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||Neutral Citation Number:  EWHC 348 (Admin)
||Case No: CO/3826/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE CRANSTON
Iain Colville and James Sandham (instructed by Nockolds) for the Claimant
Saira Kabir Sheikh (instructed by East Herts DC) for the Defendant
David Elvin QC (instructed by Hogan Lovells) for the Interested Parties
Hearing date: 11 February 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Cranston:
- This judicial review raises some important issues about the lawful operation of local government and the role of the courts. The Bishop's Stortford Civic Federation ("the Federation") challenge the decision of East Hertfordshire District Council ("the Council") to grant planning permission to Anley Trustees Limited and Maison Anley Property Nominee Limited. As nominee companies they act on behalf of Henderson Global Investors Limited (so I shall refer to them as "Henderson" throughout the judgment). The planning permission was to redevelop the land north of Link Road and at Old River Lane, Link Road, Water Lane, Bridge Street and Barrett Lane, Bishop's Stortford. I refer to Bishop's Stortford as "the town" and to the area to be redeveloped as "the site".
- John Howell QC (sitting as a Deputy High Court Judge) granted permission to apply for judicial review on two grounds. The first is whether the Council's decision is flawed by reason of remarks by a member of the Council's executive, not a member of the planning committee, at its meeting which granted outline planning permission. Having regard to their contents, the position he held, how he came to speak and the influence those statements may have had, the Federation's case is that he "polluted the well". The second ground concerns whether the Council acted unfairly in granting planning permission by failing to give the Federation or others the opportunity to comment on additional documents submitted by Henderson after outline permission had been granted. In particular did the Council in this regard act in breach of what is now regulation 22 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011?
(a) The Council – Henderson agreement
- In 2007 Henderson approached the Council about redevelopment of the site as a mixed use development. It already had a property interest on part of the site. In the process of redevelopment Council offices were to be demolished, more land was to be leased to Henderson, the Council was to be released from various obligations contained in underleases, and an overage payment was to be made by Henderson. Following negotiations between the Council and Henderson confidential Heads of Terms were entered into on 6 August 2008. In broad outline Henderson would obtain land (including a Council car park and a Waitrose car park) and develop the site. The Council would still occupy some office space on the site for front line services and receive a payment of £2,350,000. Under the Heads of Terms Henderson endeavoured "to secure planning consent for a mixed use scheme based on (but not limited to) the scheme drawings". If planning consent were to be obtained, the Council agreed "to assist wherever possible". Upon completion of the scheme an overage payment would fall due, 10% if the profit on the gross development value exceeded 15%.
- In early March 2009 the Council wrote to a number of interested parties (including the Federation) about its report on what were said to be some major changes being considered. These would affect the building on the site the Council currently occupied and the surrounding land. The report, which would be discussed by the Executive on March 17, and was subject to confirmation by full Council on March 24, recommended that the Council gave up its current occupancy on the site to Henderson (the landowner) with a view to moving into a neighbouring building. The proposals would reduce office space needs and thus overall costs, with many staff transferring to the Council office in Hertford.
"Depending on which option the Executive adopts, the Council would also transfer to Henderson the land surrounding [the building] which we also own. This includes the Waitrose and Causeway car parks. If this were to happen, [Henderson] has made a proposal that would allow the Council to strongly influence the future of the site. This supports the regeneration work already being carried out by the Bishop's Stortford 2020 board."
- There was indeed a meeting of the Council's Executive on 17 March 2009. Those present included Cllrs Jackson (Leader of the Council), Alexander, Ball, Rutland-Barsby and Tindale. Cllr Tindale, then Executive Member for Resources and Internal Support, set out Henderson's proposals for the development. Some members expressed concern about its impact for car parking in the town centre. Cllr Jackson stated that that aspect was a planning issue for the future. Cllr Wood raised a number of objections, such as the impact of the development on other retail outlets in the town and the appearance that Hertford was being favoured over the town by the withdrawal of back office Council services. The Executive approved the recommendations. Cllr Tindale was entrusted to complete the negotiations regarding the surrender of its existing lease of offices on the site and to secure alternative premises for the Council's front-line services in another building there.
