IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
Monday, 25 January 2010
B e f o r e:
MR JUSTICE COULSON
THE QUEEN ON THE APPLICATION OF PAMPISFORD ESTATE FARMS LTD
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
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Mr McCracken QC and Mr Neill appeared on behalf of the Claimant
Miss Busch appeared on behalf of the First Defendant
Mr Mould QC appeared on behalf of the Interested Party
J U D G M E N T
MR JUSTICE COULSON:
1. This is an application for permission to apply for judicial review. Starting next Tuesday, 2 February 2010, there is to be a planning inquiry into a proposed wind farm at Little Linton Farm in Cambridgeshire. By this application, issued on 14th January, the claimants seek permission to argue that the inspector due to conduct that inquiry has no jurisdiction (ground 1) and that the defendant's decision of 11 December 2009 in relation to the Environmental Statement is perverse and irrational on Wednesbury grounds, largely because, so it is said, the inspector did not ask himself the right question.
2. I propose to set out some matters of law first (section 2); and then some of the relevant facts (section 3).
Thereafter I go on to consider separately each ground of the application (sections 4 and 5 below).
2 The Law
2.1 EC General Directive 85/337/EEC
3. This Directive is described in Burkett v Hammersmith and Fulham London Borough Council  UKHL 23 as "a fundamental instrument of European Community policy ....." It includes the following preamble:
"Whereas ..... the best environmental policy consists in preventing the creation of pollution or nuisances at source, rather than subsequently trying to counteract their effects; whereas they affirm the need to take effects on the environment into account at the earliest possible stage in all technical planning and decision making processes; whereas to that end they provide for the implementation of procedures to evaluate such effects ....."
4. Lord Steyn in Burkett goes on to note that:
"The Directive creates rights for individuals enforceable in the courts ..... There is an obligation on national courts to ensure that individual rights are fully and effectively protected ....."
In support of that last proposition, he referred to the decision in Berkeley v Secretary of State for the Environment  2 AC 603, a case to which I shall return in a moment.
2.2 Town & Country Planning Regulations 1999
5. These Regulations are extensive, but, happily for the purposes of this Judgment, it is only necessary to set out some parts of Regulation 19. Before doing so however I identify that an environmental Statement, in accordance with the Regulations, is defined as a statement -
"(a) that includes such of the information referred to in Part I of Schedule 4 as is reasonably required to assess the environmental effects of the development of which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but
(b) that includes at least the information referred to in Part II of Schedule 4."
6. Part I of Schedule 4 deals with a variety of matters, including at paragraph 1 the description of the development; at 2, an outline of the main alternatives; at 3, a description of the aspects of the environment likely to be significantly affected by the development; at 4, a description of the likely significant effects of the development on the environment; at 5, a description of the measures envisaged to prevent, reduce and where possible off set any significant adverse effects; at 6, a non technical summary of the information provided; and at 7, and indication of any difficulties encountered by the applicant in compiling the information.
7. At Part II, the minimum requirement is identified as being:
"1 A description of the development comprising information on the site, design and size of the development.
2 A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects.
3 The data required to identify and assess the main effects which the development is likely to have on the environment.
4 An outline of the main alternatives studied by the applicant or appellant and an indication of the main reasons for his choice, taking into account the environmental effects.
5 A non technical summary of the information provided under paragraphs 1 to 4 of this Part."
It will immediately be seen that there is a significant overlap between Parts I and II.
8. Berkeley, to which I was briefly referred and to which I have already made reference in this judgment, was a case where there was no Environmental Statement at all. Both the judge at first instance and the Court of Appeal dismissed the applicant's case, on the grounds that, although the Secretary of State should have considered whether the proposed development was an urban development project, and so was in breach of Regulation 4 (2), on the facts of the case, an environmental assessment would have made no difference to the quality of the decision or the result Thus the court exercised its discretion in declining to quash the decision.
9. The House of Lords allowed the appeal, saying that in those circumstances it was important for the Secretary of State to give consideration as to whether the proposed development fell within the ambit of Schedule 1 or 2 to the Regulations, so as to require the assessment necessary for projects likely to have significant effects on the environment, and that since the Directive required not only that decisions as to such projects were made on the basis of full information but that also the information had to be obtained by means of a particular procedure, namely an environmental impact assessment (EIA), it was not open to the court to dispense retrospectively with that requirement on the ground that the outcome would have been the same.
