R. v. Durham County Council and Sherburn Stone Company Ltd. exp. Huddleston

Transcript date:

Thursday, July 29, 1999

Matter:

Court:

High Court

Judgement type:

Injunction

Judge(s):

Kay J

IN THE HIGH COURT OF JUSTICE NO: CO/2880/99

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

Royal Courts of Justice

Strand

London WC2

29th July 1999

B e f o r e:

MR JUSTICE KAY

R e g i n a

v

DURHAM COUNTY COUNCIL

(First Respondent)

SHERBURN STONE COMPANY LIMITED

(Second Respondent)

EX PARTE HUDDLESTONE

Computer Aided Transcript of the Stenograph notes of

Smith Bernal Reporting Limited,

180 Fleet Street, London EC4A 2HG

Telephone No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

MR ROBERT MCCRACKEN (instructed by Richard Buxton, Cambridge CB1 1JX) appeared on behalf of the Applicant

MR REUBEN TAYLOR (instructed by Durham County Council, Legal Services Department, Durham) appeared on behalf of the Respondent

MR JAMES FINDLAY (instructed by Aaron & Partners Solicitors, Chester CH1 1HG) appeared on behalf of the Second Respondent

J U D G M E N T

(As approved by the Court)

CROWN COPYRIGHT

29th July 1999

MR JUSTICE KAY: In this matter I granted permission for the applicant to move for judicial review yesterday. The issue that now needs to be resolved is whether an interim injunction against mining activity ought to be made pending the hearing of the full application.

The applicant's complaints, in relation to which he seeks to have his position preserved, really fall into two separate categories. The first of those, which maybe said to be purely personal to him and his family because of their occupation of the premises so close to the quarry, relate to such matters as the time of working, noise and other matters of that kind. The second category contains more wide spread considerations which involve issues relating to the environment and reliance is placed upon a letter from English Nature, dated 18th January 1999, expressing concerns about the possible effects of work being resumed at this quarry, and further a letter dated 21st January from the Environment Agency, again dealing with matters of a similar kind.

It is submitted that the effect of allowing work to begin now would be to negate the whole process of the judicial review of this matter, in that at the end of the day the harm that might arise may be incapable of being put back to a situation such as that which prevails at the moment. In those circumstances, it is submitted that the justice of the matter requires that an injunction be granted.

Mr McCracken recognises that there is one difficulty that he faces in relation to this and that is that he is in no position to give any undertaking in respect of any loss that maybe suffered by the grant of an injunction should, at the end of the day, the Court conclude that that injunction was not appropriate because the application for judicial review fails. The applicant is not in a financial position, having recently ended his employment, to give any such undertaking.

It is submitted on behalf of the second respondent that it will be caused extreme hardship if the injunction is granted. If they are unable to start work now, since there is a need to get on with work while the conditions are dry, there maybe a very substantial delay before any work can be done. It is submitted in consequence of this factor the whole project may become financially unviable.

It is also the submission of the second respondent that the consequence of an injunction will be the laying off of employees at the site, that they will be placed in difficulties in relation to a specific contract which was entered into on the basis that they would be able to use the material which would be extracted from this site, and if they have to fulfil that contract by transporting from afar the necessary minerals, the expense will be prohibitive. In those circumstances, they urge that this is an inappropriate case, particularly having regard to the fact that the applicant is in no position to offer an undertaking to recompense them, for an injunction to be granted.

The first respondent's position in relation to this is to support the application for the injunction. That is, no doubt, because of the concerns that I have indicated properly fall into a second category.

If the concerns of the applicant were limited to those which I put in the first category ‑‑ such considerations as time of working, noise and so on ‑‑ then I would not be minded to grant an injunction in the terms sought. It would be possible to make provisions to ameliorate the worst of the effects so far as the applicant was concerned without in anyway preventing the exercise going on. For example, it is proposed at the moment that work would begin at 6.00 in the morning, restraint could be imposed on the second respondents, simply preventing them from working until 7.00 in the morning. I have no doubt that in a similar way consideration of some of the noise issues could be met by similar sorts of provision. However, this matter does have a much wider significance and one which is not limited simply to the applicant. No doubt, as I have already indicated, it is that wider aspect, the environmental issue, that has led the first respondent not simply to remain neutral on this issue but to support the application.

There has been, and it is at the root of this matter, no environmental assessment. The consequences of work starting without such an environmental assessment may, in my judgment, be such as to make irreversible any harm that might be caused. In those circumstances, it seems to me that there is probably a much wider issue than the narrow one between the applicant and the second respondent in relation to the immediate effect upon the applicant and his family. That wider issue is one that the Court can properly have regard to and have regard to notwithstanding the fact that the applicant is not in a position to offer any undertaking as to any financial loss. It may well be, and in my judgment it is likely, that the second respondent could fairly readily satisfy the court that steps will be taken that will prevent any great harm of the kind that is spoken of by English Nature and by the Environment Agency.

However, in the absence of any such indication that such matters can properly be dealt with, I have come to the conclusion that it would be proper to grant an injunction preventing any work commencing at the site. However, as I have indicated, it maybe that within a relatively short time the second respondent is in a position to satisfy the court about those issues, and indeed about the more limited issues relating to the applicant in a way that would make it appropriate for the injunction to be lifted.

What I propose to do, therefore, in order to meet that situation is to grant the second respondent liberty to apply on seven days' notice to the applicant and the first respondent for the injunction to be lifted; the onus being on the second respondent at that stage to show that the issues that concern the court have been addressed in a way that makes it proper for the injunction to be removed.

In those circumstances, I grant the injunction but give liberty to apply in the terms that I have indicated.