Neutral Citation Number:  EWHC 2279(Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
Tuesday, 26 February 2013
B e f o r e:
ROBERY JAY QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
THE QUEEN ON THE APPLICATION OF PICKFORD
CHARNWOOD BOROUGH COUNCIL
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Mr P Stookes (instructed by Richard Buxton Environmental & Public Law) appeared on behalf of the Claimant
Miss C Parry (instructed by Charnwood Borough Council) appeared on behalf of the Defendant
J U D G M E N T
(As Approved by Court)
1. THE DEPUTY JUDGE: This is a renewed application for judicial review of what is described as the defendant local planning authority's failure to comply with the EIA directive, which is directive 2011/92/EU, in relation to a motor sport and other activities development at a site known as the Wymeswold Airfield, Leicestershire, that has been shown to me on the relevant plan.
2. Specifically, the claimant says that the local planning authority acted unlawfully in failing to require an environmental impact assessment of motor sport activities and other operations, including the development of bunds at the site, and in failing to take enforcement action for breach of conditions relating to the construction of bunds. The second aspect of case, the failure to take enforcement action, which is ground 2, did not particularly feature in Mr Stookes' oral argument, but I take it into account nonetheless. Permission was refused on the papers by Lang J on 22 October 2012 and has been renewed orally before this court.
3. Briefly, the site was used as an airfield in the Second World War, but it has subsequently developed over time various uses connected with motor activities. The claimant, Mr William Pickford, lives about 500 metres away from the site. He and others have been complaining of various noise nuisances at the site over a number of years. Plainly, he has standing to bring this application and that is not contested by the proposed defendant.
4. The site has a lengthy and, I am afraid, somewhat complex planning history, and I shall attempt to summarise it as briefly as I can. In September 2001, planning permission was granted for the use of the airfield and hangar 4 for recreational activities, including vehicle driving, carts, quad bikes, Honda pilots, 4x4 course, road and rally training, and siting of three temporary buildings. In June 2004, a further application for planning permission was made in relation to training and vehicle demonstration.
5. On 12 January 2005, the agents for the owners and/or operators proposed a noise bund at a height of 6 metres. This is obviously intended to be a noise amelioration measure, but its construction would itself create a noise nuisance for a period of time.
6. On 10 March 2005, the local planning authority refused permission on the basis that the underlying activity, the driving of motor vehicles in the context of training and vehicle demonstration, would cause an unacceptable degree of noise. However, on 23 April 2007 the Secretary of State's planning inspector allowed the appeal and provided conditions in relation to the construction of a bund. In September 2007, the defendant permitted an increase in the height of that bund from 6 to 8 metres, and subsequently the bund was constructed. Following complaints of noise nuisance, on 2 February 2012 the defendant determined not to take any enforcement action in relation to the bund.
7. The defendant's letter, which is at page 71 to 72 of the bundle, states amongst other things the recommendation to take no further action in respect of the height of the bunds; does not grant planning permission for the development; and no EIA would therefore be required in relation to the consideration process for this recommendation.
8. The claimant's case is that the defendant has consistently failed to comply with its continuing obligations under the EIA, which obligations do not cease upon the grant of development consent. Specifically, the claimant contends that operations at the site fall within one or more of the following categories within schedule 2 of the regulations, and here I am referring specifically to paragraph 7 of the skeleton argument: an urban development project exceeding 0.5 hectares; construction of an airfield exceeding 1 hectare; construction of roads exceeding 1 hectare; permanent racing and test tracks for motorised vehicles exceeding 1 hectare; or a change or extension of the bund.
9. I am, of course, urged to apply the precautionary principle, to adopt a purposive approach, and to note relevant EU guidance on the topic. That guidance is contained in the supplementary bundle at page 582 and 583 in particular, and also pages 588 and 589 in the context of the meaning of urban development projects. It is clear from the language of that guidance that these terms are to be widely construed.
