R (Saunders) v Secretary of State for Communities & Local Government

Transcript date:

Tuesday, December 13, 2011

Matter:

Court:

High Court

Judgement type:

Permission

Judge(s):

Mr Justice Edwards-Stuart

Transcript file:

CO/11469/11 
Neutral Citation Number: [2011] EWHC 3756 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL

TUESDAY, 13TH DECEMBER 2011

B e f o r e:

MR JUSTICE EDWARDS STUART

Between: 
THE QUEEN ON THE APPLICATION OF SAUNDERS 
Claimant

v

SECRETARY OF STATE FOR COMMUNITES AND LOCAL GOVERNMENT
Defendant

Computer Aided Transcript of the Stenograph Notes of 
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(Official Shorthand Writers to the Court)

MR R TURNEY appeared on behalf of the Claimant
MR J STRACHAN appeared on behalf of the Defendant 
MR T STRAKER QC appeared on behalf of UPUK

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

Crown copyright©

1. MR JUSTICE EDWARDS-STUART: Having now heard the submissions of the claimant, the defendant and the second interested party, I have decided to refuse permission. I will give my reasons rather more fully than one might otherwise do in an application of this sort.

2. This is an application for permission to apply for judicial review of a decision of the defendant, whom I shall refer to as the Secretary of State, not to exercise his power under section 77 of the Town and Country Planning Act to call in a planning application made by the second interested party, Hutchison Ports UK Limited, to whom I will refer to as HPUK, for planning permission and listed building consent which were made to the Tendring District Council, the first interested party, to whom I shall refer to as the Council. The decision was communicated in a letter from the Secretary of State dated 9 November 2011.

3. On 25 November 2011, Burnett J, having considered the claim form and an application for urgent consideration lodged by the claimant, made no order but instead said this:

"It is, in my view not appropriate for an application of this sort to be made without notice. Furthermore, the claim against the Secretary of State does not at first blush appear strong. The claimant is seeking to restrain the Council from seeking to act lawfully on the basis that someone else should take that lawful decision. In the event this an inter partes application is made and heard urgently, the parties should be ready to deal with permission."

4. So it is in those circumstances that the application for permission has come before me on what has been an oral application with all relevant parties present, save for the Council. The position as far as the Council is concerned is that the decision to list this application for hearing today was, I think, not made until the afternoon of last Friday, and there was some difficulty encountered in getting hold of the person at the Council who was dealing with this claim and it was not, I think, until yesterday that he or she was contacted. But in the event no one from the Council has appeared today and no explanation has been given as to why that is, but I assume it is simply as a result of the short notice.

5. I will now, if I may, summarise the facts and the background of this application, which I will do very largely by reference to the statement of facts and grounds settled by Mr Richard Turney, who appeared today for the claimant. The claimant is a member of a group of local objectors, known as Residents Against Port Expansion, the acronym for which is RAPE. It was formed to protect the Stour and Orwell Special Protection Area habitat from any unlawful activities. It was represented throughout the 2004 public inquiry, one of the members being a named witnesses at that inquiry.

6. This claim was accompanied by an application for interim relief against the Council, which was to prevent the Council from granting planning permission and listed building consent until the disposal of this claim or further order.

7. Turning now to the factual background, I will take first the original decision to permit the development of the Bathside Bay Container Terminal, which is the project which is the subject of this application. On 29 March 2006 the Secretary of State granted planning permission for the development of a container terminal, construction of a small boat harbour and the partial demolition of a listed gantry at Bathside Bay, Harwich.

8. The Secretary of State and the Secretary of State for Transport also made further orders to permit the construction of a container terminal. It is said that the proposal was controversial, not least because they would result in a loss of protected habitats, which fell within the proposed expansion to the Stour and Orwell Special Protection Area (SPA). By the date of the grant of planning permission the area had been designated part of the SPA. Given the harm to the SPA from the proposal, planning permission could only be granted if the decision maker was satisfied that the development was required for "imperative reasons of overriding public importance." That is has been shortened to the acronym IROPI. I should say at once that it has never been in dispute that this project would cause harm to the SPA.

9. What then happened is that the Council failed to determine the applications before it within the requisite time period and so HPUK appealed to the Secretary of State. The Secretary of State exercised his power to recover the appeals for his own determination, rather than leaving them to be determined by an inspector appointed by him.

10. The appeals were heard by way of a public inquiry which sat for 35 days between April and October 2004. The Inspector's report was dated 23 March 2005. I will deal in due course with some of the points made and conclusions reached by the Inspector in that report.