2.3 Subsequent authorities as to Environmental Statements
10. I have been referred to a number of other authorities dealing with the importance of Environmental Statements and their place in the planning process. In Blewett v Derbyshire County Council  EWHC 2775 (Admin), Mr Justice Sullivan (as he then was) was dealing with a case in which it was said that the Environmental Statement was inadequate. In that case the claimants were relying heavily on what Lord Hoffmann had said in Berkeley. Mr Justice Sullivan went on to say that Lord Hoffmann's speech had to be considered in context because
" ..... Berkeley was a case where there had been no environmental statement. Even in such a case the House of Lords was prepared to accept that 'an E[nvironmental] I[mpact] A[ssessment] by any other name will do as well.
But it must in substance be an EIA.'"
He went on to say this:
"37 In my judgment, the fact that the local planning authority's consideration of the application leads it to conclude that there has been such an omission does not mean that the document is not capable of being regarded by the local planning authority as an environmental statement for the purposes of the Regulations.
38 The Regulations envisage that the applicant for planning permission will produce the environmental statement. It follows that the document will contain the applicant's own assessment of the environmental impact of his proposal and the necessary mitigation measures. The Regulations recognise that the applicant's assessment of these issues may well be inaccurate, inadequate or incomplete ....."
11. At paragraphs 41 and 42 of his judgment in Blewett, Mr Justice Sullivan went on to consider the complaint that in that case the Environmental Statement was inadequate. He described it as an example of the unduly legalistic approach to the requirements that had been adopted on behalf of claimants. He said the Regulations had to be interpreted as a whole and in a commonsense way. He said that the purpose was to ensure that planning decisions which may affect the environment are made on the basis of full information. He said:
"In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant's environmental statement will always contain the 'full information' about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make through the publicity and consultation processes for any deficiencies to be identified so that the resulting 'environmental information' provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations (Tew was an example of such a case), but they are likely to be few and far between."
12. In Jones v Mansfield District Council  EWCA 1408, on a similar point, Lord Justice Carnwath observed that the environmental assessment process was not intended to be an obstacle course that a developer had to overcome. The purpose of the Regulations was to allow an opportunity to debate the environmental impact of a proposal so that full account of both the impact and the proposed mitigation could be taken into account in the eventual decision.
13. Finally, in this run of cases I was referred to another decision of Mr Justice Sullivan in Davies v Secretary of State for Communities and Local Government  EWHC 2223 (Admin). That was a case in which, somewhat optimistically perhaps, the claimant was arguing that the inspector should not have had regard to any further environmental information provided during the course of the hearing, on the ground that it was not included within the original environmental statement. It appears however that certainly before the judge the party representing the claimant accepted that the environmental statement in that case was not so deficient that the defendant could not reasonably have concluded that it was an environmental statement.
14. Mr Justice Sullivan then went on to consider the substance of the point and made plain that it was, as he described it, a well established principle that a decision taker was bound to have regard to all material considerations and therefore was bound to have regard to the up to date positon in relation to all matters, including of course any environmental matters. He said:
"39 ..... In an ideal world the applicant's Environmental Statement would be the last word on the environmental impact of a proposal because it would contain the 'full information' ..... However, the Regulations are not premised upon such a counsel of perfection ..... "
He went on to make similar points to those that he had made in Blewett. He noted at paragraph 46 of his Judgment that the whole rationale for having a public inquiry was so that all information could be presented and tested and it was not sensible or appropriate to consider the position in terms of new pieces of evidence.
15. I deal briefly with the question of promptness because it was an issue that arose between the parties. CPR 54.5 (1) provides that a JR claim form must be filed promptly and, in any event, not later than three months after the grounds to make the claim first arose. This provision has given rise to a large amount of jurisprudence concerned with claims which have been found not to have been made promptly, even though they have been made within the three months. There are a number of House of Lords and Court of Appeal decisions, binding on me, relating to that principle, particularly in the field of European Community procurement.
