sent to prison for 28 days for perjury following Jack’s cross-examination. In light of the defendant’s failure to obey the injunction, he was committed to prison for 12 months for contempt. This is the longest sentence ever imposed for breach of a planning injunction.
Jack is considered to be one of the go-to barristers for enforcement matters, with a particular expertise in injunctive proceedings. He is experienced in advising on paper, appearing at inquiries and in the Court system, including Criminal proceedings. Cases include Enforcement prosecutions, Temporary Stop Notices, Injunctions (Gypsies and Travellers), CLEUDs, Tree Preservation Orders, Environmental issues pursuant to EPA including noise and odour abatement notices, Statutory nuisance, POCA, Committals for breaches of court orders and Breach of Condition notices.
He frequently advises appellants and local authorities in respect of statutory nuisance. He is experienced with interrogating technical expert evidence in respect of noise and odour. Recent successes include prosecuting a restaurant in Leicester for failing to obey an abatement notice for odour and resisting an appeal made by a Working Men’s Club in Cannock in respect of a noise abatement notice.
Jack is experienced with dealing with residential development appeals for appellants, local authorities and residents’ groups and frequently appears at Public Inquiries and Informal Hearings. Jack has experience of a range of issues relating to residential applications including 5 year supply, viability, Green Belt, heritage and landscape.
Jack successfully obtained a final injunction requiring a housing developer to complete the landscaping scheme to a 400 apartment development. The site had been sold off and occupied by leaseholders without the conditions to the planning permission having been discharged. The Court found that the injunction could be made against an individual who had no interest in the site.
Jack successfully represented the Secretary of State in resisting the statutory challenge to Waverley’s Part 2 Plan. The plan was criticised on the basis that it was unsound because, upon adoption, it failed to demonstrate a five year supply of housing sites. The Court upheld the “modular approach” to local plans.
Jack has been representing the council throughout the last 7 years of these injunctive proceedings. It culminated in the Court of Appeal upholding the 4th committal order made by the High Court in Birmingham. The claim concerns the large-scale importation and deposit of unauthorised waste. The Court of Appeal upheld the sentence of 12 months imprisonment for the 4th committal. Whilst Coulson LJ declined to rule on the point definitively, he deprecated the practice of defendants using the “right to silence” to justify ignoring the timetable set for evidence and insist on a right to serve written evidence or to give oral evidence by way of ambush at trial.
Jack represents the Secretaries of State (led) resisting a judicial review claim brought in respect of the government’s new policy of moving asylum seekers out of expensive hotel accommodation into HMOs. The policy seeks to get rid of local authority standards by creating a regime of national minimum standards. A final hearing is listed for February 2024. At an interim hearing, Mr Justice Swift gave guidance of general applicability on disclosure and the extent to which the government can redact documents. The effect of the judgement is that public bodies are likely to have to disclose more documents. They will be entitled to make fewer redactions and those which are made will need to be justified.
Jack represented the local authority in respect of a judicial review concerning the extent to which members of the planning committee were misled by what was said by officers during the course of the meeting and whether it was appropriate that a councillor was pressurised to recluse himself.
Emergency injunction to prevent the importation and spreading of unauthorised waste. At the return date, the judge granted a mandatory order requiring the removal of the waste which had been illegally deposited.
Jack successfully obtained an injunction for the council to maintain the status quo at an unauthorised gypsy traveller site in the green belt and stop its expansion until such a time as the planning merits are settled.
Jack represented the defendant and successfully defended an Inspectors decision following an enforcement appeal. The case turned on whether the Inspector was entitled to focus exclusively on evidence of actual use when deciding whether the unauthorised camping use was immune rather than other evidence about ’usability’ of the site.
Jack successfully represented the council in this high-profile injunctive claim. After the emergency hearing, officers arrived at the site in the nick of time to serve the injunction as heavy machinery was in the process of expanding the unauthorised gypsy site. The injunction was repeatedly breached in the succeeding months and the council brought 4 committal applications. The matter culminated in a 4 day trial in the High Court where a final order was made and the contempt allegations were found proven.
Jack successfully represented the Council in resisting a claim for judicial review to quash the Witchford Neighbourhood Plan. The claim revolved around an apparent tension between the content of the emerging neighbourhood plan and the existing local plan and the legality of a Local Green Space designation.
Jack represented the Council resisting a JR against the Witchford Neighbourhood Plan (“NP”) brought by a housing developer. The claim revolved around the allegation that the NP did not meet the basic conditions and the Council was wrong to treat it as making allocations when the Examiner had removed references to this term and replaced them with “housing proposal sites”. At the renewal hearing, Lang J refused permission on all grounds and awarded the Councils costs in full.
