MR JUSTICE ELIAS:
- This is a case where an application for permission for judicial review, together with the substantive hearing, are being heard together. This is pursuant to an order of Mr Justice Maurice Kaye. The Claimants seek orders from the court quashing a grant of outline planning permission, together with certain related listed buildings and conservation areas consents. They were all granted on 17 April 2001 by the Defendant council, which is the local planning authority for the area in question, pursuant to earlier resolutions passed on the 12 March 2001.
- In addition, the Claimants seek a declaration that to the extent that the relevant legislation required the Defendant council to determine the question whether or not to grant the outline planning permission and the related consents, it is incompatible with the Claimants’ rights under Article 6 of The European Convention on Human Rights.
The Blackfriars area.
- Blackfriars is an area of land in Gloucester. It is bounded by Southgate Street to the East, Westgate Street to the North, and Commercial Street to the South. It is an area of some archaeological interest, for it is believed that there are significant archaeological remains from the Roman and Mediaeval eras. In Roman times it was known as a colonia, which means that it was one of the few areas where Roman citizens were allowed to live. There are also in the area some fine buildings of historical and architectural interest. There are a number of listed Grade 1 and Grade 2 buildings. One of these is Blackfriars Priory, from which the area takes its name, which is both a listed Grade 1 building and a Scheduled Ancient Monument within the meaning of the Ancient Monuments and Archaeological Areas Act 1979. Another of the buildings, which figures to some extent in these proceedings, is the Robert Raikes House. This is a Grade 2* listed building fronting Southgate Street and is owned by the second Claimants.
- The area is relatively central: it is adjacent to the city’s main shopping area, within sight of the cathedral, and only a short walk from the docks area of the city to the north. It falls within a conservation area. Notwithstanding these positive features to which I have made reference, it is an area whose visual and townscape qualities are extremely poor: the area contains a significant portion of vacant or unused buildings, as well as surface level parking.
The history of the proposed development.
- In 1987 a development company, Arrowcroft Group plc(the interested party in these proceedings) initiated discussions with the council to ascertain whether proposals for development within the Blackfriars area (principally for retail use) would receive the support of the Council. They received a positive response.
- In December 1988 Arrowcroft submitted a planning application for development of land on the eastern side of the area. They were proposing a development with car parking above the retail element and with a second multi storey car park located at the junction of Ladybellegate Street and Commercial Road. In early 1989, Arrowcroft purchased property at No 9 Westgate Street, which is within the relevant area. By then they had received encouraging noises from council officers that the council would enter into a development partnership with them to facilitate the development of the Blackfriars site.
- The application for planning permission made in December 1988 was considered on 20 March 1990. The council indicated that it was favourably inclined to the proposals.
- At the end of November 1990, the council decided that the Blackfriars site should be marketed to developers on a competitive basis. Accordingly they produced what they termed a “design brief” which was issued to prospective developers. There was a competition between interested developers, which led to Arrowcroft being appointed by the council as its development partner in April 1995. (In fact, however, a development agreement was not entered into until 24 November 1999).
- Shortly after its appointment as the council’s development partner, Arrowcroft made an outline planning application, dated 18 December 1995, which was registered by the council on 10 January 1996. Broadly this envisaged a mixed development including retail, offices, housing, a crèche and mobility centre to the east of the area, and a multi-storey car park to the west of Ladybellegate Street. At that time, in the western part of the area, it was also envisaged that there would be a Magistrates Court. The land for that was then owned by the Gloucestershire County Council. The application was considered by the Planning Committee on 18 March 1997 and it indicated that it was minded to grant planning permission but subject to a number of matters receiving further attention. In particular, there was some concern expressed about the visual impact of the proposed multi-storey car park, and also the absence of shops or other town centre uses in Ladybellegate Street itself.
- Arrowcroft then made a number of revisions to the original scheme. In particular, in 1998 the proposal for the Magistrates Court was abandoned and the county council sold the site on which the Court was to have been located to the city council. This in turn led to the council publishing a revised design statement to take account of the availability of this site and to guide development proposals. Arrowcroft then proposed that on the west side of Ladybellegate Street there should be a multiplex cinema with three cafes/bars/restaurants and a multi storey car park. The design was such that the car parking would be mainly below Ladybellegate Street and the multiplex cinema would be above the car park, effectively at street level. A full planning application reflecting this new solution was made on 11 January 1999. Planning permission was granted on 20 October 2000. This related to what became known as the “first phase” of the development. The permission was made subject to a number of conditions, however, including a condition which prohibited commencement of the redevelopment until an agreement under section 106 of the Town and Country Planning Act 1990 (“the 1990 Act”) has been executed in the form set out in a schedule to the development agreement.
The first compulsory purchase order.
- Prior to permission being granted, on 25 May 1999 the Defendant had made the City of Gloucester (Blackfriars) (No 1) Compulsory Purchase Order 1999 pursuant to Section 226(1)(a) of the 1990 Act. Under that order the Council is seeking to acquire land for the purpose of achieving the development. This land included some land belonging to the first Claimant in this action.
Planning permission at the docks
- Meanwhile another development company, Crest Nicholson Properties Limited, had on 4 September 1998 applied for planning permission to redevelop land at Gloucester docks. This is very close to the Blackfriars area. The application was for uses including certain leisure uses, one of which was for a multiplex cinema. The council did not determine the application and Crest Nicholson appealed to the Secretary of State. There was a public inquiry in November and December 1999 (the first docks inquiry). The Council objected to the grant of planning permission because it would adversely impact upon the prospect of securing a multiplex cinema at Blackfriars and would impose a serious threat to the successful development of the Blackfriars site. However, by a decision letter dated 9 February 2000, the inspector granted planning permission for the comprehensive redevelopment of the dock site for various uses, including the particular leisure uses.
The second compulsory purchase order
- On 16 August 2000 the Defendant made a second compulsory purchase order the City of Gloucester (Blackfriars) (No 2) Compulsory Purchase Order 2000. This is designed to enable it to purchase land for the Blackfriars redevelopment. The land covered by the order includes land which is owned by both the first and second Claimants.
- The first Claimant objects to both compulsory purchase orders, and the second Claimant objects to the second compulsory purchase order, which is the only order relating to its land. As I have said, shortly after the second compulsory purchase order, on the 20 October 2000, the Council granted full planning permission to Arrowcroft in respect of its application relating to phase one.
The second docks inquiry.
- On 27 June 2000 Crest Nicholson applied for approval of reserved matters pursuant to the outline planning permission which had been granted following the first docks inquiry, to which I have made reference. Again the Council failed to determine the application, there was an appeal to the Secretary of State, and he appointed an inspector to hold a public inquiry. That was held on 19-21 December 2000 (the second docks enquiry). By a decision letter dated 5 February 2001, approval was granted for the siting, design, external appearance and means of access for the redevelopment at the docks. This included the construction of a multiplex cinema.
Decision under challenge
- On 12 March 2001 the Defendant, by its planning committee, considered the application for outline planning permission as well as the related applications for listed buildings and conservation areas consents. It had before it a report of Mr. D M Scott who is the Director (Environment) with the Defendant council. The planning authority resolved to grant outline planning permission for the demolition or partial demolition of certain buildings and a comprehensive redevelopment, as well as the construction of new vehicular and pedestrian accesses. The relevant permissions and consents were then granted on 17 April 2001 (save that two applications for listed buildings consent were not approved at that time.)
Compulsory Purchase Inquiry
- A week after the outline planning permission was granted, on 24 April 2001, a public inquiry commenced in relation to the two compulsory purchase orders to determine whether or not they should be confirmed. The inquiry has been holding hearings intermittently since then. The Claimants are relying in part upon certain answers given to that inquiry to support their current applications.
Judicial Review challenge
- The Council was notified the Claimants were intending to apply for Judicial Review of the outline planning permission and related consents on Friday 4 May. The application was lodged on 18 May. At that stage Arrowcroft were plainly an interested third party since they were the applicants in relation to planning permission, but they had not been served. The judicial review application was amended to add them as an interested party, and Arrowcroft were apparently served on 8 June. The application was further amended on 15 June to add fresh grounds of challenge. One of the issues in this case is whether, in view of this history, there has been undue delay which ought to disqualify the Claimants from obtaining permission, or at least from being refused relief. I was not, however, asked to consider delay as a preliminary issue, and I did not do so.
The legal issues
- The Claimants submit that the outline planning permission and the related consents can be quashed on five distinct grounds. First, the Claimants contend that the development in respect of which the outline planning permission was granted is significantly different to that envisaged in the original application. Consequently they say that it was incumbent on the planning authority to ask itself whether the effect of the amendments to the original application was such that any grant of planning permission would allow a development which was not in substance the subject of the original application. If it was, then the Council should have required the developers to lodge a fresh application. They could not lawfully simply permit an amendment to be adopted. The Claimants allege that there is no proper evidence to demonstrate that the issue whether or not to require a new application in place of the proposed amendments was ever considered by the authority, and that the Court should infer that it did not address its mind to the matter at all. Furthermore, it is submitted that even if the issue was considered, the planning authority reached a perverse conclusion in determining that no fresh application was required.
- Second, the Claimants submit that the planning authority ought to have considered whether or not there was a need for an environmental statement from the developer, Arrowcroft Ltd. Such a statement is required pursuant to Schedule 2 of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (“the 1988 Regulations”) in certain specified circumstances. (The 1988 regulations were replaced by a new set of regulations in 1999, but it is common ground that they were the applicable regulations at the material time when the original application was made in 1995.) The planning authority accepts that pursuant to Schedule 2 there is a need for such a statement in relation to a development of this kind if it is “likely to have significant effects on the environment by virtue of factors such as its nature, size or location”. The Claimants accept that it was for the planning authority or a body to whom they had properly delegated the relevant powers, to determine whether or not it was likely to have that effect. But they submit that the question was not addressed in this case. Moreover, insofar as the evidence from the authority suggests that it was in fact addressed by the Environmental Director, the Claimants allege that he erred in law in the way in which he approached the question of whether the environmental statement could be dispensed with, and that he reached a decision which was irrational. Given the obvious impact of the development on the environment, the Claimants contend that the only conclusion that could properly be reached was that the development would be likely to have a significant impact on the environment. Finally, the Claimants also say that given the matters which had been reserved in the outline planning application, there was simply insufficient information to enable the planning authority confidently to form the view that the statement was not required.
- The third ground of challenge relates to the conservation and listed building consents. Section 72 of the Planning (Listed Buildings and Conservation areas) Act 1990 (as amended) requires that when granting planning permission in a conservation area, “special attention shall be paid to desirability of preserving or enhancing a character or appearance of the area”. In addition, the effect of the proposed development on the setting of the listed buildings is a material consideration. The Claimants submit that neither these considerations, nor Planning Policy Guidance 15, which provides guidance relating to conservation areas, were properly or adequately taken into account by the planning authority. In a related submission it is alleged that the report provided by Mr. Scott for the members was wholly inadequate in its treatment of conservation and listed building matters, and that the planning authority had insufficient information in any event to determine the conservation effects of the development proposals.
- The fourth ground of complaint is that the planning authority acted under a misapprehension of certain material facts. The premise underlying this challenge is that the authority approached the proposals for the Blackfriars area on the basis that any profit from phase one (that is the phase relating to the multiplex cinema and car park in respect of which full planning permission has been granted) would be used to implement the comprehensive redevelopment under phase two i.e. the remainder of the development. The Claimants submit that this was simply wrong. There was no provision in the development agreement between Arrowcroft and the Council, or indeed anywhere else, which required the profit from phase one to be applied to the implementation of the phase two development. They further allege that the authority failed to take into account relevant evidence which would have cast doubt on whether the development was viable. In particular, the Council itself had alleged at the first docks inquiry that the multiplex cinema could not succeed if the planning permission were granted for the development at the docks, and of course it was, yet this fact was not drawn to the members’ attention.
- Finally, the Claimants submit that in reaching a determination on this planning application, the planning authority acted in breach of Article 6 of the European Convention on Human Rights. It is said that the council is not “an independent and impartial tribunal” within the meaning of Article 6, and that the procedures adopted did not meet the standards required for a fair and impartial hearing. In the particular circumstances of this case, they contend that the availability of judicial review does not render the procedures Article 6 compliant. They point out that there was no public inquiry and therefore no opportunity to challenge the evidence before the Defendant by cross-examination, or the assumptions relied upon by them.
- The Claimants originally contended that insofar as the relevant legislative provisions compelled the planning authority to adopt procedures in breach of the Article, those provisions were not compatible with their human rights and the court should make a declaration of incompatibility pursuant to section 4 of the Human Rights Act. I gave leave for the Secretary of State to be joined in the proceedings to deal specifically with the Article 6 argument and the related question of incompatibility. In the event all parties before me agreed that even if there was a breach of Article 6, it was not an inevitable consequence of the legislation. It was possible for the planning authority to adopt Article 6 compliant procedures, if necessary by invoking its powers under section 111 of the Local Government Act to hold a quasi-judicial inquiry. I agree with that analysis. Accordingly, in the event the question of a declaration of incompatibility being made was not a live issue by the end of the submissions.
- I will now turn to consider the issues in dispute.
Ground One: amendments to the original planning application
- The council accepts there were various amendments to the original outline planning application. In his witness statement, David Scott, the relevant planning officer, has helpfully identified 18 amendments which have been made to the original application since it was lodged in 1995. Broadly there were three batches of amendments: first, a series of amendments on 20 September 1996; second, a further set of amendments in July 1998; and finally, amendments accepted on the 18 January 2001 which were largely consequential upon the full planning permission granted to the multiplex. Many of the amendments have been relatively minor. A number have included boundary realignments which have removed some areas from the original site but added others. In some cases internal streets have been realigned without any change to the application site or its land use content.
- There have, however, been three amendments to the original application of greater moment, and they are relied upon by the Claimants. First, there was the removal of the Magistrates Court and the introduction on the west side of the site of the multiplex cinema and the multi-storey car park. Second, there has been the removal of proposed housing from the Blackfriars area. According to Mr. Scott, the reason for this was that it was too close to the proposed leisure uses of the site and so these residential units were put in other locations. This did not involve any change to the site areas or its land use. Third, there have been extensions of the site boundary to include areas not previously included. In particular, the area was increased to include acquired by the City Council for the redevelopment at the corner of Commercial Road and Ladybellegate Streeet. All these modifications were submitted to the council in July 1998. (Other modest variations to the site area itself were made in 2001).
- The Claimants say that the amendments made in 1998 were so significant that they ought to have been refused as amendments and the planning authority ought to have required Arrowcroft to put in a fresh application. The Claimants do not, however, submit that the amendments made either in 1996 or 2001 fell into the same category.
- It is not alleged that there was inadequate consultation about these changes. Such a challenge would have been wholly unsustainable. As Mr. Scott makes plain in his witness statement, when the proposed amendments were received by the council in July 1998 they took steps to ensure that they received extensive publicity so as to enable all interested parties to have the opportunity to make representations upon them. A letter was sent to interested parties on 29 July 1998 informing them of the receipt of the revised planning application and briefly summarising what it was, together with notification that relevant details could be inspected at the council offices. Similar steps were taken with the amendments notified to the council in February 2001.
- The officer’s report to the committee drew attention to the fact that there had been three sets of amendments to the original application and that consultations had taken place over a 5-year period, and specifically following each set of amendments. The result of those consultations, identifying when the particular representations were made, was then set out in an appendix to the report.
- The Claimants say that the planning authority (or an officer to whom the relevant powers has been delegated) ought to have considered in 1998 whether or not the amendments were sufficiently significant to require a fresh application to be made. Mr. Scott in his witness statement states in terms that he did discuss with colleagues how the matter should be treated procedurally. The power whether or not to accept the amendments had been delegated to officers, and he says that he recalled considering with other officers whether Arrowcroft should submit a completely new application. He decided that this was not necessary. In his witness statement he described his reasons for so doing:
“The view I took was that a better level of understanding would be achieved through maintaining continuity by processing the one already made. A particular reason for maintaining continuity in this case was that, while the application was under discussion, the council and Arrowcroft were seeking to secure commitments by potential occupiers of the scheme, and in particular by occupiers for the “anchor” department store and a multiplex cinema; it was important that the scheme should be perceived as evolving. Having regard to the nature and scale of the proposed development as a whole, I did not consider that the changes would result in development substantially different from that originally applied for.”
- The Claimants accept that the decision whether or not a fresh application is required is ultimately one for the planning authority. But they say that this reasoning displays an error of law, namely that the reason for not requiring a fresh application was the desire to give an impression of the scheme evolving. For good measure, they add that in any event the conclusion reached was in all the circumstances perverse.
The law and amendments
- It is inevitable in the process of negotiating with officers and consulting with the public, that proposals will be made or ideas emerge which will lead to a modification of the original planning application. It is plainly in the public interest that proposed developments should be improved in this way. If the law were too quick to compel applicants to go through all the formal stages of a fresh application, it would inevitably deter developers from being receptive to sensible proposals for change. In my view the following observations of Lord Keith in Inverclyde District Council v Lord Advocate and Others (1981) 43 P.&C.R.375 are relevant, albeit made in a different context:
“This is not a field in which technical rules would be appropriate; the planning authority must simply deal with the application procedurally in a way just to the applicant in all the circumstances. There was no good reason why amendment of the application should not be permitted at any stage if that should prove necessary in order that the whole merits of the application should be properly ascertained and decided on”.
- I would add that of course the interests of the public must also be fully protected when an amendment is under consideration. They were, however, fully protected in this case by the detailed consultation that took place in respect of the amendments.
- A highly practical approach to the question of amendments was adopted by Sir Douglas Frank Q.C., sitting as a deputy High Court Judge, in Britannia (Cheltenham) Ltd. v Secretary of State for the Environment and Tewkesbury Council…He is reported to have said this:
“He further thought it was competent for the applicants and the planning authority to agree a variation of an application at any time up to the determination of the application. To take any other view would fly in the face of everyday practice and make the planning machine even more complicated than it was, for it was common practice for an application to be amended by agreement following negotiations between the applicant and the planning officer.”
