Neutral Citation Number:  EWHC 1338 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT AT MANCHESTER
1 Bridge Street West
Tuesday, 1st April 2014
B e f o r e:
HIS HONOUR JUDGE STEPHEN DAVIES
(Sitting as a Judge of the High Court)
THE QUEEN ON THE APPLICATION OF SHAUN RITSON
ALLERDALE BOROUGH COUNCIL
STOREY HOMES LIMITED
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Mr Paul Stookes (Solicitor Advocate) of Richard Buxton Solicitors, Cambridge appeared on behalf of the Claimant
The Defendant did not attend and was not represented
Mr Ian Ponter (Counsel) instructed by Shoosmiths LLP, Manchester appeared on behalf of the Interested Party
J U D G M E N T
(Draft for approval)
1. HIS HONOUR JUDGE STEPHEN DAVIES: This is a renewed application for permission to bring this claim for judicial review in which the claimant, Mr Shaun Ritson, seeks to challenge the decision of the defendant, Allerdale Borough Council, made on 20th August 2013, to grant planning permission for a development comprising 152 residential units and associated infrastructure at a site just outside Maryport in Cumbria. The recipient of the planning permission is the interested party, Storey Homes Ltd.
2. Permission was refused by Lang J in a decision on the papers made on 12th February 2014. The claimant has produced a helpful skeleton argument in support of his renewal application and has made oral submissions today through his representative, Mr Paul Stookes. The defendant has not appeared today in order to save costs, although it has filed detailed summary grounds of defence. The interested party also filed detailed summary grounds of defence and has appeared today through counsel, Mr Ponter.
3. There are now five grounds pursued. Six grounds were originally pursued but one has not been renewed. I shall consider each ground in turn.
4. Ground 1 is a challenge on the basis that the defendant misunderstood or misapplied the National Planning Policy Framework (NPPF) in terms of sustainable development. I should remind myself in relation to all of the grounds that at this permission stage the question is only whether or not the claim has a real prospect of success. I do not have to be satisfied to any higher standard in order to grant permission.
5. It is common ground between the parties that the interpretation of policy such as that contained in the NPPF is a matter of law for the court, so that if the policy is not properly understood by the decision maker then the decision will be liable to challenge, whereas the application of that policy to the individual planning application is a question of planning judgment and the court will not interfere with a decision on that basis unless a ground of irrationality is advanced, which is not the case here. The claimant's argument is put fairly and squarely on the basis that the defendant misunderstood the NPPF and its requirements in terms of sustainable development.
6. It is clear from the officer's report to the planning committee, and this is not one of those cases where there is said to be any material difference between the report and the subsequent decision, that the defendant was well aware of the requirements of the NPPF in terms of sustainable development. Indeed the officer referred in some detail in the report to the NPPF, particularly paragraphs 6 and 7. The claimant does not, and cannot in my judgment, criticise the analysis of the NPPF as contained in the report. The claimant's argument is that even though that may be so, nonetheless the defendant failed to consider the proposal in the context of the overarching requirement that sustainable development should be development which meets the needs of the present without compromising the ability of future generations to meet their own needs. In particular, the complaint is that what the officer did was to consider the question of sustainable development solely and specifically in the context of the individual proposal in relation to the individual site, without considering the wider considerations of sustainable development. In particular, putting that into concrete terms, it is said that what the officer did was to consider sustainability by reference to the location of this site on the outskirts of Maryport and to consider, for example, the impact of the scheme in relation to car travel, by reference to its closeness to Maryport, without considering wider questions such as whether or not the position of the development on that site would have a wider adverse impact on car travel by reference to wider circumstances. Thus it is said that the evidence showed that people tended to travel away from Maryport for work and for shopping, due in part to the depressed state of the economy and restricted shopping facilities locally, but this point was not addressed.
7. Responding to this argument Mr Ponter submits that since it is clear from the report that there was no material error in the interpretation of the NPPF, what this ground really amounts to is an attempt to litigate a mere disagreement with the conclusions reached by the defendant, by disguising it under the cloak of a legal challenge when in fact it is not a proper legal challenge. He submits that, whilst it is clearly the case that much of the consideration in the report related to the sustainability of the development by reference to its location just outside Maryport town centre, nonetheless there was also a broader consideration of the impact of the development on the local economy. In particular, at page 414 and 415 of the bundle, where the officer assessed the economic role in accordance with the NPPF, he referred specifically to the local economy, and he referred also to the strategy of development close to main transport corridors and generally to community assets.