16. On that point Mr McCracken, for the claimants, helpfully referred me to the opinion of Advocate general Kokott in Uniplex (UK) Ltd v National Health Service Business Services Authority, 29 October 2009, in which consideration in a procurement context was given to this requirement. She dealt with the question of "promptly", making the point, which seems to me self evident, that such a criterion was not predictable in its effects. She went on to say:
"70 In consequence, the national courts may not declare an application for review, brought within the three month period under Regulation 47 (7) (b) of the PCR 2006, inadmissible on the ground of 'lack of promptness'. They are obliged to interpret and apply the provisions of national law in a manner consistent with the directive. With regard specifically to review procedures under procurement law, they must as already mentioned interpret the national rules laying down a limitation period, as far as is at all possible, in such a way as to ensure observance of the principle.
71 In this connection I may point out that a criterion of promptness need not necessarily be understood in the sense of an independent limitation period. If a provision combines an indication of time expressed in days, weeks, months or years with the word 'promptly' or a similar expression, that addition can also be interpreted as emphasising the need for rapid action and reminding applicants of their responsibility, in their own interests, for taking the necessary steps as early as possible, in order best to protect their interests.
72 Against that background, the referring court will have to examine whether the criterion of acting 'promptly' in Regulation 47 (7) (b) of the PCR 2006 can be interpreted to the effect that it does not constitute an independent barrier to admissibility but merely contains a reference to the need for rapidity."
17. The position therefore is that, on one view of the Advocate General's opinion, there may be a clash between her remarks and CPR 54.5 (1) (a), the requirement for the claimant to act promptly. It seems to me that that is not a potential difference or difficulty that I can resolve at the present stage. So it seems to me that I have to consider this case against the background of CPR 54.5 and what is said in the relevant paragraphs of Uniplex.
3 The Facts
18. In the absence of a chronology or summary of the relevant facts, I have done my best to extract what I hope are the material considerations. The planning application was made on 4 March 2009 by one of the interested parties Enertrag. Its application was made to the relevant planning authority South Cambridge District Council ("SCDC"). Their application was made on 4 March. On 2 June 2009 SCDC applied for an extension of time. On 22 June Enertrag refused that request.
19. During this period there were meetings and discussions about the environmental impact of the proposed wind farm. There was a meeting between the parties on 19 June 2009. I do not have any minutes of that meeting, but I have an e.mail sent on the day before that meeting from SCDC to Enertrag in which Mr McMurray, the Principal Planning Officer with SCDC, said:
"Prior to our meeting tomorrow I am attaching more detailed comments dated 4 June from the council's conservation officer Mrs Corrie Newell and a re formatted version of the Environmental Health comments sent yesterday. This version has action points marked in red, for ease of reference."
20. The attachment was an internal memo to Mr McMurray from Mr Kearney, an officer in the SCDC Environmental Health Department. It is long and detailed and contains in red, as advertised in e.mail, a number of points about the information supplied by Enertrag and what SCDC considered to be the deficiencies in that material. Thus, by way of example, on the second page of the memo in red there was a reference to the absence of a comprehensive independent review in relation to noise and, therefore, serious concerns about the findings and conclusions of the noise impact assessment in the Environmental Statement. The notes went on to state:
"In the absence of this additional information it is not possible to fully consider the merits of the application and to fully assess the impact of the proposed development and the application should be refused."
The section dealing with noise and vibration is the lengthiest part of the memo and contains the greatest amount of red comments.
21. The conclusions were that noise was a substantive material consideration, that the Environmental Statement had not adequately addressed the impact of operational noise on amenity and health and that the conclusion reached could not be fully substantiated. It went on to state
"It is considered that the additional noise monitoring and anemometric data are substantive and could be considered as additional information under regulation 19 of the ..... Regulations."
22. The time in which SCDC had to consider the planning application expired on 24 June 2009 without its having made any determination. Accordingly, on 9 July 2009, pursuant to Section 78 of the 1990 Act, Enertrag lodged its appeal against non determination. The matter was therefore referred to the defendant.
