Neutral Citation Number:  EWHC 2988 Admin CO/4204/2002
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Thursday, 12th December 2002
B E F O R E:
MR JUSTICE GIBBS
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DESMOND CRICHTON and CYRIL PALMER
WELLINGBOROUGH BOROUGH COUNCIL
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Computer-Aided Transcript of the Stenograph Notes of
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MR PAUL BROWN AND MR STEPHEN WHALE (instructed by Richard Buxton, Clarendon Street, Cambridge, CB1 1JX) appeared on behalf of the CLAIMANT
MR JOHN STEEL QC (instructed by Brachers Solicitors, London Road, Maidstone, ME1 8JH) appeared on behalf of the DEFENDANT
MR MICHAEL DRUCE AND MR ROBERT WALTON appeared on behalf of the INTERESTED PARTY
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J U D G M E N T
(As approved by the Court)
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1. MR JUSTICE GIBBS: This is a renewed oral application for permission to bring judicial review proceedings, brought by the claimants, Mr Crichton and Mr Palmer. The defendant is a local planning authority. Permission was refused on 30th October 2002. The decision challenged is the grant of permission for construction of a hard surface runway and other ancillary works at an airfield.
2. The first claimant is chairman of an action committee which objects to the proposals. The second claimant represents other objectors in the form a consortium of parish councils, and the interested party, Sywell Aerodrome Limited, are the owners of the airfield.
3. The application site, Sywell Aerodrome, has been used since 1927 as a grass airfield. It is a general aviation airfield, where currently grass runways are used by light fixed wing aircraft and microlight aircraft. The site is also used by helicopters. It is not the subject of any planning control currently by the defendant, and so, but for the grant of planning permission by the decision challenged, there would be no existing planning controls on flying activities. There are single-pistoned aircraft and microlights based at the site. The fixed wing aircraft are used for business, leisure and training flights. The planning application was for "the construction of an all-weather surface to the existing runway with associated taxiways and apron areas".
4. A previous application had been submitted by the interested party in 1999, together with an environmental statement. The interested party later issued an appeal for non-determination of the 1999 application, but that was subsequently withdrawn. Instead, the defendant submitted a second application for planning permission to construct the runway. That application was submitted in October 2001, and is the subject of the present proposed challenge.
5. The second application relied upon the environmental statement submitted with the first application, but that statement was updated on 6th November ;2001 and further updated on 31st January 2002. The interested party appointed professional aviation consultants, Stirling Maynard Transportation, or SMT, who had been instructed by the defendant in the first application. There was a good deal of opposition to the application, including opposition by the action committee of which the first claimant is chairman. They had expert consultants and access to legal advice in support of their representations to the defendant.
6. After considering the environmental statement and written and oral representations made by third parties, and following a site visit, the defendant's relevant committee, known as the Regulatory Committee, resolved to grant planning permission, subject to the signing of a section 106 agreement, and subject to the imposition of six conditions. The meeting at which that resolution was passed was on 27th March 2002, a Wednesday. The resolution was carried by a majority of seven to five of the members of the committee. On 10th June 2002 the defendant and the interested party signed the section 106 agreement, and that was the date upon which planning permission was formally granted. On 20th August 2002 there was a letter before action on behalf of the claimants, and on 10th September 2002 the claim form in these proceedings was issued.
7. I come now to an outline of the law which relates to the grounds of challenge. Important aspects of the challenge arise from submissions as to the adequacy of the environmental statement upon which the defendant's decision depended, especially in relation to the effect of the increased frequency of air traffic movements which the development would bring, and the impact of the development on protected species.
8. Very briefly, the regulations which govern such matters in the United Kingdom derive from European law in the form of 1985 and 1998 council directives. The implementation of those directives was reflected by the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988. The current regulations are the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999, statutory instrument 1999/293. In relation specifically to the protected species issues, there are regulations known as the Conservation (Natural Habitats,&c) Regulations 1994, statutory instrument 1994/2716. These regulations, again, implement European law directives.
9. Under the latter Regulations, bats and great crested newts are protected species, and are included in schedule 2 of the Regulations. Badgers are afforded protection in a different way under domestic law by virtue of the Protection of Badgers Act 1992. These three species are in a category, it is agreed, in relation to which it lies within the discretion of the local authority to decide whether information as to the interests of those species and their protection should be included in the environmental statement.
10. As to the environmental statement itself, and the information to be included in it, those matters are governed by the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999. The following Regulations are material. Schedule 4, pursuant to Regulation 2(1), is entitled: "Information for inclusion in environmental statements". Part I(3) of Schedule 4 requires the inclusion of the following in part I:
"A description of the aspects of the environment likely to be significantly affected by the development, including, in particular, population, fauna, flora, soil, water, air, climatic factors, material assets, including the architectural and archaeological heritage, landscape and the inter-relationship between the above factors."
