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

Transcript date:

Tuesday, October 26, 1999

Matter:

Court:

High Court

Judgement type:

Permission

Judge(s):

Richards J

IN THE HIGH COURT OF JUSTICE CO/4050/1999

QUEEN'S BENCH DIVISION

(CROWN OFFICE LIST)

Royal Courts of Justice

Strand

London WC2

Tuesday 26th October 1999

B e f o r e:

MR JUSTICE RICHARDS

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REGINA

-v-

LONDON BOROUGH OF HAMMERSMITH AND FULHAM

EX PARTE CPRE LONDON BRANCH

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(Computer-aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HG

Telephone No: 0171-421 4040/0171-404 1400

Fax No: 0171-831 8838

Official Shorthand Writers to the Court)

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MR R McCRACKEN (instructed by RICHARD BUXTON, 40 CLARENDON ST, CAMBRIDGE CB1 1JX) appeared on behalf of the Applicants.

MR A DINKIN QC (instructed by LEGAL DEPT. LONDON BOROUGH OF FULHAM) appeared on behalf of the First Respondents.

MR T STRAKER QC (instructed by the BERWIN LEIGHTON, LONDON EC4R 9HA) appeared on behalf of the Second Respondents.

J U D G M E N T

(Approved by the Court)

Crown Copyright

Tuesday, 26th October 1999

JUDGMENT

MR JUSTICE RICHARDS: There is before the Court an application by CPRE London Branch for permission to apply for judicial review of a number of decisions of the respondent council. The first decision, as set out in the application, is the grant of an outline planning consent, on or about 20th March 1996, for an urban development project consisting of up to 600,000 square feet of shopping centre and other development at White City.

The applicant contends that the grant of that outline consent was unlawful because the council failed to consider whether the project had to be subject to an environmental assessment pursuant to the regulations implementing the relevant Community directive, namely directive 85/337/EEC, and further because no environmental assessment was in fact undertaken at that time. It is said that such an assessment would have involved the submission by the developer of comprehensive and systematic information of the likely environmental effects, the most important aspect being that of traffic generation and traffic impact. The assessment would have led to a greater awareness of the environmental impact of the proposal and would have enabled a better informed decision to be taken on whether to grant outline consent. That is a very brief summary of the case advanced.

Secondly, application has now been made for approval of reserved matters pursuant to the outline consent. An environmental assessment has in fact been produced voluntarily by the developer in connection with that application. There has been no decision on the application, the expected decision having been deferred. But CPRE seeks to challenge the anticipated decision saying, in effect, that the original error concerning the outline consent precludes the council from lawfully giving reserved matters approval for the project. It is contended, in essence, that the submission of a late environmental assessment is no answer to the failure to produce an assessment prior to the grant of outline consent, but that reserved matters approval is still of importance from the point of view of the directive. The directive prohibits the grant of development consent in the absence of an environmental assessment. Development consent will not have been granted until reserved matters approval has been given, and to approve reserved matters and thereby to give development consent would be in breach of the directive and of the obligation under the EEC treaty on the State, including on the local planning authority, to take all appropriate measures to achieve the result required by the directive.

The third matter challenged is a decision by the council not to exercise powers under section 97 of the Town and Country Planning Act 1990 to revoke the outline consent. Indeed the council's officers have rejected out of hand the request even that the council should consider the exercise of such powers. CPRE contends that the duties placed on the authority under Community law, including the duty to nullify the unlawful consequences of the grant of outline consent in breach of Community law, require the council to exercise a power that is available to it to revoke the outline consent. At the very least it is said that there is a duty to give proper consideration to the exercise of that power in the light of the failure to obtain the proper environmental assessment at the stage of outline consent and in the light of other relevant considerations.

The matter came before me, originally, as an application for consideration on the papers. It was understandable that CPRE had requested that course in the hope of avoiding the cost of a hearing. I adjourned the matter for oral hearing on notice to the council and relevant interested parties because it seemed to me that the issues raised, both in the application and in certain correspondence that had been put in by other parties, merited proper argument orally. In the event CPRE, the council and the developer, Chelsfield, have all been represented by counsel before me.