- At the meeting of the full council on 25 March 2009, the late Michael Hurford, chair of the Federation, raised a public question about the absence of consultation regarding "a large development in the town not in the District Plan", which was bound to have an effect on traffic congestion, failed to reveal its full costs and did not address whether for legal reasons the Council was prevented from selling the freehold of the site. Cllr Jackson, as Leader, referred the question to Cllr Tindale, who stated that the Council's property arrangements were not a matter for public consultation since front line services would not be affected but instead would be enhanced. Public consultation would become more relevant at the time of specific development proposals being submitted. The Leader of the Council endorsed these comments, reiterated that public consultation would ensue whenever development proposals came forward. However, these proposals did not concern any development. He added that if and when proposals came forward alternative parking could be provided. The proposals would provide greater certainty over accommodation costs. The Council voted for the Executive's proposal, those in favour including Cllrs Alexander, Ashley, Bull, Tindale and Wrangles.
- On 16 July 2009 the Council entered into an agreement with Henderson in furtherance to the Heads of Terms. On 16 October 2009 the Council and Henderson signed the Deed of Overage. Under the deed the Council agreed to use reasonable endeavours to assist Henderson in obtaining all necessary consents and to support it in promoting the development. The deed stated that the Council was entering the deed as landowner, not as the local authority, and its powers as such were not fettered. The development was defined as the development in the draft planning brief. The latter made clear that the development proposed was for mixed use development but that it was subject to normal planning legislation. In late November 2009 the land deal contemplated by the agreement commenced.
(b) The planning committee meets
- On 4 November 2010, Henderson formally applied to the Council for planning permission to demolish existing buildings on the site and to develop it. This was to be by constructing a mixed use development comprising retail, leisure, hotel, food and drink, residential, community uses, car parking, servicing and access arrangements, together with alterations to the public highway and/or public realm works and flood mitigation measures. The proposed development created much public interest in the town. Along with others the Federation objected to the proposed development.
- On 25 August 2011 the Council's Development Control Committee ("the planning committee") considered outline planning permission. The officer's report for the meeting recommended approval of the Henderson applications in principle since they represented a very significant development in retail, leisure services and facilities in the town, and would have a beneficial impact on the economy and employment. All those factors had to be afforded very significant weight in favour of the scheme. The report reminded members that the proposals had generated significant publicity and had been subject to extensive consultation (including by the developer). The report then set out the Council's land holding interest and how it had disposed of land in the land deal. Those Council disposals had enabled the developer to bring forward the proposals. The Council was still a land owner and would continue to be a tenant in some of the buildings on the site. The report continued:
"Despite the position in relation to land holding and tenancy arrangements, it is very important to set out here that these arrangements and previous decisions in relation to them should be given no weight in the planning application decision making process."
At several points the report underlined that only outline permission was involved and only the principle of development was at issue. The report identified the need for additional retail floorspace to prevent a decline in the town because of competition from neighbouring towns.
- Under the heading "Environmental Impact Assessment", the officer's report summarised what Henderson's Environmental assessment dealt with, from traffic through ecology, townscape and flooding to the cumulative environmental effects. Responses to the consultation were also summarised, including that from English Heritage, which had conducted an "urban panel day". In considering planning policies the report referred to the Government's draft National Planning Policy Framework (NPPF) which, it explained, should not be given undue weight since it might well evolve and change during its process to finalisation. Housing on the site was appropriate, the report said, under the Local Development Framework.
- The meeting of the planning committee on 25 August 2009 began at 7pm and finished after 11pm. It was chaired by Cllr Ashley. Some committee members were newly appointed. All members of the committee had received training about the need to take only matters material to planning into account when making decisions. Six other councillors attended, including the two ward councillors (Symonds and Wood) and Cllr Tindale. Present also at the meeting were over 200 members of the public. At times the meeting was lively, with interruptions and heckling from the floor. There is a transcript of the proceedings as well as a video, part of which I have viewed.
- After Kevin Steptoe, the head of planning, gave an update on late representations, Cllr Ashley invited members of the public opposed to the development to address the committee. Mr Hurford, who spoke on behalf of the Federation, began. Those in opposition were followed by those in favour, including representatives of Henderson. Henderson's representatives mentioned the leakage of retail shopping from the town to neighbouring centres and one resident described his frustration at having to drive to Cambridge to shop. Then the ward councillors spoke, both in opposition to the development.
