R (Jenkins) v Environment Agency & Others

Transcript date:

Thursday, November 3, 2011

Matter:

Court:

High Court

Judgement type:

Permission renewal

Judge(s):

HHJ McKenna

Transcript file:

CO/10045/2010 
Neutral Citation Number: [2011] EWHC 3844 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL

Thursday, 3 November 2011

B e f o r e:

HHJ MCKENNA
(Sitting as a Deputy High Court Judge)

Between: 
THE QUEEN ON THE APPLICATION OF JENKINS 
Claimant

v

ENVIRONMENT AGENCY 
Defendant

Computer Aided Transcript of the Stenograph Notes of 
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MR P STOOKES appeared on behalf of the Claimant 
MR G LEWIS appeared on behalf of the Defendant

J U D G M E N T 
(As Approved)

Crown copyright©

1. THE DEPUTY JUDGE: This is a hearing of a renewed application for permission to pursue judicial review, permission having been refused on paper by David Holgate QC sitting as a Deputy High Court Judge on 15 February 2011.

2. The background to this claim is that, in June 2010, the Environment Agency provided guidance to Gloucestershire County Council in respect of proposals to increase gravel extraction in part of the Cotswold Water Park. The initial claim form was issued on 22 September 2010, almost at the end of the three month period provided for in CPR 54.5, and certainly not promptly, as provided for in CPR 54.5.

3. The grounds were brief in the extreme. What was said, I was going to say in summary but in fact, is that the Environment Agency consultation was irrational and the conclusions reached were made on the basis of misleading base line information about the hydrogeology in and around Shorncote. It was said that the application was being lodged on a protective basis and that an immediate stay was sought pending the lodging of proceedings to challenge the grant of permission by Gloucestershire County Council, at least in part in reliance on the advice from the Environment Agency. Indeed, by the time the claim form in these proceedings was issued the planning permission had been granted.

4. I understand that permission to pursue a judicial review action in respect of that planning permission was given by David Holgate QC on 15 February 2011 and the matter is to proceed to a hearing in March 2012, subject only to representations which I understand are being made by various parties to expedite that hearing.

5. When this matter, judicial review proceedings brought against the Environment Agency, came before David Holgate QC in February he refused permission in these terms:

6. "The claim for protective relief in relation to the defendant's consultation response of 24 June 2010 is, with respect, misconceived. The same also applies to the suggestion in the claim form and in the claimant's solicitors' letter of 21 September 2010 that these proceedings should be stayed. The proceedings challenged were simply a consultation response and, by the time the present application was made on 22 September 2010, the planning permission to which that consultation related had resulted in the grant of planning permission. That grant is the subject of a separate application to challenge by way of JR. The challenges to the LPA's reliance on the defendant's consultation response are made in those proceedings."

7. At paragraph 2 he says this:

8. "I particularly endorse the criticisms contained in paragraphs 33 and 34 of the defendant's acknowledgement of service".

9. I quote verbatim from these paragraphs:

10. "The Agency has not been advised that the court has granted a stay of the claim. However, by letter dated 27 September 2010, the claimant's solicitors advised the Agency that they were not expecting the Agency or any of the interested parties to acknowledge service or submit summary grounds of resistance unless and until further advised.

11. "The Civil Procedure Rules make no provision for the issuing of proceedings on a protective basis, as the claimant has sought to do with the EA claim. Nor does the CPR allow claimants to issue claims but soon thereafter declare unilaterally, without a court order, that the defendants and interested parties named in the claim are not required to acknowledge service unless and until further advised. It was not within the discretion of the claimants to give this discretion, which was given on the assumption that the court would order the stay for which he had applied. This was not appropriate."

12. I entirely endorse that criticism of the claimant's conduct at that stage.

13. I would have thought, in the light of that criticism of that conduct, that steps would have been taken to progress this claim in a more timeous manner than has in fact been the case. In fact, on 31 October the court received a document headed "statement of facts and grounds". No application was lodged with that document seeking permission to rely on it, nor was there any witness evidence filed to explain the delay in filing or seeking to file that document. It is to be observed that it is now 14 months plus since the end of the three month expiry period.

14. It is wholly unacceptable for a party to behave in this way, particularly when that party has, as it were, already had one shot across its bows in the form of the criticism of its conduct in purporting to issue protective proceedings and in purporting unilaterally to, without a court order, tell parties they don't need to respond.

15. There is still no formal application to rely on the document and, frankly, I am not prepared, after 14 months, to countenance the claimant relying on the 31 October 2011 statement of grounds, particularly where there are already parallel proceedings in which the planning permission is being challenged, where permission has been granted, where a full hearing is listed for March 2012 and where the Environment Agency is already a party as an interested party.

16. I agree with the submission of Mr Lewis on behalf of the Environment Agency that, even apart from the question of procedural default, no useful purpose would be served by permitting this claim to proceed any further. There is nothing to stop the claimant from making an appropriate application in the parallel planning permission proceedings to deal with the points which he would like to raise in this separate judicial review proceeding.

17. For all these reasons, I refuse permission.

18. Yes. Thank you very much. Is there any application for costs?

19. MR LEWIS: My Lord, there is already a costs order which

20. THE DEPUTY JUDGE: I know there is one of David Holgate QC.

21. MR LEWIS: Indeed. And there was no provision made for reconsideration at the provision stage. I am content simply to rely on it.

22. THE DEPUTY JUDGE: All right.

23. MR LEWIS: I am grateful, my Lord.