R. v. London Borough of Hammersmith and Fulham exp. CPRE London Branch

Transcript date:

Monday, June 12, 2000

Matter:

Court:

Court of Appeal

Judgement type:

Permission

Judge(s):

Ward LJ Bell J

IN THE SUPREME COURT OF JUDICATURE C/OO/5240

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)

(MR JUSTICE HARRISON)

Royal Courts of Justice

Strand

London WC2A 2LL

Monday 12 June 2000

B e f o r e:

LORD JUSTICE WARD

MR JUSTICE BELL

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T H E Q U E E N

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LONDON BOROUGH OF HAMMERSMITH AND FULHAM

EX PARTE THE TRUSTEES OF THE COUNCIL FOR LONDON BRANCH

OF THE PROTECTION OF RURAL ENGLAND

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR ROBERT JAY QC (Instructed by Messrs Richard Buxton, Cambridge CB1 1JX) appeared on behalf of the Appellant

MR ANTHONY DINKIN QC and MR BEDFORD (Instructed by The London Borough of Hammersmith, London W6 9JU) appeared on behalf of the lst Respondent

MR DUNCAN OUSELEY QC and MR C LEWIS (Instructed by Messrs Berwin Leighton, London, EC4R 9HA) appeared on behalf of the 2nd Respondent, Chelsfield Plc.

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J U D G M E N T

(As approved by the Court)

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©Crown Copyright

1. LORD JUSTICE WARD: For reasons I shall develop, I would refuse the application to adjourn this application.

2. This is an application for permission to appeal the dismissal by Harrison J on 21 December 1999 of an application by the Trustees of the London Branch of the Council for Protection of Rural England for judicial review of a decision by the London Borough of Hammersmith and Fulham refusing to consider the revocation of outline planning permission of the White City site.

3. The case concerns a major development of an area of the White City to provide a shopping centre of round 600,000 square feet and parking for 4,500 motor cars. That application for outline permission was made on 20 December 1993. The London Borough resolved to grant it on 21 September 1994 subject to the completion of an agreement under section 106 of the Town and Country Planning Act 1990. The agreement was not concluded until March 1996 whereupon outline permission was duly granted. In October 1997 the first application was made by the developers, Chelsfield Plc, the second respondent to this application, for approval of reserved matters, but it was not until 12 October 1999 that it was resolved to give that approval. As I understand it, that has not yet been formally granted.

4. On 11 October 1999 the applicant applied for permission to move for judicial review a number of decisions of the respondent planning authority: first, the outline planning permission of March 1996; secondly, the anticipated approval of reserved matters pursuant to that permission; and, thirdly, the refusal of the borough to consider exercising its powers under section 97 of the Town and Country Planning Act 1990 to revoke the outline planning permission.

5. Section 97 provides:

"If it appears to the local planning authority that it is expedient to revoke or modify any permission to develop land granted on an application made under this Part, the authority may be order revoke or modify the permission to such extent as they consider expedient."

6. There are two points to note:

(1) this is a power and does not impose a duty; and

(2) the discretion being based on expediency is wide.

7. The application for judicial review came first before Richards J. He refused permission to challenge the first two decisions. There was a renewal to this court but on 21 December 1999 this court refused to give permission to challenge those two initial questions. We have before us a judgment of the Court of Appeal and we have referred to it. Richards J did however give permission to review the refusal to revoke the outline planning permission. This was the challenge which was heard and dismissed by Harrison J and is the matter which is now before us.

8. Central to the application is the fact that when the application for planning permission was before the authority in 1993 and 1994, the question of an environmental assessment was considered by a Mr Pallace, the council's Assistant Director of the Environment Department, who was responsible for the council's development control functions. He filed evidence, extracts from which I quote:

"The application was not accompanied by a formal environment impact assessment statement under the 1988 Environmental Impact Assessment Regulations. However extensive studies were submitted by consultants, analysing the proposals and their potential impact. The application was assessed by officers who in some fields commissioned independent consultants so that a thorough examination of all the anticipated effects of the development was carried out.

Officers including myself did consider whether the application was one which required the submission of a formal statement under the 1988 Regulations but concluded that no such formal statement was required in this instance.

