IN THE HIGH COURT OF JUSTICE CO/2880/99
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Royal Courts of Justice
Tuesday, 17th August 1999
B e f o r e:
MR JUSTICE HOOPER
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DURHAM COUNTY COUNCIL
EX PARTE RODNEY HUDDLESTON
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(Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
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MR M LEWIS (instructed by Richard Buxton, Cambridge CB1 1JX) appeared on behalf of the Applicant.
MR R TAYLOR (instructed by the Legal Services Department, Durham City Council, Durham DH1 5UL) appeared on behalf of the First Respondents.
MR J FINDLAY (instructed by Aaron & Partners, Chester CH1 1HG) appeared on behalf of the Second Respondents, Sherburn Stone Company Limited.
J U D G M E N T
(As approved by the Court)
Tuesday, 17th August 1999
MR JUSTICE HOOPER: This is an application by the second Respondent to vary the terms of an interim injunction made by Kay J on 29th July 1999. The Crown Office have offered the parties a date on 6th September for the hearing of the application which it appears will not be contested by the first Respondent. The parties have agreed a date of 17th September. That date having been offered to the parties, it became obvious that the only live issue which I had to decide today was whether or not the second Respondent will be permitted in the interim to strip off the top soil on about one-and-a-half hectares of the site in question.
Kay J made it clear, when he gave his decision granting the interim application, that the second Respondent could come back before the court if it could "fairly readily satisfy" the court that steps could be taken to prevent irreversible harm.
At the outset of the proceedings the second Respondent wanted permission to develop phase 1 of the project fully, but that became an academic point when the date of 6th September was offered. On the evidence available before me, the time to remove top soil is during the summer months. That is confirmed by a document which has just been put before me by the Applicant, namely a planning permission to the second Respondent in respect of Barton quarry. Condition 19 imposes limitations upon removing top soil during winter months. If the ground is wet, top soil may become compacted and both difficult, if not impossible, to strip off, and, secondly, difficult to store in a manner that will enable it to be returned at the appropriate time. If the second Respondent does not have the permission to strip off the top soil and should the second Respondent succeed at the hearing of the application, then the works on the site that they would then be permitted to carry out would be substantially delayed until next summer. The top soil in question is, on the evidence available to me, not of such value that stripping it away would cause irreversible harm. It is low-grade top soil on top of a chalky subsoil.
I take the view, in balancing the competing interests of the parties, that the second Respondent should be entitled to do that work up to the date of 6th September. It must be made clear that the fact that I have allowed this can in no way affect the decision, if a decision eventually has to be made, as to the impact on the environment of the works being proposed by the second Respondent. In reality, the stripping off of the top soil should effectively be ignored should that process start following the hearing of this case.
Having indicated to the parties that is what I was proposing to order, they then consulted together to see if agreement could be reached on the conditions. Agreement has been reached generally, subject to a number of outstanding matters. The Applicant seeks a bond from the second Respondent. I take the view that provided that the second Respondent and the holding company which is called Sherburn Minerals Limited enters into an undertaking that they will restore the top soil should the application for judicial review succeed, then that will been sufficient. However, the Order to be drawn up should also give the second Respondent liberty to apply to the judge hearing the application for judicial review to amend that "trigger" to deal with a situation, where, for example, the first Respondent does not, as it is now intending to do, require an environmental impact statement.
Secondly, the first Respondent seeks some form of archeological survey on the land in question. On the evidence available to me, I can see no justification for that.
Thirdly, there is a dispute between the parties as to the level of noise during this stripping operation. The Applicant seeks an upper noise level of 5 dBa above the background noise which is likely to be in the region of 42. The times and days of the week at which the work is to be done have already been agreed. The second Respondents suggests a figure of 55 decibels. I take the view that an upper noise level of 55 decibels is quite sufficient and meets the needs of all those involved.
