R (James Kenyon) v Wakefield Council & Tesco Stores Ltd

Transcript date:

Tuesday, January 29, 2013

Matter:

Court:

High Court

Judgement type:

Permission

Judge(s):

Mr Justice Walker

Transcript file:

Neutral Citation Number: [2013] EWHC 1269 (Admin) 
CO/1022/2012 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL

Tuesday, 29 January 2013

B e f o r e:

MR JUSTICE WALKER

Between: 
THE QUEEN ON THE APPLICATION OF KENYON 
Claimant

v

WAKEFIELD COUNCIL 
Defendant

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Mr P Stookes (instructed by Richard Buxton Solicitors) appeared on behalf of the Claimant 
Mr Evans (instructed by Wakefield Council) appeared on behalf of the Defendant
Mr Taylor (instructed by Ashursts) appeared on behalf of the Interested Party

J U D G M E N T 
(As Approved by the Court) 
Crown copyright©

1. MR JUSTICE WALKER: This case concerns a site to the east of the main thoroughfare through Hemsworth Town Centre. The site is currently divided into two distinct sections. The northern section comprises the existing Tesco superstore, associated car parking and delivery and servicing areas. The southern section comprises a vacant brick building which was formerly operated as a Co op supermarket and its associated car parking and delivery areas.

2. What is proposed is an extension to the existing superstore which would increase the gross floor space of the building by 35 per cent and the net floor space by 47 per cent. The proposal also includes the extension and full enclosure of the rear service yard, the Tesco building, an extension of the amount of customer car parking, revised circulation within the site and initial landscaping. In order to achieve all this, there would be demolition of the former Co op supermarket. That is a building which has a gross floor area of about a third of the current gross floor area of the Tesco superstore.

3. These proposals are not uncontroversial; there are some who are strenuously opposed to them. What I must stress is the very limited role that the court has in this regard. It is not the court's job to decide who should have planning permission. In relation to the major point that is raised, in his carefully and forcefully delivered submissions by Mr Stookes on behalf of the claimant, under Directive 2011/92/EU ("the EIA Directive") and the regulations made in this country which give effect to that, there may be a screening process conducted by the planning authority to decide whether an Environmental Impact Assessment is needed. It is not the role of the court to say that such an impact is desirable. The limited role for the court is to consider whether those who have taken such a decision have misunderstood the law governing their powers, have failed to apply that rule, have acted unreasonably or been guilty of some other error of public law such as would entitle the court to intervene.

4. With that introduction, I turn to the four grounds that are advanced on behalf of the claimant. The first of these is that the planning authority has unlawfully split an overall project for a superstore and associated development into two or more sub projects and has failed to consider the cumulative impact of the overall project when assessing whether it is likely to have significant environmental effects. Those last three words are crucial to this aspect of the case.

5. Mr Stookes has helpfully provided me with a copy of the recent Court of Appeal decision R(Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 869, also reported at [2013] Env LR 7. The lead judgment was given by Pill LJ, with whom Toulson LJ and Sullivan LJ agreed. It was a slightly different context from the present case because it concerned a direction by the Secretary of State known as a screening direction, by which he stated the proposed development was not likely to have "significant effects on the environment" for the purposes of the relevant regulations. Those words, however, are essentially the same words as are found in relevant provisions concerning the screening assessment which was conducted by the planning authority in this case. The Secretary of State in that case conceded that the expression "is likely to have" means no more than there is a serious possibility of it happening.

6. Pill LJ quoted from the judgments of Dyson LJ and Carnwath LJ in R(Jones) v Mansfield District Council. Dyson LJ said that whether a proposed development is likely to have significant effects on the environment involves an exercise of judgment or opinion. The effect on the environment must be "significant". Significance in this context is not a hard edged concept. The assessment of what is significant involves the exercise of judgment. Carnwath LJ said the word "significant" does not lay down a precise legal test. It requires the exercise of judgment on technical or other planning grounds and a consistency in the exercise of that judgment in different cases. That is a function for which the courts are ill equipped, but which is well suited to the familiar role of planning authorities under the guidance of the Secretary of State.

7. The answer given by the planning authority and by the supermarket developer points to the screening assessment itself. There had been two screening opinions, each of them accurately set out the planning history and then described the overall superstore which would result. Each stated expressly that there was considered to be no accumulation of development which required the submission of a full EIA.

8. How is that point answered by the claimant? At the outset of his submissions, Mr Stookes referred me to the directive itself and, in particular, its recitals. Among other things, they stress the precautionary principle, the need to harmonise, and that if something is likely to have a significant effect on the environment, that should only be done if an Environmental Impact Assessment is carried out. They also stress the participation of the public. The directive identifies the selection criteria which has to be taken into account. Those include the size and accumulation with other projects. They also include the absorption capacity of the natural environment, paying particular attention among other things to areas in which the environmental quality standards laid down had already been exceeded and densely populated areas. Should there be an Environmental Impact Assessment, Article 5 identifies things which the developer is to provide to assist the process. That includes measures in relation to adverse effects. Both Article 6 and Article 8 contemplate public participation.