- At this point Cllr Tindale addressed the committee. He was introduced as the Council's Executive Member for Finance. Subsequently, in a statement to an inquiry in 2012 (of which more below), Cllr Tindale explained that he wanted to outline for the benefit of new members of the committee the agreement the Council had reached in principle with Henderson in 2009. As such, he said, he did not seek to speak on planning matters beyond the principle of development. In his statement he explained:
"As the principle of development on the site had already been established by a favourable vote in full Council, it is not easy for new Members to understand, or indeed the public, that the Council has a dual role: one as Landowner (completely separate) from the other, as Planning Authority. I was not, and could not, attempt to persuade the Committee to vote in favour of the two applications. I thought it would be helpful to outline that Council's consent for a mixed-use development for the area in question had already been established. I knew the debate would be controversial but aimed my comments at members of the Committee, not the public. I did say something along the lines that to renege on the agreement already reached in principle, would be "morally bankrupt", in the sense that the principle for mixed use development had been established by as vote in full council. For the Committee to vote against this principle would be to undermine the decision made by Full Council. It was in that context that I made the reference, and did not refer to detailed planning matters. I am content that most members of the Committee understood this even if it was not clear to the public who have not had the benefit of committee training."
In his statement Cllr Tindale also said that he anticipated that there would be difficulty with the committee, as emotions were running high, which was exactly what happened. He did not believe the views expressed in opposition were indicative of wider public opinion. There was much hostility at the meeting and very few of the public were brave enough to speak in favour of the development. In his view the majority of the committee were minded to refuse the development but, when it was put to the vote, it was approved. Cllr Tindale also informed the inquiry that he had attended the meeting at the request of the Leader of the Council and with the permission of the chair, Cllr Ashley.
- At the meeting itself Cllr Tindale began by addressing the members of the public who were there, asking that they respect the difficulty of the decision facing committee members and that they not question their motives. He then turned to the councillors and touched on three topics, first, the agreement with Henderson in 2009. He wanted to remind existing, and new members, of the background. His aim in 2009 had been to put the Council's finances on a firmer footing, which had been done. The proposed agreement had been taken to full Council in 2008, and been approved. A Council building would be demolished and a mixed use development of leisure, retail and housing would come forward. It was a departure from the local plan
"but this decision was taken in the full glare of public debate, members spoke and voted and the decision was made by the full Council at that time and I need not remind you, members, this is an outline proposal on the principle of development. So to renege upon that principal now, I would argue, is morally bankrupt. Not because it's some threat to Henderson, but because it would undermine the [Council]."
Cllr Tindale's second topic was that the town was losing out because of better retail facilities in neighbouring towns such as Harlow, Braintree and Stevenage. The development would also create jobs. His third topic was that, if Henderson withdrew, development would still take place, possibly housing.
- There then followed contributions from members of the planning committee. Cllr Jones stated that the three councillors who had just spoken had covered the range of options, from refusal to approval. It was not an easy decision but he opposed development. Cllr Taylor quoted the passage in the officer's report, that no weight should be attached to the earlier land deal, and noted that it was contrary to what Cllr Tindale had said. She formally proposed refusal of the applications. Cllr Buckmaster endorsed Cllr Taylor's remarks: the land deal was not connected with the planning decision to be made that evening. At the outset of his brief remarks, Cllr Bull stated that he was an experienced retailer. As one of the earlier speakers had said, there was a leakage of retail sales to neighbouring towns. Cllr Page spoke in opposition to the proposal. Cllr Alexander spoke of Henderson being a serious player, not a fly-by-night developer. After the head of planning, Mr Steptoe, spoke again, the vote was taken; 6 for motion in favour of approval, 5 against. In favour were Cllrs Alexander, Bedford, Bull, Rutland-Barsby, Ashley and Wrangles. None of them were new councillors. Outline planning permission was subject to the completion of a section 106 agreement.
(c) Ms Memoli's investigation
- Following the meeting the Council's Monitoring Officer received three complaints against Cllr Tindale regarding his representations to the planning committee. One of the complainants was Mr Hurford, chair of the Federation. Maria Memoli, a solicitor, was appointed as the independent investigator. She produced her reports on 10 August 2012. She concluded that Cllr Tindale had no right to attend and address the committee on 25 August 2011 and that by doing so he had breached paragraph 5 of the Council's Code of Conduct. That reads that councillors must not conduct themselves in a manner "which could reasonably be regarded as bringing your office or authority into disrepute". In this regard Ms Memoli added:
"I therefore conclude that although Councillor Tindale had no right to attend the Committee Meeting, the Members of the Committee Meeting listened to full arguments both for and against the Recommendations in the Accompanying Report. This is also indicated in the Minutes of the Meeting, which shows the Committee debated possible reasons for the refusal. The Committee made up its mind (collectively) on the planning merits, despite the fact that Councillor Tindale had addressed the Committee."