11. In a letter dated 21 December 2005 the Secretary of State accepted a majority of the Inspector's conclusions. In particular he accepted that Bathside Bay would be required to be in place well before 2020 and that "there is an overriding need for a container port at Bathside Bay to meet the national need for container capacity in the UK".

12. The Secretary of State invited certain further submissions, but ultimately granted planning permission and listed building consent by a decision dated 29 March 2006. Each of the planning permissions and the listed building consent were required to be commenced by 29 March 2016, in other words 10 years after the grant of the consent.

13. I now turn to the current applications, which are effectively applications for extensions of time within which to start the development. On 24 February 2010 applications were made in relation to the container terminal, the small boat harbour and the listed building consent in respect of the ferry gantry. The applications were to permit precisely the same proposals for which permission had been granted on 29 March 2006, but with a new condition requiring the permissions to be implemented by 2021 instead of 2016. On the same day an application was made under section 73 of the Town and Country Planning Act 1990 to vary the conditions attaching to the planning permission relating to the container terminal. This had been known as the section 73 application. The object of the variations was to enable work to be carried out to implement the container terminal prior to the completion of the associated highway works.

14. The applications were all considered by the Council's Development Control Committee on 6 January 2011, when the Council resolved to grant planning permission. However, before those permissions were granted, the Secretary of State issued a direction that the applications should not be determined until the Secretary of State had given consideration as to whether to call in the applications for his own determination. As I have already mentioned, the Secretary of State's decision not to call in the applications is contained in the letter dated 9 November 2011.

15. Having noted that the Secretary of State's policy was to be very selective about calling in applications and that call in would generally:

"only take place if planning issues of more than local importance are involved and if those decisions need to be decided by the Secretary of State rather than at the local level".

The letter went on to conclude:

"having carefully considered these and other relevant planning issues raised by this proposal, the Secretary of State has concluded that intervention would not be justified. The Secretary of State is satisfied that the issues raised do not relate to matters of more than local importance which would be more importantly decided at national level rather than the local planning authority. The Secretary of State has therefore concluded that the application should be decide by Tendring District Council."

So the result of that is that the Council is now entitled to determine the planning applications.

16. The present position appears to be that the Council has not yet granted planning permission for the three applications to extend time. On 23 November 2011 the claimant's solicitors wrote to the Council to seek an assurance that it would not determine those applications in the next 14 days, so as to allow the claim to comply with the pre action protocol or, alternatively, seeking an assurance that the Council would give 7 days notice of its intention to grant planning permission. The Council refused to give those assurances with the result that the claimant issued these proceedings together with an application for interim relief to prevent permission being granted pending resolution of the claim.

17. Three grounds are advanced by Mr Turney on behalf of the claimant: the first is the failure to consider whether IROPI continued to exist. The second is that the conclusion that issues of no more than local importance was irrational and given without reasons; and third is that there was an inconsistency of decision making on the basis that it was a trite principle of administrative law that like cases should be treated alike and that the Secretary of State failed to comply with that principle (a) because the Secretary of State recovered the original appeals for his own determination rather than allowing them to be determined by an inspector this was a clear recognition of the national importance of the proposals, and (b) the defendant is considering calling in the section 73 application on the basis that it may result in unjustified harm to the SPA. There is no reason to treat the application for an extension of the time periods differently.

18. In support of the first ground Mr Turney submitted in his written grounds that it was self evident that the conclusion reached in 2006 that the destruction of an SPA justified for IROPI was based on an anticipated growth in demand for container terminal capacity. The Inspector found that the demand for container capacity was likely to grow at a rate between 3.8 and 5.9 per cent per annum in the period 1999 to 2010 and that there was a pressing need for additional container port capacity in the UK, existing ports being likely to run out at some point within the second half of the present decade, ie before 2010.

19. Mr Turney submitted that the application for an extension of time for the construction of the container port is expressly made on the basis that the situation as anticipated in 2006 justifying the grant of planning permission has not materialised. He submits, therefore, that such circumstances plainly call for a reassessment as to whether there are imperative reasons for the construction of the container port based on the demand for deep sea container port capacity. He submitted further that a project may only be justified on the basis of IROPI if it can be shown that no alternatives exist. The assessment of alternatives in 2006 may no longer be justified, as further alternatives may have arisen in the intervening period.

