R (Holder) v Gedling Borough Council

Transcript date:

Tuesday, September 4, 2012

Matter:

Court:

High Court

Judgement type:

Permission renewal

Judge(s):

The Recorder of Birmingham, His Honour Judge Davis QC

Transcript file:

Case No: CO/793/2012
Neutral Citation Number: [2012] EWHC 3253 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham 
B4 6DS

Date: : Tuesday 4th September 2012

Before:
THE RECORDER OF BIRMINGHAM, HIS HONOUR JUDGE DAVIS QC

Between:

THE QUEEN ON THE APPLICATION OF HOLDER
Claimant
- and -

GEDLING BOROUGH COUNCIL

Defendant

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Mr Harwood (instructed by Richard Buxton Environment and Public Law) appeared on behalf of the Claimant.
Mr R Kimblin (instructed by Gedling BC) appeared on behalf of the Defendant.

Judgment
As Approved by the Court
Crown copyright©

HHJ Davis:

1. The claimant, Christopher James Holder, lives in a rural part of Nottinghamshire known as Woodborough. He lives close to the interested parties in the case, who farm land close to where he lives. The defendant is the planning authority for that part of Nottinghamshire. The claimant seeks judicial review in respect of planning permission for a wind turbine to be placed on land owned and farmed by the interested parties. The application for permission to apply for judicial review was first considered by Wyn Williams J on 25 May 2012. He refused permission. He noted the length of the summary grounds of defence and the summary claim. He indicated that he would not have refused permission for lack of promptness but said this:

"I am persuaded that the summary grounds [of defence] provide a compelling answer to each ground relied upon and therefore there is no real prospect that this claim can succeed"

2. The application now is renewed, supported by substantial skeleton arguments and by a very substantial amount of written material. I have to consider the application at greater length than Wyn Williams J did.

3. The grounds upon which the claimant relies fall into three broad categories. Mr Harwood of counsel, who appeared for the claimant, dealt with those three categories in a particular order. I shall deal with them in the same order.

4. The first broad category relates to the notice of grant of planning permission and the errors in it. Complaint is made, probably justifiably, about the issue of a second notice of planning permission seeking to correct the errors in the first.

5. The errors that were made related to conditions relating to noise that were intended to be imposed within the planning permission. The permission as issued also failed to deal with an issue of landscaping, which it should have done. No particular point is taken on that. The real issue is that of noise.

6. The permission in condition 8 of the grant noted that the level of noise from the wind turbine should not exceed the values set out in Table 1 and that night time noise limit should not exceed a particular level, at particular points or particular properties outlined in Condition A. Neither Table 1 nor condition A were included as part of the permission. They had been part of the very voluminous material put before the planning committee and plainly were intended as part of the permission, but the notice of planning permission as issued to the defendant and the interested parties in this case did not include them. It is accepted by the defendant planning authority that this means that that grant of permission was defective. What has happened since then is that two unilateral undertakings have been entered into between the interested parties and the defendant: the first dealt with the issue of landscaping and noise; the second dealt with exactly the same issues but also made clear that, save in the matters dealt with in the undertaking, it was the first issued notice of planning permission that was to be implemented.

7. Mr Harwood on behalf of the claimant argues that this history demonstrates that the "planning process has gone quite badly wrong". Insofar as it demonstrates that it was a very significant and very obvious error in the administration of the issue of the notice of planning permission, that is plainly right. A table and a set of conditions were referred to in the notice yet they were not appended to or included within the notice. That was a clear error. However, argues the defendant, it was a slip corrected by the issue of the undertakings. It is not suggested by the claimant that the issue of such undertaking is anyway unlawful or inappropriate. Rather, Mr. Harwood argues the process went so wrong that it should not be upheld by this court. It should be quashed. He argues that the undertakings as issued mean that enforcement of the particular matters relating to noise will be made much more difficult than if they had been included as conditions of the permission. In any event the protection is limited because there is no provision for the land being taken over by any mortgagee.

8. It was argued on behalf of the defendant that in fact enforcement of an obligation, such as an undertaking, could be said to be both easier and more efficacious than enforcement of a planning condition. I am bound to say I found this discussion and argument sterile. There is no doubt that either can be enforced. There is no suggestion that the local planning authority would not enforce an undertaking that has been entered into if there were plain breaches of it. The difficulty or otherwise of enforcement is not a proper subject for litigation in or decision by this court. The question is whether the undoubted slip that was made, however it is to be described, is such as to require this court to interfere and to quash the permission.