My starting point is that there is, in my view, an arguable case in relation to the failure to obtain an environmental assessment before the grant of outline consent. Whether an assessment was needed was not considered by the relevant committee of the council. To the extent that it was considered by officers, it is at the very least arguable that they did not have the delegated authority to take such an important decision. It is possible, and here I am referred to a body of evidence filed on behalf of the respondent and Chelsfield, that the degree of publicity given to the proposal at the time and the extent of environmental information in fact considered at the time would cause the Court, in the exercise of its discretion, not to quash the grant of outline consent even if the decision was strictly unlawful by reason of a failure properly to consider the question of an environmental assessment in accordance with the directive and regulations. But at the present stage I cannot say that the Court would necessarily exercise its discretion in that way. There is a further issue, which is said to be one of the matters before the House of Lords in the case of R v Secretary of State ex p Berkeley [1998] PLCR 97, as to whether it is open to the Court as a matter of Community law to exercise a discretion in that way where there has been a breach of the directive.

So in terms of arguability there is plainly a matter fit to proceed. But the main thrust of the opposition has been directed at the issue of delay. By order 53 rule 4(1), as now set out in schedule 1 to the Civil Procedure Rules:

"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made."

The importance of a prompt application in the planning field has been repeatedly emphasised by the Court. The three months referred to in rule 4 is an outer limit. An applicant is generally expected to move much more promptly than that. Speed is of particular importance because of the need for certainty in this area and the effect of the grant of permission on the rights and actions of third parties.

In this case the latest date when grounds for CPRE's application arose was the date of the grant of the outline consent, March 1996. The grounds probably arose much earlier because the consent gave effect to a resolution of the council in September 1994 and that resolution would have been open to challenge at the time. On any view, therefore, CPRE has failed to apply promptly and in any event within the three-month time limit. On any view it is way out of time in its application to challenge the grant of the outline consent.

Is there a good reason to extend time? It is said on behalf of the CPRE that, in part because of the absence of an environmental assessment, it did not appreciate the significance of the development or the relevant environmental issues at the time. There is some suggestion that the law has moved on as regards the importance of outline consent and the extent to which the scale of development can be considered subsequently at the stage of approval of reserved matters and that this should cause the Court to adopt a generous approach towards the extension of time.

In my judgment, however, those matters do not begin to provide a good reason for an extension of time. The evidence shows that the CPRE has been seised of the issue concerning the environmental assessment for a long time, at least two years, and even when it had, apparently, reached a clear view that there should have been an assessment before the grant of outline consent it still delayed many months before applying to the Court. It has brought the matter to the Court far too late, in so far as it seeks to challenge the original outline consent. That conclusion is reinforced by consideration of section 31(6) of the Supreme Court Act 1981. I think it is unnecessary to set out the relevant provision. Suffice it to say that there has been undue delay within the meaning of that section and that the grant of the relief sought would be detrimental to good administration and would cause substantial prejudice to third parties, which include not just the developer but London Underground and others involved in the development.

In relation to the detriment to good administration I refer to, without quoting, the observations of Lord Justice Pill in R v Newbury District Council ex p Chieveley Parish Council, (1998) 10 Admin. LR 676, in particular at pages 689 to 690.

In relation to the question of prejudice to the third parties the Court has before it a substantial body of evidence on behalf of Chelsfield referring to the prejudice both to Chelsfield and to others. The effect of that evidence is conveniently summarised in Mr Straker's skeleton argument. Relevant matters include the fact that Chelsfield has acquired substantial parts of the site; has entered into a development agreement with London Underground; has entered into an agreement for a lease with Sainsbury and has made other agreements. It has made a rights issue in excess of £100,000,000 to maximise its ability to develop the site. The evidence is that none of those steps would have been taken but for the council's resolution of the grant of planning permission.

Moreover, the Secretary of State has made transport orders authorising the construction of access roads. Chelsfield has entered into a section 278 agreement with the Secretary of State and has agreed to meet the costs of carrying out work to an estimated value of £16,000,000. The Secretary of State let contracts for the work in April of this year and work commenced in May.

Those, of course, are factors that could be considered at the substantive stage and in the ordinary course would not form part of the assessment at the permission stage of proceedings. But the evidence in this case is before the Court and the arguments are, in my view, so strong that it would be wrong for me to close my eyes to them.

This, as it seems to me, is plainly not a case where I should exercise my discretion to extend time. In saying that I bear in mind the substantive merits of the case. I do not think that the case is one of those exceptional cases where the merits are so strong and the issue of such importance that permission should be granted despite strong countervailing considerations in terms of delay and the effects of delay.