20. Ground two is really a variant of ground one and it is that, given that the entire premise of the development of the container port at Bathside Bay is such that the development is justified by the economic interests of the United Kingdom as a whole, it is plainly irrational to conclude that the issues raised by the application are matters of no more than local importance. If the interests justifying the development are only of local interest, they are plainly not IROPI.

21. Before turning to the further submissions made on behalf of the claimant today and the submissions made on behalf of the Secretary of State and HPUK, it is worth identifying the relevant provisions in the Inspector's report, both those that have been relied upon by the parties and those that seem to me to be of relevance to this application. I start with the Inspector's conclusion under the heading "Need". At paragraph 18.29 the Inspector summarised Government policy in a document called "modern ports" dated November 2000, which confirmed that:

"UK's ports are vital gateways for trade and travel."

And:

"our national economy needs a thriving ports industry."

It is:

"in the national interest that our ports are able to handle current UK trade and its potential development."

And:

"UK ports must meet the immediate demands of their customers, invest in new facilities in safety and safeguard the community and their environment."

22. At paragraph 18.32 the Inspector said this:

"modern port operations are essential to the national economy in promoting global competitiveness and encouraging efficient logistics and distribution to markets by different means of transport. Three independent technical studies have examined the need for new deep side container port facilities and provide a useful context for the consideration of the Bathside proposals. They have been examined by the House of Commons Transport Committee. This committee has noted that the reports are broadly consistent; they identify a need for large capacity increases, show that a significant increase in vessel size and container trade is underway and confirm that existing ports will run out of capacity some time in the second half of the current decade."

23. At 18.33 he said that the projects canvassed as having the potential to meet this possible demand were London Gateway, this project and Felixstowe South. He pointed out that the new ports have exacting demands in terms of close access to deep water, large space requirements for storage, good access to the primary regional road network, facilities to handle goods by rail and good access to a labour force and customers. At paragraph 18.4 he said this:

"The process of globalisation of trade in the world committee has led to a significant increase in trade. It continues to do so and this has significant implications for the demand for deep sea container port capacity in the United Kingdom."

24. He noted at paragraph 18.35 that the major west European countries, including the United Kingdom, are heavily reliant on trade. Obviously, he said, all of the UK's trading partners are overseas. The House of Commons Transport Committee indicated that 95 per cent by weight and 75 per cent by value of the United Kingdom's international freight values are moved through its ports.

25. At 18.38 he noted that there was a strong relationship between the growth of the United Kingdom trade and the demand for deep sea container port capacity. HPUK's approach to the analysis of demand growth has been historically based on the economic expansion, GDP and port demand relationship.

26. At 18.39 he said:

"as long as the United Kingdom continues to be characterised by a high dependency on trade for economic growth, there will be a requirement to handle more containerised goods. This will require more port capacity."

27. At 18.41 he noticed that there were several ways in which supply of and demand for container capacity could be measured. He said irrespective of the methods used there was a broad agreement between market analysis. The demand is likely to increase between 3.8 and 5.9 per cent per annum from the period 1999 to 2010 without any additional constraints upon demand.

28. At 18.48, a passage relied on strongly by Mr Turney, the Inspector said this:

"An analysis of capacity development in the United Kingdom should consider all projects and proposals that have been tabled by various promoters. In order to assess the true potential for container ports for capacity enhancement through productivity improvements it is necessary to develop a detailed analysis of comparative productivity trends in the United Kingdom and competing ports and terminals. It is HPUK's view (and the RSPB accept that is there is some logic in the argument) that the most significant factor restricting container terminal capacity is the availability of berths. It is usually possible to increase land utilisation (within reasonable limits) but the time scale and costs associated with new berth provision remain the critical variables."

At paragraph 18.53 he recorded that:

"Both HPUK and the RSPB agreed that United Kingdom major port supply of deep sea container capacity may be exceeded by demand as early as 2009 in the best case and 2010 in the low case. This is if economic trends continue as anticipated and if there are no further capacity gains over and above those which can be reasonably achieved through increasing productivity and if no further major investment is approved."

29. At 18.55 he said this it was not possible to predict the exact timing and size of the capacity requirements precisely. This would depend on, amongst other things, the actual rate of growth experienced and the scale of capacity gains achieved through productivity enhancement. The further ahead such forecasts are made, he commented, the more indicative they should be considered.

30. He said at paragraph 18.56 that both HPUK and the RSPB agreed that, accepting that deep sea container traffic will continue to increase in the long term, switching traffic from direct calls by deep sea vessels to trans shipment from mainland European ports would have significant costs implications for the UK economy.