....

....it was concluded that the potential environmental effects did not warrant a request for an environmental assessment.

Although no environmental statement was required under the Regulations, great pains were taken to identify all potential impacts of the proposal in a planning sense including the environmental effects and assess them thoroughly as part of the processing of the planning application....

Extensive public consultation was carried out and publicity given to the planning application."

9. The applicant's case is that the chosen procedures were flawed. The complaint is that those officers of the planning authority who considered the matter were not properly authorised to take any decision on behalf of the local planning authority. Mr Ouseley QC, for the developers, stresses the importance of aspects which are not under challenge: (i) there is no challenge to the power to delegate, but only that the chain of delegation did not properly extend as far as Mr Pallace and his colleagues; (ii) there is no assertion that the decision not to require an environmental assessment could be impugned as a decision no reasonable authority or officer could have taken. That is plain from paragraph 17(4) of the Form 86A statement itself. It was conceded in the Court of Appeal where Mr Jones, counsel then appearing for the applicants, told this court that:

"CPRE's challenge does not assert that a decision not to require an environmental survey could be impugned."

10. It seems to me therefore that Harrison J was correct and entitled to view this case, as he did in paragraph 40 of his judgment, stating that:

"It must be borne in mind that there is no challenge in this case to the substantive judgmental decision that an environmental assessment was not needed. The challenge is one of procedural irregularity, namely that the decision was not made by a person with delegated authority."

11. That being the narrow basis of the complaint, the applicants who had known of these matters for a very considerable time (going back to 1997), chose to write on 13 September 1999 the letter which is the foundation of the present application. They stated as follows:

"It is also clear that the only possible way forward now is for the Council to consider exercising its powers of revocation under s.97 of the Town and Country Planning Act 1990. Please confirm therefore that the Council will now, having regard to its duties under the (renumbered) Article 10 of the EC Treaty, exercise its powers accordingly."

12. The response of the council on 28 September was to point to delay and to say that no formal environmental assessment was required. The council concluded:

"Your extraordinary request that the Council consider revoking the planning permission in reality bears no critical examination. None of the Council's duties under the EC Treaty require or justify such action."

13. The application for judicial review followed. Richards J thought that there was an arguable point. When giving permission to move on 26 October 1999, he identified the kernel of the complaint in these terms:

"One is concerned here with wider principles of Community law and duties on national authorities, including local planning authorities, to take all measures to implement obligations and ensure the effectiveness of Community law."

14. The permission he gave was limited as follows:

"Community law imposes a duty to exercise or consider the exercise of that discretion [to revoke permission] in circumstances where permission granted in breach of the directive, even if the permission itself cannot now be challenged directly because of the time limit."

15. It is important to note the limitations on the permission granted by the judge. As for the additional complaint that the planning officers who considered the application did not have delegated authority to decide that an environmental assessment was not needed, the judge considered that, although that may have been an arguable complaint, any procedural impropriety affected the original decisions and that had been made in March 1996. Since the applicant had been aware since 1997 that there had not been any environmental assessment, it was too late now to resort to judicial review.

16. The Legislative Framework of the European Law Challenge

17. Article 10 of the European Treaty provides as follows:

"Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate achievement of the Community's tasks, they shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty."

18. By Article 249:

"A Directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and method."

19. The Directive with which we are concerned is Directive 85/337/EEC. Article 2 provides that:

"Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia, of their nature, size or location are made subject to an assessment with regard to their effects."

20. By Article 1(2) "development consent" means:

"the decision of the competent authority or authorities which entitles the developer to proceed with the project."

21. Projects are divided into two classes and those with which we are concerned fall under annex 2, paragraph 10, as "urban development projects". By virtue of Article 4 such a project shall be made subject to an assessment "...where Member States consider that their characteristics so require".

22. That directive was implemented and transposed into our domestic law by the Town and Country Planning (Assessment of Environment Effects) Regulations 1988. Those regulations mirror the directive. Thus an urban development project is listed in Schedule 2 and accordingly an application for the planning permission for the carrying out of such a specified development must have regard to whether it:

"which would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location."