10. That said, the local planning authority has concluded that there is no schedule 2 project here and, as the Court of Appeal pointed out on at least one occasion (see for example R (on the application of Wye Valley Action Association Ltd) v Herefordshire Council  EWCA Civ 20), this court can only intervene if the local planning authority's understanding of the law is wrong. The law is imprecise such that a range of different conclusions is legitimately available. The decision maker is accorded an appropriate degree of latitude.
11. I pressed Mr Stookes to explain which of the schedule 2 categories applied here and why. He, in the end, said any of them could apply arguably, although he pressed in particular the urban development project issue. However, on analysis, in my judgment, that is incorrect. I of course accept that a purposive approach has to be applied to this, but I do accept the points made by the defendant in its detailed grounds (in particular paragraphs 25 to 28) that however broadly one seeks to construe these categories, and however much one takes into account the relevant guidance, we simply do not come close to any of them. Urban development project is frankly miles away. Looking at the guidance, we are looking at housing developments, hospitals, universities, sports stadia, cinemas and theatres; we are not looking at this sort of activity.
12. At one stage I was concerned as to whether arguably we fell within the permanent racing and test track for motorised vehicles component of schedule 2, but then it was pointed out that that was expressly precluded by the conditions imposed on the planning applications.
13. Mr Stookes accepts that if he cannot bring the case arguably within schedule 2 his continuing obligation point cannot get off the ground, and it is on that basis that I refuse permission. Had this case fallen within schedule 2, I think I would have required further submissions and frankly further thought as to whether the law as explained recently by Richards LJ in Hood v Redcar & Cleveland Borough Council  EWCA Civ 86 could arguably apply to this in the context of the local authority's continuing powers to suspend or revoke planning permission. But I need not decide that point since I am refusing permission at the anterior stage, namely whether this case arguably falls within schedule 2.
14. The second ground frankly does not really add much to this case. As was pointed out by Miss Parry, we are really debating here the difference between a bund which is there for noise amelioration purposes alone which is 9.3 metres at its highest point, and a bund which is permitted to be 8 metres, and that in itself cannot engage issues under the EIA. So that ground is not arguable either.
15. The upshot is this application is refused.
16. MISS PARRY: Thank you, my Lord. We have an order for costs, so I do not need anything further. I am grateful.
17. THE DEPUTY JUDGE: Thank you, thank you both.
(Aside to the associate).
Miss Parry, what was the amount? We need it for the order.
18. MISS PARRY: There was not an amount specified, the order was for our costs, but I understand the amount is in the sum of £3,042. (As heard).
19. THE DEPUTY JUDGE: And that is an agreed amount, is it?
20. MR STOOKES: My Lord, I have not seen the cost assessment. As far as the order was concerned, first of all we object to any costs being awarded.
21. THE DEPUTY JUDGE: Lang J ordered that they be assessed, did she not?
22. MR STOOKES: Subject to a detailed (Inaudible) to a detailed assessment if not agreed. I have not seen any of those costs, so I cannot agree those costs. We would say in any event that (Inaudible) we are renewing the application and do object to that order being made.
23. THE DEPUTY JUDGE: Do you object just to the amount? Because if you do, and you have not seen the schedule of costs, we can just say the local authority's costs subject to a detailed assessment if not agreed.
24. MR STOOKES: My Lord, in principle I would object to the costs first of all, if the costs are limited to the acknowledgement of service then I would not object to that order. I would object to any order about costs for today, but I would also want it to be subject to detailed assessment.
25. THE DEPUTY JUDGE: What is the objection to the costs of today?
26. MR STOOKES: My Lord, the first thing is we were not expecting the defendant to attend and we do not believe that
27. MISS PARRY: My Lord, I am not seeking our costs of today, it is just the costs of the acknowledgement of service.
28. THE DEPUTY JUDGE: Well, then it is subject to a detailed assessment if not agreed.
29. MR STOOKES: My Lord, I am grateful.