23. On 21 October 2009 the appointed inspector, Mr Baird, held a lengthy pre inquiry meeting at Cambridgeshire Hall, Cambourne Business Park, Cambourne. At this meeting Enertrag and SCDC were both present represented by counsel. In addition, the other interested local authority Uttlesford District Council was represented by counsel, as was a company called NATS (En Route) Plc dealing with questions of air traffic management. Also represented byleading counsel were the Stop Linton Wind Farm Action Group.
24. In addition, Linton Parish Council and the claiamants were both present at the meeting. The latter were represented by a Mr Constable, who I was told was an expert, but not a lawyer, and who has assisted the claimants throughout.
25. At the meeting, for which I have detailed minutes, the Environmental Statement was centre stage. This is because the inspector sought clarification from SCDC as to its position regarding the Environmental Statement. The council confirmed that it did not consider the submitted Environmental Statement was an Environmental Statement for the purposes of the Regulations. They said that the appellant had been requested to provide additional information relating to noise and ecological matters but that the information had not been forthcoming.
26. Enertrag's position was set out in paragraph 16 which reads as follows:
"Whilst Enertrag does not accept the council's assessment of the ES, it has undertaken further work in relation to ecology, the results of which would be published shortly and supplied to the lpa. As to noise, the raw data was in the process of being provided to the council in a common format. In addition, Enertrag indicated that it may provide some additional commentary with the noise data ..... "
27. The matter then proceeded in this way. It was minuted that
" ..... Although Enertrag has indicated a willingness to provide further information, South Cambridgeshire District Council requested that the inspector issued a direction under Regulation 19 of the 1999 Regulations for the supply of further information."
At paragraph 17 it goes on:
"The inspector indicated that before he determined whether a direction under Regulation 19 should be issued he required further information as to where the council feels the ES is deficient, why it is deficient and what steps the council want Enertrag to take to remedy the deficiency ....."
28. There was also a reference at paragraph 18 of the minutes dealing with the claimants' concerns about the Environmental Statement and the fact that the appeal was against non determination. The claimants requested that the application should be remitted back to the council for a decision. The Minutes say:
"The inspector indicated that this was not something within his remit and as an appeal had been lodged and accepted neither was it something that, in his view, the Secretary of State had the power to do. The [claimants] indicated that they would make an application for [their] costs at the inquiry."
29. On 27 October 2009, as requested by the inspector, SCDC provided a detailed list of the information that it said was required in relation of the Environmental Statement. That document runs to 11 close typed pages in two parts.
30. On 11 December 2009, a Mr Ridley of the Planning Inspectorate wrote to SCDC in response, referring to the correspondence received in October regarding the validity of the Environmental Statement and the request that further information be sought under Regulation 19. The letter states:
"After careful consideration of the issues raised, I can confirm that we consider the Environmental Statement and the additional information supplied in relation to the proposed development meets the minimum requirements of Schedule 4 Part 2 of the ..... Regulations .....
Accordingly, it was concluded that for the purposes of the 1999 Regulations the Environmental Statement and additional information as submitted is an Environmental Statement. Therefore, the inspector has concluded that there is no necessity to issue a direction under Regulation 19 of the 1999Regulations for the submission of further information."
30. On 23 December 2009 the solicitors acting for the claimants sent the Planning Inspectorate a detailed letter headed ‘Judicial Review Protocol Letter' in which the various points were made about the Environmental Statement and seeking the return of the matter to SCDC for determination. That letter was the subject of a detailed response on 13 January 2010 where, in section 5 at sub paragraphs (1) to (7), the defendant set out its grounds for taking issue with the entirety of the proposed judicial review claim. It is unnecessary for the purposes of this judgment for me to set out all of those paragraphs. I refer to sub paragraphs (5) and (6) which read as follows:
"(5) On appeal, the Secretary of State by his inspector has power to ensure that sufficient information is available to make an informed judgment on the likely significant effects of the development on the environment. The concerns expressed by SCDC with regard to noise assessment of the development a set out in a letter dated 27 October from SCDC has become part of that consideration.
(6) There is no legal reason for the appeal to be returned to SCDC for determination and in any event it would be illogical for the Secretary of State to do so at this stage, given his statutory powers as described above."
On the following day, 14 January 2010, there was this application for judicial review.