9. I have come to the conclusion that there is no proper case for quashing that decision for the reasons advanced under the first category of the claim as argued by Mr. Harwood. It is not arguable that it is appropriate to quash the permission for those reasons. I decline to give permission on those grounds.

10. The second category in relation to which argument has been put concerns the environmental impact assessment or, to be more accurate, the absence of an environmental impact assessment. The history is this. On 22 July 2010 a firm of consultants, I assume employed by the interested parties, wrote to the defendant asking for a screening opinion about the installation of one wind turbine at the interested parties' premises. The letter is dated 22 July and it is at pages 148 onwards of the main bundle with which I have been provided.

11. The letter identified the nature of the development. It identified that it was a development within Schedule 2 of the Town and Country Planning (Environmental Impact Assessment) England and Wales Regulations 1999 as amended. The letter also drew attention to the department's circular issued at the time of the making of those regulations by identifying that an EIA, as it is known, in relation to such assessments would be more likely to be required for larger developments than the one that this screening opinion request related to. Therefore the author of the letter offered the view that a full environmental impact assessment would not be required. That letter was accompanied by some materials giving some detail of the proposed project and outlining possible environmental issues.

12. On 30 September the relevant planning officer of the defendant replied. That letter is at pages 156 to 157 of the bundle. It identified the nature of the installation that was proposed, identified that it was within Schedule 2 of the 1999 regulations and further identified the relevant paragraph of the circular issued in conjunction with those regulations. The letter went on to conclude, in agreement with the screening opinion request, that an EIA would not be required. The letter did not stop there. It covered a whole variety of matters that would have to be considered, notwithstanding the fact that no environmental impact assessment was required. It identified the particular area in which the proposed development was to take place. It identified all the various consultations that would be necessary in the event of an application being made. Those references to some extent mirrored the issues raised by the author of the request for the screening opinion.

13. In the pre-action protocol letter written by the claimant's solicitors on 15 December 2011, the relevant page of which appears at page 647 of the bundle, it was asserted that the reason given in the screening opinion was unlawful and that the screening opinion simply applied the indicative threshold of a circular as if it was the only test even though the screening opinion also identified a number of environmental issues that had to be considered. That pre-action protocol letter was responded to on 6 January 2012. It begins at page 662 of the bundle and the relevant part is at page 663 of the bundle i.e. the second page of the letter under the heading "screening opinion and reasons". The author of the response to the preaction protocol letter set out a passage from the case of R(Bateman) v South Cambridgeshire DC [2011] EWCA Civ 157 (parts of the judgment of Moore-Bick LJ) and set out thereafter what it was that the planning officer had considered, in other words what their reasons were for not ordering an environmental impact assessment.

14. Those reasons do not appear in the letter of the 30 September 2010. They are not, however, contradictory. They amplify and explain the letter of 30 September 2010. Insofar as there is an argument that the letter written on 6 January 2012 is simply an after-an-event attempt to justify the unjustifiable, I reject that argument.

15. The point to which the planning officer had to direct her mind, as set out in the relevant part of the interpretation clause of the regulations, was whether the development was likely to have significant effects on the environment by virtue of factors such as its nature, size or location. Taking the letter of 6 January 2012 in combination with the letter of 30 September 2010, that was the test that the author of the letter did apply.

16. I was referred to the decision of Sullivan J (as he then was) in the case of R(Lebus) v South Cambridgeshire DC [2002] EWHC 2009 Admin in which the learned judge had to consider issues relating to a screening opinion. Mr Harwood, on behalf of the claimant, cited to me in particular paragraphs 10 to 13 of the judgment. In paragraph 13 Sullivan J, as he then was, said this:

"...what the letter significantly, in my judgment, does not say is that a view has been taken that the proposed development will not have significant effects on the environment."

17. I had understood Mr Harwood to be submitting that, because no part of the response of the defendant in this case set out those words in those terms, must have had acted unlawfully. In further argument he made plain that this was not his argument. He was not saying that the letter had to expressly set out the statutory test. What he did say was that, on a proper interpretation, the letters taken in combination demonstrated no proper consideration of the interpretative paragraph which I have just cited.