"A description of the likely significant effects of the development on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the development, resulting from:
(a) the existence of the development;
(b) the use of natural resources;
(c) the emission of pollutants, the creation of nuisances and the elimination of waste,
and the description by the applicant of the forecasting methods used to assess the effects on the environment."
"A description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment."
"A non-technical summary of the information provided under paragraphs 1 to 5 of this Part."
"An indication of any difficulties (technical deficiencies or lack of know-how) encountered by the applicant in compiling the required information."
11. Part II of schedule 4 requires the inclusion of the following:
"(1) A description of the development comprising information on the site, design and size of the development.
"(2) A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects.
"(3) The data required to identify and assess the main effects which the development is likely to have on the environment..."
There are other requirements as to the contents of environmental statements which I have not quoted because they are less material to this application.
12. Another aspect of the claimants' challenge is as to the availability to the public of the required documents in sufficient time before the defendant's Regulatory Committee meeting. Under section 100B(3) of the Local Government Act 1972, the agenda and copies of any report for the meeting of the council should (subject to subsection 2) generally be open to inspection by members of the public at the offices of the council at least three clear days before the meeting.
13. Before considering the renewed application in detail, I think it is useful to comment on the general approach appropriate to it. A number of separate issues arise for decision, although some are interconnected. First, there are seven grounds of challenge to the grant of planning permission. Second, there are two further issues which, if the interested party's submissions are accepted, could lead to the defeat of the application. These are: (a) the argument that it is out of time, lacking in promptness, and that the court's discretion should be exercised not to extend time; and (b) the argument that permission should be refused because of material non-disclosure.
14. All these issues have been argued vigorously and in detail; I venture to think in some areas in a degree of detail which would approximate to that of a full hearing of the judicial review claim. The application hearing, excluding judgment, has taken a full day. I make no complaint of this. However, it does seem to me desirable that I should, in the circumstances, make my rulings as useful as possible to the parties as I frame them. To take a hypothetical example of possible outcomes, it would seem to me to be unhelpful, if I were minded to do so, simply to dismiss the application on the ground that it is out of time without giving findings on the merits. Or, to take another hypothetical example, if I were impressed by one or two grounds but found the others unarguable, I consider that rather than simply give leave, I should give reasoned conclusions on all the grounds, and thus indicate the precise and limited basis on which leave is being given. The latter is, I hope, a somewhat more helpful approach, which I propose to adopt.
15. Grounds 1, 2, 3 and, in part, ground 7, are based on errors, omissions and inadequacies in the environmental statement which, it is argued, have such a significant effect on the defendant's decision-making process as to make it wrong in law, to the extent of undermining the validity of the decision itself. In reality, however, one can discern from these grounds two effective bases of challenge.
16. The first relates to the error, or alleged error, in arithmetic which the claimants say affected the whole decision making process and misled the members of the Regulatory Committee. That emerges from grounds 1 and 2 and, in part, ground 7.
17. The second submission relates to the absence in the environmental statement, or the process consequent upon the environmental statement, of any or adequate evaluation of the fauna likely to be significantly affected by the development, which is ground 3.
18. I shall deal with each of these two bases separately now. The arithmetical error: there is no doubt that there was an error. The proposed hard runway would permit the interested party's airfield to be used for 12 months in the year, not nine. The increase from nine months to 12 represented a simple arithmetical increase of 33 and one third per cent, or one-third. The environmental statement said that it was 25 per cent. That error remained unnoticed, and therefore uncorrected, throughout the planning process. The question is: was it so material that the eventual decision was arguably fatally flawed? Yes, submits Mr Brown, it was adopted in a chain of reasoning which resulted in two outcomes. First, that permission was granted where it arguably otherwise might not have been. Second, the conditions imposed restricting the number of air traffic movements were based on the false premise as to the percentage increase.
19. Mr Brown submits that in making the error they did, the authors of the environmental statement, and consequently the defendants, unwittingly found themselves determining the application on the basis of information which did not take full account of the environmental impact of the proposals. This is put in one of the written headings in this way, "the permission granted exceeded that which has been assessed". As to the grant of permission on that basis, he submits that the defendant's committee was relatively evenly split; the fairly narrow majority being in favour of the grant of permission. Had it been pointed out to them that the baseline for calculations was a one-third, rather than a one-quarter, increase in traffic, the decision might have been different. He submitted that this arithmetic feeds through into the logic of the officer's report, which the committee accepted. He gave several instances of this, which included, but was not confined to, the following passages:
1. Total annual aircraft movements
The council considers that a maximum number of ATM per year should be included to constrain the impact of the proposal. Using a weighted average of movements for the last three years as a baseline, and allowing a 2 percent growth rate per year for ten years, and 15 percent as the growth figure identified in the application, a total of 75,000 has been established. It is envisaged that any increase would take place over several years."
And then the condition:
"1. The total number of fixed wing Air Traffic Movements at the aerodrome shall not exceed 75,000 per calendar year."