4 Ground 1/Jurisdiction
31. Put shortly, ground 1 is that the request made in the e.mail of 18 June 2009 was a request for information under Regulation 19 of the EIA Regulations, which thereby stopped the determination clock. Thus it is said the defendant had no basis to assume jurisdiction when the SCDC failed to determine the application within the 18 weeks. It is a jurisdictional complaint. It seems to me that this issue turns on the documents which are before me, extracts from which I have read into this Judgment. That was certainly the position of the defendant and the interested party, and the claimants at no time (prior to judgment) suggested to the contrary, or indicated any other information not before the court but which might be relevant. Thus, so it seems to me, I am in as good a position as any tribunal or judge will ever be to decide this issue. In any event, for a number of reasons four in total each of which is separate, I have concluded that ground 1 is unarguable and should therefore be dismissed. I deal briefly below with each of those four reasons.
32. First, a request under Regulation 19 has a serious effect on the planning process. All parties to the planning process know that. Thus such requests are not made lightly, and if they are made they will and certainly should be clear as to the making of such a request. In other words, if anybody is going to make a Regulation 19 (1) request, they must say so in clear terms.
33. The first point therefore is obvious, I suppose, and that is that the e.mail of 18 June does not say that it is a Regulation 19 request. It makes no reference to any request for information under Regulation 19 (1). Of course these things cannot be determined by form alone. It is always necessary to look at the substance to see what the document in question actually said. But it is a very important starting point for that consideration that this alleged Regulation 19 request does not indicate in any way that that is what it is. Indeed the e.mail itself is not in request form at all.
34. Secondly, as a matter of substance, I do not consider that this is a Regulation 19 request. It is plain that it is part of the ongoing exchange of information between Enertrag and SCDC. It is only being sent because there is a meeting between those parties on the following day 19 June 2009 and this was clearly a matter that was going to be discussed and considered as part of that ongoing process. The fact that this was actually an internal e.mail makes plain that this was a document that was being provided to Enertrag as part of an ongoing and open exchange of information and communications. It does not seem to me that such a document could even arguably be a Regulation 19 request.
35. As to the substance, I have already indicated what the memo identified. And perhaps unsurprisingly the defendant and the interested parties refer to the penultimate paragraph in red in the memo which says that the additional data ‘could be considered' as additional information under Regulation 19.
In all the circumstances it does not seem to me arguable that SCDC was itself taking the step of making a Regulation 19 request. The detailed material in the memo is, I think, contrary to any such averment.
36. Thirdly, SCDC's other conduct is, so it seems to me, wholly at odds with this being a Regulation 19 request. Two particular points arise. First, SCDC did not say or even indicate that time was being or might be suspended. On the contrary, they did the opposite. They sought an extension of time from Enertrag to deal with the application. It seems to me that it is entirely inconsistent now with the suggestion that in some way this was a Regulation 19 request that would stop the clock, when in fact SCDC was not only not making such a request, but was itself seeking an extension of time to deal with the application. If time had been suspended, of course, there would have been no need for any such a request.
37. The second area of conduct which seems to me to be plainly contrary to any suggestion that this was arguably a Regulation 19 request occurred at the meeting on 21 October. I have identified the relevant extracts from the minutes. It will be recalled that at paragraph 16 of those minutes SCDC requested that the inspector issue a direction under Regulation 19 of the 1999 Regulations for the supply of further information. The inspector said that at first he would need information from SCDC about the existing Environmental Statement. Clearly if SCDC had already made a request under Regulation 19, they would have had no reason to ask the inspector to take that step.
38. Accordingly, it seems to me that SCDC's conduct was entirely inconsistent with the case now advanced by the claimants.
39. I have not forgotten the document that was identified (albeit in reply) namely the e.mail from the Appeals Manager at SCDC who referred to the e.mail of 18 June as a ‘Reg 19 request'. It seems to me that that was an entirely appropriate form of shorthand for him to use in the circumstances, which was of course some months after the planning inquiry process had started. It does not seem to me that that convenient pigeon holing of the e.mail of 18 June makes any difference as to whether or not, as a matter of substance, and as a matter of SCDC's conduct at the relevant time, it was arguably a request under Regulation 19. It seems to me for the reasons I have given that it was not.