- Ms Memoli's reasoning regarding Cllr Tindale's breach was that since there was nothing in the Council's Constitution or other instruments which allowed Cllr Tindale to attend, he did not have the right to do so since he was not a member of the Committee or a ward member. Instead he was the lead member for the negotiations with Henderson and the planning applications concerned Council land (even if the Council was not itself the applicant).
"Local authorities need to be vigilant when dealing with planning applications, which involve the Council's land, so that equal treatment is given to the process, or any other individual applying for planning permission … [It] was unwise on his part to attend and address the Planning Committee, and as such can reasonably be seen by members of the public and others, as bringing his office and that of his authority into disrepute in breach of paragraph 5 of the Council's Code of Conduct."
It seems that Ms Memoli was influenced in her approach by her understanding of an inquiry into Bournemouth Council's Planning department by Sir Michael Pitt and his recommendation that the executive and planning functions of a local authority be kept independent. Mr Elvin QC informed the court that the inquiry related to a local problem in Poole and to a situation where a number of members of a local authority's executive were also on the planning committee.
- Ms Memoli rejected a complaint that Cllr Tindale was also in breach of paragraph 5 of the code by suggesting in his address to the committee that the Council had already approved mixed use development. In Ms Memoli's view the Council had done that, as a matter of principle, in 2008, and by discussion the Executive and full council in 2009. In the course of this aspect of her inquiry Ms Memoli had been told by Mr Steptoe that the principle of mixed use development had been agreed several years previously. Ms Memoli also rejected an allegation that Cllr Tindale had compromised the impartiality of the committee:
"The Committee made the decision collectively … The Committee listened to arguments for and against by those present and they themselves debated possible reasons for refusal, and upon not finding such reasons, many Councillors on the Committee voted for the recommendations in the Accompanying report, subject to certain matters to be considered for a section 106 agreement and other conditions."
(d) Henderson's additional documents
- Meanwhile, the Government had issued the National Planning Policy Framework (NPPF), which eventually came into effect on 27 March 2013. It replaced the planning policies used in the consideration of the Henderson applications for outline permission. In July 2012 Henderson submitted two additional documents to the Council. The "Environmental Statement Addendum" explained that its purpose was to update the policy position in the context of the NPPF and to establish whether, despite policy changes, the findings of the originally submitted Environmental Statement remained sound. The addendum went through the various headings in the original Environmental Statement and concluded that it did. The "Supplementary Planning Statement" noted that, subsequent to consideration of the proposals by the Council's planning committee in August 2011, the NPPF was to come into effect. As a result, it was necessary for the Council to review its decision-making in light of the new national policy context. Despite the changed policy context established by the NPPF, the document concluded, the proposals were acceptable, indeed more so. Both documents were placed on the planning file available for public inspection at the Council's office but, apparently by mistake, they were not uploaded to the Council's website.
- On 4 October 2012 the Council received representations from the agents for Waitrose stating that, given the lapse of time and the publication of the NPPF, the application should be remitted to the planning committee for further consideration.
- On 7 December 2012 Mr Steptoe as head of planning considered the NPPF – and "other material considerations" to be taken into account in decision making – and the changes of emphasis set out in it. He concluded that despite the changes in the NPPF the balance could not have changed other than in a direction which indicated the development proposals should be supported. Mr Steptoe's report was placed on the Council file but not uploaded to the Council's website.
- On 13 January 2013 the Council completed the section 106 agreement with Henderson. The following day, 14 January, it granted Henderson conditional planning permission for the redevelopment of the site.
- Later that month the Council's Standards sub-committee considered the reports by Ms Memoli. It was resolved that Cllr Tindale had been in breach of paragraph 5 of the Council's Code of Conduct and, as such, there had been a technical breach of that provision. It resolved to publish the decision and it went on the Council's website.
- This judicial review was lodged on 28 March 2013. As a result of a comment by the deputy judge in granting permission on two of the grounds, brief statements were obtained from the six councillors who, in 2011, had voted at the planning committee in favour of Henderson's proposals. In differing language each asserts that what Cllr Tindale said to the committee did not influence their vote.
Ground 1: Cllr Tindale's intervention
- On behalf of the Federation Mr Colville submitted that Cllr Tindale's intervention at the meeting of the planning committee which in August 2011 had granted outline planning permission had, as he put it, polluted the well. In his statement to Ms Memoli Cllr Tindale made clear that he anticipated that the vote would probably be against approval. The Leader had requested him to attend and speak. The inference was that Cllr Tindale's role was to save the day. Mr Colville speculated that Cllr Tindale might have been motivated by the prospect that the deal he helped broker with Henderson in 2008 might bear no fruit and that in his present capacity as Executive Member for Finance he would not receive anything from the potentially lucrative Overage Agreement. Whatever his motivation, Mr Colville added, Cllr Tindale was clearly driven to act by his personal view that a refusal of the applications, even on lawful planning grounds, would be "morally bankrupt". Ms Memoli was correct in her conclusion that Cllr Tindale should never have addressed the committee in the way he did on the development issue. That was not a relevant consideration: Stringer v Minister of Housing and Local Government  1 WLR 1281, 1294 H.