There is an argument between the parties as to how often there should be noise monitoring. I take the view that that can be met by there being one noise monitoring exercise during the period this work is being done. Both the Applicant and the first Respondent seek some form of dust monitoring. The parties have already agreed to the steps to be taken to suppress dust. The second Respondent makes the point that setting up a dust monitoring scheme is quite difficult over such a short period. I agree with that submission. I see no need for dust monitoring.
Finally, there was an issue as to the stand off from the hedges, the second Respondent offering two metres, the first Respondent seeking five metres and the Applicant seeking the distance from the hedge which reflected the height of the trees. Looking at the material available to me, it seems that five metres is a sensible distance.
Is there anything further? Costs?
MR FINDLAY: My Lord, as to drawing up the Order, I hope my learned friends and I could agree that it may take some time to write it out.
MR JUSTICE HOOPER: And I do not propose to wait.
MR FINDLAY: My Lord, I am in some difficulties tomorrow. Could it be possible to give the Order to your Lordship's Clerk and your Lordship can raise any queries through the Crown Office?
MR JUSTICE HOOPER: If there are any issues, I will resolve them in writing so that if there is something left over, you can just simply fax through to my Clerk. You can either hand the Order here in the morning or you can communicate directly with my Clerk and the Associate will give you my Clerk's fax number or you can get it from the gentle exchange.
MR FINDLAY: My Lord, as to costs, Kay J reserved the costs. In the circumstances, I would respectfully submit that is probably the appropriate Order before your Lordship.
MR JUSTICE HOOPER: I would have thought that is right. Yes, costs reserved.
MR LEWIS: My Lord, there is one point on your Lordship's extemporary judgment. It was item 3, where your Lordship dealt with the dispute between the parties as to the level of noise during stripping operations. You said that the second Respondent seeks a noise limit.
MR JUSTICE HOOPER: I should have said the Applicant.
MR LEWIS: My Lord, I do apologise. I am reminded that should the Applicant wish to take the matter further your Lordship's leave to appeal would be required. I appreciate that given that this is an application under liberty to apply to seek to discharge an injunction, it was an action based on the exercise of Kay J's discretion in the first instance and your Lordship acceding to extend the application again involved an exercise of discretion, nonetheless, having regard to the importance of the issues involved, the bearing of the directive as to the environmental assessment of the operation is concerned, I would seek your Lordship's leave to appeal?
MR JUSTICE HOOPER: Is there anything further?
MR LEWIS: No, my Lord.
MR JUSTICE HOOPER: I refuse you leave. What I have written is that Kay J made an Order permitting the second Respondent to return to court to seek a variation of the terms of the interim injunction which he gave. Consistent with the spirit of that Order, I have allowed the second Respondent to strip off the top soil in a one-and-a-half hectre area. That is my reason for refusing leave.
MR FINDLAY: My Lord, can I just clarify one matter: the date of this hearing is to take place?
MR JUSTICE HOOPER: It is still the 17th.
MR FINDLAY: As far as your Lordship's lifting of injunction, does that last until the 17th?
MR JUSTICE HOOPER: No, I told you that the work must be done by the 6th. That is the date that we offered to you all. You have told me that it can all be done in that time.
MR FINDLAY: Weather permitting, my Lord, yes.
MR JUSTICE HOOPER: That is what we offered you, a date on that day. Consistent with the new rules, it is for us to manage the business of the court. We offered you that date and that is what I am doing.
MR LEWIS: I am asked to seek your Lordship's clarification in relation to stand-offs. Your Lordship mentioned hedges particularly. I have been talking about heights of trees. I do understand from the Applicant that within the hedge boundary there are certain trees, some of them as high as 50 feet in height. Therefore, we have specific concerns in relation to working too close to those for reasons that they would be affected by stripping operations nearby. From that point of view that was the reason, my Lord, I was asking for a stand-off at trees height.
MR JUSTICE HOOPER: I will need evidence that a mature tree would suffer about nine inches or a foot of top soil within five metres - five metres away was taken off. I have no evidence about that, do I? I cannot see that.