8. In my judgment, it is clear beyond the scope of reasonable argument that it cannot be said that the defendant did not correctly interpret the NPPF and there is no evidence, in my judgment, that the way in which the officer approached this matter was such that it transgressed the overriding requirement to have regard to the needs of the present without comprising the ability of future generations. As Mr Ponter has submitted, the report writer does not have to produce the equivalent of a court judgment. It is enough if it is clear that the writer demonstrates his or her awareness of the relevant policy, and that it has been properly interpreted and understood, and that he has reached a decision based on that policy. I consider that this is what the report writer has done in this case, and in those circumstances I am satisfied that ground 1 has no reasonable prospect of success.
9. Ground 2 is a criticism that the defendant failed to have regard to the lack of need for housing. Again, this challenge raises the question of the proper approach to the NPPF. The Court of Appeal has recently, in the case of St Albans DC v Hunston Properties  EWCA Civ 1610, clarified the approach to housing supply in circumstances where housing supply calculations were either within revoked regional strategies or were otherwise not objectively assessed.
10. The claimant's essential argument is that in so far as the defendant did rely upon housing supply calculations in a revoked regional strategy, that was an error in accordance with the guidance given by the Court of Appeal in the St Albans case or, alternatively, if the defendant did not rely on such calculations then the decision was flawed because there was no proper application of the requirement for sustainable development, as already contended in ground 1.
11. Responding to this ground Mr Ponter took me to the relevant parts of the decision and demonstrated to my satisfaction that the way in which the defendant approached this issue was by reference to paragraph 14 of the NPPF, which states the presumption in favour of sustainable development and, in particular, in relation to decision making, provides that where the development plan is absent, silent or relevant policies are out of date, the presumption is in favour of granting permission unless any adverse impact of doing so would significantly and demonstrably outweigh the benefits when assessed against the priorities in the framework taken as a whole, or specific policies in the framework indicate development should be restricted.
12. It is quite clear, in my judgment, that the report writer did not reach a decision in this case on the basis of out of date policies, but reached it specifically by reference to paragraph 14 of the NPPF. As I have already held, in my judgment his approach was entirely in accordance with the requirements of sustainable development set out in the NPPF and, in those circumstances, it is clear in my judgment that there is no real prospect of success on ground 2 either.
13. Ground 3 is a challenge made on the footing that the defendant failed to have regard to the loss of green field open space. It is common ground that there were policies to which the defendant was required to have regard in this respect, in particular policy EN37 and policy EN38. Policy EN37 stated, in relation to proposals in relation to open spaces and undeveloped land in urban areas, that proposals which would unacceptably harm open space or undeveloped land would not be permitted unless the economic or social benefits clearly outweighed the identified value and the proposals included appropriate compensatory measures. Policy EN38 provided that within green wedges or corridors and other similar areas, proposals which would have an unacceptably adverse effect on the open character, visual amenity, recreation or wildlife value, or would compromise the gap between settlement or communities, would not be permitted unless the economic and social benefits significantly and clearly outweigh the value of the site and the contribution it makes to the green wedge or corridor, or the proposal makes such a positive contribution to the character of the green wedge corridor that any detrimental impact is outweighed. In all cases the council would require ameliorative measures to offset any detrimental impact and would use planning conditions and/or legal agreements as appropriate.
14. The position here is that, as Mr Stookes accepts, these policies were specifically referred to by the report writer at the beginning of the report, so that he clearly had them in mind. Moreover, in the body of the report, at page 430 of the bundle, they were referred to again in some detail and the applicant's contentions as to their being satisfied was recorded. Although Mr Stookes submitted that simply recording those submissions without reaching a decision on those policies was not sufficient that, in my judgment, ignores the fact, as Mr Ponter submitted, that the report writer went on specifically to state his opinion in relation to the development and, in particular, to note the design of the development with green buffers and landscaping in order to adequately assimilate the housing development into the locality with substantial portions of the application site being left undeveloped, and that he continued by referring to a developed landscape strategy including a retention of open space and green corridors. That consideration was in the context of a section of the report dealing in some detail with the question of local landscape and mitigation measures.
15. In those circumstances Mr Ponter submitted there was no basis for contending that the report writer did not meet the obligation to have regard to these relevant policies, again in the context that the report cannot be criticised as if it were a court judgment, nor could it sensibly be said that the requirements of those policies were not sufficiently addressed. He also made the point that there were conditions of the planning permission, specifically conditions 2 and 12, which identified the requirements in terms of amelioration and by reference to the landscape master plan, so that there was no basis for contending that was not dealt with at that stage either. Again, I agree with the submissions of Mr Ponter, and I am satisfied that there is no realistically arguable basis for contending that ground 3 could succeed.
16. I turn next to ground 4, which raises a number of separate allegations of non-compliance with the Environmental Impact Assessment (EIA) Directive.
17. The first complaint is that the assessment failed to comply with EC guidance to the effect that the environmental impacts or effects of a proposal should be considered against the baseline of what would happen if no proposal went ahead.