- Mr Colville then contended that Cllr Tindale had in that regard misled the committee. He sought to persuade members opposed to the development that the principle of mixed development on the site had already been established by a favourable vote in full Council in 2009. In fact, Mr Colville submitted, full Council had not decided that mixed development would be acceptable on the site from a planning perspective. At the time it was made clear at both the Executive and at full Council that all that was being approved was the land deal with Henderson, and that the planning aspects were to be decided at a later date. Ms Memoli was wrong on this point.
- Next Mr Colville submitted that, by Cllr Tindale's own admission, the central purpose of his address was to influence the committee, not the public, by telling them about the earlier agreement. He did that unsure whether all members understood the significance of that issue and what they had to consider as material matters to the planning decision. The officer's report was no corrective: it informed councillors that the land deal should be given no weight, not that it was legally irrelevant. At the end of Cllr Tindale's remarks, Cllr Ashley simply told the committee that only planning matters were material, not that the land deal and overage agreement were legally irrelevant and that Cllr Tindale's remarks should be completely disregarded.
- The final part of Mr Colville's argument – and here he was supported with submissions by Mr Sandham – was that it could not be certain whether the decision would have been the same irrespective of Cllr Tindale's remarks. Cllr Tindale expected an adverse vote. He spoke at a crucial part of the debate, immediately prior to the committee members' own contributions. What he said would have been in the forefront of the committee's mind. Cllr Taylor, in opposition, clearly registered that what Cllr Tindale had said was not a relevant consideration to planning. Only two of the six councillors in favour of the motion spoke. One was Cllr Bull who probably did take account of Cllr Tindale's remarks because in his short deliberations he made reference to retail leakage in terms strikingly similar to those used by Cllr Tindale. Approval was given, but only by one vote. The statements from the six councillors voting for the motion, that Cllr Tindale's remarks had no influence on them, were of limited assistance. Quite apart from their coming two years after the event they had only been obtained from the councillors who voted in favour of the development. One cannot assess the overall impact based simply on statements made by those falling on one side of the argument. It is impossible to know, but for Cllr Tindale's remarks, whether one of the "no" voters might have contributed to the debate and persuaded a change of mind.
- In summary, Mr Colville submitted that Cllr Tindale's address was specifically designed to influence the vote. It could not sensibly be suggested that his remarks were insubstantial or insignificant: Simplex G.E. (Holdings) v Secretary of State for the Environment and the City and District of St Alban s District Council (1989) 57 P & CR 306, , per Purchas LJ. The address was misleading in suggesting that the approval had already been given to mixed use development. The vote altered from being against approval to one in favour by the narrowest of margins. No direction was made following Cllr Tindale's remarks to guard against their influence. It is not at all clear that every councillor gave no weight to his comments. It is permissible for the court to examine whether a Council acted for an ulterior purpose: R v Exeter CC ex p J L Thomas & Co Ltd  1 QB 471.
- None of this persuades me that, as Mr Colville submitted, the decision should be quashed. The first issue is Cllr Tindale's right to be present and to address the meeting of the planning committee. With respect I cannot accept Ms Memoli's conclusion that, because there was nothing in the Constitution or other documents of the Council expressly allowing Cllr Tindale to attend and address the committee, he had no right to do so. That is not the law. (In fairness to Mr Colville he did not suggest that it was). To the contrary the law is that, unless there is an express provision in the Council's constitution or other documents preventing attendance, any councillor can, with the committee's permission, in principle attend and address it.