18. On behalf of the defendant it is argued that that paragraph was considered. It may not have been considered verbatim but the two letters, taken together, demonstrated that the proper test was applied.

19. I raised the issue in the course of argument as to what it was would have happened if there had been an environmental impact assessment. Mr Harwood set out various potential consequences had there been greater provision of information by the applicant, i.e. the interested parties as they now are. There would have been greater consultation and more detailed reasons for the decision would have been given. There would, and this is how he put it in concluding, have been a much greater opportunity for public comment on the environmental issues. I am bound to observe that amongst the multiplicity of papers in the case there is a very lengthy and detailed objection from the claimant himself. It appears at page 517 et seq of the bundle in which he addresses a whole raft of issues, not the least of which were environmental issues of the very kind that Mr Harwood cited to me. In the course of argument Mr Harwood offered an example of one possible impact on which comment would have followed, namely the impact on the bat population. This issue was the subject of a lengthy paragraph in the claimant's objection. He was not the only one. A number of people and consultants, presumably instructed by groups of people, made similar comments. With that in mind, I invited Mr. Harwood to consider the decision of the Court of Appeal in R(Berky) v Newport City Council [2012] EWCA Civ 378. The leading judgment given by Carnwath L.J. (as he then was). I referred in particular on paragraphs 22 to 24 of his judgment together with the comments of Sir Richard Buxton at paragraph 55 of the judgment. They are as follows:
On the substance of the issue I respectfully agree with everything that has fallen from my Lord. I have to add, however, that if I had been of a different mind I would have had to consider carefully whether it was possible to escape from a quashing order. The present proceedings, identified by this court as meriting support through a Protected Costs Order, are in the nature of an actio popularis, to assert a public right that if it had been abused should be vindicated, in line with the normal practice as recognised for instance in the judgment of this court in Tata Steel v Newport City Council [2010] EWCA Civ 1626[15], by the sanction of a quashing order. Had the claimants in the present case been able to produce any argument at all to show that, if an EIA had been undertaken, it would have demonstrated environmental objections, then it would be difficult to say that Morrisons should on reconsideration obtain the benefit of the status quo from having proceeded in the face of those objections. But the best that the claimants can do is to complain about the procedure, not the substance, of the environmental enquiry. Therefore, even if those complaints had prevailed there would be no policy reason for requiring the whole scheme to be unravelled.

20. It is right, as was pointed out to me by Mr Harwood, that in Berkeley V SSE & Ors [2000] UKHL 36, it was said that, where an EIA would make no difference at all, this was not something that could render lawful what would otherwise be unlawful. However, as Sullivan J in Lebus (supra) identified, the position in Berkeley was that no consideration at all had been given at the relevant time to a screening opinion. The issue here is not the same.

21. My conclusion is that the complaint in relation to the screening opinion does not provide any arguable ground for quashing the planning decision made by the defendant. First, I conclude for the reasons I have already given that the material provided by the defendant, both in the original letter and in the letter once pre-action protocol approach had been made, demonstrates that the relevant planning officer applied the appropriate test (albeit not in the precise words of the test) and reached a decision which was well within the bounds of a decision that could have been reached by a reasonable planning officer in her position.

22. Second, even if I am wrong about, I consider that the judgments of the Court of Appeal in Berky (supra), notwithstanding the different factual context, serve to defeat the claimant's case. On the facts of this case the objection to the absence of an EIA is procedural not substantive.

23. The third set of grounds relates to failures to take into account material considerations. The case of Copeland [2010] EWHC Admin 1845 was cited to me. The principles in Copeland, with facts far different to the present case, essentially demonstrate that, if a planning officer places in a report to a committee an indication that a particular consideration is not material for the committee's consideration, that is not merely discursive but it is directive. Potentially, it will vitiate the decision of the planning authority sufficient for it to be quashed.

24. In this case the very lengthy report to the committee by the planning officer contained a section headed "non-material planning issues". There are seven altogether. I invited Mr Harwood to indicate whether there were particular issues which he now said were material and he identified five. It may well be that some of those tend to overlap. They were as follows. I quote from the report provided to the committee:

"The granting of permission for this application would set a precedent for further turbine development nearby.