- Applying those principles, the only question is whether the decision to permit the matter to be dealt with by an amendment was one that could properly be taken. In my judgment it plainly could. Mr. Scott addressed the matter and concluded that the change was not substantial in all the circumstances, including the fact that further consultation would take place. I have no doubt that that was a decision open to him. There were some changes of significance, but not such as to compel the conclusion that a fresh application should be submitted. Indeed, in many, and perhaps most, cases I would not have thought that it is necessary for the planning authority, or the officer to whom the power to accept amendments is delegated, formally to ask whether or not a fresh application is required. The answer will so obviously be “no” that the issue does not arise. Even where it does arise, provided there is a proper opportunity given for adequate consultation, and that any other potentially relevant matters are taken into account, such as whether the amendment requires the modification of an environmental impact statement, it is difficult to see in most cases what prejudice is suffered by permitting the change to be effected by way of amendment. No doubt there will be cases where the amendment is so far reaching that it is not sensible or appropriate simply to consult over the changes themselves. This will be the position, for example, where the original consultation exercise is, as a consequence of the amended proposals, of little or no value. The appropriate approach then is simply to start again.
- Exceptionally the distinction between an amended application and a fresh one will have wider significance even where there is full consultation over the amendments. It may be that legislation has been introduced which would catch a fresh application but not an amendment. (That would have been the position here if the amendments made in 2001 were substantial since a fresh application would then have fallen under the 1999 environmental regulations rather than the earlier 1988 regulations.) Even then, in my judgment the question remains whether the change is so substantial that the application can only be considered fairly and appropriately, bearing in mind both the interest of the applicant and potentially interested members of the public, by requiring a fresh application to be lodged. If the planning officer considers that it can be fairly and appropriately considered by an amendment, and that is not an unreasonable conclusion in the circumstances, the courts should not interfere.
- In advancing this part of the argument, the Claimants relied upon certain decisions where the courts have refused to permit planning permission to be granted in relation to a development which was substantially different to the application sought. In Bernard Wheatcroft Limited v Secretary of State for the Environment (1982) 43 P&CR 233 the applicants applied to the local planning authority for planning permission for a housing development comprising of approximately 420 dwelling on 35 acres. The authority refused permission and there was an appeal to the Secretary of State. He set up an inquiry but prior to the opening of that inquiry, the Applicants indicated to the authority that they were proposing to put forward an alternative proposal at the inquiry for 250 dwellings on 25 acres should their original proposal be considered to be too large. The Inspector in his report concluded that that if the appeal were restricted in that way then consent should be granted, but such consent should not be given for the original proposal. The Secretary of State in his decision letter considered that it would not be appropriate to grant permission in respect of the lesser number of houses, given the original application. The Applicants applied under Section 245 of the Town and Country Planning Act 1971 for his decision to be quashed. Mr Justice Forbes allowed the application. He held, contrary to the view of the Secretary of State, that the question was not whether the proposed development was severable from that proposed in the original application. Rather it was whether the amendments changed the substance of the original planning application. At page 241 he enunciated the true test as follows
“Is the effect of the planning permission to allow development that is in substance not that which was applied for?…..The main, but not the only criterion on which that judgment should be exercised is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation…”
- In a subsequent decision, Breckland District Council v Secretary of State for the Environment and Hill (1992) 65 P&CR 34 Mr David Widdicombe Q.C., sitting as a Deputy High Court Judge, referred to the test adopted by Mr Justice Forbes. He expressed a view that where there was plainly a substantial change between the development originally applied for and that in respect of which consent was granted, it was not strictly necessary to ask whether there had been as a consequence a failure properly to consult persons affected.
- In my judgment these cases are not inconsistent with the conclusions I have reached. They still focus on whether the change is substantial bearing in mind the effect on third parties as well as the applicant. But they are concerned with the position on appeal, and plainly there will be a more limited scope to accept what is in effect an amended application at that juncture. It will not be possible at that stage, for example, to permit further consultation. It would plainly not be appropriate to grant planning permission in circumstances where the statutory requirements have not been complied with. The procedure for amendment cannot be used to sidestep the rights of third parties. Not surprisingly, therefore, the question whether an amendment can be fairly and appropriately allowed in that context will be wholly different to the same question when posed by the planning authority itself at a stage when no permission has been granted and further consultation is possible. It follows that these authorities do not affect the conclusions I have reached.
- Accordingly, I would not interfere with Mr. Scott’s decision in this case. I should add, however, that I doubt whether he was entitled to have regard to the desirability of not discouraging potential occupants of the commercial properties. However, since he concluded, perfectly properly, that the amendment was not sufficiently substantial in any event, it was not a material error. Even if it were material, I would in my discretion have refused relief given that the Mr. Scott plainly would and could have come to the same decision in any event.
Ground Two: The Environmental Statement.
- This application for planning permission was subject to the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988. (As I have indicated, the later 1999 regulations do not apply in this case.) The regulations were made under section 2 of the European Communities Act 1972 to give effect to a European Directive 85/337/EEC. ….
- The regulations provide that in certain circumstances the local planning authority cannot grant planning permission unless they have first taken into account certain environmental information. The concept of environmental information is defined in reg. 2 as follows:
“environmental information” means the environmental statement prepared by the applicant or appellant or in a case falling within regulation 17 by the authority, any representations made by any body required by these Regulations to be invited to make representations or to be consulted and any other representations duly made by any other person about the likely environmental effects of the proposed development.”
- The environmental statement, which is part of the environmental information and is the subject of consultation, must be provided wherever there is an application for a development falling within schedules 1 or 2. Schedule 2 applies to certain developments provided that the development “would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location”. Schedule 2 developments include, under para. 10(b), urban development projects. It is common ground in this case that the proposed development falls within that paragraph.
- There are a number of provisions which regulate the procedure for submitting an environmental statement. By regulation 5 a person minded to make an application can ask the authority to state in writing whether the proposed development would be of a kind to require an environmental statement. In order to enable the decision to be made, the applicant must provide to the authority a plan sufficient to describe the land; a description of the nature and purpose of the development and its possible effects on the environment; and such other information as the applicant wishes to provide. However, if the authority has insufficient information, it can request more. The authority should respond to any such request within three weeks of it being made “or such longer period as may be agreed in writing with the person making the request”. If the planning authority either expresses the view that such a statement is required, or fails to respond within the specified time, the proposed applicant can seek to have the matter considered by the Secretary of State (reg. 6).
- If the applicant simply makes an application without any statement, and the authority thinks that one was required, then by regulation 9 the authority has three weeks (or such longer period as is agreed) to provide the statement. If the applicant rejects the view, he may appeal to the Secretary of State. Similarly, the Secretary of State can require one if the application comes before him either for initial determination or on appeal.
- The environmental statement must include information set out in paragraph 2 of schedule 3 of the Regulations. That provision is as follows:
“The specified information is-
(a) a description of the development proposed, comprising information about the site and design and the size and scale of the development;
(b) the data necessary to identify and assess the main effects which that development is likely to have on the environment;
(c) a description of the likely significant effects , direct and indirect, on the environment of the development, explained by reference to its possible impact on-
human beings; flora; fauna; soil; water; air; climate; the landscape; the inter-action between any of the foregoing; material assets; cultural heritage;
(d) where significant adverse effects are identified with respect to any of the foregoing, a description of the measures envisaged in order to avoid, reduce or remedy those effects; and
(e)a summary in non-technical language of the information specified above.”
Paragraph 3 then sets out further matters which it might be thought desirable to include by way of explanation or amplification.
The decision about the environmental statement.
- The application for outline planning consent did not contain an environmental statement. No opinion had been sought under regulation 5, and the planning authority did not require a statement within the three-week period as they could have done under regulation 9.
- However, on the 18 September 2000 Arrowcroft’s solicitors wrote to the Council pointing out that they had not submitted an environmental statement, nor requested a formal opinion from the planning authority as to whether one was required pursuant to regulation 5. They expressed the view, with reasons, that the only factors which might potentially be thought to have a significant environmental effect related to the archaeological and architectural heritage. But they gave a number of reasons why even these factors did not justify such a statement.
- Mr. Gethin, an officer of the authority with day-to-day responsibility for the development, replied on 10 October that in his view a statement should be prepared. He gave three reasons for so concluding. These were summarised in his letter as follows:
(1) The site is an archaeologically sensitive area and the development may have a significant impact on important archaeological interests;
(2) The siting of the development could have a significant visual impact in terms of townscape in the city centre Conservation Area, a significant impact on the setting, character or appearance of Listed Buildings; and
(3) The development could have implications for city centre parking provision, traffic congestion and air pollution.
- He recognised that there were arguments for saying that the 1999 Regulations may not apply (and as I have said, it is common ground that they do not), but he considered that Arrowcroft should proceed on the basis that they should be followed.
- By a reply dated 13 October 2000, Arrowcroft’s lawyers responded in some detail to these three matters, and urged the authority again not to impose this requirement. Their arguments can briefly be summarised as follows. They relied upon Circular 15/88 Appendix A, para. 15 which advised that development of previously developed land was unlikely to require an environmental assessment unless it fell into certain categories, and it was submitted that this development did not. They reiterated their view that the only aspect of the development that might justify issuing the statement was the architectural and archaeological heritage, but they considered that it was not necessary here since it was an urban area, already intensively developed, and the levels of traffic were not expected to increase. Accordingly, noise and air quality would remain the same. They also pointed out that the archaeological remains were protected by the mitigation strategy that was being adopted.
- The letter recognised that para. 17 of the Circular 15/88, to which I have just made reference, stated that “…urban development schemes may require an Environmental Assessment in particularly sensitive areas e.g. historic town centres”, but it then referred to the following passage in that Circular:
“However, it should be borne in mind that the normal planning and listed building controls already ensure that the effects of development proposals on the built heritage are considered.”
The letter pointed out that in this development the fact that listed building and conservation area consents were required would prevent the development having any significant negative effect on the heritage.
- Thereafter there is no recorded reply to Arrowcroft, nor is there any note of any oral conversation or telephone call responding to this letter. However, Mr. Scott in his witness statement states that after the reply from Arrowcroft’s solicitors, he personally gave consideration to whether an environmental statement was required. He took the view that the 1988 Regulations were the applicable ones, and after considering the three areas referred to by Mr. Gethin, he concluded that the development was not likely to have a significant impact upon the environment. His reasons for so concluding were essentially those which had been adopted by Arrowcroft.
- As to the first reason, he was satisfied that adequate measures had been taken to minimise any effects on the archaeology in the area. As to the third, a traffic impact assessment had been carried out and it was anticipated that levels of traffic would remain much the same. Mr. Scott gave two reasons why he considered that he felt that there would be no significant visual impact on the townscape or on the setting, character or appearance of listed buildings:
“First, by the time of this exchange of correspondence, much work had been done by Arrowcroft’s advisers and by the Council’s officers and advisers to examine both the existing features of the area and the effects of the proposals. In addition the proposals had been discussed with English Heritage and we had received no indication that they felt that the developers should be required to provide an Environmental Assessment. Second, I had regard to the fact that the development to which the outline application related could not be implemented without the grant of separate Conservation Area and Listed Building consents.”
Mr. Scott then made reference to paragraph 17 of the Circular which had been mentioned by Arrowcroft’s lawyers.
The detailed legal challenges
- There are four specific challenges in connection with this ground. First, it was tentatively suggested that no decision was ever taken, even in October 2000, on the question whether an environmental statement was required. Second, it is alleged that the planning authority ought to have made a decision on whether or not an environmental statement was made within three weeks, and that thereafter it was too late to require one (although Mr. Horton accepted that one could be requested). Third, it is alleged that if the decision was taken, it was taken unlawfully and in breach of the Wednesbury grounds in that the authority failed to take into account relevant considerations and approached the question in the wrong way. Finally, Mr. Horton submits that given in particular that questions of design and external appearance were reserved matters, the planning authority did not have sufficient information available to it at that stage to form a view as to whether an environmental statement was needed or not. I will analyse each argument in turn.
Was a decision ever taken?
- As to this first ground, I reject it. I have a statement from the Director of the Environment who says in terms that he considered this matter. I have no reason to doubt his statement. Indeed, after the correspondence that had taken place between Mr. Gethin and the lawyers for Arrowcroft, it would have been surprising if a definitive view had not been taken by the responsible officer about whether an environmental statement was going to be required or not. It is certainly most unfortunate that no formal note of the decision was made, nor is it clear that it was ever communicated to the developers either orally or otherwise. However, there was no application to cross-examine Mr. Scott and I do not think that it would be right to gainsay what he has put in his witness statement. In my judgment, however, I am justified in concluding that the decision was taken in an informal manner, and that Mr. Scott had simply focussed on the specific issues raised in the correspondence between Mr. Gethin and Arrowcroft’s lawyers.
The planning authority had no power after three weeks to exercise it discretion to require an environmental statement.
- I also reject the second ground. It seems to me that the planning authority can put right the failure to call for an environmental statement by requiring one at any time prior to consent being granted. The Regulations themselves envisage that an applicant for planning permission can voluntarily submit a statement some time after the initial application is lodged, and I see nothing in the Regulations that would prevent an authority from requiring one. The three week period in regulation 9 does not operate as a mandatory requirement after which no statement can lawfully be required. In my view calling for such a statement is akin to seeking an amendment to the original application. Provided the procedures relating to consultation are complied with, and the representations are before the planning authority when it makes its decision, neither logic nor common sense nor the public interest dictate that the courts should treat the exercise as invalid merely because the planning authority only realised the need for the statement late in the day. Similarly, in my view it also follows that if a decision is taken not to call for a statement, that is capable of being a valid decision notwithstanding that it was not taken until shortly before the permission was given. There would be no point in requiring a fresh application in which the authority would again conclude that no statement was required.
- In short, in my judgment the authority can put right an earlier failure to address the issue, whichever decision it reaches when it does properly consider the matter.
The decision was unlawful on Wednesbury grounds.
- The third ground, namely that the decision was taken in breach of the Wednesbury criteria, has a number of elements to it. First, it is alleged that the authority, through Mr. Scott, applied the wrong test in law in determining whether or not an environmental statement was required. He asked himself whether there were significant adverse effects whereas Mr. Horton says that that is an unwarranted gloss on the statute. He should simply have asked whether the proposed development had significant effects, adverse or otherwise. Mr. Roots Q.C. for the Council conceded in argument that this was indeed Mr. Scott’s approach. He also conceded – plainly correctly - that the planning authority accepts that the development will have significant effects on the environment. But he submits that Mr. Scott directed himself properly in law in taking the view that it is only if the development has significant adverse effects that the environmental statement is required; and Mr. Scott was justified in concluding that it would not have such effects in this case.
- Second, the Claimants say that in any event Mr. Scott could not properly have concluded that there were no adverse effects. They submit that there plainly were a number of detrimental features to the development, and even if it could be said to be beneficial to the environment overall, the existence of the negative features were such that no reasonable authority could have concluded that they were not significant.
- Third, the Claimants say that Mr. Scott further misdirected himself in his approach to the question whether the impact on archaeology justified requiring a statement, and also in concluding, as he appears to have done from the passage in his witness statement which I have reproduced above, that one of the reasons for not requiring a statement was that it was in any event necessary for the developers to obtain listed building and conservation area consents.
- I will deal with all these issues separately.
Does the environmental statement have to be produced only if the effects are adverse?
- In my judgment if one simply construes the Regulations in the normal way, there is no doubt that they draw a clear distinction between the effects of a project on the one hand, and the adverse effects on the other. Paragraph 3 of Schedule 2, which I have set out above, in terms requires a description of the likely significant effects, explained by reference to its impact on a series of matters, and where significant adverse effects are identified a description of mitigating measures. This reflects in turn the same distinction drawn in the Directive: see Article 5(3) and Annex IV paras. 4 and 5.
- In view of this very clear distinction, I see no justification for treating the phrase “significant effects” as though it were qualified by the word “adverse”. If “effects” had meant simply “adverse effects” there would be no purpose in specifying that details of mitigation measures had to be given in respect of adverse effects. The reference to “adverse” would be wholly otiose.
- Further support for this construction is in my view found in paragraph 3(e) of schedule 3. This provides that an environmental statement may include information on:
“the likely significant effects direct and indirect on the environment of the development proposed which may result from:-
(i)the use of natural resources;
(ii) the emission of pollutants, the creation of nuisances, and the elimination of waste.
It is then specifically provided that “in paragraph (e),
“effects” includes secondary, cumulative, short, medium, and long-term, permanent, temporary, positive and negative effects” (emphasis added).
- Again, therefore, it is envisaged that information may be given about both positive and negative effects.
- In my judgment, the conclusion that there is a need to provide the relevant information if the project has significant effects, beneficial or adverse, is reinforced by a consideration of the purpose of the Directive. In part at least it is to involve citizens in the process of decision making where the environment might be affected. This objective of the Directive was adverted to by Lord Hoffmann in Berkeley v Secretary of State for the Environment  3 W.L.R.420. In that case it was accepted that an environmental statement should have been required and was not, but the Defendant alleged that there had been substantial compliance with the Directive and therefore no relief should be given. Lord Hoffmann, in the course of rejecting that argument, said this:
“The Directive requires not merely that the planning authority should have the necessary information, but that it should have been obtained by means of a particular procedure namely that of an E.I.A. And an essential element in this procedure is that what the Regulations call the “environmental statement” by the developer should have been “made available to the public” and that the public should have been “given the opportunity to express an opinion” in accordance with article 6(2) of the Directive. As Advocate-General Elmer said in Commission of the European Communities v Federal Republic of Germany (Case C-431/92)  E.C.R. 1-2189, 2208-2209, para 35:
“It must be emphasised that the provisions of the Directive are essentially of a procedural nature. By the inclusion of information on the environment in the consent procedure it is ensured that the environmental impact of the project shall be included in the public debate and that the decision as to whether consent is to be given shall be adopted on an appropriate basis.”