18. Mr Ponter submitted that it was not appropriate to criticise the decision by reference to a failure to have regard to guidance, when that is not found in the Directive or in the transposing regulations. He also submitted that in any event the complaint was inconsistent with the terms of the report, and in particular he referred me to the summary of the EIA produced by the defendant which is in the bundle, where at pages 198 and 199, under the heading "Impact prediction", appear the following words:
"Each technical assessment within the EIA firstly establishes the existing conditions known as the environmental baseline which identifies potentially sensitive receptors to environmental impact. The environmental baseline is then the basis against which potential impacts are assessed."
He submitted that this really made it clear beyond argument that in fact the correct approach had been taken. Again, I agree with that. It seems to me that this challenge is hopeless, and simply does not get off the ground.
19. The second complaint was that there was a non-compliance by failing properly to have regard to need, but complaint in my judgment falls with the allegations in grounds 1 and 2, which I have already addressed and where I have already refused permission.
20. The third complaint is that the defendant failed properly to consider traffic movements. There are two separate challenges comprised within this complaint. The first is that the defendant failed to undertake a non motorised user (NMU) assessment. The second is that matters were left over to a condition rather than being dealt with at planning stage as required by the Directive. So far as the former is concerned, Mr Ponter took me to the relevant sections of the report, which showed quite clearly that a road safety audit and a transport assessment had been undertaken, that there had been consultation, and that the statutory consultee, the Highways Authority, had recommended that they were satisfied with the proposal subject to appropriate conditions. In those circumstances he submitted that it was unarguable that any decision to proceed without an NMU assessment could not be challenged on conventional grounds. I entirely accept that submission. There is nothing, in my judgment, in that point.
21. So far as the second condition point is concerned, it is quite clear in my judgment that condition 30, which is the condition in question here, is not a condition which can be said to leave important matters over to be determined subsequently. It is simply leaving questions of detail, which have already been addressed in the context of the permission as a whole, over for conditions, which is not in any way contrary to the Directive, and I accept Mr Ponter's submission that there is no reasonably arguable prospect of success on that ground.
22. The fourth individual complaint under this ground is that there was a failure by the defendant to advertise the provision of further information under the EIA Regulations. I have been taken to regulation 19, which includes the general requirement for advertisement of environmental statements, including additional information provided by the applicant and any other information. Sub-paragraph (3) requires the recipient of that additional information should publish, in a local newspaper, a notice giving details that it was available for consideration.
23. Mr Stookes referred me to a decision of Bean J. in the case of Jenkins v Gloucestershire County Council  EWHC 292 (Admin), where the judge had to consider a challenge on similar grounds and held in that case that there had been a breach of the advertising requirements. Although this does not appear from the judgment itself, Mr Stookes told me, his firm having been instructed by the claimant in that case, that the result in that case was that the decision was quashed.
24. Mr Ponter however took me to the detail relevant to this particular aspect of the case, and in particular to the letter from the applicant of 22nd May 2013 which enclosed the further information in question. In short, the position was that the Highways Department of the Cumbria County Council had requested the applicant to submit a revised scheme for improvements to the capacity of a road junction adjoining the proposed development, and that was agreed and a revised scheme was submitted as an addendum to the environmental statement. It is common ground that this information was advertised in accordance with the Regulations. Then, during consultation on the revised scheme, the Highways Department stated their desire for some further additional amendments to the proposed improvement scheme, and these were provided with the letter of 22 May and they were, as Mr Ponter said and I am satisfied, modest revisions to the existing staging plan to improve the capacity and safety of the junction through the introduction of various measures.
25. The letter stated in terms that, although the details were considered to be non substantial in terms of the likely environmental impacts, the information was nonetheless submitted as if it had been formally requested under Regulation 19.
26. Mr Ponter's accepted that in such circumstances there had been a technical breach of Regulation 19, because that further letter had not been advertised, nonetheless it was clear when the letter was read in context that it was such a minor alteration to an existing amendment, when both the existing environmental statement and the amendment itself had been advertised, that it was inconceivable that any court would exercise its discretion to quash the decision on the basis of this non-advertisement alone.
27. Mr Stookes however submitted that the question was not one which was suitable for determination by a court at this initial permission stage. He referred me to the observations of Lord Hoffmann in the case of Berkeley v Secretary of State for the Environment  2 AC 603 on the importance of advertisement generally in the context of the EIA Directive, and he also referred me to a contemporaneous letter from a local interested person, who appeared to have seen these proposals at the time even though they had not been advertised, making comments upon the proposal, so as to demonstrate that it could not simply be assumed that the court would regard this non-advertisement as trivial.
28. However, I consider that I am in a position, having been taken through the case in some detail this afternoon, and in particular having been shown the relevant documentation, to reach a clear conclusion that this really was a trivial non-compliance, where there is no suggestion or basis for a suggestion that anyone has been prejudiced by it, and I am able to and do form the view that there is no real prospect of any quashing order being made by a court by reference to this complaint alone.