23. By virtue of regulation 4(2):

"The local planning authority .... shall not grant planning permission .... unless they have first taken the environment information into consideration and state in their decision that they have done so."

24. It is crucial for the purposes of this application to emphasise that no suggestion has been made that the regulations do not fully and accurately transpose the European directive into our domestic law.

25. Harrison J's Judgment

26. Harrison J recorded Mr McCracken, counsel then appearing for the applicant, as having based his case "foursquare on a duty" which he says arises under Article 249 (formerly Article 189), and Article 10 (formerly Article 5) of the European Treaty, the latter requiring the Member States to "take all appropriate measures" whereas the former is binding "as to the result to be achieved". Thus, he submits, there was a duty to achieve the result of an environmental assessment being provided before determination of the outline planning permission and that the appropriate measure to achieve that result is the revocation of the permission that had been granted. That submission was rejected.

27. In summary, the judge held that the articles were designed to ensure that the Member States correctly implemented the directive into its national law so that the result of the directive could thereby be achieved. There being no suggestion that it had not been correctly transposed, the judge followed the decision of this court in Marks & Spencer Plc v Commissioners of Customs and Excise [2000] STC 16, holding that an individual can no longer sue for a breach of his rights under a directive accurately incorporated into national law. In those circumstances the applicant's remedy is derived from the domestic legislation, in this case complaints of a breach of the 1988 Regulations.

28. The judge concluded in paragraphs 35 and 36:

"I do not, therefore, accept the applicant's case based on Articles 10 and 249 of the Treaty. Bearing in mind that the applicant's request to the first respondent to consider exercising the power of revocation under section 97 was based on Article 10 of the Treaty, it must follow that the first respondent was fully entitled to refuse that request.

That really is the end of the case. Indeed, Richards J only granted leave on the revocation issue in respect of the Community law point."

29. Nevertheless he went on to consider the allegation of procedural irregularity in that the decision that an environmental assessment was not needed was not made by a person with delegated authority. He held that the substantive decision in issue was the validity of planning permission consequent upon its grant without a proper environmental assessment. He held in paragraph 40 that the in the inclusion in the application for judicial review of the refusal to revoke outline planning permission:

"....in reality constitutes an avoidance of the time limits which relate to the substantive decision not to require an environmental assessment .... this part of the application -- the revocation issue -- is really a back-door attempt to try and achieve what the court has already refused to do, namely to permit challenge to the validity of those planning decisions.

....

42. ....I consider it would be inappropriate to sanction that kind of circumvention of the time limits which are particularly important in cases such as these where important decisions have been made and vested interests acquired since the date of the outline planning permission in March 1996."

30. He added in paragraph 44:

"It follows from my conclusion that there is no duty under Articles 10 and 249 of the Treaty to revoke or consider revoking the planning permission that there is no need for me to decide whether or not Mr Pallace did have delegated power to decide whether the environmental assessment was required. Suffice it to say that that was the most arguable point of the appellant's case. Certainly there is no written record of such a delegated decision as is required by the scheme of delegation. However, even if there was not delegated authority, it is now far too late, for reasons that I have already given, to resurrect that as a reason for revoking the outline planning permission."

31. He concluded his judgment pointing out that to grant relief at this stage would be detrimental to good administration, prejudicial to many parties and would risk bringing the planning system into disrepute. He therefore refused the application.

32. Mr Jay QC, for whose submissions I am greatly indebted for their clarity and conciseness, sought, first, to persuade us to adjourn this application. Essentially the reason for that request is that decisions are awaited from the House of Lords on conjoined petitions in part of this case and in the matter of The Queen v the North-West Leicestershire District Council ex p Moses (CA 12 April 2000). In so far as this case is before their Lordships' House, as I understand it, there is no longer a challenge to the validity of the original outline planning permission and the legality of that decision has now to be accepted. The complaint is limited to the grant of the reserved planning matters. As for the case of Moses, the development of the East Midlands airport had been completed by the time complaint was made about the lack of an environmental assessment, thus no question of revocation under section 97 could arise. An attempt was made to introduce similar arguments by a resort to section 102 of the Act to impose conditions on the use of the airport. That application to amend was rejected in characteristically robust terms by Simon Brown LJ who said:

"In a case like this, where the primary challenge fails on grounds of long delay and resultant prejudice, it would be absurd if the applicant could nevertheless succeed, at huge expense to the respondent District Council, by being held entitled to compel modification of the planning permission under s.97 or discontinuance of use under s.102 particularly when other powers exist to impose any necessary restrictions."