31. Turning to what he called the timeframe or planning period, the Inspector said, at paragraph 18.77:

"Thus, on the question of the timeframe for BBCT, I conclude that it is necessary to look forward around 30 years in assessing need.

A convenient and easily defined start date for this period would be the publication of the first environmental statement and submission of the first applications in 2001."

In that paragraph he concluded by saying:

"In round figures and taking the above conclusions into account, an appropriate assessment for need is to at least 2030."

And he described the timeframe as a crucial element to consider.

32. His overall conclusions were as follows. At paragraph 18.11 he said:

"An appropriate assessment period for the need is at least to 2030. For the need forecasts, HPUK's utilisation rate of 85 per cent is a reasonable compromise, which serves to demonstrate the point at which capacity would be stretched too far."

And then at paragraph 18.114 he said that the further one looks into the future the lower the accuracy of predictions:

"Nevertheless, it is clear that productivity improvements in addition to the development of FSR, LG and the extra capacity of SET would not obviate the need for BBCT. Moreover and importantly, productivity improvements by themselves could not deliver a modern, competitive port industry."

The references to FSR and LG were to Felixstowe and London Gateway.

33. Finally, at paragraph 18.115 he said:

"My conclusion is that there is a need for all three proposals, BBCT, FSR and LG. As to the one of these I am dealing with, I have no doubt that the development of BBCT to help to meet the national need for container terminal capacity as part of the development of a modern competitive port industry is of vital importance to the United Kingdom."

34. He turned then to the question of alternative solutions, and at paragraph 18.131 he concluded that in accordance with the requirements of the Habitat Regulations 2004 that there were no alternative solutions to the Bathside Bay project.

35. In relation to the question of IROPI, he said at paragraph 18.135:

"I have no doubt that its development will help to meet the national need for a container terminal capacity as part of the development of a modern competitive ports industry and is of vital importance to the United Kingdom."

36. That was following his conclusion that there was a need for Bathside Bay in addition to the expansion of Felixstowe and London Gateway. In relation to IROPI his conclusion was as follows:

"in conclusion on the subject of IROPI, the various elements of the need argument for the BBCT constitute imperative reasons for overriding public interest. Linked with the need case, is the point made in RP G 6 that Felixstowe with Harwich is a port of global significance. This would be made a considerably larger facility able to respond more flexibly to the demands of the shipping lines, whilst the very significant enhancement from the BBCT development of the socio economic and economic interest of the sub region would meet the aims of planning policy at various levels. This would not in itself comprise an imperative reason of overriding public importance, but it would be a substantial benefit from the scheme."

37. Finally, at paragraph 514, he said this in relation to the imposition of conditions as to timing:

"There may appear to be a degree of inherent contradiction in the suggestion of such a timescale when a principal argument justifying BBCT is in part based on a pressing need for additional container port capacity in the United Kingdom, existing ports being likely to run out of capacity sometime in the second half of the present decade. The operation of certain of the highway conditions relating to BBCT would limit commencement of development until various matters had been fulfilled. HPUK is committed to carrying out the SIS imminently (mid 2004) and the Highways Authority states that there would be a reasonable prospect that a highway scheme fit for purpose could be open to traffic within about seven years or so of work commencing on a stage one study."

38. I turn now to the Secretary of State's decision letter of 21 December 2005. I say a decision letter, although it may more properly be described as an intimation of a provisional decision. At paragraph 10 it said this:

"The Secretary of State agrees with the Inspector that in this case an essential element of IROPI is in broad terms the need for terminal capacity and without the need for the development being established there is no need to look at alternative solutions."

At paragraph 11 it said:

"The Secretary of State agrees with the Inspector that an appropriate assessment period for examining need is to at least 2030 and that it is advantageous to concentrate business at major hub ports. He also agrees with the views of RSPB that the south east quadrant of the United Kingdom is the correct location for new container port capacity to meet the needs of the container port industry."

At paragraph 12:

"for the reasons given in paragraphs 18.100 to 18.110 the Secretary of State agrees with the Inspector that Bathside Bay would be required to be in place well before 2020 and that even with Bathside Bay fully in operational, it is likely that more capacity will be needed between 2020 and 2030."

And at the end of that paragraph:

"Overall, the Secretary of State agrees with the Inspector that the container port at Bathside Bay would help to meet the national need for container terminal capacities as part of a modern, competitive port industry."