The proposed turbine would not generate a significant amount of energy and would be inefficient.

The proposal would only benefit the applicant financially.

The turbine should be sited elsewhere outside of the Green Belt on already degraded landscapes.

There are other alternative methods of producing renewable energy instead of the proposed turbine.

25. In relation to precedent, Mr Harwood on behalf of the claimant argued that common sense (my words not his) suggested that if a turbine was allowed to be erected in this particular spot, it almost certainly would set a precedent for further turbine development nearby. Prior to this permission, the relevant area was green belt without any wind turbines. If this application were to be granted it would now be green belt but with a wind turbine on it. All the more likely therefore that somebody else could come along and say "Well you have already allowed one to be built, why don't you allow mine to be built?" Against that it is argued that first each planning application will be considered on its own merits and second, and perhaps more important, the very application that was being considered demonstrated inappropriate use of green belt requiring very special circumstances to outweigh the policy. Therefore it is argued by the defendant that granting a permission would not set a precedent. Any application of this kind would have to be considered on its own merits. Implicit in what was being said was that any further application would include advice from the planning authority that the mere fact that somebody else had been allowed to build one could not either of itself or even in part justify permission for another one.

26. The Defendant argues that the alternative potential site for such a turbine simply could not arise. The proposed site is where the Interested Parties operate. They could not possibly build their turbine anywhere else. The issue of an alternative simply does not arise.

27. The issue of efficiency and financial benefit are, say the defendant, non-material issues. They are of no materiality at all to the planning decision.

28. The overall submission made by the defendant is that the criticism of a planning officer's report of this kind must be sufficient to mean that there is significant misleading of the committee about material matters. The officer's report is not there to decide the issue. It is to inform the members of relevant considerations: see Oxton Farms v Selby DC [1997] EWCA Civ 1440. However, the primary argument of the defendant is that these matters were indeed non-material.

29. In relation to precedent I accept the argument of the defendant that the decision would not set a precedent. The committee was not being advised that a precedent could never be a material consideration. Likewise, I accept the argument in relation to the alternative siting of the turbine. Arguably, the other matters relied on by Mr. Harwood, in particular whether there were alternative methods of producing renewable energy instead of the proposed turbine, were material. In my judgment, bearing in mind the discretionary nature of the remedy sought, the effect of those matters on the overall decision is not sufficient to mean that it is arguable that the decision should be quashed.

30. Further submissions are made in relation to the lack of evidence of the non-viability of this farm if the development did go ahead, about the footpath and about the approach taken to noise. None of those matters on their own or indeed even in combination could serve to impugn the decision made by the defendant. For the reasons given by the defendant I do not believe they are arguable, but even if they were, it would not mean that this case could proceed.

31. It follows that I agree with the result as reached by Wyn Williams J albeit for slightly more detailed reasons. The application is dismissed.