33. In considering that application for an adjournment, it is not without significance that these matters have been pending for a considerable time to the knowledge of the applicant council. Moreover, there has been a vast expenditure of millions of pounds by the developers and the delay has been substantial. That is one reason for there to be finality in this particular planning application.

34. But, as importantly, it seems to me that the cases before their Lordships' House are not significant to the central question we have to consider. The challenge in this case does not touch upon the continuing duty of the local authority, nor does anything in Moses seem to go to whether or not there is a continuing obligation on an administrative body to have regard to EEC directives which have been otherwise fully implemented. I refuse the adjournment.

35. The main thrust of the Mr Jay's submission is that by virtue of Article 10 of the Treaty, Member States must take "all appropriate measures". Mr Jay submits that that should not be confined merely to the legislative measures necessary to implement the directive, but that it should also encompass administrative decisions by emanations of the state constantly to ensure the fulfilment of the purpose of the directive. That is exemplified by Article 249, which provides that the directive shall be binding "as to the result to be achieved". Mr Jay submits that that emphasis is necessary to give effect to the continuing duty both on the legislative arm of the address state but also its administrative organs. He derives support for those submissions from the decisions of the European Court of Justice; first in the case of Kraaijveld v Gedeputeerde Staten van Zuid Holland [1996] ECR 1-5403. In the report placed before us, Mr Jay stresses passages in the judgment of the court at paragraph 55:

"First of all it should be recalled that the obligation of a Member State to take all the measures necessary to achieve the result prescribed by a directive is a binding obligation imposed by the third paragraph of Article 189 of the EC Treaty and by the directive itself .... That duty to take all appropriate measures, whether general or particular, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts."

36. So the stress is binding on all authorities of the Member States. In paragraph 60 the court held:

"Consequently where, pursuant to national law, a court must or may raise of its own motion pleas in law based on a binding national rule which were not put forward by the parties, it must, for matters within its jurisdiction, examine of its own motion whether the legislative or administrative authorities of the Member State remained within the limits of their discretion."

37. Paragraph 61 is to similar effect. The other case saying much the same thing is the case of World Wide Life Fund (WWF) and others v Autonome Prinz Bozen [2000] 1 CMLR 149. In that case Mr Jay relies upon paragraphs 68 to 71 in particular and, reading from the conclusion of paragraph 71, the court stated:

38. "The answer to the sixth question must therefore be that the Articles 4(2) and 2(1) of the Directive are to be interpreted as meaning that, where the discretion conferred by those provisions has been exceeded by the legislative or administrative authorities of a Member State, individuals may rely on those provisions before a court of that Member State against the national authorities and thus obtain from the latter the setting aside of the national rules or measures incompatible with those provisions. In such a case, it is for the authorities of the Member State to take, according to their relevant powers, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment." (My emphasis)

39. The response of the respondent to those submissions is that those two cases are clearly distinguishable and apply to a wholly different situation. In each of those cases the directive in question had not been fully or properly transposed into domestic law. Hence the respondents rely on the judgment of this court, as Harrison J relied upon it, in the Marks & Spencer case. In that case Schiemann LJ held at page 28B to F:

"Marks and Spencer submit they can rely on the Directive as a source of rights not merely in circumstances where the Directive has been imperfectly transposed but also in circumstances where, although the Directive has been correctly transposed into national legislation, the national administrator has failed to implement the Directive's provisions correctly because, for instance, he has misconstrued the national legislation or the Directive.