40. Fourthly however there is a separate point. The issue as to the Regulation 19 request is relevant because, as I have indicated, the claimants argue that the defendant did not have the jurisdiction to decide this matter. I have indicated why I consider that case to be unarguable. But in any event I consider that the jurisdiction was established no later than 21 October when all the parties I have indicated attended the meeting and indicated their interest in attending the final hearing. No jurisdiction point was taken by anybody at that stage. It seems to me accordingly that the jurisdiction of the inspector was established at that point. The difficulty for the claimants is that they were represented, and did not take the jurisdiction point; neither did any counsel present for any other party. Thus the claimants are now not in a position to challenge the jurisdiction of the inspector to deal with this appeal.
41. Accordingly, for all those reasons, it seems to me that ground 1 is unarguable and must fail.
5 Ground 2/Letter 11.12.09
42. Ground 2 is to this effect that the defendant erred in ruling that the Environmental Statement was sufficient to comply with the Regulations. It is said specifically that in the letter of 11.12.09 he dealt with Part II but made no reference to Part I. I should note that in argument, Mr McCracken indicated I think correctly that the document with which issue is taken for this purpose is indeed the letter of 11 December 2009, even though the judicial review application itself refers to the later letter of 13 January as containing the relevant decision for this purpose. It seems to me that must be wrong and that the decision to the extent that it is a decision capable of being reviewed by this court is that contained in the letter of 11 December 2009.
43. I have considered the submissions that I have received in relation to this second ground. It seems to me that for three separate reasons this ground 2 is also not arguable. I deal with them in what I consider to be the correct sequence, which is slightly different to the way in which the points were addressed in argument.
Reason 1: The issue as to the correct test.
44. The point that is made very clearly by Mr McCracken in reference to the letter of 11 December 2009 is that there is only a reference to Schedule 4 Part II and not a reference to Schedule 4 Part I, and that therefore the Planning Inspectorate asked the wrong question. He argued that this was a classic example of the sort of decision that should be reviewed by this court.
45. It is certainly right that in that letter there is only a reference to Schedule 4 Part II (the minimum requirements). However it seems to me that the letter has to be considered in context and the context is plain. The context is the continuing concern on the part of SCDC that the Environmental Statement was inadequate, which gave rise to the discussion on 21 October and the request that all of the concerns about the Environmental Statement be identified by the council. That is what they did at length on 27 October 2009.
46. The Inspectorate then had to decide whether this was an Environmental Statement within the meaning of the Regulations. That is the threshold question as identified by Mr Justice Sullivan in both Blewett and Davies. They reached a conclusion that it was an Environmental Statement. In so doing, they considered the raft of material that they had received. It seems to me plain that, on the basis of all the information, a conclusion had been reached that this was an Environmental Statement within the meaning of the Regulations, and it does not seem to me that that decision could be described as irrational. In my judgment the Inspectorate applied the right test. They had a good deal of material to consider and reached a proper decision.
47. It seems to me that to suggest that, in a response of this sort, the Inspectorate has to go through some sort of box ticking exercise, ticking off the bits of Part I and Part II that they thought were met, would be a good example of Lord Justice Carnwath's ‘obstacle course' and would not be, in my judgment, an appropriate test or hurdle for this court to set an inspector in those circumstances.
48. Accordingly it seems to me that the decision was not irrational, did not apply the wrong test and therefore is not a decision for which it is arguable that judicial review proceedings ought to be commenced.
Reason 2: Academic nature of the argument.
49. Let us assume that I am wrong about the first point and that this is a matter on which there is scope for further argument. It seems to me that if that were right the point in terms of judicial review proceedings would be and is entirely academic. That is because the point has no effect whatsoever on the claimants' legal and substantive rights. I should note that that was the force of the principal submissions made by Miss Busch and Mr Mould.
50. They pointed out that this is not a case in which, absent this application for judicial review, the claimants' rights or remedies are exhausted. On the contrary, the public inquiry is due to start next week. The issue as to the adequacy or otherwise of the environmental material provided by Enertrag lies, as it seems to me, at the heart of that inquiry. Indeed, the letter of 13 January which is, on the judicial review application, the document said to be in issue accepts plainly that this is a major point which the inspector will have to consider at the inquiry itself. It will be a matter considered in detail. Therefore it is a matter properly left to the planning inspector.