- Of course there are limits. Councillors such as the councillor in R (Richardson) v North Yorkshire County Council  EWCA Civ 1860;  1 WLR 1920, who lived 250 metres from the quarry which was the subject matter before the planning committee, cannot attend since they have a prejudicial interest in the outcome: under the Model Code for councillors their personal interest is such that a member of the public, with knowledge of the relevant facts, would reasonably regard it as so significant that it is likely to prejudice their judgment of the public interest: -. But that is not this case: Cllr Tindale had no personal, prejudicial interest. In R (on the application of Lewis) v Redcar and Cleveland BC  EWCA Civ 3;  1 WLR 1461 it was alleged that there was predetermination in the decision to grant planning permission over the local authority's own land in the run-up to the local elections. At first instance the judge had found that a member of the cabinet, which had decided to sign heads of agreement with the developer, should not have participated in the planning committee meeting, given that the cabinet had become so closely identified with the grant:  EWHC 3166 (Admin), -. On appeal Pill LJ rejected the judge's finding in that regard: the cabinet member could participate. Pill LJ added that leading members of a local authority, who have participated in the development of planning policies and proposals, should not normally exclude themselves from decision making meetings: . Rix and Longmore LJJ agreed.
- The next issue is whether Cllr Tindale's address polluted the well, as Mr Colville put it. One aspect is whether Cllr Tindale misled the committee about what the Executive and full council had done in March 2009, in referring to approval of mixed use development for the site. Mr Colville relied heavily on the sequence of events: it was only in October 2009, six months after the meeting of the Executive and full council, that the Deed of Overage clarified development in terms of the draft planning brief, and that a possible future of mixed use development for the site became clear. This I cannot accept. Although the full picture is not before the court it is fairly obvious from the letter sent to interested parties in early March 2009, and from the questions that Mr Hurford of the Federation asked at full council later that month, that a mixed use development for the site was on the cards. Henderson's involvement was known, and hence its reputation as both an investor and a developer. As well, the letter made clear that the Waitrose and Council car parks were part of the proposals. Even if a mixed use future for the site was not at that point explicit, it was an obvious inference that a well informed observer like the Federation and full Council could draw. In my view Cllr Tindale did not mislead the committee in this regard. In passing I note that this was the view of Mr Steptoe, the head of planning, when he spoke to Ms Memoli during the course of the investigation, and of Ms Memoli herself.
- The real issue is Mr Colville's contention about the uncertainty of what the outcome at the August 2011 planning committee meeting would have been absent Cllr Tindale's intervention. In considering this two matters can be put to one side. First, Cllr Tindale's motives. In my view these are irrelevant as a matter of law. Partly that is because the law has always recognised that motives, even one's own, are difficult to discern: "It is common learning that the thought of a man is not triable, for the Devil has not knowledge of man's thoughts": Year Books of Edward IV (17 Edw 4, 2 Term Pasc), per Brian CJ. Partly also it is because the crucial point in Mr Colville's case is not Cllr Tindale's motives in making the remarks but their impact on the committee members' decision.
- Secondly, I assume, for the sake of the argument, that the Council's decision in 2009 on the land deal with Henderson was not a material planning consideration. Mr Colville accepted that Cllr Tindale's second topic, leakage of retail trade to other towns, was a relevant planning issue. In my view the third topic he addressed – Henderson's reputation – was as well, since that went to delivery of the scheme. In R (Midcounties Co-operative Ltd) v Swindon BC  EWHC 3775 (Admin) Hickinbottom J considered the issue of planning applications concerning a local authority's own land and held that its plans, intentions and aspirations in its capacity as landowner related to the character and use of land. Even if not planning policy, his Lordship said that it did not mean that these were not a material consideration in the planning context: . Mr Colville sought to distinguish Midcounties on the ground that it was concerned with prospective factors, whereas the present case was concerned with the past (the 2009 deal). In my view, that difference is not determinative. Taking into account a past transaction, which is in furtherance of a local authority's aspirations for a site, could well be a relevant planning consideration, so long as the Council's own interests as landowner are disregarded. That, however, is for another day and I need not decide the point.
- For the plain fact is that I am simply not persuaded that Cllr Tindale's reference to the 2009 arrangement, or their existence, had any influence on committee members. The officer's report directed members to the relevant planning issues and the majority followed its recommendations in favour of granting outline planning permission. I reject the criticism that the report advised the committee that the 2009 arrangements should be given "no weight", which was not equivalent to telling members that they were legally irrelevant. That is the type of textual analysis of planning officers' reports which the courts have long deplored: see most recently R (Morge) v Hampshire County Council  UKSC 2;  1 WLR 268, , per Baroness Hale. Use of the words "no weight" was perfectly adequate and made clear to the planning committee that the land deal was to be disregarded and was therefore irrelevant to their decision.