I have put the matter on the basis of an exercise of discretion. Plainly such a discretion exists as a matter of domestic law. Mr McCracken on behalf of CPRE disputes, however, whether in this case I have an effective discretion. He says that as a matter of Community law I must extend time, or to put it another way I cannot refuse permission on the grounds of delay. He places particular weight on a passage of the judgment of the European Court of Justice in the case of Kraaijveld, C-72/95 which I have before me in the 1997 Environmental Law Reports page 265. In paragraph 60 of the judgment the Court states:

"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 under articles 2(1) and 4(2) of the directive and take account thereof when examining the action for annulment."

It is suggested that that passage shows that the Court is required, as a matter of Community law, to entertain a claim of the present kind and cannot refuse to do so on grounds of delay. I am totally unpersuaded by that submission. What paragraph 60 of the judgment in Kraaijveld shows is that where a court is entitled to take points of its own motion, as it undoubtedly is in public law proceedings, then it should take a point considering breach of a directive even if the parties to the case have not taken that point. If, for example, the challenge in the present case were brought on domestic grounds and the Court saw a point concerning breach of the environmental assessment directive, the Court could, and should, raise that point of its own motion.

That, to my mind, does not touch upon the question of time limits or of the application of order 53 rule 4, or of section 31(6) of the 1981 Act. I see nothing in Kraaijveld that would deprive the Court of its discretion in relation to time limits. The fact that there exists an arguable breach of Community law does not mean that normal procedural safeguards, including those that are there to protect legal certainty, have to be thrown out of the window. National time limits apply, reasonable time limits have been upheld as being compatible with the requirements of Community law. One instance of that, though it does no more than set out a principle repeatedly stated in the case law of the European Court of Justice, is to be found in Case C-188/95 Fantask [1997] ECR 1-6783 at page 6838 paragraph 48, where it is stated:

"The Court has thus acknowledged, in the interests of legal certainty which protects both the taxpayer and the authority concerned, that the setting of reasonable limitation periods for bringing proceedings is compatible with Community law. Such periods cannot be regarded as rendering virtually impossible or excessively difficult the exercise of rights conferred by Community law, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought."

That principle applies as much to time limits in public law proceedings as to those in private law proceedings.

In my judgment there is no reason whatsoever to doubt the reasonableness of the time limit provisions of order 53 rule 4 and there is no reason to doubt the reasonableness of the decision to decline to exercise the discretion to extend time in this case. I see no problem whatsoever under Community law in adopting that course. I do not think that the contrary is arguable. I note that in R v Customs & Excise Commissioners, ex parte Eurotunnel, which I have before me reported in [1995] CLC 392, at page 408 B the court took the view, in judicial review proceedings, that the fact that the case concerned the validity of Community measures provided no reason to disregard or modify the provisions of English domestic law concerning time-limits.

Therefore, on grounds of delay I refuse permission to challenge the grant of outline consent.

I move to consider the question of reserved matters approval. Delay might seem an odd point in circumstances where the relevant decision has not yet been taken. Prematurity might superficially appear to be a greater obstacle. But I am satisfied that the applicant does here face a real problem arising out of delay. The applicant seeks to challenge the reserved matters approval as the last step in the authorisation of the development, but it is evident that the real target of the challenge is not the consideration of the reserved matters as such, but the original outline consent pursuant to which the application has been submitted for approval of reserved matters. That engages a principle referred to by Mr Justice Laws, as he then was, in R v Secretary of State for Trade and Industry ex p. Greenpeace [1998] Env.L.R. 415. At page 424 the judge referred to a principle -

"that 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."

Later in his judgment he expressed the view that delay would be tolerated much less readily in public interest litigation.

The same point was expressed, albeit in a different way, by Lord Justice Pill in his judgment in ex parte Chieveley, to which I have already referred, at page 691G-H. It was expressed in a context directly relevant to the present case. He said:

"The consequences of the delay cannot be avoided by attacking the acknowledgement of the reserved matters application, rather than attacking the outline permission directly. The court should look to the decision which in substance is being challenged and not the claimed acknowledgment of its validity. The outline permission not having been declared invalid, it was open to the society to apply for the approval of reserved matters and I would hold that application to have been made validly."

The point is highlighted by the fact that, as was also laid down in the decision in ex parte Chieveley, it is not permissible at the reserved matters stage to reopen the question of the principle or the scale of the development which has been decided by the outline consent. Consideration of the environmental effects of the reserved matters will not address the central concern of the applicant, which relates to the principle and scale of the development as dealt with at the stage of outline consent. I note that the applicant does not accept that the environmental assessment that has now been provided in the context of reserved matters is capable of curing the problem of failure to consider the question of such an assessment before the grant of outline consent.

