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

Transcript date:

Wednesday, July 28, 1999

Matter:

Court:

High Court

Judgement type:

Permission

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

28th July 1999

B e f o r e:

MR JUSTICE KAY

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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)

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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

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J U D G M E N T

(As approved by the Court)

CROWN COPYRIGHT

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28th July 1999

MR JUSTICE KAY: This is an application for permission to apply for judicial review of a decision of the respondent local authority. At the outset of the application and by agreement between the parties Sherburn Stone Company Limited were made second respondents.

The subject matter of the application is intended mining operations at Broadwood Quarry which is owned by the second respondent and which is immediately adjacent to the applicant's home. The second respondent had a dormant interim development order planning permission for mineral extraction at the quarry. The permission was an old mining permission within the meaning of section 22 of the Planning and Compensation Act 1991. Since no development had at any time been carried out in the period of two years, ending on 1st May 1991, by reason of subsection (3) of section 22, the permission did not authorise any development consisting of the mining and working of minerals unless:

"(a) the permission has effect in accordance with subsection (2) above; and

(b) the development is carried out after such an application is finally determined."

Subsection (2) provided:

"An old mining permission shall, if an application under that Schedule to determine the conditions to which the permission is to be subject is finally determined, have effect as from the final determination as if granted on the terms required to be registered."

Schedule 2 to the Act makes provision for the registration of old mining permissions. Paragraph 2 of Schedule 2 then deals with the determination of conditions.

The crucial matter in consideration of the proposed application arises as a result of subparagraph (6) which reads:

"On an application under this paragraph ‑‑

(a) the mineral planning authority must determine the conditions to which the permission is to be subject, and

(b) if, within the period of three months beginning with the service of notice of the application (or within such extended period as may at any time be agreed upon in writing between the applicant and the authority) the authority have not given the applicant notice of their determination, the authority shall be treated for the purposes of section 22 of this Act and this Schedule as having determined that the permission is to be subject to the conditions set out in the application."

In this case, on 15th February 1999, the second respondent wrote seeking the imposition of planning conditions. It did not them submit a environmental statement. The first respondent, on 4th March 1999, wrote saying:

"... the proposed development will have a significant effect on the environment and that as a consequence, an environmental statement is required ...

Under paragraph 9 (2) of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, within three weeks of the date of this letter write to me informing me that you either accept my view and that you are providing an environmental statement or that you intend to apply to the Secretary of State for his direction on the matter."

The second respondent wrote to the first respondent on 23rd March saying:

"... we are applying to the Secretary of State for his direction on the matter as to whether our submission ... should or should not be accompanied by an Environmental Statement."

On 5th May the Secretary of State wrote to the second respondent saying:

"The Town and Country Planning (Assessment of Environmental Effects) Regulations ('the 1988 Regulations') do not formally apply to Interim Development Order (IDO) Permissions ...

[the] development proposed by your client is development in respect of which the 1988 Regulations would require the consideration of environmental information before consent can be granted, being development of a description mentioned in Schedule 2 to the 1988 Regulations which in the opinion of the Secretary of State would be likely to have significant effects on the environment by virtue of its nature, size and location."

The relevant period referred to in paragraph 2 subparagraph (6) of Schedule 2, if appropriate, expired on 15th May. It is the contention of the second respondents that they have deemed permission, subject to the conditions that they had submitted, as a result of that provision. The applicant disputes that and says that no such deeming provision has been effected.

The argument in relation to that is an argument based upon the European Directive 85/337 which requires member states not to grant development consent for mineral extraction which is likely to have significant effects on the environment without a formal process of environmental assessment involving the submission of an environmental statement by the developer. The positions of the applicant and the first respondent have throughout remained the same and in total conflict as to whether the deeming provision had, in effect, taken affect.

The first respondent's position has been different. Initially it came to the conclusion that the deeming provisions did not apply. It said so in so many terms to the first respondent. The first respondent then took advice from counsel. That advice, when it came, was adverse to the contention. A paper was drawn up by an officer of the first respondent accepting the advice of counsel and placed before the relevant committee of the Council on 13th July.

The applicant until that stage had taken no steps in relation to the matter but, upon learning that the Council was now accepting the argument of the second respondent, immediate steps were taken in order to institute proceedings for judicial review and very quickly indeed, in a matter of days over a weekend that was done.

It is unnecessary to go into the arguments in any detail that arise as to whether permission should be given, in so far as they relate to whether the point sought to be raised by the applicant is arguable. The first respondents concede that the point is arguable. Indeed they may go further and consider that it is right but that is irrelevant to the consideration. The second respondents concede that there is an arguable point in relation to it. Hence the issue that I have to determine is not the question of arguability, which I accept to be as all the parties say it is, but arises from two other matters which would enable the court in the exercise of its discretion to refuse permission. The first relates to delay and the second to what is said to be a material non‑disclosure. I deal with the second and shorter of those points first.

The argument there is that the applicant failed to reveal a number of material facts about himself and his own knowledge of the matter in the course of his application and that such failure to disclose was of such a significant kind that the court in the exercise of its discretion ought to refuse leave. The position is that the applicant has himself worked in the quarrying business for many years, although it appears that his employment has now ended. Whether that is so or not it is argued that he would have had specific knowledge of a number of matters, highly relevant to this application, which needed to be disclosed if the court was properly to assess the matter.