- In my view there is no reasonable basis for concluding that, despite this clear direction in the planning officer's report, the members would nonetheless have done something else. All of the councillors in the majority were experienced, not new members. All members of the committee had received training which emphasised that they should always focus on planning matters only in their decision making. As Richards LJ noted in R (on the application of Condron) v National Assembly for Wales  EWCA Civ 1573;  2 P & CR 4, even a basic course of training in planning matters will bring home to members the importance of approaching decisions with an open mind and having regard to relevant considerations: . Immediately following Cllr Tindale's statement the chair, Cllr Ashley, reminded the committee that they were determining the application on planning grounds only. Given their experience and training there was no need for him to spell that out in greater detail. It is clear that the councillors were aware of the point. Cllr Jones, who spoke immediately after Cllr Tindale, addressed planning issues and ignored what Cllr Tindale had said about the 2009 decision. Cllrs Taylor, who followed him, expressly stated that the 2009 deal was not relevant to the committee's planning decision. Cllr Buckmaster said the same. The tenor of the committee members' debate was, in short, around the planning issues.
- But this raises the question of whether any detailed analysis of what members said is necessary or appropriate in this context. As to necessity, there has been a long discussion in the jurisprudential literature as to how as a matter of practice judges can possibly discern the basis of collective decision making from what is said in debate: e.g. Neil Duxbury, Elements of Legislation, Cambridge University Press, 2013, 95-97. Not only may members of the collective not express their views, but if they do their real reasons for voting may be veiled or unclear. The cut and thrust of political debate is not conducive to refined textual analysis.
- Judges have long appreciated the difficulties. In The King v London County Council  2 KB 466 the issue was whether the Council as a licensing authority of theatres and cinemas had taken into account what was said to be an irrelevant factor, namely, that the majority of the applicant company's shareholders were enemy aliens. What some councillors had said in debate was before the Court of Appeal. Buckley LJ said that he did not pay much attention to the views expressed by six members out of the whole Council in determining what was the ground upon which the Council acted: at 489. In a well-known passage Pickford LJ (later Lord Sterndale MR) said:
"With regard to the speeches of the members which have been referred to, I should imagine that probably hardly any decision of a body like the London County Council dealing with these matters could stand if every statement which a member made in debate were to be taken as a ground of the decision. I should think there are probably few debates in which someone does not suggest as a ground for decision something which is not a proper ground; and to say that, because somebody in debate has put forward an improper ground, the decision ought to be set aside as being found on that particular ground is wrong:" at 490.
- Simon Brown J referred to this passage with approval in R v Exeter City Council ex. p J L Thomas  1 QB 471, as did Burnett J in Scottish Widows plc v Cherwell DC  EWHC 3968 (Admin), . In ex p JL Thomas Simon Brown J said that since the planning committee in that case was taking a collective decision on the application, one had to consider the "general tenor of the discussion rather than the individual views expressed by committee members, let alone the precise terminology used": at 483H-484A. Accordingly, he did not find it helpful or necessary to refer to the details of the relevant committee meeting on 20 June 1988. In my view the same applies here.
- Apart from these practical issues it seems to me that there are more fundamental issues as to the appropriateness of courts delving too deeply into the debates of democratically elected politicians. In the planning context one possible aspect is expertise. The court have cautioned against undue judicial intervention in policy judgments by expert tribunals within their areas of special competence (AH (Sudan) v Secretary of State for the Home Department  UKHC 49;  1 AC 678,  per Baroness Hale), and this reticence has been applied to considering the decisions of planning inspectors on issues of planning judgment: Wychavon District Council v Secretary of State for Committees and Local Government  EWCA Civ 692,  PTSR 19, , per Carnwarth LJ. Arguably, the same applies to experienced planning committees with their training and codes of conduct.
- More importantly, planning committees comprise democratically elected politicians, seeking to respond to their local communities and ultimately answerable to them. The job is not easy, especially when passions on an issue are high and rational argument is squeezed. Large numbers of the public may attend committee meetings to voice their concerns. It is not just that the non-elected judge, sitting in the relative tranquillity of The Strand or Parliament Square, is unlikely to have experience these pressures and how debate in these circumstances is shaped. It is also that excessive forensic analysis of political debate has an appearance of fettering the democratic process. To my mind the taking of statements when councillors are asked to explain their voting, is especially to be deplored. Prudence is the sensible judicial approach in this context.
Ground 2: Unfairness and breach of Environmental Impact Regulations
- This ground relates to whether the Council acted unfairly in granting planning permission by failing to give the Federation and others the opportunity to comment on the additional documents submitted by Henderson in July 2012. It will be recalled that following the Government's NPPF, Henderson submitted an Environmental Statement Addendum and a Supplementary Planning Statement. These documents were placed on the planning file and were available for public inspection, but there was no consultation process. In Mr Colville's submission, while there is no duty to publicise changes to a planning application, Circular 15/92 advises that a local authority can decide to publicise changes if the changes are significant and the earlier objections do not cover the issue. Moreover, a local authority must adopt a fair procedure which gives those affected a fair opportunity to make informed input on an application.