51. After all, as was demonstrated during the course of argument, the inspector has full powers with which he can deal with all the matters arising in relation to the Environmental Statement. If he requires further information, and indeed if he decides that in the circumstances he needs to suspend the inquiry for a period of time, then he has extensive powers so to order: that was the essence of the point made by Sullivan J in the cases referred to above.
52. Thereafter, if the claimants are aggrieved by the ultimate decision, they have the right to appeal. Or, I suppose, in certain circumstances, depending on the nature of the outcome, they can make an application to this court in relation to the inspector's treatment of the environmental material. Thus it seems to me this argument (even if arguable, which I do not consider it to be) is properly described as academic, because it is not, in my judgment, determinative of the claimants' rights. It is a matter which, at least in this instance, is best left to the planning inspector at the forthcoming Inquiry.
Reason 3: Promptness.
53. If I am wrong on the second point as well, then I consider that, in any event, the defendant is right to say that the claimants did not act promptly in accordance with CPR 54.5 (1).
54. The essential complaint here, which the claimants maintain, is that the appeal process should not have started without a full Environmental Statement. That is what they told the planning inspector at the meeting on 21 October (paragraph 18 of the Minutes). The inspector explained to them that the appeal had been lodged and accepted and therefore it was not within his remit. Instead of indicating that there was or could give rise to a jurisdictional challenge, the claimants said that they would make an application for its [their] costs at the inquiry.
55. Accordingly, it seems to me that the claimants and their advisers were well aware at this stage, if not before, that it was at least part of their case that the appeal process should not be allowed to continue because the environmental information provided was not sufficient. Accordingly, that was the time that is to say, late October, or possibly early November for this application to be made. The position is now no different to that which existed then, namely that the claimants say that the appeal process is premature because of the inadequacy of the Environmental Statement.
56. In those circumstances it seems to me that the delay in taking the JR point until 23 December 2009 was a failure to act promptly. In my view, promptness has to be looked at by reference to all of the circumstances in this case. Those circumstances include the fact that an inquiry is due to start next week, for which all parties have been planning and preparing for many months. That inquiry will involve not only Enertrag and SCDC but all of the other parties I have indicated above, many of whom have instructed counsel and experts. There are also various statements to be taken from different Friends of the Earth groups.
57. In those circumstances it seems to me that it is difficult to reach any other conclusion but that this application has not been made promptly. All these parties have incurred costs, and have planned to be ready for a 17 day inquiry starting next week. In my judgment, given that this application could have been made in late October, it was not made promptly. That is a third reason why I do not consider that ground 2 is arguable. That view is unaffected by the opinion in Uniplex, which cannot as a matter of EC law overturn on its own the statutory basis of CPR 54.5, and was not concerned with a situation in which a lack of promptness could have a significant adverse effect on numerous other parties.
58. It is useful just to stand back and look at this application in the round. It is accepted that, if permission had been granted, the public inquiry would have had to have been adjourned. That would have involved huge costs, delay, disruption and waste of resources. It seems to me that it would be wrong in those circumstances for this court, on the material before it, to take a decision which would adjourn that inquiry, in the light of the lateness of the application, and the fact that the claimants' grievance can be addressed by the inspector at the inquiry in any event.
59. During the course of argument, Mr Mould took me to the claimants' reply which, at paragraph 9, says:
"Whatever the form of the request, the substance was clear that the SCDC required more information. Without it the ES was incomplete and that is not compliant with domestic and EC law. It is submitted that in the final analysis this is the critical question whether the ES was complete or not. EC law is not concerned with the route by which this essential compliance is achieved. Even if Regulation 19 did not exist, the information would have to be required in such a case by direct application of the Directive."
Mr Mould indicated that he agreed that the critical question was whether the ES was complete or not. I agree with him. It seems to me that that paragraph does not set out any basis for the intervention of the court at this stage. Indeed it confirms that the proper course is for this matter to be considered, as it will be, at the public inquiry starting next week.
60. Accordingly for those various reasons, this application for permission to commence judicial review proceedings is dismissed.