9. As to the detailed basis of challenge under this head, it was said that there had been no EIA assessment of earlier proposals; that is undoubtedly right. It does not follow from that that the planning authority erred in law in concluding that, when considering its screening opinion, it would be inappropriate to conclude that an EIA was needed. In one respect, it was pointed out by Mr Stookes, the report to the committee noted that the proposal would bring a benefit to residents, or so it was said. That was because there had been sleep disturbance to residents. It arose from the operation of the supermarket during the night with loading and unloading. The early morning unloading in particular was causing sleep disturbance; the application, by enclosing the area, was said to help that. Mr Stookes said this is something on which residents want to be informed. I am sure they do. But the question which arises is: do they need to be informed by means of an Environmental Impact Assessment?

10. Mr Stookes submitted that the answer should be yes, because the public ought to be entitled to participate. That, however, is not the test. The test very clearly identified by the directive in the passages that are cited by Mr Stookes is whether the decision may have a significant effect on the environment, giving that expression the meaning given to it in Loader.

11. There is no suggestion that the planning authority failed to approach the matter on a proper understanding of what was meant by, "may have a significant effect on the environment" or, "likely to have a significant effect on the environment". That is a very different test from asking, should the public be entitled to participate.

12. Another matter that was relied upon concerned arrangements under which the locality is to be designated an Air Quality Management Area. This was due to traffic adjacent to the location, especially heavy goods vehicles. It was said by Mr Stookes that the proposal would increase the volume of traffic and add to the air pollution which was already above acceptable levels. As to that, Mr Stookes himself acknowledged that earlier, when granting planning permission, the Secretary of State was influenced by a consideration that the arrangements for which he was giving outright permission would lead to shorter car journeys. The planning application, Mr Stookes accepted, is an occasion when air quality could be addressed. That assessment, he submits, should be part of the EIA and it should be run in conjunction with consideration of the effect on primary schools nearby and on local housing.

13. A file note prepared by the planning authority noted that issues of air quality had been debated by members at the Council's planning and highway committee meeting on 17 March 2011. Various matters of concern were identified. The file note continued:

"Notwithstanding the above, it is considered that the aforementioned factors considered by members at the committee meeting remained pertinent and that the proposed development would not have a significant detrimental impact upon local air quality..."

14. Mr Stookes said that the claimant did not disagree with what was said in that passage that I have quoted, but that it did not suffice to conclude that an EIA was not required. Air quality needed, it was said, to be informed by a full EIA.

15. Again, as it seems to me, that is not an application of the correct test. The test is not whether "air quality needs to be informed by a full EIA", which is of itself a value judgment. The test is the test that I have referred to earlier, whether there is likely to be a significant environmental effect.

16. The claimant's case, in effect, was that there is such uncertainty that the Council could not say that the effect on the environment will not be significant. The court's task, however, is not to form its own conclusion. It does not seem to me, on the basis of the material that has been submitted to me and the additional material that is before me in writing, that there is an arguable case to go forward of any public law error by the planning authority in relation to ground 1.

17. Ground 2 said that the planning authority failed to consider the question of land contamination when undertaking its EIA screening obligations. In that regard, what is said on behalf of the planning authority is that those who prepared the screening opinions had previously prepared the committee report, had seen a particular pre acquisition environmental assessment which dealt with the issue of land contamination, and had the benefit of advice from the planning authority's contaminated land officer and had already noted, at the end of the committee report, that the proposed development would not result in any significant or unacceptable harm by reason of land contamination, subject to the imposition of indicated planning conditions. Each screening opinion stated in its conclusion that "the development is considered not to be one with particular complex and hazardous effects".

18. It was submitted by the planning authority that it was not necessary expressly to state everything that was taken into account. The skeleton argument on behalf of the developer noted what had been said by Dyson LJ in R(Jones) v Mansfield District Counsel. It was possible in principle to have sufficient information to enable a decision reasonably to be made as to the likelihood of significant environmental effects even if certain details are not known and further surveys are to be undertaken. Everything depends on the circumstances of the individual case.