The directly enforceable right of the citizen which is accorded by the Directive is not merely a right to a fully informed decision on the substantive issue. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrong headed its views may be, is given the opportunity to express its opinion on the environmental issues. In a later case (Aannemersbedrijf P. K. Kraaijeveld B.V. v Gedeputeerde Staten van Zuid-Holland (Case C-72/95  E.C.R. 1-5403, 5427, para 70) Advocate-General Elmer made this point again:
“Where a member state’s implementation of the Directive is such that projects which are likely to have significant effects on the environment are not made subject of an environmental impact assessment, the citizen is prevented from exercising his right to be heard.”
Perhaps the best statement of this aspect of an E.I.A. is to be found in the U.K. government publication “Environmental Assessment: A Guide to the Procedures” (H.M.S.O., 1989), p4:
“The general public’s interest in a major project is often expressed as concern about the possibility of unknown or unforeseen effect s. By providing a full analysis of the project’s effects, an environmental statement can help to allay fears created by lack of information. At the same time it can help to inform the public on the substantive issue which the local planning authority will have to consider in reaching a decision. It is a requirement of the Regulations that the environmental statement must include a description of the project and its likely effect together with a summary in non-technical language. One of the aims of a good environmental statement should be to enable readers to understand for themselves how its conclusions have been reached, and to form their own judgment on the significance of the environmental issues raised by the project.” (Emphasis added).
A court is therefore not entitled retrospectively to dispense with the requirement of an E.I.A. on the ground that the outcome would have been the same or that the local planning authority of Secretary of State had all the information necessary to enable them to reach a proper decision on the environmental issues.”
- In my judgment an important feature of this democratic process, as the part of the government publication which I have emphasised notes, is that individuals “should form their own judgments on the significance of the environmental issues raised by the project.” This involves a recognition that it is not always clear whether an impact is beneficial or not. In particular, where the development of sites of historic or architectural interest are concerned, there will generally be a range of views held about the artistic and aesthetic features of the scheme and whether they best preserve the true character of the area which is the subject of the development. It would frustrate the process of debate about the merits of such a development if the planning authority could determine that the impact was beneficial and as a consequence rule that no environmental statement was needed. In this context benefit, like beauty, is in the eye of the beholder. Moreover, as Lord Hoffmann points out in his judgment, even the wrongheaded and misguided are entitled to express their views.
- It follows that in my view the planning authority did approach this question by applying the wrong test to determine whether an environmental statement was needed. Had it asked whether the proposed development had significant effects on the environment, and not merely significant adverse effects, it could only properly have concluded that it did, as Mr. Roots frankly conceded.
Were there significant adverse effects?
- The Claimants say that even if the test were whether there were significant adverse effects, Mr. Scott erred in not requiring an environmental statement because there is no doubt that there were such adverse effects in this case. The Claimants point to the demolition and alteration of a wide range of listed buildings. As they correctly observe, the basic principle is that listed buildings should not be demolished, altered or extended without very good reason justifying this in the public interest. Consequently, the giving of consent to permit changes to these buildings must, the Claimants submit, amount to significant adverse effects. I agree. In my judgment, these changes clearly constitute significant adverse effects. I readily accept that Mr. Scott took the view that considered overall the development would be beneficial. But that is not the point. There are features of the development which can only be said to have an adverse effect on the environment, and it is not legitimate to treat them as compensated for elsewhere. It follows that in my view if Mr. Scott concluded that there were no adverse features, he erred in law and reached an irrational conclusion. If, as his evidence suggests, he was satisfied that the beneficial effects overrode the adverse effects, he erred because even on the assumption that the environmental statement need only be required where there are significant adverse effects, there is no principle which justifies such adverse effects being ignored or treated as nullified in some way on the grounds that they are outweighed by the environmental benefits of the project.
The approach to archeology.
- Mr. Scott had taken the view that it was likely that adequate steps could be taken to ensure that the development would have only a minimal effect on the archaeology of the site. The matter had been considered in some detail when full planning consent was given in respect of the first phase of the development. At that time it was estimated that only 1.4% of the archaeological remains would be likely to be disturbed. In his report to the Council, Mr. Scott pointed out that there had been difficulties in evaluating the remainder of the site archaeologically, because some of the landowners had not permitted access to their premises. He recommended that permission should only be granted if a satisfactory mitigation strategy could be put in place. The Claimants say that it is not acceptable to assume that the mitigation strategy will be successful and will largely eliminate any detrimental consequences.
- I confess to having had some difficulty initially with this point. There is no doubt that it is for the planning authority to decide in the first instance whether or not there are likely to be significant effects on the environment such as to warrant an environmental statement. Can they conclude that there would be significant effects, save for the fact that they have required (or at least will require) the developer to take mitigating steps whose effect to render such effects insignificant? In my judgment they cannot. Paragraph 3 of Schedule 2, which sets out the information required (and in turn reflects Article 5 of the Directive read with Appendix IV) requires amongst other things that there is a description of the measures envisaged to “avoid, reduce and if possible remedy” adverse effects. The purpose is surely to enable public discussion to take place about whether the measures will be successful, or perhaps whether more effective measures can be taken than those proposed to ameliorate the anticipated harm. In my opinion, therefore, the question whether or not there are likely to be significant environmental effects should be approached by asking whether these would be likely to result, absent some specific measures being taken to ameliorate or reduce them. If they would, the environmental statement is required and the mitigating measures must be identified in it.
- In this case it is clear that there would be potentially highly significant effects on the archaeology, unless measures are directed to eliminate them. Accordingly, Mr. Scott erred in law in taking these measures into account when deciding that no significant effect was likely. The measures themselves ought to have been identified in an environment statement. Indeed, in this case the Claimants contend that the mitigating measures are wholly inadequate properly to protect the archaeological remains. Mr. Horton sought at a late stage during the hearing to introduce new grounds into the judicial review application in which he asserted, inter alia, that the conclusion is that the measures were satisfactory was perverse. I did not allow the amendment at that stage, and obviously I have no idea whether there is any substance in the point. But it does exemplify the desirability of these matters being the subject of discussion in advance through the environmental procedures.
Will the safeguards connected with conservation area and listed building consents suffice?
- The other alleged error in the determination whether or not to require an environment statement was that Mr. Scott had wrongly assumed that he could take account of the fact that separate conservation and listed building consents were needed. Mr. Roots accepted that if that had been the approach, it would have involved an error of law. Mr. Roots further accepted that paragraph 17 of Circular 15\88 was not intending to suggest that the existence of these other statutory safeguards, which admittedly may to some extent meet the objectives of the Regulations, in any way relieves a developer of his obligations under the Regulations. That concession was in my view rightly made. As Lord Hoffmann noted in the Berkeley case (p.432F) the environmental statement “constitutes a single and accessible compilation of the relevant environmental information”. It is therefore no answer to a failure to provide the information to say that some of it can be distilled from other documents provided for other purposes.
- In my judgment, the passage in Mr. Scott’s witness statement, which I set out above, shows that Mr. Scott approached the matter the wrong way and treated the existence of these other procedures as relevant to the question whether an environment statement was required. Mr. Roots sought valiantly to contend otherwise, but I do not see how that passage can sensibly be read in any other way. In my view, Mr. Scott misunderstood the effect of the Circular which he quoted. In my opinion it was merely pointing out (albeit somewhat ambiguously) that the duty in respect of heritage considerations would in practice be less onerous than might otherwise have been the case because much of the information would be needed in connection with conservation area or listed building consents. Mr. Scott wrongly seems to have understood it to mean that those safeguards can relieve a developer of the need to provide the statement, at least where only heritage considerations are in issue.
Did the authority have enough information to make the determination?
- In this case the planning authority had given outline planning permission but had reserved matters relating to design, external appearance and landscaping. It is clear that the question whether the environment statement is required is to be determined at the outline planning stage; if it is not, the authority cannot insist upon such a statement at the reserved stage. Regulation 4(2) provides that the planning authority shall not grant planning permission unless they have first taken the environmental information into account. So it is not possible to leave matters to the reserved stage.
- However, if a decision is to be made about whether or not an environment statement is needed, that decision can only be made if there is sufficient information available to enable the environmental effects to be determined. It is for the authority in the first instance to determine whether one is needed: see the Berkeley case at p. 426B per Lord Hoffmann. It will therefore also be for the authority to decide whether it has sufficient information to make that determination, and its decision can only be upset on Wednesbury grounds.
- I am not at all satisfied that Mr. Scott did ask himself in this case whether there was sufficient information for a proper judgment to be exercised. He appears merely to have focussed on the three matters identified by Mr. Gethin. Where outline planning permission only is sought, it is in my view vital that the authority should, at least through its planning officer, satisfy itself that it is confident that it has sufficient information, notwithstanding the reserved matters, to enable a proper assessment of the significant environmental impact to be made at that stage. If there is not enough information, then more information must be called for at that point. It is not enough for the authority to take the view that it would be possible for a development to be adopted in respect of which no environmental statement would be needed; the ultimate development may not be of such a kind at all. The issue is whether one is required with respect to the development which it is actually proposed to build. In my judgment the evidence in this case falls well short of demonstrating that this matter was ever addressed by Mr. Scott. Indeed, since he seems to have considered that the question of cultural heritage was secured by the conservation area and listed building procedures, he would presumably not have seen the need to address this issue.
- Moreover, I am strongly inclined to the view that Mr. Scott could not properly have concluded that there was sufficient information to make a final determination about whether the environmental statement was needed. In a situation where the development relates to a conservation area which is a sensitive site of high archaeological, historical and architectural interest, I find it difficult to see how the likely potential effects can be confidently determined without information about the style and design and, although to a lesser extent, the external appearance of the buildings and landscaping. The proposed development would plainly be capable of affecting the cultural heritage. It seems to me unlikely that information about siting and access alone give sufficient details to enable those effects to be determined. It is true that there was an illustrative design, but that cannot as a matter of law be relied upon when determining the potential effects since the ultimate design may depart significantly from it. Indeed, in this case the report to the members stated in terms that the members were not to be influenced by the illustrative drawings submitted with the application insofar as they related to style and architectural design. Furthermore, this was not a case where conditions were attached to the planning consent which tied the ultimate style or design in any way to the illustrative drawings.
- A similar but not identical issue arose in the case of R v Rochdale Metropolitan Borough Council ex parte Tew and others  J.P.L.54. In that case there was an outline planning application for a business park development. No approval was sought at that stage for any of the reserved matters. One of the successful grounds of challenge was that the environmental statement provided by the applicants was analysing the effects by reference to the illustrative design, and was not in any event sufficiently detailed. Sullivan J. upheld these criticisms. In the course of his judgment he said this:
“[T]he specified information contained in an environmental statement is provided for the purpose of assessing the likely impact upon the environment of the development proposed to be carried out. It is therefore, not surprising that the first item of specified information in paragraph 2 is:
“a description of the development proposed , comprising information about the site and design and size or scale of the development.”
Without such a description, the likely impact of the proposed development upon the environment could not begin to be assessed, and the underlying purpose of providing the information in the environmental statement would be frustrated. One is not seeking certainty as to the environmental effects of the project, which would be unattainable, one is merely seeking the specified information which will enable the likely significant effects to be assessed.”
- Later in his judgment after rejecting a submission that in an outline planning permission it would never be possible to comply with the 1988 Regulations, he observed:
“An outline application with only one or two matters reserved for later approval might enable the environmental statement to provide a sufficient description of the development to be carried out.”
- And later, in response to the contention that there had been an illustrative model supplied, he said this:
“I can understand the advantages of an illustrative master plan in an ordinary outline application for a business park, but once it is decided that such a project falls within Schedule 2, Schedule 3 requires the environmental statement to assess the likely impact of the development which is proposed to be carried out, not the impact of a development which might or might not be carried out depending upon whether subsequent submissions for approval of reserved matters are or are not in accordance with an illustrative master plan.”
- The learned judge recognised that the requirements of the Regulations created difficulties for projects of this kind which evolve over a period of time, although not insurmountable ones. But I respectfully agree with the judge that the terms of the Regulations are clear, and they must be complied with irrespective of these problems.
- It is true, as Mr. Roots points out, that the Tew was a case of a bare outline application, whereas in this case matters of siting and access are not reserved. Furthermore, in that case it had been accepted that a statement should be given; and any such statement must contain information about the “design, and size or scale of the development” (para. 2 of Schedule 3) and where all those matters are reserved, that cannot be done. But in my judgment even although there were fewer reserved matters in this case, the lack of any information about design and external appearance makes it very difficult to see how a proper assessment could be made of the likely impact of the development. No full description can be given of the development as required by para.2(a). I would not wish to suggest that it can never be possible to make a judgment whenever design is a reserved matter. It may sometimes be possible to say that whatever the design there will be no significant environmental effects. But I am very doubtful whether this can confidently be stated in a conservation area of considerable sensitivity.
- However, I am unwilling to find for the Claimants on this particular ground. I have no evidence before me, either expert or otherwise, which explores this particular issue. In addition, I note that in the paper produced by English Heritage on “Conservation Area Practice”, to which I have already made reference, paragraph 8.3 suggests that the principal effects resulting from the introduction of new buildings into conservation areas can be assessed in large measure by focussing on the siting, mass and size rather than the style. In these circumstances I have come to the conclusion that I cannot safely say that the lack of information on design must inevitably mean that in a conservation area no proper assessment of environmental effects can ever be made. However, I would expect some reasoned conclusion as to why the information was considered to be appropriate if that were to be the conclusion.
- I should add that even where design is a reserved matter, it will obviously be easier to form a view as to the likely effects on cultural heritage if the design is at least tied to some extent to the illustrative model. It may be that the imposition of a condition achieving that objective would suffice to give an adequate basis for determining the likely environmental effects. An example of this is the decision of Sullivan J. in R v Rochdale Metropolitan Borough Council ex parte Milne…This was a second challenge to the Rochdale development after the successful attack on the decision in Tew. By this stage the Council had given an outline planning permission in which design, landscaping and means of access were reserved matters, but there were certain conditions that tied the development to a development framework document. Sullivan J held that the planning authority was entitled to conclude that there was a sufficient description to enable the environmental effects to be determined, and the Court of Appeal refused to give leave to appeal. The site in that case was not, however, in a conservation area.
Ground Three: Conservations and Listed Buildings issues
- There is a number of complaints directed towards the way in which the planning authority dealt with conservation and listed building issues. This aspect of the grounds was not in the original application for judicial review but was introduced by way of an amendment. In the course of making his submissions, Mr. Horton made a number of points whose effect, so it seems to me, was to broaden out the challenge in various ways.
- I think the complaints can fairly be brought within four heads:
(1) It is alleged that the planning authority failed to have regard to the desirability of preserving or enhancing the character or appearance of the conservation area.
(2) They did not have regard to the advice given in PPG15, which is specifically concerned with planning and the historic environment.
(3) They did not have regard to the effect of the proposed development on listed buildings which were within and adjacent to the Blackfriars area.
(4) Given the fact that questions of design external appearance and landscape have all been reserved matters, they did not in any event have sufficient information available to them to form a view about the effect of the development on the conservation area.
- There is an overlap with the first three elements in this part of the claim. Accordingly, I shall consider them together, and then analyse the fourth point separately.
Relevant statutory provisions
- A number of statutory provisions bear upon this aspect of the argument. Section 72 (1) of The Planning (Listed Buildings and Conservation Areas) Act 1990 provides as follows:
“In the exercise, with respect to any buildings or other land in a conservation area, of any functions under or by virtue of any of the provisions mentioned in subsection 2, special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area.”
The functions referred to include all the functions under the planning Acts. These would include not only the function being exercised when planning permission is being granted, but also when the authority is giving consideration to the reserved matters.
- Section 16 (2) of the Act is as follows:
“In considering whether to grant listed building consent for any works the local planning authority or the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.”
Here the duty arises at the point when the listed building consent is being considered.
93. Finally, section 66 of the Act provides a parallel duty to that imposed by section 16 when planning permission is sought for a development which affects a listed building or its setting. However, that duty does not apply when the development is within a conservation area: see the Planning (Listed Buildings and Conservation Areas) Regulations 1990 schedule 3. In this case the conservation area does not in fact embrace the whole of the site for which development is proposed, although it does cover most of it. It is not clear to me whether there are in fact any listed buildings outside the conservation area, but if there were then this duty would arise. On the facts of this case, however, even if the duty is engaged, I doubt whether it adds anything significant in relation to the particular challenges to the obligations imposed by sections 16 and 72.
- It is obvious from these provisions that Parliament has placed considerable significance on the potential impact which a development will have on the conservation area or the listed buildings, as the case may be. But there is no duty when approving a development to be satisfied that it is positively enhancing the character or appearance of the conservation area. This was made plain by Lord Bridge of Harwich in South Lakeland District Council and Secretary of State for the Environment  2 AC 141, a case involving a predecessor of Section 72. At page 150 Lord Bridge approved a passage in the judgment in the Court of Appeal in that case by Mann LJ.  1 WLR 1322, 1326 to 1327 where the judge had said this:
“The statutorily desirable object of preserving the character or appearance of an area is achieved either by a positive contribution to preservation or by development which leaves character or appearance unharmed that is to say preserved.”
- After approving those words Lord Bridge continued:
“We may, I think, take judicial notice of the extensive areas, both urban and rural, which have been designated as conservation areas. It is entirely right that in any such area a much stricter control than elsewhere should be exercised with the object of preserving or’ where possible, enhancing the qualities and the character or appearance of the area which underlies designation as a conservation area…But where a particular development will not have any adverse effect on the character or appearance of the area and is otherwise unobjectionable on planning grounds, one may ask rhetorically what possible planning reason there can be for refusing to allow it. All building development must involve a change and if the objective of [Section 72(2)] were to inhibit any building development in a conservation area which was not either a development by way of reinstatement or restoration on the one hand (positive preservation) or a development which positively enhanced character or appearance of the area on the other hand, it would surely have been expressed in very different language from that which the draftsman has used.”