- In Mr Colville's submission this is particularly reflected in the requirements found in regulations concerning environmental impact assessments. Regulation 22 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 SI 2011, No 1824 is the current provision. At the time the relevant regulation was regulation 19 of the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, SI 1999 No 293, which is very similar to regulation 22. Regulation 19 provided:
"(1) Where the relevant planning authority, the Secretary of State or an inspector is dealing with an application or appeal in relation to which the applicant or appellant has submitted a statement which he refers to as an environmental statement for the purposes of these Regulations, and is of the opinion that the statement should contain additional information in order to be an environmental statement, they or he shall notify the applicant or appellant in writing accordingly, and the applicant or appellant shall provide that additional information; and such information provided by the applicant or appellant is referred to in these Regulations as "further information".
(2) Paragraphs (3) to (9) shall apply in relation to further information and any other information except in so far as the further information and any other information is provided for the purposes of an inquiry or hearing held under the Act and the request for the further information made pursuant to paragraph (1) stated that it was to be provided for such purposes."
Regulation 19(3) required the further information to be published in a local newspaper. Regulation 2 defined "any other information" mentioned in regulation 19(2) to mean any other substantive information relating to the environmental statement and provided by the applicant. Schedule 4, Part 1, paragraph 5 required to be included in environmental statements, a description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment.
- In Mr Colville's submission the Addendum contained substantive information. In this regard he referred to R (on the application of Corbett) v Cornwall Council  EWHC 2958 (Admin). There the issue was whether, following publication of the NPPF, a local authority which had resolved to grant a planning application beforehand was obliged to refer the matter back to the planning committee. In the course of his judgment Lewis J referred to the term "any other information" in the Regulations and said it had to be read in context and in the light of the Regulations as a whole. It did not include comments made by the applicant in response to concerns of third parties or local authority officers. That, in Mr Colville's submission, was not the case here. The July 2012 documents were the type of document which Lewis J's analysis would treat as substantive. Here the report was labelled as an "Addendum", it reviewed all the matters in the agreed Environmental Assessment under the same headings and was obviously substantive. It should have been published to allow those like the Federation to make representations, which it would have done.
- In my view there was no unfairness. The documents in question were placed on the planning file, albeit not as good practice dictated uploaded onto the website. The Federation had the opportunity to comment. The July documents updated the situation in the light of the NPPF. As Mr Steptoe confirmed in his assessment in December 2012, there was no material change arising in respect of the changes in policy. Any unfairness to the Federation was entirely technical. The NPPF did not make any difference to the assessment of the application, indeed, it strengthened it. English law does not recognise a technical breach of natural justice: George v Secretary of State for the Environment (1979) 38 P & CR 609, 617, 621.
- That leaves the regulation 22 issue (in fact, as explained, the regulation 19 issue). The deputy judge did not give the Federation permission to argue that there had been a breach. In any event since the Environment Assessment Addendum was only an updating exercise which related to an assessment of the NPPF, and the NPPF was found to have no effect on the assessment of the planning merits, it did not contain substantive information as required by the definition of "any other information" in the Regulations. As Mr Steptoe, the head of planning concluded in his assessment in December 2012, it made no difference to the planning judgment in respect of the proposed development. The Addendum document would not be caught by the approach of Lewis J in Corbett v Cornwall Council  EWHC 2958. Regulation 19 was not engaged. Even if I had found that there had been a breach of Regulation 19, since it was at best a technical breach, which would not have resulted in any different outcome, I would have withheld a remedy because there was no substantial prejudice to the Federation: see Walton v Scottish Ministers  UKSC 44;  PTSR 51, , per Lord Carnwarth; , per Lord Hope.
- For the reasons I have given I refuse judicial review of the Council's decision to grant planning permission. Nothing Cllr Tindale said flawed the decision of the committee in August 2011. The committee exercised its discretion in a perfectly proper manner. Failure to consult on the July 2012 documents Henderson submitted in the light of the NPPF constituted neither a breach of natural justice nor of the Environmental Impact Regulations. As a footnote I add this in fairness to Cllr Tindale. Ultimately he was found to be in technical breach of the Code of Conduct through his attendance and address to the planning committee in August 2011. For the reasons I have also given, a large question mark hangs over that finding.
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