29. I then turn to the further associated point which is that in the decision notice itself there was no specific reference to the fact that there had been an amendment to the scheme. Mr Stookes accepted that this was a technical complaint which would not by itself form the subject of a challenge. He also accepted that it would be open to the defendant to amend the notice, but submitted that in the absence of an amendment it was a point that the claimant was entitled to pursue. Mr Ponter submitted however that if one reads the decision notice as a whole and, in particular, by reference to the conditions which make it clear that the permission is conditional upon being carried out in accordance with the amended scheme, there can be no question other than that this is a trivial breach with no basis for any suggestion of prejudice, so that again there could be no question of quashing the decision on this ground alone, and again I agree with that submission and consider that this complaint has no real prospect of success.
30. The final ground, ground 6, is that the defendant failed to assess adequately the potentially significant environmental effects arising from surface water run off and the risk of consequential flooding, as required by the EIA Directive, and insofar as it did it dealt with the question inappropriately, by simply leaving it over to a condition.
31. Mr Ponter responded to this point by taking me to those parts of the report which show that a flood risk assessment had been carried out and that statutory consultation had been undertaken and had resulted in positive comments from the Highways Authority, the Environment Agency, the local drainage engineer and United Utilities, and that (at page 452 of the bundle) these points were considered by the report writer, who concluded that the scheme provided adequate solutions regarding foul and surface water drainage which could be secured by planning conditions and which were deemed satisfactory to the drainage associated stakeholders. He also took me to condition 6 of the permission, which provided that prior to commencement of the works details of the surface water drainage works should be submitted to and approved in writing. He submitted that this was a perfectly appropriate way of dealing with the matter and, in particular, that it did not offend against the planning law principle that decisions should be taken at planning permission stage, and should not be left over to conditions.
32. In that context I was referred to the decision of Singh J in Warley v Wealden District Council  EWHC 2083 (Admin) and to the earlier decision of Ouseley J in Midcounties Co-operative Ltd v Wyre Forest District Council  EWHC 964 (Admin). I accept Mr Ponter's submission that the vice identified by those judges, in relation to what are known as "tail-pieces" to planning conditions, simply cannot be said to apply in this case which is, as I have said, obviously simply a matter of leaving over of details to conditions, rather than leaving over important matters to conditions rather than addressing them in the decision itself. In those circumstances I am satisfied that ground 6 has no real prospect of success either.
33. For all of those reasons I am satisfied that Lang J was entirely correct to refuse permission and I likewise refuse permission as well. The substantive order that I will make will therefore be that permission is refused.
34. MR STOOKES: My Lord, there is one further point on that. It was about Lang J's order on costs. We ask that any liability, for the reasons set out in the witness statement by the claimant, the costs should be limited to £2,000, recognising that it is an Aarhus claim, and not £4,000. So I would ask the court to reconsider and revise that.
35. HIS HONOUR JUDGE DAVIES: Am I right in understanding the position is that your case is that the objective assessment of the maximum cost liability is £5,000 but that your client either has already incurred or will incur expenses of £3,000 which should be netted off and that is where you get your £2,000?
36. MR STOOKES: My Lord, yes.
37. HIS HONOUR JUDGE DAVIES: Mr Ponter, what do you say about that?
38. MR PONTER: My Lord, I do not have any specific instructions with regard to the figure of £2,000 specified in Lang J's order. If your Lordship is of the view that the total liability of the claimant should be limited to £2,000 overall, then my request would be that be divided equally between the defendant and the interested party.
39. HIS HONOUR JUDGE DAVIES: The position as I have read it and understand it Mr Stookes is that what your client was saying is that he has had to pay £2,000 already in terms of costs and that the further £1,000 was related to his estimate of what it would cost him going forwards. So if that is right, and since it is not going to go forwards, does that really mean that what should be netted off is £2,000 and therefore it should be £3,000 for the Aarhus order?
40. MR STOOKES: That is correct save that there will be costs of attending and for today, for example travel of £250. He has had court fees as well. He would not have paid a continuation fee just at the moment. So his net costs of today would not be £1,000 but they would be in the region of £300.
41. HIS HONOUR JUDGE DAVIES: So then if I say that that then leaves £2,700 and if I divide that equally, that is £1,350 each. I will make a revised costs order that the claimant shall make a contribution to the defendant's and the interested party's costs of the acknowledgement of service in the sum of £1,350 each.
42. MR STOOKES: My Lord I am grateful.
43. HIS HONOUR JUDGE DAVIES: Thank you both very much for your very helpful submissions in what was, as Mr Stookes you rightly said, certainly at first reading a seemingly complex case.