- At various stages in the course of making his submissions, Mr. Horton claimed that the whole development had been what he termed “retail led” rather than “conservation led.” If by that he was intending to suggest that there was an obligation positively to take steps to enhance the character or appearance of the area, that is not required, as Lord Bridge’s speech makes plain. In substance, I think, the gravamen of this allegation was that the officers in the planning authority had simply failed properly to have regard to the conservation and listed building issues. They had failed to pay special attention to them, as the statute requires, because they were so determined to ensure that the retail benefits of the scheme should be secured.
- In making good this ground, Mr. Horton referred me to a number of planning documents which bear upon the issue of protecting a conservation area. First, he referred me to PPG15 to which I have already made reference, which contains exhaustive guidance on conservation areas and historic buildings. It is common ground that that is a policy guideline which the Council was obliged to take into account as a material consideration prior to reaching its determination. I was referred to a number of paragraphs in this guidance. These included the factors that should be addressed when there is the proposed demolition of a listed building or any significant part of it (paragraph 3.19); the need to assess and keep under review the special features of architectural or historical interest that justify an area being designated as a conservation area (paragraph 4.2ff); and the advice that the presumption should be in favour of retaining buildings which make a contribution to the character or appearance of a conservation area, whether or not they are listed buildings (paragraph 4.27)
- I was also referred to two documents produced by English Heritage, one concerning conservation appraisals, and the other headed “Conservation Area Practice”. The former documents emphasised the benefit of appraising and monitoring conservation areas, commenting that
“An objective and clear character appraisal provide a sound basis for development control and initiatives to promote the area.”
- It is not disputed that there was no formal appraisal of this kind which was carried out in respect of this conservation area, although Mr. Roots submitted that the Design Statement produced by the Council had in fact identified many of the features that an appraisal would contain.
- The document entitled “Conservation Area Practice” deals with a whole range of matters. For example, it refers to the value which even unlisted buildings can provide to a conservation area; and it sets out the way in which development proposals should be considered when determining whether the design of a new building sits comfortably with the historic nature of the conservation area.
- It is not in dispute that the report which was provided for members in this case
made no specific reference to PPG15 nor to either of the English Heritage documents. Appendix 1 to the report did identify certain relevant planning policies, including PPG6 relating to town centres and retail redevelopments, and PPG13 relating to guidance on transport when adopting development plan policies. Mr. Horton submits that this omission is highly symbolic: it demonstrates, he says, how little significance was given to the need to respect the conservation elements of the scheme. He also makes a series of complaints about the way in which the report to the members dealt with the whole question of conservation. This requires me to consider to what extent the report did identify conservation and listed building matters.
The report: conservation considerations.
- The report clearly did draw attention to the fact that there were conservation considerations in issue. Paragraph 1.5 of the report is as follows:
“The planning application is accompanied by an application for conservation area consent to demolish, in part or whole, non listed buildings and structures and 11 applications for listed building consent to demolish elements of listed buildings and structures held in association with these buildings. The historical and architectural assessments of these buildings are set out in Appendix 6.”
- Paragraph 6.2 of the report set out the layout and design of the redevelopment, and in the course of that comments were made about some of the historic buildings in the area, including Mercers Hall and the Fleece Courtyard. There is then a section headed “Recognition of the Main Vistas and the character of Medieval Lanes” in which Mr. Scott, the author of the report explains certain features of the development which he believes will enhance in certain respects the setting of certain buildings. Paragraph 7 of the report sets out the listed building applications and summarises the buildings concerned and description of the proposed works, and that is supplemented by Appendix 6 which sets out in considerably greater detail historical and architectural assessments of the listed buildings applications.
- In addition, there are various references in appendix I to conservation issues. These are found in those parts of the appendix where the local regional guidance and the local plans are considered. In paragraph 1.2.7 of the Appendix 1 there is a specific reference to policy 27 derived from the draft strategy plan, which states:
“Plans, policies and programmes should aim to protect the built and cultural heritage and manage change in a way that respects local character and distinctiveness by conserving and maintaining historical and archaeological resources and by ensuring new development respects and enhances local character and is of a high standard of design.”
- There are various other references to the need to protect the conservation area under the discussion of relevant local plans. These have not been formally adopted, but they have been the subject of extensive consultation, and it is common ground that they are highly material factors to consider when determining the planning application. There is a detailed discussion of the specific objective of enhancing the environment of the City and protecting its heritage.
- In addition to the matters outlined in the report, Mr. Roots for the Defendants placed emphasis on the following passage in the witness statement of Mr. Scott, which demonstrates that the members had quite a lot more information than, was provided simply by the report itself. He said this:
“I attended the Planning Committee on 12th March 2001 and spoke to my report and answered questions from members. It is the practice of the Council to use a camera system to project plans and photographs to television monitors so elected members have clear sight of the proposals under consideration. I can confirm that this practice was followed on the 12th March 2001. Additionally, plans were displayed in the Committee Room. A three dimensional, scale model was also on display and prior to the consideration of my report, I described the development for members using the model to explain the proposed relationship of the development to its; surroundings, highlighting as I did so, historically or architecturally significant buildings.”
- The Claimants submit that these references are inadequate. In particular there is no assessment of the benefits that will be provided by the scheme and a corresponding analysis of the detrimental features that will flow from it. Accordingly, it is said that the members could not cogently come to a view as to whether or not the proposed development was likely to preserve its character as a conservation area, or enhance it, or whether it would be likely to suffer detrimentally.
- More specifically, there are certain complaints about the failure to draw attention to specific matters in the report. There is no comprehensive analysis of the effect of the proposed development on the implications for the fabric and setting of each of the listed buildings. Moreover, in relation to Robert Raikes House, owned by the second Claimant, it is said that no consideration was given to the effect of the proposed modern development adjacent to the House on its setting. Similar complaints were made about the way in which the effect of the development on other listed buildings had been inadequately analysed.
- The Defendants submit that this part of the claim is wholly misconceived. Mr. Roots says that when one considers the extensive references that were made to the question of conservation together with the information provided as explained by Mr. Scott in his witness statement, and in particular when one bears in mind that the council members would have had a detailed knowledge of the relevant area which is at the heart of the centre of Gloucester, then it is wholly unrealistic to believe that they did not have sufficient information before them to take a proper decision in relation to the question of conservation.
- The Defendants also place emphasis upon the fact that it was plain that the site was in many respects very unsatisfactory. Mr. Scott described Blackfriars in his proof of evidence for the compulsory purchase inquiry as:
“A land use pattern dominated by vacant and underused sites combined with a poor visual appearance……and a generally negative perception in the minds of businesses, residents and visitors alike.”
The Defendants say it was plain beyond any doubt at all that the proposed development, which was wholly in accordance with the local plan, would enhance the characteristics of the area, and that would have been obvious to the members.
- As to the failure specifically to refer to PPG 15, they say that it is wholly unrealistic to believe that members would have been unacquainted with the obligations set out in that guidance. I was referred to a decision of Mr. George Bartlett Q.C. sitting as a Deputy High Court Judge in Boulevard Land Ltd and Secretary of State for the Environment  JPL 983 where he said, at page 991:
“The fact that circulars and PPG’s are understood to be read by those responsible for taking [planning decisions] and likely to be familiar to them it is one of the circumstances to be taken into account and the simple absence of reference to a particular policy would be unlikely to be sufficient in itself to show that the policy had been left out of account.”
- Whilst accepting that it would not be right automatically to assume that relevant guidance is always known and has been considered, even although no express mention is made of it, I would be surprised if the members of the authority were not aware of the relevant principles in this case. This is not least because they had just a few months earlier dealt with the phase one application in the same conservation area. In any event the report does in my judgment draw attention to the relevant considerations, and in those circumstances the failure specifically to identify the guidance is not material.
- In reaching this conclusion, I bear in mind the reluctance of the court to uphold an application for judicial review which is based on a critical analysis of the planning officers report. I have had regard to the observations of Lord Justice Judge in Oxton Farms and Selby District Council (19 April 1997 unreported) in which he said this:
“…..an application for judicial review based on criticisms on a planning officers report will not begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken.”
- In my judgment there has been no material misrepresentation of that kind here. I fully accept that the report could, and ideally should, have been drafted in a way which more specifically drew attention to the benefits of the scheme and the potential detriments in conservation terms. That would have helped focus the mind of the members on the question they had to address. But in my view the fundamental information was there.
- Mr. Horton was critical of the stance taken by the courts in permitting reports to be adopted which fall short of the standards required if they are faithfully to reflect the planning guidance and the English Heritage documents to which I have made reference. But it is important to remember that the report is not the only document which the members will have in mind. Particularly in a case like this, they will have lived with this application over a long period, and of course they will usually have –as in this case- the benefit of a visual demonstration.
- Moreover the courts must recognise the practical world in which these decisions are taken. The decisions are made by councillors who are part time and have many other duties and callings. No doubt they are conscientious in their duties, but they cannot be expected to be extravagantly so. As Mr Justice Sullivan pointed out in R v Mendip District Councl ex parte Fabre  JPL 810:
“Part of a planning officers expert function in reporting to committee must be to make an assessment of how much information needs to be included in his or her report in order to avoid burdening a busy committee with excessive and unnecessary detail.”
- The fact is that members can be intimidated and discouraged by too much detail just as they may be ill equipped if there is too little. It is important that the principal issues and the key information are put to them, but it is not necessary, or indeed desirable, that the report should be exhaustive. Plainly there will always be room for dispute as to whether the report should in certain respects have been fuller, or whether certain guidance should have been expressly referred to, particularly in a development which is as large and significant as this one. But it is not for the court to second guess the officers. In this case there was a very full report with a whole series of appendices. Any member who had a particular interest could of course follow up any aspect of the proposal in more detail. Questions were put by members to Mr. Scott when he spoke to his report and gave the visual demonstration, and the matters was considered by them. So whilst I accept that Mr. Horton identified a number of areas in which the report could have been improved, in my judgment he has failed to show that it was so deficient as to justify quashing the decision on that ground.
- I take a similar view in relation to the complaints in respect of the listed buildings. Again there were certain matters which were not specifically drawn to the attention of officers about the setting of particular buildings; again that was something which it seems to me would have be quite unrealistic to do in respect of all the buildings concerned. The model which was before all the members would have given an indication of the structure and mass of the buildings concerned, and the camera system used to project the plans and photographs explained by Mr. Scott would have given perhaps a much better indication of the effect of the proposed development, and the setting of relevant buildings, than could have been provided through a written text.
Was there sufficient information?
- I turn to the final complaint under this heading which was that because of the fact that certain matters were reserved, there was simply insufficient information available to enable the officers to make any recommendation in relation to the proposal. The submission is that they could not tell without further information whether the characteristics of the conservation area would be preserved or enhanced. I do not accept this argument. It is plain that at the reserved stage it is open to the members to revisit this question if they consider that there are aspects about the design or appearance or landscaping which cause them to doubt whether or not their redevelopment should go ahead because of any adverse effect on conservation. Their duty to consider the effect on conservation is something they are obliged to do in the excise of each of their planning functions, and that includes the decisions they make concerning reserved matters.
- Accordingly, in my judgment the members were able to take a decision on this question, as they are obliged to do under the relevant legislation, with the knowledge that if the reserved matters do raise areas of concern which lead the members to believe they ought to reconsider the position, then they are able to do so.
Ground Four: Misunderstanding of a material fact.
- The argument here is that the members were misled by a statement in the report prepared by Mr.Scott. It is said that they were led to believe that phase two was going to be paid for out of the profits which would be generated by the implementation of phase one. The latter included, inter alia, the multiplex cinema. The relevant passage in the officer’s report was as follows:
“Section 106 Agreement
The City Council now has a Development Agreement in place with Arrowcroft plc. The Agreement includes a Schedule setting out obligations in the form that a section 106 agreement would take place. By the terms of the Development Agreement, Arrowcroft plc are required to execute the requirements of this schedule when they have, via the Compulsory Purchase Order process, secured the necessary interests.
A copy of the section 106 agreement is contained in Appendix 4 to this report. In summary, these obligation relate to the principle that any profit from Phase 1 (the multiplex/car park permission) is used to implement the comprehensive redevelopment of the rest of the Blackfriars area (Phase 2).”
- Mr. Scott in his witness statement accepts that this section was poorly expressed. He had intended to indicate that the whole of the development, both phases one and two, had to be completed within the time stipulated in the development agreement. The Defendants submit, and I accept, that the members would not have been misled by these unfortunately expressed paragraphs. They had in the recent past granted the full planning permission for phase one. Plainly they would have known that it was not one of those very exceptional cases were a development is justified on the basis that it is needed to subsidise a more desirable development elsewhere: see e.g. R v Westminster City Council ex parte Monahan  1 QB 87. Moreover, the language in the report itself only refers to “any profits” thereby suggesting that profits are not in any event thereby guaranteed in relation to phase one. Accordingly, I do not accept that members would have understood that the phase two was contingent on profits being made from phase one. Had this been in their minds as a possibility, then I would have expected them to raise it with the officer at the meeting, particularly since there was no reference to this in the original full planning permission given in respect of phase one.
- In a related argument, not fully spelt out in the grounds, the Claimants submitted that alternatively the planning authority were being led to believe that the development was financially sound whereas in fact that was far from the case. There were serious doubts about the potential profitability of the site, particularly if a multiplex cinema were to be built on the docks site. Moreover, it was known by that time that the return for phase one would be significantly less than had been originally anticipated and that the funding may not be available to complete the development.
- I accept that in an appropriate case the fact that there is a real risk for the development will not be completed is a potentially relevant factor when considering whether or not to grant planning permission: see Sosmos Trust Limited v Secretary of State for the Environment  JPL 806. But in this case, as the Defendants point out, there was no special reason for assuming that it would not be completed here. The developers were a well respected company, and the risk that the development might be left half completed should be avoided by a provision in the development agreement which ensures that the development will not commence until the relevant financing is fully in place. It may be that at the time the members were unaware that they might have to agree to subsidise the scheme if it were to go ahead. I am told that they have in fact resolved to do that if necessary. But I do not consider that that would be a relevant planning consideration at the stage of granting outline permission. For these reasons I reject this part of the claim.
Ground Five: The human rights challenge.
- Finally, I turn to consider the human rights challenge. The Claimants allege that the giving of outline planning permission has involved a determination of their civil rights. Under Article 6 it is expressly provided that “in the determination of his civil rights and obligations everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law”. The Claimants accept, as they must, that in determining whether the procedures are Article 6 compliant, it is not enough simply to focus on the decision making body itself. As the ECHR put it in Albert and Le Compte v Belgium 5 EHRR 533, para.29, that:
“either the jurisdictional organs themselves comply with the requirements of article 6 , or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of article 6(1).”
So the question is whether the role of judicial review in the particular circumstances of the case provides the apparent judicial safeguards to render the procedures considered as a whole compliant with the Article.
- Before considering the argument in detail, it is helpful to see how the Claimants seek to distinguish this situation from that considered by the House of Lords in R v Secretary of State for the Environment, Transport and the Regions ex parte Alconbury and others  UKHL23;  2 WLR1389 (hereinafter referred to as “Alconbury”). In that case their Lordships had to consider three cases in which the procedures adopted by the Secretary of State when dealing with planning issues were alleged to infringe Article 6. In each case the Secretary of State would make decisions affecting the interests of the Claimants, following an inquiry held by an inspector appointed by the Secretary of State. It was conceded that the Secretary of State could not be considered to be an independent and impartial adjudicator within the meaning of Article 6. However, the House of Lords unanimously held that there was no breach of that Article. They held that the inquiry procedures, coupled with the right to invoke judicial review, constituted sufficient safeguards to satisfy Article 6.
- This case is different because there is no appeal against a grant of planning permission. Accordingly, the inquiry stage does not arise. The facts have not been determined following an (often exhaustive) analysis of the facts and issues before an inspector holding what is commonly termed a “quasi-judicial” inquiry. The Claimants say that it is the absence of those safeguards that prevents judicial review being adequate to secure compliance with Article 6, in contrast with Alconbury.
- It is rightly conceded by the Defendant and the Secretary of State that the planning authority is not an independent and impartial body within the meaning of Article 6. It is actively involved in promoting this development and plainly is no more independent than the Secretary of State was in Alconbury.
- Accordingly, there are two issues that I have to decide. First, has there been a determination of the Claimants’ civil rights by the decisions made in relation to outline planning permission and, in the case of the second Claimants, by the listed building and conservation area consents affecting their property? Second, if there has, in this particular case did the combination of the procedures adopted before the planning authority, coupled with the right to challenge those procedures by way of judicial review, constitute sufficient compliance with Article 6? I shall deal with each of these issues in turn.
Are civil rights engaged?
- It is common ground that the Claimants’ own land is caught by the planning permission, albeit that they did not apply for the permission. The permission itself ensures for the benefit of the land. Equally, I understand it to be accepted by the Defendants that the value of the properties could be affected by the grant of the permission. It was suggested by Ms. Lieven for the Secretary of State that the designation of the land in the development plan as a potential development area and the proposed compulsory purchase orders would be likely to have had a more significant effect on value. That may be so, but it was not disputed that the grant of even outline planning permission would be a relevant factor to take into account when determining value, even if its weight and significance (and in particular whether it would increase or otherwise the value) were difficult to predict. I have been provided with no expert evidence as to the effect on value.