At paragraph 13:

"Having concluded that there is a need for the additional container capacity provided by a terminal at Bathside Bay, the Secretary of State has considered whether there are any alternative solutions which could meet the need in other ways."

In that context, the letter said at paragraph 15:

"The Secretary of State agrees with the Inspector that there are no alternative solutions to the proposal at Bathside Bay. He also agrees with the Inspector that for the reasons given in paragraph 18.124 to 18.129 that possible locations at Hunterston, Scapa Flow and further development of Thames Port do not represent an alternative solution to Bathside Bay. Whilst London Gateway could be an alternative solution, he agrees with the Inspector that there is a need for both of these schemes to help meet the national need for container terminal capacity and that meeting that need is of vital importance to the United Kingdom. He also agrees with the Inspector for the reasons given in paragraph 18.130 that a 'no development option' would not constitute an alternative solution."

It therefore concluded that the Secretary of State agreed with the Inspector that there was no alternative solution to Bathside Bay container terminal.

39. In relation to IROPI, the letter said this, at paragraph 20:

"the Secretary of State has concluded above that there is a need for the Bathside Bay container terminal and he agrees with the Inspector that the development to help meet the national need for container terminal capacity as part of the development of a modern, competitive ports industry is of vital importance to the United Kingdom. The Secretary of State agrees with the Inspector that these factors would constitute imperative reasons of overriding public interest. For the reasons given in 18.137 to 18.141 the Secretary of State agrees with the Inspector that Bathside Bay container terminal would also be able to significantly assist in enhancing the socio economic and economic interests of the sub region."

At paragraph 21:

"overall, the Secretary of State agrees with the inspector that the various elements of the need argument for Bathside Bay constitute imperative reasons of overriding public interest. He agrees that the very significant enhancement from Bathside Bay of the socio economic and economic interest of the sub region would not in itself comprise an imperative reason of overriding public interest, but that it would be a substantial benefit from the scheme."

40. On 29 March 2006 the Secretary of State wrote a further letter saying, effectively, that having been minded to grant the application for the reasons given in the letter of 21 December 2005, the decision had been deferred on appeal to enable the developer and the interested parties to deal with the outstanding issues raised by the Inspector and the Secretary of State now considered that the outstanding matters had been addressed in in a satisfactory manner and planning and listed building consent should be granted as recommended by the Inspector. The planning permission and listed building consent were accordingly granted by that letter.

41. Turning now to the circumstances relating to the present application. On 6 January 2011, as I have I have already mentioned, the Council resolved, following a recommendation for approval by the Head of Planning, to grant planning permission. The report of the Head of Planning said this, at paragraph 1.2:

"In this instance, the current economic recession and reduction in global trade has resulted in a lower volume of containers being handled by UK ports. However, Government recognises that despite this current downturn there will be no reduction in the eventual level of demand for port capacity. In November 2009 the Department for Transport published the draft national policy statement for ports, which sets out the Government's conclusions on the need for new port infrastructure, considering the current (inaudible) ports in the national economy, the available evidence on future demand and the options for meeting future needs. The statement goes on to state that the Government believes that there is a compelling need for substantial additional port capacity over the next 20 to 30 to be met by a combination of development already consented and developments for which applications have yet to be received."

42. On 20 January 2011 the Secretary of State issued a Section 25 notice directing the Council not to grant planning permission until the Secretary of State had considered whether or not to call in the applications. On 9 November 2011, that is after some 9 months or so of reflection, the Secretary of State announced his decision not to call in the applications. The letter said this:

"As you know, the Secretary of State's general approach is not to interfere with the jurisdiction of local planning authorities unless it is necessary to do so. Parliament has entrusted them with the responsibility for the day to day planning control in their areas. Local planning authorities are normally best placed to make decisions relating to their areas and it is right that in general they should be free to carry out their duties responsibly with a minimum of interference. There will be occasions, however, when the Secretary of State may consider it necessary to call in a planning permission and determine whether or not permission should be granted, instead of leaving it to the local authority. The policy is to be very selective about calling in planning applications. Call in will, in general, only take place if planning issues of more than local importance are involved and if those decisions need to be decided by the Secretary of State rather than at the local level. Each case, is, however, considered on its own facts."

And then the passage that I have already read:

"Having carefully considered these and other relevant planning issues raised by this proposal, the Secretary of State had concluded that intervention would not be justified. The Secretary of State is satisfied that the issues raised do not relate to matters of more than local importance which would be more importantly decided at national level rather than the local planning authority. The Secretary of State has therefore concluded that the application should be decided by Tendring District Council."