19. As against that, Mr Stookes said that there will be some contamination issues which will need consideration before giving consent. The grant of permission identified measures to mitigate and the case for the claimant is that they should have been considered as part of the screening process. The point was made that contamination could affect adjoining landowners. Mr Stookes acknowledged that in one assessment the risk was considered to be low/moderate. That, however, he submitted, should have been part of the full consultation afforded by the EIA directive. Again, as it seems to me, the court must necessarily come back to the question of whether the claimant has shown an arguable case that the planning authority was obliged to conclude, in relation to the question of contamination, that this resulted in a significant environmental impact. When I say resulted in, met the test that I have described in Loader. It seems to me to be quite impossible for the claimant to make good such an assertion on the basis of the material that I have seen.

20. The same is true of ground 3 which is concerned with the reliance on mitigation measures, not merely for the contaminated land, but also as regards noise and reverberation from buildings, control of noise from vehicles, controlling construction noise and dust and relating to ecology and biodiversity of the site. Mr Stookes submitted there was some tension in the authorities as to the approach to be adopted. For the purposes of today, I take the approach advanced in the authorities which are said on behalf of the claimant to be those that are relied upon.

21. There are two authorities that fall into this category. The first is R(Lebus and others) v South Cambridgeshire District Council [2002] EWHC 2009 (Admin). This was a decision by Sullivan J as he then was. What he said at paragraph 46 was that it was not appropriate for a person charged with making a screening opinion to start from the premise that, although there may be significant impacts, these can be reduced to insignificance as a result of the implementation of conditions of various kinds.

22. That way of approaching the matter was adopted by Sullivan LJ in the Court of Appeal in the case of R(Birch) v Barnsley Metropolitan Borough Council [2010] EWCA Civ 1180. There, the screening opinion had merely stated that the impacts "should be controllable". That, said Sullivan LJ, was not merely inadequate, it was contrary to the underlying purposes of the regulations. For that purpose he cited his earlier decision in Lebus.

23. It does not seem to me to be arguable that the present case is in that category. There is nothing to suggest that those responsible for the screening opinion concluded, in relation to any of the matters listed in ground 3, that there might be significant impacts. The impacts which were described in the screening opinion were impacts which, for various reasons in relation to particular matters, are said to be not significant. That does not mean that they may not be appropriately dealt with in planning conditions. Those two aspects are entirely different.

24. I turn to the final ground that is relied upon. It concerns conditions which are said to restrict participation in decision making. Reliance is placed on two earlier decisions. The first was the decision of Ouseley J in R(Mid Counties Cooperative Limited) v Wyre Forest District Council [2009] EWHC 969 (Admin). A condition was in these terms:

"The food store hereby approved shall not exceed the following floor space allocations ... unless otherwise agreed in writing with the local planning authority."

Ouseley J said at paragraph 56 of his judgment:

"It makes hopelessly uncertain what is permitted. It enables development not applied for, assessed or permitted, to occur. It sidesteps the whole of the statutory process with the grant of permission and the variation of the conditions."

25. The second case is the decision of Mr Rabinder Singh QC, sitting as a Deputy Judge in R(Worley) v Wealden District Council [2011] EWHC 2083 (Admin), referring to what Ouseley J had described as a tailpiece. The Deputy Judge said that in the case before him, it left wholly uncertain, for example, who is to grant the variation, according to what criteria, which had been non existent or at least unpublished in secret. On the face of the condition there was nothing to stop, it would seem, an application being made to vary the limitations in condition 2 to such an extent that "any" day could become each and every day or perhaps each and every day over a sustained period of time.

26. It seems to me that the conditions which are relied upon in the present case are of an entirely different kind, as is pointed out in the skeleton arguments for the planning authority and the developer. The two cases involved conditions that allowed potential changes to key parameters which defined the extent to which the development was likely to have effects upon the environment.

27. The conditions in the present case are of a very familiar kind which identify a workable way forward in order to deal with matters which, as I indicated earlier when dealing with grounds 2 and 3, are properly dealt with by way of planning conditions. Accordingly, on this ground as on the others, I consider that, despite the matters which have been urged upon me with eloquence by Mr Stookes, I cannot grant permission for this case to proceed.

28. Is there anything more I can do today?

29. MR EVANS: If I could simply invite your Lordship on behalf of the defendant to confirm the costs order that was made by Mr Holgate QC on paper, which was to order that the claimant pay the defendant's costs of the acknowledgement of the service in the sum of £1,950, subject of course to the appropriate protection for the claimant given his legally aided status.

30. MR JUSTICE WALKER: That order was made. Is there any challenge to it?

31. MR STOOKES: My Lord, no, but perhaps clarify that the claimant is legally aided and so it would be that order subject to not being enforced by the court.

32. MR JUSTICE WALKER: We can put in the appropriate condition there? Yes.

33. MR TAYLOR: My Lord, on costs, you will see from the order that Mr Holgate QC made that he did not order that the costs of acknowledging service for the interested parties should be made payable.