- The Claimants submit that there is a clear determination of their rights. Their land is now subject to a registrable charge, and they may have suffered some financial detriment. The Defendants accept that the Claimants’ rights have been affected by the permission, but they say that not every administrative decision which affects land constitutes a determination within the meaning of the Article. It is only if the decision directly affects civil rights and obligations that it constitutes a relevant determination; and it is submitted that the authorities show that a decision can be said directly to affect rights or obligations where it is decisive for such rights or obligations. In this case it is said that the decision in not decisive of anything. The Claimants can continue to enjoy their property in precisely the same way as they did before the permission was granted. Furthermore, the grant of planning permission merely gives the Claimants an additional option of what to do with their land. There is no decision which directly affects the land until the compulsory purchase order is confirmed, but at that stage the Claimants have the right to be represented before an inquiry in procedures which, following Alconbury, are clearly Article 6 compliant. The Claimants respond to this last point by saying that the planning permission itself is a relevant matter for the Secretary of State to take into account when deciding whether or not to confirm a compulsory purchase order: see section 226 (2)(b) of the 1990 Act. They rely upon this as a further indication that the decision is an Article 6 determination.
- As to the effect on value, the Defendants submit that even if there were any detrimental effect, that would not of itself render the decision decisive of rights …They say that there are many decisions which will have an impact on the value of property and yet which manifestly do not engage Article 6, such as the designation of property in the local plan, or the entering into a development agreement. In such cases the effect on value is too tenuous to amount to a determination engaging civil rights within the meaning of Article 6.
- In order to resolve this issue, it is necessary to consider some of the authorities.
The European Jurisprudence.
- I accept that the mere fact that the financial interests of an applicant are affected by a decision is not in itself sufficient to establish that there has been a determination of the applicant’s civil rights. As the European Court of Human Rights noted in Pierre Bloch v France 26 E.H.R.R.202 at para. 51, “proceedings do not become civil merely because they raise an economic issue.” In Enzi v Austria (Application no. 29268/95) the applicant sought to have certain land which she owned redesignated in the area zoning plan. This would have enabled her to treat part of the land as building rather than agricultural land. That would have been economically beneficial to her. Her application was refused. However, it was held by the E.C.H.R. that since Austrian law gave her not even an arguable right to challenge the area zone plan, no civil right was engaged. This case supports the Defendant’s contention that not all administrative decisions affecting the value of land can be said to be determinative of rights in respect of the land. However, the decision would appear to have been otherwise if there had been a right to challenge the administrative decision.
- Indeed, where a person has the right in law to seek to effect or to resist a change to the rights connected with his property, any decision made in respect of such an application will amount to a determination of civil rights. That is plain from the decision of the House of Lords itself in Alconbury. The Secretary of State did not seek to argue to the contrary in that case. The Lord Advocate had intervened in that case and contended that Article 6 was not engaged where there is a dispute over the exercise of discretionary power of this nature by an administrative body, but the argument was unsuccessful. All of their Lordships held that that was no longer a tenable argument in the light of the jurisprudence of the European Court: see Lord Slynn at para.25 (with whose judgment Lord Nolan agreed); Lord Hoffmann at paras. 133 to 136; Lord Clyde at paras.145 to 150; and Lord Hutton at paras. 181 to 184.
- However, both the Council and the Secretary of State in this case submit that Alconbury was different in a very important respect. In that case it appears that the administrative decisions in issue would have had an immediate effect upon the rights of the Claimants. By contrast, in this case the actual grant of planning permission of itself alters nothing. The permission was not given to the applicants themselves, and until their land is compulsorily purchased, the effect upon the enjoyment of their property is too remote. The Defendants point out that there are a number of decisions of the European court in which the Court has referred in terms to the need for the decision to be “directly decisive” of the right in issue: Ringheisen v Austria (No. 1) (1971) 1 EHRR455 at para.94; Albert and Le Compte v Belgium (1983) 5 EHRR533 at para.28; Benthem v The Netherlands (1985) 8 EHRR1 at para.32; Boden v Sweden (1988) 10 EHRR367 at para. 30 and Bryan v U.K. (1995) 21 EHRR 342. The Defendants accept, however, that the authorities also make it clear that the dispute does not have to relate to the existence of a right; the Article is likewise engaged when it is the scope of the right or the way it can be exercised which is in issue. But in each case it is insufficient for the right to be directly affected: it must be decisively affected.
- In my view it is pertinent to note how Lord Clyde summarised the position in Alconbury. In the course of considering whether there had been any determination of civil rights, he said this (paras. 149 and 150):
“The opening words of article 6(1) are: “In the determination of his civil rights and obligations or of any criminal charge against him….” Here again a broad; interpretation is called for. The decision need not formally be a decision on the rights. Article 6 will still apply if the effect of the decision is directly to affect civil rights and obligations. In Le Compte, Van Leuvan and De Meyere 4 EHRR 1 para 46 the court observed: “it must be shown that the ‘contestation’ (dispute) related to ‘civil rights and obligations’, in other words that the ‘result of the proceedings’ was ‘decisive’ for such a right.” The dispute may relate to the existence of a right, and the scope or manner in which it may be exercised (Le Compte, at para 49m, also Balmer-Schafroth v Switzerland (1997) 256 EHRR 598. But it must have a direct effect of deciding right or obligations. The court continued, at para 47:
“As regards the question whether the dispute related to the above mentioned right, the court considers that a tenuous connection or remoter consequences do not suffice for article 6(1), in either of its official versions (‘contestation sur’; (‘determination of’): civil rights and obligations must be the object-or one of the objects-of the ‘contestation’ (dispute); the result of the proceedings must be directly decisive for such a right.”
That case was followed in Sporrong and Lonnroth v Sweden (1982) 5 EHRR 35, where, para 80, the court noted that article 6(1) extended to a dispute concerning “an administrative measure taken by the competent body in the exercise of public authority”. It is also said that the dispute must be “genuine and of a serious nature”: Benthem v The Netherlands (1985) 8 EHRR 1, para 32. In that case a genuine and serious dispute was held to have risen “at least” from the date when the licence which the applicant had earlier obtained from the local municipality was cancelled by the Crown.
It is thus clear that article 6(1) is engaged where the decision which is to be given is of an administrative character, that is to say one given in an exercise of a discretionary power, as well as a dispute in a court of law regarding the private rights of the citizen, provided that it directly effects civil rights and obligations and is of a genuine and serious nature.”
- Ms. Lieven, for the Secretary of State, submits that the reference by Lord Clyde in each of those paragraphs to the determination falling within Article 6 if it directly affects civil rights and obligations is simply a loose expression which is being used as a shorthand for a “directly decisive” determination.
- However, there is another decision of the European Court which in my opinion makes it difficult to rely upon a distinction between a direct effect and a decisive direct effect. In Ortenberg v Austria (1995) 19 EHRR524 the applicant complained about the adoption of a development plan that permitted the development of terraced housing adjacent to her land, and also the subsequent grant of building permits to the owners of these plots of land. She had the right under Austrian law to object to the grant of planning permission either on the grounds that her private law rights were infringed, or on the grounds that she had public law objections (examples of which are given in the relevant legislation). She objected on public law grounds but was unsuccessful. She alleged that the procedures adopted had infringed her Article 6 rights. The government of Austria argued that the right to object was a public law right and moreover that the grant of planning permission to a neighbour did not directly affect her rights at all. Mrs. Ortenberg submitted that the value of her property would be adversely affected and that accordingly the decision had a direct bearing on her civil rights. The ECHR accepted that there had been a determination of her rights within the meaning of the Article, although on the facts there had been no breach. The Court observed (para. 28):
“In this instance the applicant relied on public law and alleged that the provisions of section 23(2) of the aforementioned Act had not been complied with. In so doing, she nonetheless wished to avoid any infringement of her pecuniary rights, because she considered that the works on the land adjoining her property would jeopardise her enjoyment of it and would reduce its market value.
Having regard to the close link between the proceedings brought by Mrs. Ortenberg and the consequences for the outcome for her property, the right in question was a civil one.”
- Ms. Lieven contends that the right to which reference was being made in that paragraph was the statutory right to object on public law grounds. She submits that the Court was merely holding that the effect on her property converted this right into a civil right as opposed to a public right. I do not accept that analysis. In my view it is plain that the right which is infringed by the decision is the right, which is implicitly recognised by the court, to retain the value of her property. The administrative decision affected that right, not her right to object. There was no dispute about her right to object itself. The significance of the latter right is that it demonstrates that she is entitled under the domestic law to seek to protect her property rights. If she had not been entitled to raise the objection, then her position would have been akin to the applicant in the Enzi v Austria case. She could not then say that there was a procedure conferring upon her the right to seek to protect her property rights.
- In any event, in this case the Claimants clearly have a right to object and to seek to protect themselves from being subject to the planning permission or the conservation and listed building consents. Accordingly, if the decision affects their pecuniary rights then in my view Ortenberg is directly in point. Ms. Lieven says that it is not because in Ortenberg the decision directly impacted on Mrs. Ortenberg in the sense that there were no more administrative steps to be taken. The neighbours were free to build their houses and she would suffer the detriment. The decision was therefore decisive of her rights. By contrast, in this case no one can do anything until they have acquired the land.
- I see the force of this submission, but I reject it. In this case the effect on the value of the property may arise on the grant of planning permission. The compulsory purchase order, if made, will admittedly involve an even greater interference with the property right, but it does not affect the fact that there is an immediate and direct interference even where planning permission alone has been granted. Indeed, this case is in one respect even stronger than Ortenberg since the decision actually affects the legal rights attaching to the land itself. True it is that they could only be exercised by someone who obtained the right to control all the land within the development, and accordingly, the Defendants are right to say that the effect on the property of the Claimants taken in isolation is not immediate at all. They could not, for example, take advantage of any listed building consents independently of the scheme as a whole because there is a condition attached to the consents which precludes this. But I do not consider that this is necessary for them to assert their Article 6 rights.
- If the evidence were that the value of the Claimants’ properties had reduced as a result of the outline planning consent, I should have no doubt whatsoever that Article 6 was engaged. But as I have said, there is no evidence how the value has been affected. Although I have not found this an easy question to resolve, I have ultimately come to the conclusion that this does not matter. The Claimants’ properties have been subject to various permissions and consents which directly relate to the land and which are likely to have had some impact on their value. There is an interference with their property rights to which they object. I do not think that they must satisfy the court that their objections are justifiable. They must be taken to know whether the undoubted interference with their property rights is acceptable to them or not. If it is, there will be no dispute. If it is not, they are entitled to say that their rights are directly affected and to seek to preserve the status quo.
Was there a breach of Article 6?
- As I have said, the Claimants point out that their position is different to the Claimants in Alconbury because in this case the relevant determination was taken by the planning committee. There was no hearing before an inspector in which there would be a quasi-judicial determination of the material facts following an opportunity for examination and cross-examination. They submit that the safeguards provided by the inspector was a vital factor in the decision of their Lordships.
- However, the challenge is framed in very broad terms and in my judgment a generalised complaint about the procedures is insufficient to establish a breach of Article 6. It is not enough for an applicant to submit that the procedures fall short of the appropriate standard without specifying in what way he has been prejudiced by the failure. A generalised allegation will not suffice. It is necessary to identify in what way judicial review of the decision fails in the particular circumstances to provide the protections required by the Article.
- A number of decisions of the ECHR have emphasised this point. In Bryan v U.K (1995) 21 EHRR 342 the ECHR had to consider a complaint by an applicant who had been the subject of an enforcement notice which he unsuccessfully sought to appeal. He alleged that there was insufficient review of the facts in the appeal since it was limited to points of law. The Court observed:
“…it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.
In this connection the court would once more refer to the uncontested safeguards attending the procedure before the inspector: the quasi-judicial character of the decision-making process; the duty incumbent on each inspector to exercise independent judgment; the requirement that inspectors must not be subject to any improper influence; the stated mission of the Inspectorate to uphold the principles of openness, fairness, and impartiality. Further, any alleged shortcomings in relation to these safeguards could have been subject to review by the High Court.”
147. Similarly, in the case of Zumtobel v Austria (1993)17 EHRR116 the court pointed out that the domestic court in that case had been able to consider all the complaints raised by the applicants on their merits. It added, in a passage relied upon by Mr. Roots:
“The European Court should confine itself as far as possible to examining the question raised in the case before it. Accordingly, it should only decide whether, in the circumstances of the case, the scope of the competence of the Administrative Court satisfied the requirements of Article 6(1).”
- I accept Mr. Roots’ submission that this means that if in fact the court is able to deal properly with the particular complaints of the applicants in this case, then it is irrelevant whether the procedures may, in other circumstances where different complaints are made, fall short of the required safeguards.
What prejudice is alleged?
- The grounds of the application did not identify any particular aspect of the planning authority’s decision which they submitted was unsatisfactory, or even potentially unsatisfactory, and yet was not reviewable. The allegation was put on the general basis that the procedures did not, in contrast to Alconbury, involve an inquiry of a kind carried out by an inspector, and it was said that as a consequence the procedures were not overall Article 6 compliant. When the Claimant sought to persuade the Secretary of State to call in the application, again the concern about the procedure was only put in general terms.
- I invited Mr. Horton during the course of argument to tell me how the Claimants had been prejudiced on the particular facts of this case by the procedures adopted by the planning authority. He referred to three matters. First, he submitted that there were a whole range of policy issues which could have been more satisfactorily explored in a formal inquiry. Second, he said that these would have included in particular the question of the conservation area and whether it was in truth being preserved or enhanced. Indeed, he submitted that there would be the opportunity to challenge the need for the development to take place at that site at all. Finally, he submitted that there should have been the opportunity to challenge the Council’s view on retail impact and in particular whether the proposed development would be beneficial to the Council in retail terms. However, he was focussing upon the judgment exercised by the planning authority rather than the raw factual data which constituted the basis of the judgment. He placed heavy reliance on para. 46 of the judgment of Lord Slynn in the Alconbury case, when he said this:
“The fact that an inquiry by an inspector is ordered is important. This gives the applicant and objectors the chance to put forward their views, to call and; cross-examine witnesses. The inspector as an experienced professional makes a report, in which he finds the facts and in which he makes his recommendations. He has of course to take account of the policy which has been adopted in, e.g., the development plan but he provides an important filter before the Secretary of State takes his decision and it is significant that in some 95% of the type of cases with which the House is concerned the Secretary of State accepts his recommendation.”
- Mr. Horton contends that Lord Slynn is suggesting that it is not just factual matters but also policy matters which will benefit from the “filter” process of the quasi-judicial inquiry. I accept that the particular paragraph can fairly be read in that way, but I have no doubt that reading the decision as a whole, their Lordships make it plain that as far as matters of policy and judgment are concerned, traditional judicial review will on its own ensure that there is sufficient compliance with Article 6: see Lord Slynn at paras. 48 to 49; Lord Hoffman at para. 117; Lord Clyde at paras. 156 to 160; Lord Hutton at para. 198.
- Accordingly, on the particular facts of this case I do not consider that any issue has been identified in this case which could not be corrected by the process of judicial review. Accordingly, overall I believe that the procedure has not infringed Article 6.
- In view of this conclusion, it follows that it is not strictly necessary for me to determine whether judicial review will always ensure an Article 6 compliant procedure in planning cases of this kind. Ms. Lieven submitted that it would. In essence her contention was that the obligation to hold a hearing with the procedural safeguards of a kind conferred by an inspector would only apply in a case where there was what she termed a “pure” question of fact in issue. She relied upon the analysis of Mr. Justice Forbes in Friends Provident Society v Secretary of State for the Environment and the Regions (unrep. 16 October, 2001) where he distinguished issues of fact, judgment and policy and held that judicial review will constitute sufficient compliance with Article 6 where issues of judgment and policy are at stake. I would with respect accept that analysis where the issue is only one of judgment or policy, but it seems to me that different considerations apply where it is not the judgment or policy itself which is in issue but rather the findings of primary fact underlying them.
- I would respectfully adopt the observations of Mr. Justice Richards in R (on the application of Kathro and others) v Rhondda Cynon Taff County Borough Council (unrep. 6 July 2001) where he made these observations in the course of his judgment:
“Looking at the overall tenor of the speeches in Alconbury and at the underlying decisions of the Strasbourg court, however, I accept that the finding that the Secretary of State’s decision-making process was compatible in principle with article 6 was based to a significant extent on the fact-finding role of the inspector and it attendant procedural safeguards. By contrast, there is no equivalent in the decision-making process of a local planning authority. That process includes a right to make representations and to submit evidence, and persons may be heard orally at a meeting of the relevant committee. But there is nothing like a public inquiry, no opportunity for cross-examination and no formal procedure for evaluating the evidence and making findings of fact. The report of the planning officer is to the committee generally contains an exposition of relevant facts, including any areas of factual dispute, but does not serve the same function as an inspector’s report. In general there will be no express findings of fact by the committee itself. All of this considerably reduces the scope for effective scrutiny of the planning decision on an application for judicial review. It makes it more difficult, if not impossible, to determine whether the decision has been based on a misunderstanding or ignorance of an established and relevant fact, or has been based on a view of the facts that was no reasonably open on the evidence.
For those reasons there is in my view a real possibility that, in certain circumstances involving disputed issues of fact, a decision of a local planning authority which is not itself an independent and impartial tribunal might not be subject to sufficient control by the court to ensure compliance with article 6 overall.”
- I find his analysis highly persuasive. There are limits to the ability of the courts to review facts on the merits, and I suspect there may well be cases where the lack of the safeguards provided by a quasi-judicial inquiry will make it difficult for a Claimant to be able to identify precisely what facts have been thought relevant, and how judgments on important issues have been made. Moreover, given the profound effect that planning decisions can have on the rights of property owners, and the fact that policy decisions are for the democratically elected bodies, there is in my view a strong case for saying that it is even more important that the decision should be based on a sound and cogent factual basis. This both ensures that the rights of the parties are fully and fairly respected, and that the quality of the decision is improved.