Again, Mr McCracken suggests that Community law precludes the approach that I have indicated. For my part I do not see how Community law could confound the entire planning process and enable or require a local planning authority to reopen the principle of the development at the reserved matters stage. To my mind the argument advanced simply does not get off the ground. Further, it seems to me that the effect of the directive, and the regulations made to implement it, is to require the question of an environmental assessment to be considered at the stage of the initial planning decision, in this case the outline consent. One cannot simply wait until the last stage, namely the authorisation of details as provided for by that outline consent. It is the outline consent which constitutes development consent for the purposes of the directive and implementing provisions. That view is, to my mind, supported by the judgment of the House of Lords in R v North Yorkshire County Council ex parte Brown [1999] 2 W.L.R. 452 in particular the passage at the bottom of page 458 in the leading speech of Lord Hoffmann where he says:

"The principle in this and similar cases seems to me to be clear: the Directive does not apply to decisions which involve merely the detailed regulation of activities for which the principal consent, raising the substantial environmental issues, has already been given."

In any event, for the reasons that I have given, I take the view that the applicant should not be permitted to challenge the reserved matters approval in circumstances where, by reason of delay, it is not permitted to challenge the outline consent which is the heart of its complaint. Whether the position in relation to reserved matters is analysed in terms of delay or put on the basis of the wider discretion of the court, the circumstances are such that permission should be refused. Again Community law does not require, or arguably require, the court to exercise its discretion in a different way or deprive the court of the discretion that it would otherwise enjoy in relation to the grant or refusal of permission.

That leaves the refusal by the council to consider the exercise of powers under section 97 of the 1990 Act to revoke the outline consent. 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 by order revoke or modify the permission to such extent as they consider expedient."

There are further provisions concerning the limitations upon the power and the machinery for its exercise. The power plainly exists. It is therefore open, as it seems to me, to the applicant to argue that the council has it within its power to correct the breach of Community law at the outline consent stage, if breach there was; the breach being the failure to consider the environmental assessment issue.

In my view the applicant does raise an arguable point that Community law imposes a duty to exercise the power or at least to consider the exercise of the power. To date there has been nothing more than a summary refusal by the council's officers to engage with section 97 at all. It is arguable that that does not constitute adequate compliance with the obligations of a local planning authority under Community law.

The response of counsel for the respondent and Chelsfield is, in part, that there can be no obligation to revoke an apparently valid permission which cannot now be the subject of challenge and that, in any event, the directive and regulations impose no obligations in relation to revocation but are concerned solely with the position before consent is given.

The contrary is, in my view, plainly arguable. The discretion to revoke a planning permission under section 97 extends to permissions which are valid or must be treated as valid whether because there was no defect in them or because it is now too late to challenge them. There is room for argument that Community law imposes a duty to exercise or consider the exercise of that discretion in circumstances where permission was granted in breach of the directive, even if the permission itself cannot now be challenged directly because of the time limit. For that purpose it is not necessary to point to an express duty of revocation imposed by the directive itself. 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. It has been submitted that the applicant's approach, if correct, would involve the opening up of the very matters of substance that consistently with the requirements of Community law cannot be opened up by way of a direct challenge to the decision, and that that is a situation which Community law cannot allow, or require, to arise.

There is, I think, considerable force in that argument and I see that the applicant faces serious problems in relation to this part of the case. But I take the view that the point raised is not plainly a bad one and that the issue does merit consideration.

In relation to the section 97 issue no question of delay arises, nor does the failure to make a timely challenge to the outline consent cause me to exercise my discretion to refuse to permit the section 97 point to be ventilated now.

I have also considered whether the section 97 point should cause permission to be granted in respect of the original consent, given that if the section 97 point is well founded it could involve potential costs to the council pursuant to the compensation conditions, which would not arise if it were possible to challenge successfully the original outline consent. Mr McCracken has sought to put his case on an all or nothing basis. But, in my view, the existence of an arguable point on section 97 does not justify the opening up of the earlier decisions in circumstances where, for the reasons I have given, there are strong reasons on grounds of delay why they should not be opened up.

Accordingly, I grant permission only to challenge the section 97 decision. I refuse permission in relation to the original consent and the reserved matters approval.

(Discussions followed re costs and matter of security applied for by counsel for the Respondents)