34. MR JUSTICE WALKER: No.

35. MR TAYLOR: I would seek to persuade my Lord to change that order on the basis of the authority in Mount Cook, the Court of Appeal case in Mount Cook which I have a copy of here.

36. MR JUSTICE WALKER: Yes.

37. MR TAYLOR: My Lord I am sure is familiar with what is said in that authority. I have tagged the relevant paragraph, paragraph 76. Having reviewed the proper approach to the award of costs against an unsuccessful claimant, paragraph 76, Auld LJ identified a number of general rules, I think one might call them. In paragraph 1, he explains that the effect of the case of Leach, certainly in any case to which the pre action protocol applies and where a defendant or other interested party has complied with it is that a successful defendant or other party at permission stage, who has filed an acknowledgement of service pursuant to the procedure rules, should generally recover the costs of doing so from the claimant whether or not he attends any permission hearing. So the rule does not just include the defendant acknowledging service, but also any other interested party.

38. MR JUSTICE WALKER: Can you help me on the relevant passage in the White Book in that regard?

39. MR TAYLOR: I wish I could. I am afraid I do not have a White Book here, but certainly my understanding of the position is that because the rules require an interested party just as a defendant to acknowledge service, the rationale is that the rules therefore mean that if you commence an application for judicial review you necessarily invite a response by both the defendant and the interested party. If you do not have permission, therefore, costs generally following the event are liable to the costs of both the defendant and the interested party in acknowledging service. So, that is in effect what Leach holds and, indeed, as the court reminds us in paragraph 76 of paragraph 1 Mount Cook.

40. On that basis, when the interested party acknowledge service, as my Lord has in the bundle, the interested party sought costs in the grounds for contesting the claim and a schedule of costs was attached and the costs sought were £14,209.61. On the basis of Mount Cook, applying Leach, I say the interested party is entitled to claim that amount and seek an order from the court today in relation to the interested party's costs of acknowledging service in that sum.

41. MR JUSTICE WALKER: You are confining it to the costs of the acknowledgement of service?

42. MR TAYLOR: I am, I am not seeking any costs in relation to delay.

43. MR JUSTICE WALKER: Can I just turn up your acknowledgement of service?

44. MR TAYLOR: Certainly.

45. MR JUSTICE WALKER: Where will I find it? The front of the bundle, I think.

46. MR TAYLOR: I think I have it towards the back, but

47. MR JUSTICE WALKER: This is paragraph 33?

48. MR TAYLOR: Yes.

49. MR JUSTICE WALKER: That is a claim for £14,000.

50. MR TAYLOR: Yes.

51. MR JUSTICE WALKER: Is that what you are claiming today?

52. MR TAYLOR: It is, yes. The next page on sets out the summary of the costs claim.

53. MR JUSTICE WALKER: Yes. That contrasts rather with the defendant's costs.

54. MR TAYLOR: It does indeed, my Lord.

55. MR JUSTICE WALKER: Yes, perhaps I should first of all hear arguments to the contrary on the principle.

56. MR STOOKES: My Lord, on the principle, I have found, I believe, a part of the White Book, 54.12.5, that deals with this. The principle of that, I believe the amount is and would be certainly contested. The second point would be that any order that is made should be subject to the same order of not to be enforced without leave of the court as the client claims he is publicly funded. The third point on this is the case of Bolton(?) where two parties turn up, whether that was in fact necessary. I appreciate what they are referring to and limiting to is the Mount Cook for the acknowledgement of service. But I would say that approach, there has been one order and I do not think it is appropriate at this stage where we are to make a second order for the interested party's costs.

57. MR JUSTICE WALKER: Yes.

58. MR STOOKES: If any order is made, then I would wish to, subject to that, I have not reviewed the costs, but at £14,000, that would be excessive in any event.

59. MR JUSTICE WALKER: Yes.

60. MR TAYLOR: My Lord, can I just make a short point about Bolton? The Bolton case relates to costs where there is a hearing. It is not a case relating to costs incurred in relation to the Civil Procedure Rules requirement to acknowledge service and indeed predates the Civil Procedure Rules entirely.

61. MR JUSTICE WALKER: Yes.

62. MR TAYLOR: In my submission that does not assist and it is Mount Cook that is the relevant authority.

63. MR JUSTICE WALKER: Yes. Well, it does seem to me as a matter of principle, the Mount Cook case governs and there is an entitlement to an order for payment of costs. I am inclined to think that the appropriate thing to do is to fix the level of costs at the same amount as the costs in favour of the planning authority, so that will be

64. MR EVANS: £1,950, my Lord.

65. MR JUSTICE WALKER: £1,950 and it would be subject to the same condition.

66. MR TAYLOR: I am obliged. Thank you.

67. MR JUSTICE WALKER: Thank you all very much.