- I would also agree with Mr. Justice Richards that the fact that planning authorities are under no duty to give reasons, and typically do not do so, and that often no findings of fact are made, makes it virtually impossible for the parties to know how the decision was reached. I do not suggest that the kind of safeguards adopted in the inquiry procedure will always be required for an Article 6 compliant procedure; it may be that something less will do. But the lack of transparency in the decision making process, coupled with the recognised limits on the court’s power to interfere with findings of fact, increases the risk that the courts will be unable adequately to ensure an adequate fact-finding process. In such cases the lack of impartiality or independence of the body which reaches findings of fact may well involve an infringement of Article 6.
Discretion and Delay.
- The Defendants submit that even if there are grounds on which the Claimants’ applications succeed, nevertheless in my discretion I should refuse to grant any remedy. They rely in particular on the delays in taking proceedings but also on a number of other matters. These include the fact that many of the matters now the subject of complaint were not drawn to the attention of the Council in the course of consultation, and neither were they brought to the attention of the Secretary of State when a request was made for him to call in the application. They point out that many of the matters now the subject of challenge can be put before the inspector in the compulsory purchase inquiry.
- I shall consider first the question of delay. Strictly the question of delay can be taken into account both at the permission stage and at the substantive hearing. As to the former, it is a ground for refusing permission. Even where permission is granted, delay can be an independent and sufficient ground for refusing relief.
- In this case the resolution to grant the requisite consents was given on the 12 March, and the relevant grants were given on the 17 April. Meanwhile, on the 2 April the solicitors for the First Claimant sent a letter to the Council in which they sought to have it confirmed that no environmental statement had been required. A reply to that letter was sent on the 19 April, two days after the relevant consents had been granted. Mr. Scott confirmed that he had taken the view that no environmental statement was needed. On the 4 May the Claimants sent a letter before action by fax to the Council (but not the developers). At that point the conservation issues were not raised. The application for judicial review was then made on the 18 May, almost ten weeks after the resolution was passed and virtually a month from the date of the grant of planning permission and related consents.
- In judicial review proceedings the obligation is to bring the action “promptly and in any event not later than three months after the ground to make the claim first arose” (CPR Part54.5). In this case it was made within three months, but nevertheless it is alleged that it was not made promptly. The Defendants have referred me to certain authorities which have emphasised the importance of acting particularly speedily in planning cases. In R v Exeter City Council ex parte Thomas & Co.  1 Q.B.471 at 484 Simon Brown J. commented that an applicant challenging the grant of planning permission should do so “with the greatest possible celerity”. Indeed, in R v Ceredigion County Council ex parte Mckeown  2 PLR1 at p.2, Laws J expressed the view that it would be almost impossible to conceive of a case in which leave would be granted over six weeks after the grant of such permission. (The relevance of six weeks is that this is the time allowed for statutory appeals).
- That is, however, putting the matter too high as the Court of Appeal recognised in Burkett and Another’s Application for Judicial Review  JPL786. The Court had to consider a case where a local planning authority resolved to grant planning permission subject to certain conditions. The resolution was taken on the 15 September 1999. The matter had to be referred to the Secretary of State because the proposed grant involved a departure from the unitary development plan. On the 24 February 2000 the Secretary of State announced that he was declining to call in the application. Thereafter judicial review proceedings were commenced on the 6 April. The basis of the application was that the environmental statement was inadequate. On May 12, outline planning permission was granted. Richards J. refused permission on the grounds that time ran from the date of the resolution, some 7 months before the application. The Court of Appeal rejected an appeal against his refusal of permission. It held that in some circumstances it will be appropriate to wait until after the Secretary of State’s decision in a case of this kind, but that Richards J. was entitled to hold that it was inappropriate to do so in the particular circumstances of this case. But the court confirmed that, consistently with order 53 rule 4 (now CPR Part 54 5) time started to run from the date of the resolution, since this was “the date when grounds for the application first arose” within the meaning of that provision. On this analysis the application was plainly out of time. However, Richards J. had also considered the issue on the assumption that time began to run from the notification by the Secretary of State that he was refusing to call in the application. The learned judge relied on the dictum of Laws J., which I have quoted to conclude that the application had not been made promptly in any event. He put some emphasis on the fact that no letter before action had been sent until 28 March 2000.
- In the course of its judgment the Court referred to the view that six weeks should be enough –which it noted was “showing signs of becoming a talismanic six week period”. It indicated that there was no magic in the six-week period and that the significance of that period depended on the circumstances.
- I find in this case little assistance on the statutory time limit. Furthermore, I think there is some force in the submission of Mr. Horton that one might readily expect someone who is challenging a fully reasoned decision letter, as is the case where the statutory right of appeal is in issue, to be in a much stronger position to launch proceedings speedily than someone who is having to gather information to put the elements of a judicial review case together.
- Was the application in time in this case? In my view that depends upon precisely which particular allegation is under consideration. The allegation that the Council should have considered the amendments in 1998 as constituting a fresh application at that time was an argument that could and should have been taken then. (It was not contended that the amendments made in 2001 were sufficiently significant to amount to a fresh application.) Accordingly, even had I found for the applicants on that ground, I would have treated that particular challenge as out of time now. It perhaps is of little moment whether the conclusion is that there is no permission to proceed (which seems a somewhat artificial analysis when the substance of the case has been heard) or –and to my mind more satisfactorily- that no relief would be given in my discretion.
- By contrast, the other applications relate to the decision to resolve to grant consent. Was the delay of some nine weeks such that it can be said that they were not made promptly? The Claimants appear to have accepted some delay because they dealt with the question specifically in the application for judicial review. They indicated that they did not have the information about the fact that there had been a formal decision not to require an environmental statement until the letter of 19 April. They alleged that they did not have other information with a bearing upon their claims until early May. This included the identity of the plans forming part of the outline planning permission. I reject this latter point as being of any real significance. They plainly knew in broad terms the area caught by the permission, and the details were not central to their challenge. However, I do believe that they were entitled to discover precisely what the Council had to say about the question of the environment statement before launching proceedings.
- As to the question of the human rights challenge, that was something which would have been obvious once the resolutions were passed. Indeed, the matter had been raised with the Secretary of State and he had refused to call in the application. Thereafter, it must have been plain that any resolution passed by the planning authority would infringe the Claimants’ human rights, at least if the point was a good one. However, I do not think that time began to run until the resolution was passed.
- I have no doubt that the application in respect of the ground relating to the lack of an environmental statement has been made sufficiently promptly. There was nothing on any of the authority’s file to demonstrate whether any decision had ever been taken on this matter and, if so, when. I was referred to the decision of Mr. Justice Sullivan in R (on the application of Malster) v Ipswich Borough Council and Ipswich Town Football Club  EWHC Admin 711. In that case he held that time would run from the date when the planning authority had made a screening decision that no statement was required. That was a decision under the 1999 regulations. Under those provisions, unlike the 1988 regulations, the authority must make a formal determination even when it decides not to require a screening opinion. But there is no similar decision here, and I do not find that case of any assistance. Mr. Roots submits that it would have been open to the Claimants to find out the position at an earlier stage. No doubt it would, but I do not think that it was the duty of the Claimants to draw these matters to the attention of the planning authority. They do not have the responsibility for determining whether the statement should be given, and they should not be prejudiced because of a failure to take action at an earlier stage which could have alerted the authority to their responsibilities. In any case, once they had raised the matter with the planning authority, it adhered to its view that no statement was required and chose to go ahead and grant the relevant permissions.
- Furthermore, I consider that the question whether or not the environmental statement is required is a matter of some public significance in a development of this nature, affecting as it does a conservation area of important historical and archaeological interest. That is plainly a matter that I can properly take into account: see R v Secretary of State for the Home Department ex parte Ruddock  1 W.L.R.1482. Accordingly, even had I considered this application not to have been made promptly, I would have extended time given the importance of the matter and the fact that on any view any extension would only have to be for a short period.
- I have found it more difficult to decide whether the other claims can be said to have been made promptly and if not, whether I should extend time. I bear in mind that it would have been plain to all parties that this would not be a case where the delays would cause financial detriment to the developer (and none has been alleged) since all the parties were at the material time ensconced in the compulsory purchase inquiry. Whilst I accept that in many cases it is particularly important to act quickly in planning cases, it seems to me that an important justification for that is the fact that in most cases the Claimants ought to know there will very often be parties who will be prejudiced by the delay. It is unreasonable to allow them to begin taking steps pursuant to the planning permissions, thereby incurring expense, whilst being blithely unaware that there are potential challengers who would wish to ensure that the cup is dashed from their lips. That was not the position in this case. Unusually the compulsory purchase orders had been made prior the outline planning consent, and it was clear that the inquiry confirming them would be taking place before any steps of significance could be taken by the developers. The position in this particular case does not seem materially different to other judicial review actions. Accordingly, I would not refuse these applications on the grounds that they are out of time.
- I should add that I do not consider that the other matters raised by the Defendants should lead me to refuse to grant relief. It was not incumbent on the Claimants to raise these matters at the consultation stage; in any event, their allegations would not have been identified clearly at that stage. Nor do I think that it is a satisfactory answer to say that the planning merits can be put before the inspector hearing the compulsory purchase inquiry. The fact that planning permission has been granted is a relevant matter for him to take into account, and if the permission has been unlawfully granted then it is not in my judgment a satisfactory answer to say that the planning issues can be revisited. The fact that the permission has been granted, and apparently legally so, will inevitably have some effect on the inspector in that inquiry.
- In any event, it is accepted by the Defendants that nothing in that inquiry can put right the error of law that I have identified, namely the failure properly to address the question whether or not to require an environmental statement. Had the proper approach been adopted, in my view the only possible conclusion on the facts was that such a statement would be required.
- This challenge succeeds but only on one of the five grounds advanced by the Claimants, namely the fact that the planning authority did not properly address the question whether or not an environmental statement was required. In my judgment, had that issue been properly addressed, the only proper conclusion was that such a statement was required in the circumstances of this case (assuming, at least, that it was thought that there was sufficient information to determine the matter at all).
- It follows that the planning permission must be quashed. Although the environmental statement is not required specifically in relation to the granting of conservation area and listed building consents, they are so inextricably linked to the overall development that it seems to me that they will have to be quashed also. However, I have heard no argument specifically on that point and so I shall consider any representations the parties may wish to make about whether I should make those orders also.
- - - - - - - - - -
MR JUSTICE ELIAS: Yes, I am sorry you have been kept waiting. Yes, of course.
MR PUGH-SMITH: My Lord, can I just introduce the star-studded cast in front of you this morning. My learned friend Mr Jonathan Karas represents the claimants, who is Mr Horton's junior; as you know, my name is John Pugh-Smith and I was junior to Mr Roots; and Mr Guy Williams stands in for Mr Richard Glover.
MR JUSTICE ELIAS: Right, thank you very much.
I give judgment in accordance with the judgment already handed down to the parties, together with certain modifications as a result of helpful points highlighted by counsel. They have not as yet been done, I am afraid. They did not get here in time on Friday for them to be incorporated on the weekend. But they will be done today. Thank you very much for.... Yes.
MR KARAS: My Lord, as I understand it that leaves three matters outstanding. The first is the point which your Lordship asked for further guidance on, in relation to which decisions should be quashed. Then there is costs and there are the issue of permissions to appeal.
On the issue of which decisions should be quashed, as I understand it we are all agreed that all the decisions----
MR JUSTICE ELIAS: I assumed so, but I had not formally, I thought, addressed that with anyone. So I just thought I ought to leave it open.
MR KARAS: My Lord, yes, it does follow the conservation area of consent relates essentially to the retail scheme rather than (inaudible), your Lordship has taken that on board.
In relation to costs, if I can go on to that, I acknowledge at once on one view of the way this case has proceeded it may appear that the claimants have behaved rather badly. We have only won on one of the five issues----
MR JUSTICE ELIAS: It is not a question of whether it is behaving badly or behaving well. This is a question of who should bear the costs of the litigation.
MR KARAS: Quite so. But it is my respectful submission this is a case in which the claimants should have all their costs, and this is certainly not a case where the local planning authority or Arrowcroft should have any of theirs. As I understand it, Arrowcroft does not seek costs from us. So I need not deal with that any further. But if they do I will respond in due course.
Perhaps I can deal with matters generally. Firstly, in relation to the environmental statement issue. In my respectful submission, it is quite clear we have won very substantially on that and we must have our costs of that.
In relation to the other issues, in my submission these issues have arisen - or rather would never have arisen if the environmental statement issue had been properly considered, leaving aside human rights and the phasing for a moment. There are two other main issues, the conservation issues and the amendment issues. On those points I submit the council has effectively brought those issues upon its own head.
In relation to the conservation issues, if I could make three points. Firstly, it is my submission that if the environmental statement had been provided, it is quite clear that the sort of information which we say is lacking from the officer's report - which your Lordship has found is not a material omission - that sort of information would have been provided within the environmental statement. We would not have been here. Our complaint would not have arisen.
Refining that issue, my second point is that the conservation issues clearly, in my submission, overlapped with those within the environmental statement issue. Your Lordship saw the way we put it, there was cross-reference within the grounds of appeal. In considering the inadequacies in the environmental statement in relation to the conservation issues, it is inevitable that your Lordship would have had to consider the sort of issues which in substance fell for consideration in relation to this scheme.
Which leads to the third point, even if your Lordship concludes that we should not have our costs of that issue, in my submission this is a case, as I have indicated, of the council has brought this on its own head by failing to provide an environmental statement, we should certainly not have to bear----
MR JUSTICE ELIAS: That may be so, but on the other hand you did not have to pursue that particular line as well. By choosing to pursue both lines, there has been a certain amount of time and detail focused on something which----
MR KARAS: That is true. However, the bulk of the time in my submission would have had to have overlapped because your Lordship would have had to have seen----
MR JUSTICE ELIAS: Some plainly would, some plainly would, some would not. But any way, I have the general point.
MR KARAS: You have the submission.
In relation to the amendments issue, I draw your Lordship's attention to a number of points. There is no record of the council's decision on amendments. The reasons in relation to the council's decision are contained within Mr Scott's witness statement. Prior to these proceedings, it was unclear to us----
MR JUSTICE ELIAS: May be, I do not think you asked them, though, did you. I do not think the point was actually raised in the pre----
MR KARAS: The amendment issue was. The issue that was not raised, as I understand it, was the conservation issue.
MR JUSTICE ELIAS: I am sorry, the conservation was not, certainly, yes. The amendment was, was it?
MR KARAS: And in any event these amendments go back some considerable time. In my respectful submission, it is appropriate that the proper minutes be kept of decisions. No minutes appears to have been produced before your Lordship or indeed before the inquiry. This is a case of the council bringing that issue upon its own head. Your Lordship - I will deal with this perhaps more fully when I come to the issue of permission to appeal - on this particular issue the juridical basis of the law concerning amendments is unclear. At best, this was a point which in my respectful submission we were reasonably properly entitled to take....
MR JUSTICE ELIAS: Yes.
MR KARAS: ....given the absence of statutory grounding for this particular point, and indeed given the obscurity of the council's decision-making. That is, I think, all I can say on that particular point. It is a point we properly could take given the state of the law, and given the factual circumstances is one which we were entitled to take.
On the phasing issue, the only point I would make on this is that the council has brought this issue on its own head. Mr Scott, and indeed the grounds of opposition to claim, made it clear and accepted that the report which we sought to challenge was not well expressed. In my submission we were entitled to bring this point. We have, overall, succeeded. This is a case where, in accordance with the starting point in costs - and it is the starting point in costs - costs should follow the event.
MR PUGH-SMITH: My Lord, I have a copy of Phonographic Performance v AEI Redifusion for your Lordship, in which Lord Woolf deals with the position since the CPR came into effect.
Could I say this. I have three subheadings. The first is principles and then I deal with procedural and fairly substantive issues.
MR JUSTICE ELIAS: Yes.
MR PUGH-SMITH: My Lord, the PPL case (if one can use that shorthand) was a matter that dealt with somewhat different facts. It concerned the Copyright Tribunals. My Lord, the passage I would like to take your Lordship to starts at page 313. The context there is the extent to which the Tribunal's chairman could award a different basis of costs rather than those costs following the event.
MR JUSTICE ELIAS: Yes.
MR PUGH-SMITH: But, my Lord, if I can take you to letter G, this deals with Part 44 and then defines conduct as including:
"(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and (d) whether a claimant who has succeeded in his claim in whole or in part exaggerates his claim."
And then Part 44, he says, sets out the wide range of different orders which the court can make.
Then he goes on to say this:
"I draw attention to the new Rules because, while they make clear that the general rule remains, that the successful party will normally be entitled to costs, they at the same time indicate the wide range of considerations which will result in the court making different orders as to costs. From 26th April 1999 the `follow the event principle' will still play a significant role, but it will be a starting point from which the court can readily depart. There is also the position prior to the new Rules coming into force. The most significant change of emphasis of the new Rules is to require courts to be more ready to make separate orders which reflect the outcome of different issues. In doing this the new Rules are reflecting a change of practice which has already started. It is now clear that too robust an application of the `follow the event principle' encourages litigants to increase the costs of litigation, since it discourages litigants from being selective as to the points they take. If you recover all your costs as long as you win, you are encouraged to leave no stone unturned in your effort to do so."
My Lord, that was the instant situation before your Lordship; because if I could remind your Lordship of the following matters. My Lord, first of all, the original time estimate given in the claimant's skeleton was 2-3 days. Supplementary skeleton, which was served the night before we appeared before your Lordship on Wednesday the 17th, said three full days. My Lord, as you know, even with a long sitting day on day five, when you sat from 10 through to I think it was quarter past five, it took seven days. Indeed, you had to deal with human rights as a discrete issue, if you recall, when it came to matters being dealt with in those final two days.
My Lord, being the noting junior behind Mr Roots, I note that Mr Horton concluded his case at noon on day five, the 23rd. So, my Lord, by that stage he had already exceeded his time estimate by some considerable degree.