A claim for judicial review against a local authority’s decision to grant an application for prior approval for a barn conversion under the new Class Q permitted development. The case revolved around whether the site notice was “near” to the land and the quality of the officer’s report.
This has become a “test case” for the use of borough-wide injunctions by local authorities to protect public open spaces from Gypsy Traveller incursions. 34 such injunctions had been granted by the High Court. In Bromley’s case the court refused to grant the injunction but, unusually, gave permission for the matter to be finally determined by the Court of Appeal. A number of organisations, including the pressure group Liberty, appeared as Interveners. At the final hearing, the Court of Appeal set out sweeping guidance on the deployment of such injunctions and what conditions must be met before they are granted in future.
The High Court found that the Inspector’s decision to dismiss an appeal for residential development was unlawful on the basis that he had refused to make a finding as to whether the Council could demonstrate a 5-year housing land supply.
It provides guidance on how local planning authorities should exercise their discretion to decline to determine a planning applications pursuant to s.70C of the Town and Country Planning Act 1990.
He successfully represented the Secretary of State against a section 288 claim. The case turned on the lawfulness of the Inspector’s decision which followed a written representations procedure where the parties had failed to tell the Inspector that the LPA’s Local Plan had been adopted. The Judge, whilst finding that the Inspector had reached his decision on an erroneously unlawful basis, exercised his discretion not to quash the planning permission on the basis that the claimant LPA had been incompetent and contributed to the error by failing to inform the Inspector of the important change.
He successfully represented the Secretary of State against a claim for permission to pursue a judicial review. The case turned on the lawfulness of the Secretary of State’s screening opinion. In particular, the manner in which the screening opinion addressed the effects of the proposed residential development on the highway and a SSSI.
He successfully represented the Secretaries of State in the Court of Appeal [led by Richard Kimblin QC]. This is the first reported case on the proper meaning and interpretation of paragraphs 132 and 133 of the (original) NPPF in respect of justifying harm to heritage assets.
He successfully represented the District Council in its section 288 appeal to quash an Inspector’s decision. The appeal centred around the proper interpretation to policies of an out of date Local Plan.
He successfully represented the District Council upon the claimant’s section 288 appeal to quash the Secretary of State’s decision to afford “very substantial negative weight” to an identified breach of a Neighbourhood Plan. This was one of the first challenges to the Secretary of State’s flagship localism policy.
He was led by a Silk in the High Court and later the Court of Appeal, the claim to quash the grant of planning permission was successfully resisted. The case provides useful guidance on the extent to which off-site benefits can reasonably be regarded as material considerations to which the CIL regulations apply. It is a case quoted approvingly by the Planning Encyclopaedia.
He successfully represented the District Council in the High Court and Court of Appeal upon the claimant’s judicial review to quash the Secretary of State’s screening decision and the Council’s grant of planning permission. The case revolved around the proper interpretation of the EIA regulations and whether the noise arising from vehicles using the former World War II airfield at Bruntingthorpe, Leicestershire was likely to have significant environmental effects.
He successfully represented a local authority in resisting an application to quash a grant of planning permission for a single wind turbine. The case turned on the lawfulness of a noise condition. Following an appeal to the Court of Appeal, the claim was dismissed.
He successfully represented the Council in its section 288 challenge and successfully persuaded the High Court to quash an Inspector’s decision in a gypsy case on the grounds that the Inspector had made an error of law by rejecting the Council’s Gypsy Traveller Accommodation Assessment.
Jack successfully represented the SoS throughout the life of the section 288 claim. The Court rejected the submission that as the Minister had not undertaken a site visit it was wrong of him to “recalibrate” the weight attached to the landscape harm found by the Inspector who had listened to days of expert evidence and undertaken a lengthy, accompanied site visit. The Court also found that the Minister was entitled to disregard the proposed local fuel poverty fund which was included within the Unilateral Undertaking as it did not meet the CIL test.
Thank you to all who attended the Local Planning Authority Seminar Yesterday. We hope it was both informative and enjoyable for you all.
Project Genesis Ltd v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 368 (Admin) Jack represented the SoS throughout the proceedings in…
"Professional, supportive, approachable, and knowledgeable"
Thank you to all who attended the Local Planning Authority Seminar Yesterday. We hope it was both informative and enjoyable for you all.
Project Genesis Ltd v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 368 (Admin) Jack represented the SoS throughout the proceedings in…