The applicant's answer to the various allegations, which I have expressed very briefly but which appear fully in an affidavit on behalf of the second respondent is that the applicant included as an exhibit to the affidavit in support of the application a letter from solicitors acting on behalf of the second respondent dated 12th July 1999. That letter includes the following:

"2. I note that you act for Mr Huddlestone, who was previously General Manager of Tilcon, a previous owner and mineral operator of part of Broadwood Quarry. Your client is clearly fully aware of the history of mineral extraction and other operations at Broadwood Quarry going back very many years and also of the flourspar and lead ore processing plant operational at the Quarry under various permissions and also the tailings storage area.

3. At the outset can I commend you on being so remarkably well informed. The Council having publicised its position on Friday to encourage a private individual to apply for judicial review, your letter and draft proceedings are received so promptly. Furthermore you appear to have considerable insight into the decision making of the Council so that you can so confidently state the decision of the relevant Committee of the Council at its meeting tomorrow."

The letter concluded in the following way:

"12. This commitment to give notice is conditional upon firstly your confirmation that you will not seek an injunction or other remedy of the Court without giving at least two days clear notice of the Hearing Date to ourselves as solicitors to Sherburn Stone Company Limited and secondly, you confirming that this letter will be brought to the attention of the Court in any proceedings that you commence."

I am entirely satisfied that the applicant made a sufficient disclosure of the matters that it is suggested ought to have been disclosed to the court. If there were additional matters they could have been the subject of a letter had the second respondents thought there were other crucial matters that ought to have been drawn to the attention of court, but I cannot see that it is fair to criticise the applicant or his legal advisers for thinking that they had made a sufficient disclosure of any matter that might be deemed relevant by the court, or indeed by the second respondents, to the application for permission. It was quite apparent from the tone of the letter, from the references to such matters as confirmation that no injunction would be sought without notice, that the second respondent, if these applications were to be pursued, as was being envisaged, would have an opportunity of dealing with any matters they wished, as indeed as has happened in this case. The only argument that is advanced is that they were not made a respondent until the very last minute. But I can find absolutely nothing in that area that could properly allow the court in the exercise of its discretion to refuse permission.

I turn to the more worrying aspect of it, the question of delay.

What is argued on behalf of the second respondent is that the decision in question here is the deemed decision of 15th May, and that there was no good reason, and certainly none that is explained by the applicant, why proceedings were not started promptly following that deemed decision.

It is submitted that on any view of it, and reference has been made to authorities that I do not need specifically to refer to in the context of the arguments in this case, a period of six weeks was really the upper limit that was appropriate for a challenge to that deemed decision. For my part I find this a difficult matter and it seems to me when viewed, as it must properly be, from the point of view of both the applicant and the second respondent it presents some difficulties.

The applicant's contention is that there was no deemed decision. If he was right and there was no deemed decision there was nothing for him to challenge. The second respondent say that on the clear wording of the statute that deeming provisions were operative and if the applicant wished to dispute that and suggest that those deeming provisions were in some way to be read in a different way, then it was for the applicant to institute proceedings in order to obtain a declaration that his position was right.

The applicant's remedy in relation to these matters and planning matters of this kind is limited to challenging decisions of the local authority. The local authority's position so far as he was concerned, certainly their stated position to the second respondent ‑‑ and the second respondent's complaint is not that the applicant did not know what was going on but that he seemed to know too much of what the first respondent was doing ‑‑ was that there was no deemed decision. Nonetheless what is said in relation to these matters is that the applicant ought to have started some proceedings. One queries what those proceedings were because his situation was that the first respondent was accepting that there had been no deeming provision. Presumably what is said is that the applicant should therefore have started judicial review proceedings against the first respondent to challenge the deeming of a decision that the first respondent itself did not accept had occurred.

It seems to me that that is an artificial argument. It is based largely on the premise that at the end of the day the second respondent's argument on the judicial review proceedings, if heard, will succeed and that there was a deemed decision. Accordingly, when I analyse the position, it seems to me that the first moment when one could realistically think that there was something that the applicant could properly challenge was the moment when the first respondent changed its position in July and indicated it now accepted that the deeming provision had effect and it was in no position to take any enforcement proceedings. It seems to me, when I look at it realistically and look what it really is that the applicant is seeking to challenge, that that is the decision he seeks to challenge.

It was accepted by Mr McCracken, on behalf of the applicant, that that might be the appropriate way of looking at it and that he would therefore seek leave to amend the Form 86 to challenge that decision as an alternative to the deeming decision.

My only view, for what it is worth, is that is the appropriate way of approaching this situation. There was until July nothing, realistically, on the applicant's case that could properly be challenged. There had been on his case no deeming provision effective and it is only when something happened which started to suggest that somebody was relying upon a deeming provision in order to do something that there was any possibility for challenge. Once the local authority had made its changed position clear then there clearly was something that could be challenged.

However, I accept that that argument may not be right and I have gone on, at the request of the second respondent, to look at the position in the alternative to see how I would exercise my discretion if in fact that analysis is wrong and if in fact the only challenge and the real challenge that falls to be decided is a challenge to the deemed provision.

In those circumstances it would seem to me to be grossly unjust to the applicant if, having been led into a situation of believing that the local authority was of the same view, was intending to pursue the matter, that in some way time was then running against him and was held to debar him from taking action, when at the end of the day, having discovered that the local authority had changed its stance, he took such prompt action.

Looking at it, as I am obliged to do, as a matter of fairness, I would have to come to the conclusion, even on the limited evidence that is available to me, that it was not in any way unreasonable for the applicant to behave as he did. In other words, there was a reasonable explanation for his delay. His delay, it has to be said, was not a delay that took it, even on the most disadvantageous view of the situation to him, outside the three month period.

For those reasons, which ever be the correct way of looking at it, I come to the same conclusion that it would be wholly wrong to refuse permission on the basis of delay and I grant permission.