Can I help my Lord?
MR JUSTICE ELIAS: I am just looking for the White Book actually, I am sorry. It is all right, I may not even look at it. But just to have.... Yes.
MR PUGH-SMITH: My Lord, day three, Mr Roots rose to his feet at 3.55 in the afternoon and concluded on day five. So we took, effectively, a day and a half, just after noon, and then Mr Glover is on his feet until 2.20 in the afternoon and your Lordship sat another three hours, just under, to deal with Mr Horton's responding submissions.
Now, my Lord, the underlying basis of Part 44, and indeed Lord Woolf's comments, is to ensure that discipline is exercised in the way in which cases are presented, particularly in the High Court where clear time estimates have to be given. Now your Lordship will recall three significant factors in this case so far as amendment was concerned. First of all, my Lord, in the middle of June the claimants served an amended claim form in which they raised the conservation area point.
MR JUSTICE ELIAS: Yes.
MR PUGH-SMITH: My Lord, secondly, in front of your Lordship the phasing point grew into a somewhat more substantive case, where your Lordship in fact indicated (although it was never done) that a further amended claim form should be served.
Thirdly, my Lord, as you know, there was the attempt to add archaeology as a discrete issue, which you rejected as being too late on the morning of day seven.
My Lord, that is hardly appropriate with a case of this kind, where clearly what is being adopted is really a sort of multi-rocket attack so something will hit the target. As your Lordship has found, one rocket has hit the target. I submit it is a procedural error that is substantively with the council and has been found at fault over, rather than a substantive one. My Lord, we do not argue that the claimants should not be entitled to some of their costs, and indeed I do not stand here seeking our costs on the grounds upon which they have failed. What we say is that they should only have the costs of their success on ground two to be precise, and that would be the subject of detailed assessment. My Lord, whether that comes to a third of their costs or half their costs, we know not. But certainly my Lord I would strongly urge you to ensure that your costs order does reflect those factors I have just pointed out to your Lordship.
So my Lord that deals with the procedural matters. So far as the substantive points are concerned, well, as your Lordship has already noted, on the conservation area issues that was something that was pursued effectively in tandem with the environmental statement point. Indeed, the lateness of the amendment suggests that it was a further thought that had, indeed after the drafting of the claim form which was served, as you recall, on 18th May.
My Lord, the amendment issue your Lordship has conclusively found against the claimants, both on the merit of the point and procedurally as well. You took the view that they should have raised the point in 1998. They were clearly out of time. So my Lord, with respect, that was one they were doomed to failure on, if your Lordship's approach was thought to be the appropriate one which of course it has be found so to do. I do have to say that, yes, the decided case law is not conclusive on the point. But your Lordship has undoubtedly formed the view that for reasons of delay they were out of time.
My Lord, so far as the phasing issue is concerned that point was embellished substantially by Mr Horton on his feet. Indeed, the reference to the Sosmos case, upon which your Lordship makes reference, was a case which was not raised in their list of authorities, was not found in their skeleton. It was certainly thinking on your feet time. Again, my Lord, the nature of their case changed during the course of argument.
So my Lord, for those reasons I would submit that there is no substantive case there that justifies costs on those other grounds either.
As far as human rights are concerned, my Lord they tried and they failed. My Lord, the law on that I submit certainly was sufficiently clear after Alconbury for there to have been the opportunity for further reflection. As your Lordship will recall, Alconbury was decided in early May, I think about a week before the claim form was actually issued.
MR JUSTICE ELIAS: I am not sure that I found that it was determined by Alconbury in this case. However, that is----
MR PUGH-SMITH: I appreciate that, my Lord, but certainly in terms of - a moment for reflection was there. My Lord, indeed, quite the opposite we occurred. We had more grounds served upon us rather than less. Of course, again an expansion of the human rights argument. My Lord, I think that is probably best described as a score draw.
MR WILLIAMS: My Lord, on the question of costs the first submission is that this is not a case in which it would be appropriate to make any order for costs against the second defendant, Arrowcroft----
MR JUSTICE ELIAS: No, I think it is probably agreed that you should neither receive nor give any, is that right? I should think that is common ground.
MR WILLIAMS: Yes. I can add nothing further.
MR KARAS: My Lord, is it appropriate that I respond?
MR JUSTICE ELIAS: Do if you wish.
MR KARAS: Unless your Lordship is with me on my primary submission, I would briefly draw your attention to a number of points.
MR JUSTICE ELIAS: Yes.
MR KARAS: Firstly, as Mr Pugh-Smith has pointed out and as your Lordship will be aware, under the Civil Procedure Rules, Rule 44.3(2), makes it quite clear that the general rule still is that costs follow the event.
MR JUSTICE ELIAS: Yes, that is the starting point really.
MR KARAS: It is the starting point, but it is described in the CPR as the general rule.
MR JUSTICE ELIAS: I know, but I understand where we start from.
MR KARAS: Secondly, I do reiterate the point that the fact that we pursued issues on which we have failed does not mean that we have pursued these issues unreasonably, given the inadequacy of the council's recording of its decisions and the fact that two of the faults - the amendment of boundaries and the substance of the application and the conservation area issues would not have arisen at all if we had an environmental statement, because these issues would and should have been set out quite clearly in an environmental statement.
In relation to the other points raised by Mr Pugh-Smith, in relation to the time estimate, as I understand it your Lordship had power to exercise discipline if your Lordship wanted to, if your Lordship felt that any of the submissions were being unhelpful, by setting a Lloyd's litigation timetable at any stage. Your Lordship did not. No additional costs have been raised by the length that the case took, if your Lordship concludes that the submissions were properly made. The only question is whether or not your Lordship should exercise some discipline in relation to the listing generally. But in my respectful submission this is not that sort of case.
In relation to the procedural points raised by Mr Pugh-Smith, as I understand matters the amendment was not opposed in relation to conservation issues; and in relation to phasing, in my submission no amendment was needed to the grounds because if one read the grounds, apart from the rubric of phasing, is quite clear the point we were making. The Sosmos case was only brought in to rebut a suggestion by your Lordship in argument that economic matters were not - or economic viability matters were not material considerations, and in some circumstances they clearly can be. That is all that the Sosmos case goes to. So that deals with the specific points raised, and unless I can assist your Lordship any further those are my submissions.
MR JUSTICE ELIAS: Thank you very much indeed.
I have to decide how costs should be awarded in this case. Essentially the claimants advanced five grounds and they succeeded on one of them. Under the Civil Procedure Rules Part 44 there are certain matters that I must consider when deciding what the appropriate order for costs is. It is true the general rule is that the costs of the successful party should be paid by the unsuccessful party, but a different order may be made in certain circumstances. The court must have regard to the conduct of the parties and whether a party has succeeded in part of its case, even it has not been wholly successful.
In this case, as I have said, the claimants succeeded on one of the five grounds they advanced. I have heard some argument as to whether the conduct of the claimants in this litigation was altogether satisfactory. It is said that some of the grounds they ought not to have pursued from the start, and I think that is probably right in relation to the amendment claim which did seem to me, as I found, to be well out of time.
Doing the best I can, and bearing in mind that it seems to me the claimants are entitled at least to initiate the grounds in relation to conservation and phasing - but perhaps in relation to phasing they might have reconsidered their position after receiving the witness statement from Mr Scott - but taking a broad view, and not getting into the detail of conduct, it seems to me that just focusing in fact on the degree of success, overall it seems to me a just position would be for the first defendant to pay 50 per cent of the claimants' costs in this matter.
MR PUGH-SMITH: My Lord, that is very just and comes as no surprise. I am grateful.
My Lord that then leaves the issue of permission to appeal. I hope your clerk explained----
MR JUSTICE ELIAS: I gather you want to appeal.
MR PUGH-SMITH: I do. But it is on the discretion and delay point, my Lord. Can I just explain to your Lordship the way we see matters? For that purpose I have made a note of key dates, which is relevant to the submission I am going to make. If I could pass that up to your clerk? Thank you very much. (Handed)
My Lord, for those of us, certainly at the junior Bar, who have to make applications of this kind it is always a little invidious to say to your Lordship, "We think there are grounds upon which we can go to the Court of Appeal."
MR JUSTICE ELIAS: Please do not be embarrassed. That is perfectly in order.
MR PUGH-SMITH: My Lord, that is all part of the process. As your Lordship knows, the test that I have to satisfy you is either that there is a matter of general public importance and/or that there is a realistic prospect of success before the Court of Appeal.
MR JUSTICE ELIAS: I can see questions of construction of the regulations may be a matter of real public importance, but that is not what you are focusing on so much, is that right?
MR PUGH-SMITH: No. My Lord, the point I am focusing on is the question of delay and there is a public interest point there. Whilst your Lordship found the Malster case unhelpful - that was the Ipswich Town football club case - my Lord, there is a point that Sullivan J makes in the judgment in paragraph 99 of wider significance, and that is that in the interests of good administration if you find an error then you should point it out to the decision-making body. Clearly an environmental statement is of some significance, particularly in the light of the law since Berkeley----
MR JUSTICE ELIAS: Sorry, I recall in the Kathro case, I think Richards J took the view that you could be premature in raising your point about environmental statement before the actual ruling on planning permission.
MR PUGH-SMITH: Of course that was trying to quash the planning permission.
MR JUSTICE ELIAS: Yes, I understand.
MR PUGH-SMITH: But, my Lord, the point that we make here - and where, with respect to your Lordship, you have perhaps been unduly generous towards the claimant so far - is over the way in which they handled the matter. My Lord, what I put before you is a note of a key date drawn from the material which is in fact in your Lordship's papers. But my Lord, the starting point must go back to January 1996 when the initial outline planning application was submitted by Arrowcroft. As I draw to your Lordship's attention, both claimants were professionally represented from 1996.
MR JUSTICE ELIAS: Yes.
MR PUGH-SMITH: They responded to the outline application, but raised no issue on lack of or need for environmental statement. The references there, my Lord, the second one is to the committee report of March, where all the representations are set out in, I think it is appendix two. The first reference, paragraph 6, and that was to Mr Spencer's witness statement, he is my instructing solicitor, in which he was dealing with issues of delay, that was a witness statement which was filed in July of this year.
My Lord, the significance of that is this. Whilst your Lordship has found that the three-week, as it were, time period under regulation 9 was not mandatory, in other words it was open to the council to call for environmental statement at any time up until the grant of planning permission, nonetheless that is a significant starting point, bearing in mind the fact that the claimants were professionally represented. So in other words, one can assume that they knew what they were doing and they would take appropriate steps in order to safeguard their clients' position. This is the picture that unfolds to greater extent as we go through this timescale.
We then have the March 1997 `minded to grant' resolution, which was the view of members that they were prepared to support the scheme. Then, my Lord, we have the significant date of 29th July 1998, the advertised (?) provisions to which certainly BT responded. Your Lordship will recall that in respect of ground one, the amendment ground, your Lordship in fact notes in his judgment that the claimants took a point on that - in other words, that the issue should have been addressed then - and in (inaudible) discretion you took the view that they should have raised the point in 1998.
My Lord, the first point we make is that they could and should have raised the lack of environmental statement at that stage, bearing in mind the regulations have been in force for getting on for 10 years, and certainly the issue of the need for an environmental statement was something which must have been present, certainly in terms of overall consideration. Certainly that can be regarded as having deemed to have be of application, in view of the fact that they looked at the amendment point itself.
But my Lord, more significantly, we then have the objections from BT to first of all the first CPO----
MR JUSTICE ELIAS: Yes.
MR PUGH-SMITH: ----in June 1999, request in September 1999 to the government office to call in that multiple application for their own determination. But in terms, as it were, of the significance of the point and the significance of the error, my Lord I think the fairest way of putting it is this. Certainly from July of last year, when Burkett was decided in the House of Lords, I think it was July the tenth it was decided, certainly everybody was then aware of the fact that the planning process could not cure the procedural deficiency of having no environmental statement. Up until that time, the position, as it were, was still open to debate.
MR JUSTICE ELIAS: Still argument as to what the effect was, yes.
MR PUGH-SMITH: Yes. But, my Lord, the reason why the microscope needs to be applied to dates is this. One knows that in September there were objections lodged by Bloomsbury and then by BT in middle of the September to CPO number two. So really the battle had commenced, and indeed you will find certainly in one of the letters from BT they refer to a cancelled November inquiry, because originally the CPO inquiry was due to start in November of last year, then was going to be January and in the event it started just after Easter.
My Lord, again, one knows that in terms of the significance of the issue that the exchange of correspondence, or certainly the letters from Berwin Leighton and the Gethin response of 10th October.
My Lord, pausing there, whilst it was not until 10th April 2001 that BT requested a copy of the Gethin letter, my Lord that letter, I am instructed, was on the council's open file - that is the file which was accessible to the public - and, my Lord, certainly it would have been clear by then, anybody with even a rudimentary knowledge of environmental statement would have been aware of the significance of the fact that the issue was being debated. Again, no letter at all.
MR JUSTICE ELIAS: They would not necessarily have known from that what the final decision was. Was the reply on the file?
MR PUGH-SMITH: No, my Lord. There was no reply on the file, but the very absence of a reply----
MR JUSTICE ELIAS: But there was a reply.
MR PUGH-SMITH: Sorry?
MR JUSTICE ELIAS: There was a reply, but the question is: was it on the file?
MR PUGH-SMITH: My Lord, there was a determination, but as your Lordship noted in his judgment there was nothing on the file.
MR JUSTICE ELIAS: No, from the Gethin letter there was a reply from the solicitors?
MR PUGH-SMITH: Yes there was, that is right, the Berwin Leighton letter.
MR JUSTICE ELIAS: Yes, is that letter on the file as well?
MR PUGH-SMITH: Yes, oh yes. So it goes Berwin Leighton letter 1 in September, Gethin letter to Berwin Leighton letter 2.
But, my Lord, the significance of the point increases because we know that on 30th October - although we never saw this letter - BT actually wrote to the government office seeking to call in the planning application on the basis that there was an infringement of Article 6 of the Human Rights Act. So in terms of scrutiny, certainly the heat was being turned up.
MR JUSTICE ELIAS: It is certainly true I think that they had not noted the point or taken the point at an earlier stage. That I accept.
MR PUGH-SMITH: Yes, but the point that I am seeking to make is this my Lord: in view of the degree of scrutiny that was seemingly being paid to the whole process, they could and indeed should have done in the particular circumstances.
My Lord, there is then 2nd February when we formally sent a second letter notifying the claimants of further revisions. So, again, another opportunity, my Lord. But, my Lord, most important of all that on 12th February there was this pre-inquiry meeting at which BT were represented by Mr Horton, where an inspector directed the proofs were required by 3rd April. Indeed, my Lord, there had already been a request by us that statements of case should be provided, which the government office declined to enforce.
My Lord, we certainly know that certainly from February onwards Mr Horton has made it very clear to your Lordship in court that since his involvement certainly matters were looked at with even greater scrutiny.
My Lord, taking matters together, it is my submission that on the question of delay one has to look at when would be the first reasonable opportunity for the matter to be raised. I have already identified that certainly that was back in 1998, in July 1998. If your Lordship were to be against me on that point, certainly my Lord in the late autumn of last year. There was every reasonable opportunity to raise the point. But, my Lord, all that happens is there is a rather bland request on 2nd April from BT asking whether there has been environmental statement, and indeed followed up by this request on the 10th that we responded to perhaps more timeously than the first----
MR JUSTICE ELIAS: The bland request might be said to be a polite request.
MR PUGH-SMITH: Certainly.
MR JUSTICE ELIAS: If it had been an aggressive request, no doubt you would have said it was an aggressive request. Any way, but I take your point. There was a request, any way.
MR PUGH-SMITH: As your Lordship knows, until the actual decision notice is issued there is no formal grant of planning permission.
MR JUSTICE ELIAS: Yes.
MR PUGH-SMITH: It is well established law.
MR JUSTICE ELIAS: Yes.
MR PUGH-SMITH: So, my Lord, even at that stage, even at 2nd April, had the point been, as it were, properly drawn to the council's attention, there was the opportunity of the council to cure the situation. The inquiry was not yet opened. It could have actually asked the inquiry to be adjourned.
Instead what happens, my Lord, we have this sort of cat-and-mouse game. I submit, my Lord, for us to appreciate the significance of that, in terms of what is no more than essentially a fishing expedition, until the other side, conscious of the timescale running out, sent a letter before action on 4th May, which is the first time they actually say, "We think you have acted unlawfully."
My Lord, bearing in mind the approach of the courts to the question of time, and indeed the way in which litigants, lay litigants - as indeed in Malster and indeed in the case of Burkett - have been treated by the courts, one would think that a professionally represented claimant should be treated perhaps more strictly than a lay person. But the courts have made it clear that time is time and parties should act promptly.
My Lord, Burkett, your Lordship may be aware, is due to be heard in the House of Lords in February of next year. That may assist the law considerably on this whole question of time and planning permissions. But, my Lord, the issue that of course concerns my clients is the question of a CPO inquiry, which after all is in the public interest. It is not simply the preservation of a right to develop land. It is a right that in this instance has been used by the local authority to ensure that Gloucester City is regenerated. Therefore, my Lord, the issue of time and delay clearly is of critical importance, particularly in the situation in which we find ourselves where the inquiry has had to be adjourned to review the outcome of your Lordship's decision, although obviously we could not actually explain to anybody why we had to ask effectively for stumps to be drawn last week.
My Lord, taking these points together, my Lord, the question of time in this context (delay in other words) is a matter not only of wider public importance, but certainly open to considerable debate in this instance.