43. As I have already indicated, Burnett J dealt with an urgent application for interim relief, which was on the same day that the claim form was issued. It is as a result of his direction that the hearing today has taken place. A consequence of the urgency with which this matter came on before the court is that I did not have the advantage of an acknowledgement of service from the Secretary of State and, for reasons which I make no criticism at all, I did not receive a skeleton argument from the Secretary of State until the morning of the hearing. As I have already mentioned, the Council was not represented today but HPUK was represented by Mr Timothy Straker QC and the Secretary of State was represented by Mr James Strachan.

44. Mr Turney for the claimant effectively adopted his grounds by way of opening submissions, but I can perhaps summarise his submissions overall as follows. First, the representations made by HPUK to the Council were to the following effect: the fact that the current economic recession and reduction in global trade has severely impacted on container trade, has lowered the volume of containers handled in UK ports, in turn that has eased the short term demand pressures for additional terminal capacity. HPUK drew attention to a passage from of the guidance referred to above that said the ability to secure extensions of time had been introduced:

"in order to make it easier for developers and local planning authorities to keep planning permissions alive for longer during the economic downturn to so that they can be more quickly be implemented when the economic conditions improve."

45. Mr Turney's submission was that that effectively and fundamentally undermined the basis on which the decision to grant planning permission had been taken in March 2006. Second, the consequence of this therefore was that all considerations relating to IROPI were now again at large. Third, since IROPI was at large, the question of whether the relevant demand in 2011 supported the case for an imperative reason was a matter of more than local importance. Fourth, accordingly it was irrational of the Secretary of State not to decide to determine that issue himself. Fifth, alternatively if the Secretary of State was approaching the matter on the footing that it was not a matter of more than local importance, that was plainly wrong or perverse.

46. For the Secretary of State Mr Strachan attacked the claimant's approach to this application at root and branch level. He submitted that there was no reason, given the long timescale involved in the project and particularly the fact it did not have to start until 2016, why the claimant should not have made his application in the ordinary way. If the claimant had been successful in quashing the Secretary of State's decision, then any planning permissions would be quashed at the same time.

47. Mr Turney's answer to this was that the analysis was wrong. Once the planning permissions were issued, he argued, the question of the section 77 decision became of historic relevance only. The planning permissions, he submitted, could not be challenged except by separate judicial review proceedings.

48. Turning to the substance of the application, Mr Strachan reminded me that a decision under section 77 was a decision that concerned process and not substance. He submitted that the courts had identified on a number of occasions that the statutory power is expressed in wide discretionary terms, that there is no duty to give reasons for a decision not to call in an application under section 77 and that a challenge to the defendant's exercise of discretion on rationality grounds would be very difficult indeed. He submitted that the authorities on this could be summarised in following way:

(a) the Secretary of State's decision on whether or not to call in applications can only be challenged if it is "wildly perverse." See R v Secretary of State for Environment ex parte Newprop [1983] JPL 386, per Forbes J at 387;

(b) there is no obligation to give reasons for a decision not a call in an application. Where reasons are given they can be examined to see whether they disclose any error of law; see R(Carter Commercial Developments Limited) v Secretary of State for Environment, Transport and Regions [1998] EWHC (Admin) 798, Robin Purchas QC sitting as a Deputy High Court judge at paragraphs 5 and 46;

(c) the decision under section 77 is not a decision to grant permission, but it is the exercise of a procedural discretion which deals with the responsibility for the determination of the application. The discretion is unfettered when exercised lawfully, see Carter Commercial, above, at paragraph 23;

(d) a call in decision letter is one addressed to a local planning authority and its sole purpose is to tell the planning authority whether the Secretary of State has decided, exceptionally, to determine the application himself. Unlike an Inspector's or Secretary of State's decision letter after an inquiry, it is not a reasoned decision letter which must deal adequately with the principal issues in dispute between the parties at an inquiry, see R(Persimmon Homes) v Secretary of State for Communities and Local Government [2007] EWHC 1985 (Admin) per Sullivan J at paragraphs 41 to 49; finally,

(e) the discretion conferred by section 77 is very broad indeed. Within that very broad discretion, it is pre eminently a matter of planning judgement for the Secretary of State to determine which, among what may well be a mass of relevant considerations, are the main matters relevant to his consideration, see Persimmon Homes at paragraph 49. As Mr Straker pointed out, the section identifies no criteria or requirements that the Secretary of State is to apply when exercising his judgment.