MR KIMBLIN: My Lord, there is only one matter and that is in respect of costs. In accordance with normal practice I don't seek any order for costs in respect of today.
JUDGE DAVIS : No.
MR KIMBLIN : But indicated on the summary grounds were the costs associated with the drafting of the...
JUDGE DAVIS : ...the Acknowledgment of Service 
MR KIMBLIN : The Acknowledgment of Service and that was in the sum of £3,565 exactly and that is the order which I seek.
JUDGE DAVIS : Yes. Have you anything to say about that.
MR HARWOOD : Yes, my Lord. The appropriate order for costs actually is that we should have some of our costs and I will explain why. My Lord will know that the planning permission grant was defective. That was a defect which was first picked up by us, not by the authority, not by the applicant, even though (inaudible) discharge conditions, it wasn't being resolved prior to the pre-action letter. A response to the pre-action letter was to issue another decision notice, which is now no longer relied upon for probably quite justifiable reasons. There was in the full pre-action response in January a suggestion that there might be unilateral undertaking at some point. There was no unilateral undertaking by the time the judicial review proceedings were brought and the (inaudible) time that proceedings had to be brought by. At the time of the Acknowledgement of Service there was no unilateral undertaking. Unilateral undertaking only appeared in a signed form at the start of August. It is dated March but we don't have it on the council website. It only appeared at the start of August. A different version of the unilateral undertaking appeared today. So the position if these proceedings had not been brought, because there was no reason for the interested parties to sign an unilateral undertaking absent these proceedings, the position would have been that there would have been a defective planning permission which did not have any control over noise and didn't properly deal with landscaping. So, my Lord, whilst permission to apply for judicial review has been refused in the circumstances which now obtain, the unilateral undertaking, the claimant has actually achieved a real result and had to go through these proceedings to achieve that result. Now in terms of how that is reflected in costs, of course the claimant has pursued other grounds which haven't found favour with the court distinct from the sorting out of the notice. So I would suggest, my Lord, that the appropriate order would be for the claimant to receive half their costs. As regards the Acknowledgment of Service costs, part of the defendant's work in that process would in any event have been seeking to sort out the decision notice of unilateral undertaking and their attempts to at that stage resist our criticism and then approach the issuing of a new decision notice. So that shouldn't in the overall balance affect what the figures were. If my Lord was looking at the costs of the Acknowledgment of Service in its own right, a figure of £3,500 is somewhat on the high side, particularly as most of the issues were canvassed in the pre-action protocol correspondence and the 25 page summary grounds of resistance is many times longer than the Court of Appeal have found appropriate in judicial review proceedings. 
JUDGE DAVIS : Yes. Anything further you want to say?
MR KIMBLIN : I may have misheard, I think that Mr Harwood applied for half of the claimant's costs.
JUDGE DAVIS : That is right, yes
MR KIMBLIN : Well, with respect, that is just Alice in Wonderland. The reality is that in circumstances such as these the normal order is that the defendant receives the costs of the Acknowledgment of Service. I think what they spent coming along today goes to one side, but the suggestion that half of the claimant's costs should be paid by the defendant is without any foundation whatsoever. If one looks at the grounds and looks at how Mr Harwood's submissions relate to those grounds, one finds very little interaction at all and the reality of the case is that this case was going to plough on whatever happened in respect of unilateral undertaking. Something has been made of it today. We have spent some time on it, but that has not added to the claimant's costs at all.
JUDGE DAVIS : Well I think maybe that Alice in Wonderland maybe putting it a little high but anyway. But what about the argument that the Acknowledgment of Service was issued and it was not until some time after that that the position was regularised in a way that not only protects the defendant but also protects the claimant?
MR KIMBLIN : Yes, can I deal with that. Of course the unilateral is something which emanates from the interested party, and as and when the interested party decides to sign whatever they deem it appropriate to sign is a matter for them not for the council. That would be my first point. My second point would be that it was flagged early enough in these proceedings that that was a matter that was easily capable of resolution so that in the protocol correspondence, there you go, that's the case, it is obvious that we can deal with this by -- unilaterally. Notwithstanding that the claimant decided to issue and the costs of dealing with the case, if one looks at my overly lengthy prolix summary grounds are concerned with very substantially everything else which the claimant has decided to run. So my submission is that in a case like this, it is not a straightforward case, £3,000 to £4,000 is what one would expect
JUDGE DAVIS : Thank you very much. The claimant has failed in his application for permission to apply for judicial review but nonetheless seeks at least some of his costs. The defendant has succeeded and seeks the costs of the Acknowledgment of Service. That is the normal order. The argument the claimant places in relation to the defendant's costs is that prior to these proceedings and indeed for some part of them, prior to and at the time of the Acknowledgement of Service, the permission remained defective because of matters that were omitted, albeit by a slip. It is only in the course of these proceedings that that slip has been remedied and then in a way that the claimant would categorise as piecemeal. That argument, it seems to me, does justify some reduction in the costs due from the claimant to the defendant. I have to do the best I can on a summary assessment. I shall order that the claimant pays to the defendant £2,000 in relation to the costs of the Acknowledgement of Service. That is a diminution of something like 40 per cent on the sum claimed. I reject the argument that the claimant is entitled to any of his costs. The blunt fact of the matter is he has failed. What he has achieved at least potentially could have been achieved at some point and it would not necessarily have been necessary to start these proceedings. Yes, thank you very much indeed. May I thank you both for your assistance.
MR KIMBLIN : I am sorry, my Lord. The only other matter it will be to have a transcript. I don't think ordinarily (inaudible). If the court could ask for that to be done.
JUDGE DAVIS : I won't ask for it to be done. If you want it you must ask for it.