They point in this context to the word 'measures' in paragraph 24 of the [decision in Ursula Becker v Finanzamt Munster-Innenstadt [1982] ECR1-53 and the decision in Kampelmann and others v Landshaftsverband Westfalen-Lippe and others [1997] ECR 6907 at 6939] and submit that the word is broad enough to embrace administrative as well as legislative action. That has semantic force. However it is clear from Becker paragraph 25 that what the ECJ was concerned to avoid was a situation in which rights which the Directive meant an individual to enjoy could not be asserted before the national court. Where the national legislation correctly transposes the Directive, then this problem does not arise: the individual can assert before the national court the right which the Directive directed the Member State to afford to the individual."

40. There is a further passage at page 30C in which Schiemann LJ dealt with an argument that there were parallel rights under the national legislation when it has correctly implemented the directive. He rejected that argument saying:

"We were shown no authority to this effect and the concept introduces a needless complication into a field which is complicated enough to satisfy the most enthusiastic jurisconsult."

41. I certainly agreed with that sentence of the judgment.

42. Mr Jay, for all his persuasive advocacy and great powers of research, failed to find any other authority which bears upon the question. In the result, we are bound by the judgment of this court. I cannot see any possible distinction arising in this case and any argument to introduce if not parallel application of the directives but continuing ethereal force being given to them, is misconceived.

43. Mr Jay endeavoured to bolster the submissions by reference to passages in the speech of Lord Hope in the case of Three Rivers District Council & Ors v Bank of England [2000] 2 WLR 1220 at 1241. However, his Lordship was there dealing with a wholly different matter altogether. The case of Three Rivers involved a question as to whether there was a right to damages under European law to make up for any deficiency at common law. The case did not bite on the point addressed in the Marks & Spencer case and I see nothing in Lord Hope's speech to begin to found an argument along the lines Mr Jay now seeks to urge upon us.

44. Mr Jay submits as the second string to his argument that the matter is not acte clair and that we, as the final port of call, should refer this matter to Europe. I do not agree. It did not call for reference in Marks & Spencer. There is no authority touching on the question which causes any doubt as to the original principles laid down in Marks & Spencer that, once the directive is correctly implemented into domestic law, the remedies are then in domestic lawThat a a member of the European Commission should write, as someone did on 14 March 2000, suggesting that there might be an argument against that view, is an opinion I read with interest, but it does not pretend to be the conclusion of the Commission. It fails wholly to persuade me that there is any doubt about the way we apply European law once it has been transposed.

45. That is effectively the end of it, but if I was in any doubt at all I would remind myself, as Mr Ouseley reminded us, of what the European Court of Justice said in Cobrecaf SA & Ors v The Commission of European Communities, Case T514/93. In paragraph 44 of the judgment the European Court of Justice said:

"It is settled law that, where an applicant lets the time-limit for bringing an action against a decision unequivocally laying down a measure with legal effects affecting his interests and binding on him expire, he cannot start time running again by asking the institution to reconsider its decision and bringing an action against the refusal confirming the decision previously taken."

46. To the same effect was the judgment of Laws J, as he then was, in the case of R v Secretary of State for Trade and Industry ex p Greenpeace [1998] Env LR 415 at 424 where his Lordship said:

"....a judicial review applicant must move against the substantive act or decision which is the real basis of his complaint. If, after that act has been done, he takes no steps but merely waits until something consequential and dependent upon it takes place and then challenges that, he runs the risk of being put out of court for being too late."

47. In this case it was open to the Council for the Protection of Rural England to seek to move for judicial review in 1997 or to seek a reconsideration of the decision under section 97. They did not do so, but waited. The relevant delay in my judgment is not merely the delay which has accrued since the taking of the decision conveyed by the letter of September 1999, but the delay and the inactivity that preceded that request for a revocation of the original decision.

48. I am wholly satisfied that Harrison J was absolutely right to characterise this as a back door attempt to achieve that which this Court of Appeal refused to permit, and which it is now conceded to be impossible to achieve, namely an assault on the original grant of outline planning permission. The chance to do so was lost years ago. The prejudice to the development and the interests of the public in finality would all suffer if yet another attempt was allowed to the CPRE to attack those established decisions. European law recognises certainty as a valuable contribution to the law. That certainly should not be imperilled by granting permission to appeal. I regard the application as having no realistic prospect of success. I would therefore refuse it.

49. MR JUSTICE BELL: I agree.

Order: Application refused. Applicant to pay the costs of both respondents.