49. It is against that background that this application must be approached. I accept that Mr Strachan's submissions and summary of the law are correct having looked at the relevant authorities, although it has to be said that Mr Turney did not accept the characterisation of "wildly perverse" as being the correct criterion to be applied. In my judgment, whether it has to be wildly perverse or simply irrational does not matter in the context of this particular case. However, Mr Turney reminded me very forcefully and quite correctly that this is only a permission application and the threshold is arguability. That I accept.

50. Turning to the letter, Mr Strachan emphasised its terms. He submitted that Mr Turney had misconstrued it in his submissions. Mr submitted emphasised that the Secretary of State was making it quite clear that there were two requirements, both of which had to be satisfied before an application would be called in and those were that a call in would only take place if planning issues of more than local importance are involved and if those issues needed to be decided by the Secretary of State rather than at local level. Those two requirements were, Mr Strachan submitted, cumulative. He submitted that what the Secretary of State was deciding in this letter was that the issues raised did not relate to matters of more than local importance which would be more appropriately decided at national level rather than local level. The Secretary of State was not deciding, Mr Strachan submitted, that there were no issues that related to matters of no more than local importance. That, he said, was not something that the Secretary of State could be taken as read to have decided in this letter.

51. On the substantive aspects, both Mr Strachan and Mr Straker argued that nothing had altered so as to affect the decision on IROPI. They submitted that the thrust of the Inspector's conclusions, which were accepted by the Secretary of State, was that there was going to be a significant demand in the requirements for handling containers which could not be met without expansion of facilities at this port, Felixstowe and Thames Gateway. Whilst it is true that that the demand had not materialised as anticipated, the present position that is as at 2011 when the Secretary of State was considering it is that an increase in demand is still anticipated. 
52. In this context, I was referred to the following policy documents, which were mentioned in the Head of Planning's recommendation to the Council. First, the draft National Policy Statement for Ports 2009. This provided that the imperative need for the container port remains, and that such a need was affirmed by the Government in that national policy statement. That statement made the following statements at paragraph 1.8.4:

"Shipping will continue to provide the only effective way to move the vast majority of freight in and out of the United Kingdom and the provision of sufficient port capacity will remain an essential element on ensuring sustainable growth in the UK economy."

At paragraph 1.11.4:

"The recession has led to a severe downturn in demand, especially for unitised cargo. The full extent of this recession effect on trade through ports cannot yet be fully quantified. However, the Government's view is that the long term effect would be to delay by a number of years but not ultimately reduce the eventual levels of demand for port capacity predicted in these forecasts."

Then at paragraph 1.11.7:

"If all the above development were to be built, including Bathside Bay as detailed in paragraph 1.11.6, aggregate container capacity would be broadly in line with the forecast demand over the next 20 years or so. However, the extent and speed with which these developments proceed in reality will depend on the commercial judgements of the developers at the time."

And then finally at paragraph 11.11.12:

"the Government believes that there is a compelling need for substantial additional port capacity over the next 20 to 30 years to be met by a combination of development already consented and development for which applications have yet to be received."

53. As the Head of Planning's report concluded, this national policy statement recognised that the demand for ports remained at the forefront in supporting the United Kingdom economy, and the National Policy Statement specified that the Bathside Bay development is included in that assessment and as such there were no grounds to suggest that the demand for the port at national level was no longer required.

54. There was also a reference to the East of England Plan dated 2008 in which policy HG 2 referred to employment generating development and supported the maintenance and appropriate expansion of the ports, and specifically approved proposals for the container handling capacity at Bathside Bay.

55. Although these documents were referred to in the Head of Planning's recommendation, they are obviously material that would have been in the forefront of the mind of the Secretary of State. As both Mr Strachan and Mr Straker pointed out, the claimant expressly made its point in relation to IROPI in a letter dated 3 June 2011, in which the claimant's solicitors wrote to the Secretary of State in the following terms:

"Given the lapse of time, we thought it would be helpful to remind the Secretary of State of the request for call in and further to explain our view that any grant of planning permission would plainly be contrary to the Habitats Directive and the Implementing Conservation of Habitat and Species Regulations 2010. Moreover it would be contrary to findings of the Inspector and the Secretary of State in respect of the original applications. The crucial error Tendring District Council made in determining the present applications is that it treated the question of whether there are imperative reasons of overriding public interest as having been settled by the findings of the Inspector and the Secretary of State on the original applications. That test, as set out in the regulation 62 of the 2010 regulations cannot simply be met by assuming that imperative reasons which previously existed still pertain at the date the further consents are sought to extend the life of the original permissions."