Whilst your Lordship has taken the robust view based on Ruddock that you would have extended time, with respect your Lordship did not indicate from whence you would have extended time. You just said simply "for a short period". I hesitate to ask your Lordship as to the date you had in mind, because after all your judgment has been handed down. But, my Lord, can I say that taking all these various points together it is my submission that certainly there are grounds in this particular instance for permission to be granted by your Lordship. Without reflecting any criticism at all, my Lord----
MR JUSTICE ELIAS: No, no, I am not offended. Yes, I am just looking at the time limit again it is:
"promptly and in any event not later than three months after the grounds to make the claim first arose."
MR PUGH-SMITH: Yes.
MR JUSTICE ELIAS: You have to identify some time when the grounds to make the claim first arose.
MR PUGH-SMITH: My Lord, I have sought to do that. We would submit that July 1998, taking the claimants' own case, was the date when----
MR JUSTICE ELIAS: But it must be - I mean, I cannot think of any case - there may be some, but I cannot think of any - which would have identified the time when you should take your claim as being the time when you think or you could have found out that there may be illegality, particularly when that illegality is? I have to say, I think the real problem with this point is that it could well be said that any action taken before the actual determination of planning permission would be premature. It could be said, "This can be provided any time, you should not be racing off to the courts at every whipstitch to challenge different stages in the procedure."
MR PUGH-SMITH: My Lord, that is where the issue of environmental statements perhaps can be treated as an area apart. Because as Sullivan J points out in the context of Malster, that if the error has been pointed out then the error can be cured. After all, the exercise is in the public interest because, as your Lordship has found, there is the opportunity, there must be a full debate as to the positive and negative effects of a particular development.
But, my Lord, the point which I home in on here is the fact that here is a claimant - here are two claimants, but BT in particular - who are preparing for a CPO inquiry, they are keeping their powder dry. Effectively, my Lord, the council has been ambushed. My Lord, it is my submission that is not only unfair but against the public interest, and certainly running contrary to the spirit of Part 54.5. But as far as the timing point is concerned, my Lord, in terms of the three months, certainly they knew or could reasonably have formed a view by the time there was a further circular letter notifying the claimants of the further revisions of 2nd February. My Lord, the claim was not even issued until 18th May, and even then it was wrongly served. If you recall Arrowcroft were not served, it had to be corrected and then they add the conservation area ground which Mr Karas said is so important for environmental statement. That was not even thought about and added until the middle of June, by which stage, my Lord, we are well into a public inquiry which was originally intended to last for two weeks and has now run for several months.
But, my Lord, the point is this. In terms of, as it were, when a claim could reasonably be taken, my Lord I would ask you to focus on that period from effectively the middle of October through to 2nd February. Because we know that they were assiduously looking at matters - otherwise why write a letter to the government office on 30th October seeking and a call in on human rights grounds? Somebody must have sat down and given very careful consideration to where a call in could have taken place.
My Lord, the environmental statement point would have been an equal ground for a call in. Because as your Lordship knows----
MR JUSTICE ELIAS: I do see this. I see the point you are making. But it is not generally thought, I think, to be the approach in judicial review to say that you must take your claims within a certain time of the period when you ought to have recognised you had them, or that you would be likely to have them. In a sense you do not have your - I think at least it is arguable you do not really have your environmental claim - at least under the old rules, because of course the new ones pinpoint a particular time to decide----
MR PUGH-SMITH: Exactly.
MR JUSTICE ELIAS: ----until the planning permission is granted. I do have some sympathy for the idea that one might say parties can - I am not suggesting whether it was done in this case or not - but can deliberately not raise a ground, put it before the council or whoever the decision-maker may be, in the hope of catching them out. But I am not aware of any case that said that, as it were, they have to play that policing function, if I can put it in a slightly tendentious way perhaps. But you see what I mean.
MR PUGH-SMITH: My Lord, Malster, coming in 1999, actually says that. If I can pass the copy of the - or read out the relevant paragraph, my Lord. This is the paragraph that Mr Roots drew to your attention, and what Sullivan J says is this:
"Ground (1) remains the main complaint made on behalf of the claimant. Where such a challenge is to be made, it is of vital importance that it is made promptly. Faced with a challenge to the lawfulness of a screening opinion, the local planning authority may wish to reconsider its position and ask the Secretary of State to make a direction accordingly (see paragraph 66 of Circular 2/99), or the developer may volunteer an EIA. It is not appropriate to wait until after planning permission has been granted, when it is too late to remedy the omission, and then complain that the screening opinion, which has been on the public register for some months, was erroneous. Each case will of course depend on its own particular facts."
MR JUSTICE ELIAS: You see, that is different to this case since there was an obligation to make a screening opinion. So there would be an actual determination, the decision has been reached.
MR PUGH-SMITH: Yes.
MR JUSTICE ELIAS: Even then, it seems to me, with great respect to Sullivan J, there may be cases where it could be said to be premature to be going at that point. But nonetheless, I take the point that very often one can say, "There is a determination. It is one that has to be reached according to law." If you are going to do something about it, I can see a very strong case for saying that either you challenge it then, or at least you write to the council saying, "It is our clear view that this is wrong; do you want to us challenge it now or do you want us to leave it and wait and see what the outcome is?" I see the force of that, but it does and indeed did seem to me that that paragraph is in a different context.
MR PUGH-SMITH: My Lord, with respect, no it is not. Because what effectively took place in October last year was a screening exercise. Indeed, Berwin Leighton referred to regulation----
MR JUSTICE ELIAS: It is not a statutory----
MR PUGH-SMITH: I appreciate that.
MR JUSTICE ELIAS: I take your point, I see how you are putting it.
MR PUGH-SMITH: My Lord, with an objector who is clearly going through the documents preparing for a CPO inquiry, my Lord, that is very different from the individual who just happens to see something on the file because they are concerned about the impact of a new football stadium on their property. My Lord, that is a point which I would ask your Lordship to bear in mind. These are, as it say, professionally represented, as well as professionally advised, clients with almost limitless resources, my Lord, to throw resisting this particular CPO. That is, with respect, very, very different. Indeed, my Lord, their ability to write letters is certainly something which has not been, as it were, held back at all. It is just that there is this conspicuous period of silence until, of course, there is the run-up to the inquiry, and indeed after the actual resolution of 12th March.
My Lord, can I just say in that regard of course the very absence of any reference to an environmental statement in the committee report in itself is something, my Lord, which could have been remarked upon but was not. But, my Lord, I am perhaps speculating when I get to that stage, because I submit that it is was clear last October that the position was far, as it were, from happy over this issue.
My Lord, I suspect that if I continue I may start repeating myself. It is not the best approach for an advocate. My Lord, all I would invite your Lordship to do is certainly to allow this issue to be dealt with by the Court of Appeal. It is certainly something that needs to be addressed by the courts, and my Lord does not in any way invalidate the substantive findings you have made on the environmental statement issue upon which we stand here and we take it on the chin, as it were.
MR JUSTICE ELIAS: No, Mr Pugh-Smith, notwithstanding your persuasive arguments - and you have put the case well - this is ultimately a matter of discretion. I do, I have to say, still take the view that the Ipswich case is under different regulations, where different principles apply. It seems to me that this was a discretionary decision which I was entitled to make and which I think the Court of Appeal would have difficulty saying - or I would have difficulty saying there is a realistic prospect of success, given that I see the decision in that light. But you can try and persuade them otherwise.
MR PUGH-SMITH: Thank you very much, my Lord. Thank you also for the gracious way in which you dealt with it.
MR KARAS: My Lord, I anticipate that I will not ultimately need to go to the Court of Appeal if my learned friend does not seek permission and receive permission from the Court of Appeal. But in order to protect the claimants' position, I ought respectfully to ask your Lordship for permission. Though if your Lordship grants permission on the grounds which I put before your Lordship, I would ask for a general extension of time in relation to the service of any notice of appeal, pending the outcome of any application or indication that they are not going to pursue an appeal on the council's part. But perhaps I can make my substantive application for permission prior to determining the mechanism.
MR JUSTICE ELIAS: Yes.
MR KARAS: In relation to the grounds of appeal, in my respectful submission there are both grounds of general importance and grounds with reasonable prospects of success upon appeal - I am leaving the human rights' point aside for the moment - both in relation to the amendment issue and in relation to the conservation area issue.
In relation to the amendment issue, the law concerning the powers of local planning authorities, and indeed the Secretary of State upon appeal, although there is a practice that has grown up which has first instance judicial approval directly and in the (inaudible) Court of Appeal----
MR JUSTICE ELIAS: Indirect Court of Appeal support.
MR KARAS: Quite so. There is, in my respectful submission to the judges in this case, no satisfactory juridical basis upon which the local planning authorities and the Secretary of State's powers of amendment rest. Your Lordship has pointed to no provision within the primary, nor indeed the subordinate, legislation upon which the power of amendment rests. In my submission, in the absence of such analysis based upon the statutes which, after all, govern the local authorities, and indeed the Secretary of State's powers upon appeal, it must remain open to significant doubt as to what those powers are.
MR JUSTICE ELIAS: Yes, I have the general point.
MR KARAS: You have the point. It is of general importance, and in my submission in this particular case there are real prospects of success, depending upon what the test for amendment, if indeed amendment----
MR JUSTICE ELIAS: I think your other problem, if I may say so, I think is this. I have found, as you know Mr Karas, that it is in any event out of time. I do not think - in fact I remember Mr Horton saying in terms he was not saying that the 2001 amendments were sufficiently substantial. He was saying that the 1998 amendments were sufficiently substantial as to warrant the conclusion that they should not have been allowed, and so you have that hurdle to cross as well.
MR KARAS: My Lord, yes, we do have that hurdle, but in my submission the points - the way I put it to start with is a point which I submit is of sufficient public importance----
MR JUSTICE ELIAS: That would not help you, because the Court of Appeal would not just determine the matter, as it were, in the abstract. If they were going to come to the conclusion in any event that the matter was out of time, then they would not want to consider this point independently of that.
MR KARAS: My Lord, yes, but by analogy with the way in which your Lordship dealt with environmental statements, if we are right as to the substantive powers, in my respectful submission it is a point of general importance if the local planning authority has acted in such a way that it is wholly without its powers. I can probably say no more than that. But I make the application.
In relation to conservation areas, again this is a point in my submission of general public importance. It does overlap with the environmental statement issue. The general point is that your Lordship's judgment has a significant impact, may have a significant impact, on the way local authorities and indeed the Secretary of State will view the application of the Secretary of State's policy of PPG15 and the general approach requiring detailed planning permissions to be in place, in the absence of something extraordinary prior to the granting of this building and conservation area consent. That is the general point. It is a matter of the construction and application of policy.
The more specific point in this particular case is that in my respectful submission on the substantive points your Lordship has taken a view to the material before the local planning authority. What your Lordship, in my submission, has not done is analysed certain parts of the evidence which indicate not only what material was before the authority, but genuine omissions from consideration. For instance, Mr Blaney's evidence as to what Mr Scott has said in relation to his understanding of the height of the flank wall of the BT store in relation to the Grade II-style listed building, Robert Raikes House. He did not know at the inquiry that it would be up to 17 metres high. That is a clear, serious omission.
So I submit that, both in the general points and in relation to the evidence before your Lordship, there was a clear failure on behalf of the local authority to apply policy.
MR JUSTICE ELIAS: On the general point, sorry, on the general point, is it your submission that the council would not as a matter of law be entitled to look at the conservation area issue again when dealing with the reserved matters?
MR KARAS: They would be severely constrained. They would have to----
MR JUSTICE ELIAS: No, no, it is not a question of - sorry, it is not a question of the extent to which they may or may not be entitled. I just want to know as a matter of law, are you saying that when they deal with the reserved matters they could not, at that stage, take into account conservation area considerations?
MR KARAS: They could only take them into account to a limited extent, because the principle of development had been established. That is clear. So as a matter of law: yes, conservation areas might be taken into account, but only, only, in a limited way. They could not reopen the general conservation issues. That of course is a very important distinction between the position on an outline application and a reserve matters application. An outline application, what one is considering is the principle of development and once that is established it is not possible to revisit----
MR JUSTICE ELIAS: No, I understand that. But I am not sure why that limits the analysis in conservation terms. If one says, for example, "On the face of it this seems entirely compatible with preserving or indeed enhancing the conservation of the area. True it is that we do not have at this stage the detail on design or external appearance, and so we cannot exclude the possibility that it will not because they can put in what they like, as it were. We cannot exclude the possibility that when we see the detail it may not be in accordance with preserving or conserving the environment. But surely they could at that stage take that into consideration?
MR KARAS: They can take it into consideration. The difficulty is, of course, in this case we do not have an environmental statement----
MR JUSTICE ELIAS: That is a different matter.
MR KARAS: It is perhaps not when looking at the particular facts of this case. We do not know. There are omissions of detail in relation to archaeology, in relation to various environmental issues. We do not know what constraints may be thrown up as a result of the environmental statement. Accordingly, one does not know at this stage whether or not, when one gets to the details stage, one will be able, consistent with all the other constraints on the site, to be able to produce a scheme which in principle will not have an adverse impact on the conservation area in a way which is inimicable. This ground is tied in with the environment statement ground. Indeed, in the ground we have linked both grounds together. They are integrally bound up. My Lord, I think I have probably made the submission on that.
On the phasing issue, I leave it to your Lordship. I ask it. It is a discrete point. One cannot say it is of general importance. We do say, however, that there are reasonable prospects of success.
On the human rights ground, firstly in my submission it is of obvious general public importance. In relation to the prejudice point, on which your Lordship has found against us, we do submit judicial review in this particular case has not been adequate because of the lack of transparency in relation to two of the issues on which your Lordship has found against us. Not a lack of transparency in your Lordship's judgment, but the lack of transparency in the decisions which we have had to challenge. The amendment ground, the reasoning did not come from the process which we were considering. They have come by luck in evidence in the (inaudible). But it would have been open to the local planning authority to sit back and say, "You simply have not proven your case." On the conservation area ground, your Lordship heard Mr Horton's submissions, and your Lordship has dealt with Mr Horton's submissions as to the way this sort of decision is treated by the court and what has to be expressly considered. But in the absence of fuller consideration, rather than the elliptical officer's reports which are generally taken as adequate in this context, it is very hard, if not impossible, in very many instances to get to the bottom of the decision-making process. So that is----
MR JUSTICE ELIAS: I fear though, Mr Karas, I think with great respect you are falling into the trap of complaining about the general procedure. I think the fact that you could identify these two issues, which are indeed issues you were able to raise and did pursue show you were not prejudiced. True it is that I found against you, but in other words in this case - I am not saying as a general principle - but in this case the lack of transparency plainly did not prejudice you on those two matters. As I have indicated in my judgment, I am not unsympathetic to the idea there will be cases, perhaps, where the lack of transparency will justify somebody saying: "We actually have suffered a prejudice and it is not capable of being put right." But the two things were capable of being put right.
MR KARAS: Perhaps I can point to one specific instance where we have been prejudiced. In relation, for instance, to the 17 metre high flank wall of BT's, abutting Grade II* - not simply a Grade II - a Grade II* listed building----
MR JUSTICE ELIAS: It was not put like that, I am afraid, in argument. I am not going to----
MR KARAS: It was put - with respect, it was put in the written----
MR JUSTICE ELIAS: No, no, it was not put in terms of the human rights' point. It was not put in as a fact, as it were, as a feature that you were not able to----
MR KARAS: One of the general points we did put, and this is clearly in the skeleton argument, and we did put the point on a lack of transparency, and this is one example of a lack of transparency that in my respectful submission does appear within the papers, if he is looking to particulars to support the general point. If one looks at that specific example in relation to the conservation area ground, your Lordship has found, as your Lordship would do following the approach of the courts generally, that the conservation area issues were dealt with in the usual elliptical manner perfectly satisfactorily. However, in my submission, that is a particular instance, the treatment or lack of treatment of the relationship between the department store and the Grade II* listed building, which should be dealt with and we should have had an opportunity of being able to challenge and explore issues such as that. That is simply one example of the general point. So I do say in this particular instance we have been prejudiced. One could point to others, but I have plucked one which clearly does appear on the papers before your Lordship.
So I have made the application. One hopes one will not need to pursue it, but at least I raise the application.
MR JUSTICE ELIAS: No, I understand.
No, I am sorry I would not give you leave on any of these grounds. As to the first, even if I thought there were any real doubt about the legal principles, I do think this is plainly now out of time and there is no analogy, it seems to me, with environmental statement in that regard.
As to the question of the human rights ground, as I have indicated I took the view that you had not in fact been prejudiced in the circumstances of this case. It seems to me that the grounds which you advanced at the hearing were not grounds, which were not the sort of factual grounds which seemed to me might have permitted a case of this kind to get off the ground. You have indicated, perhaps Mr Karas, one ground now that you might have run, but you did not at the time (clearly not with any fervour) and I do not think it would be right that you should be able to run areas where you now say the lack of transparency did cause you problems.
As to the conservation area points, it seems to me that was a matter at the end of the day in my discretion of seeing whether what had been done was an adequate compliance with the law or not. I have come to a conclusion about that, and it seemed to me a matter of discretion.
So the answer is no on those three matters.
Thank you very much. Sorry.
MR WILLIAMS: My Lord, just for the record, we took the same stance as regards the application for permission to appeal as my learned friend Mr Pugh-Smith. Obviously the interest - the public interest in the development not being prejudiced by delay is different from the council, and the prejudice arising from it is also different, but the process and the public interest from a developer's point of view is well documented and I am not going to rehearse the argument that Mr Pugh-Smith took you through on how the process arose. For the record, I take it on board.
MR JUSTICE ELIAS: You share his concern.
MR WILLIAMS: Yes.
MR JUSTICE ELIAS: I am sorry, I had not appreciated you wanted to make any submissions about the matter. But any way, you have put on record that you agree with him and support his application.
Can I thank you all - I am sorry, you had something else----
MR PUGH-SMITH: No, my Lord, I was just rising to my feet.
MR JUSTICE ELIAS: Thank you for your time.
MR PUGH-SMITH: I thank your Lordship for his time.
(The court adjourned)