A little later it said:

"Because that fundamental assumption is no longer sustainable, the entire question of whether there are IROPI to support this development needs to be reconsidered."

And then a little later:

"In effect, the position has changed so significantly since 2005 that the Secretary of State's conclusions cannot still stand and the only rational response is for the matter to be called in for those conclusions to be revisited."

56. I should at this point refer to section 62 of the Regulations. It was common ground before me that the 2010 Conservation of Habitat and Species Regulations replaced the regulations of 1994, and for present purposes without any material change. Regulation 62, headed "considerations of overriding public interest", is as follows:

"(1) If the competent authority are satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest (which may, subject to paragraph 2, may be of socio economic nature) they may agree to the plan or project notwithstanding a negative assessment of the implications for the European site.

(2) where the site concerned hosts a priority natural habitat type or a priority species, the reasons referred to paragraph (1) must be either ...

(b) any other reasons which the competent authority, having due regard of the opinion of the European Commission, considered to be imperative reasons of overriding public interest."

57. As to ground one, Mr Strachan submitted that the Secretary of State clearly had IROPI in mind and it would be unarguable to suggest that it had not been considered, so the Secretary of State's decision not to determine that question himself afresh in light of the material available could not be described as perverse. He submitted that the local planning authority was always fully entitled and indeed bound to take national policy and issues into account when deciding planning applications. He also relied on the fact that neither Natural England nor the RSPB had opposed the current applications on IROPI grounds.

58. As to the second ground, which all concerned accepted is closely connected with the first, bearing in mind that all that was being sought was an extension of time in the circumstances where Mr Strachan submitted no real change of circumstances had been identified because the position going forward in 2011 was not materially different from that as envisaged in 2006 so far as the anticipated increase in container traffic demand was concerned, the conclusion reached by the Secretary of State was one that was clearly open to him in all the circumstances.

59. As I have already mentioned, both Mr Strachan and Mr Straker emphasise that a section 77 decision is a procedural decision and not a decision in which matters of substance are decided. Mr Strachan put it this way in his skeleton argument:

"The defendant's decision under section 77 was not a substantive determination of the underlying applications or their compliance with the Habitats Regulations. That remains a matter for the Council. But the defendant has self evidently taken into account the issues concerning IROPI that were raised when deciding not to call in the application for his own determination."

60. As far as ground three is concerned, Mr Strachan submitted that this was not comparing like with like. The other section 73 applications for variations in some of the other conditions so as to permit alterations in the sequencing of the highway works and other similar matters not only affected another department of state, but raised quite different considerations. He submitted that there was no potential inconsistency and, in any event, no call in decision has yet been made in relation to those applications.

61. The question of an alternative solution, as mentioned in the regulations, turned out not to be a live one. Mr Turney very realistically accepted that there was no alternative candidate other than those mentioned for handling any increase in container traffic. His point, very simply, was that the downturn in the economy meant that it was not demonstrated that the other existing ports could not handle the present and likely future traffic in the foreseeable future.

62. In his succinct and skilfully argued reply, Mr Turney submitted that it was unarguable that there were not matters of more than local importance and the Secretary of State could only rationally conclude that the grounds relied on in support of IROPI in 2006 no longer subsisted in fact. On that basis, the decision not to call in the applications was perverse.

63. I fear I have probably not done justice to the arguments which were so well presented by all parties, but I have summarised them as best I can. I have come to the clear conclusion that the arguments of Mr Strachan and Mr Straker are to be preferred and that it is not reasonably arguable that the decision not to call in these applications was irrational for the reasons that they gave. The applications concerned the extension of time for the implementation of the project only. The determination of those applications was a matter that the Secretary of State was in my judgment entitled to leave to the local planning authority. The very full inquiry that had gone before, the prevailing national policy extracts of which I have already referred to, particularly in relation to ports and the approach being adopted by agencies such as Natural England and the RSPB were all considerations that the Secretary of State was entitled to have in mind, as I am satisfied he did.

64. In the result, in my judgment the Secretary of State's decision of 9 November 2011 was one that was well within his judgment to make and therefore I refuse permission to apply for judicial review because I consider that the contrary is not reasonably arguable.