20. Under the heading "Potential noise climate as a result of the proposal", 5A3.5 of the report:
"The impact predicted by the applicant is an overall increase of 15 percent in ATM per annum. A prediction of the noise contours on the basis of the applicant's estimate of future use has been modelled in order to assess the impact of the proposed development [then figures are referred to, which are in the environmental statement]. The letters of objection received by the council have referred to a degree of scepticism among residents 15 percent is a realistic growth figure. There is evidence that the annual growth in ATM is in the region of 7 percent at the present time. This annual growth is occurring without the new runway in place and is not controlled by planning approval."
21. At another passage in the report, headed "The Council's Consultants Advice", it is stated as follows:
"The key findings and advice of the Council's expert advisers SMT may be summarised as follows:-
(ii) The provision of a new hard runway of the dimensions proposed is likely to result in increased activity at Sywell including by potentially noisier and heavier aircraft types that currently use Sywell infrequently or in some cases not at all. It is arguable that this potential impact may be underestimated in the applicants' ES."
22. As to that last extract, Mr Brown makes the further submission that whilst the statement just quoted purports to represent an aspect of the expert adviser's advice, it does not correctly quote that advice. The expert goes beyond asserting that it is arguable that the impact may be underestimated, and expresses the view that it is underestimated.
23. Mr Brown goes on to argue that the error informs the logic of the defendant's imposition of the condition referred to restricting the maximum number of ATMs per year. He concedes, as he must, that the effect of the error on the condition in question was to make that condition, if anything, more restrictive of the interested party's activities than might otherwise have been the case. But he submits that this is not the point. The point is whether a realisation by the defendant's committee of the full extent of the expected growth in traffic may have significantly influenced the grant of permission. In any case, he says, the basis of the defendant's officer's reasoning is opaque, as well as proceeding from an arithmetical error. It would not have been clear to the public how the report came to the decision which it did under condition one. He further submits that probably the actual future growth in traffic will be such as to call earlier, rather than later, for a further application to vary and relax the condition. There would, as he put it, be "death by a thousand cuts".
24. In response Mr Steel, for the defendant, supported by Mr Druce for the interested party, accepts that there was an error. He submits that, properly interpreted and taken as a whole, neither the decision itself to grant permission nor the condition can properly be said to have been influenced by the error either significantly or at all. The approach of the defendant was to reject the merits of the interested party's application in so far as it envisaged even a 25 per cent increase in traffic.
25. The defendant questioned whether the increased time during which the airport would be used would in itself result in a 25 per cent increase in traffic, having regard to the probability of a lesser burden of traffic in winter months. It took a yet lower figure of 15 per cent. Furthermore, and quite separately from any question of the extended period of use, it decided to cap the annual increase in existing traffic over ten years at 2 ;percent compound per annum. On the evidence before it, this represented the imposition of a restriction which, of course, had not previously applied to the operation of the airfield. It was to be compared with the current evidence suggesting that, even without the new runway, traffic was increasing by 4 per cent or even 7 per cent per annum. The defendant's approach was, it followed, highly restrictive of the interested party's activities.
26. Mr Druce emphasised the context in which this decision was being made: namely, that the airfield had previously not been subject to planning law at all. In had been in unrestricted use since 1927. In the absence of conditions imposed by the defendant in connection with the June 2002 planning permission, there was no restriction on air traffic movements. The point was also made that the use of the airfield by helicopters was unaffected by the runway.
27. All in all, it was submitted on behalf of the defendant and interested party that the error was not arguably material to the outcome of the application and, to the extent that it was, it undoubtedly favoured the claimants rather than the interested party.
28. In my judgment, the claimants do have at least an arguable case under these grounds relating to the arithmetical error, to this extent and to this extent only. It is arguable that, had the members of the defendant's committee been advised or realised that the baseline for their consideration of the application, as put by the defendant's advisers, was a one-third rather than a one-quarter increase in traffic, and had they realised that those advisers were of the definite view that the increase in traffic had been underestimated, these matters may significantly have influenced them in whether to grant permission. It may be said, retrospectively, that the arithmetical error was obvious, even to those untutored in mathematics, but the fact is that nobody spotted it. Viewed objectively, the number of air traffic movements was probably the main controversial issue in the case, and the one which would have arguably had the most effect, potentially, on the environment and the public, as well as on the Regulatory Committee.
29. Had the error not been made, I would have found no arguable grounds for saying that the report or the decision of the committee was inadequate or ill-reasoned in relation to air traffic movements. A reasonable degree of allowance must be made on judicial review in examining such reports, and a minute textual analysis is inappropriate. I do not find the report generally opaque or lacking in particularity: it seems to me to be adequately reasoned and to take into account material factors. With the exception of that, I am afraid rather glaring, error, and the arguable misstatement about its expert's advice, it does not take into account immaterial factors, even arguably.
30. I also take the view that if after full argument the grant of permission itself is not struck down by full judicial review, then the condition attached to the grant of planning permission must logically be unassailable. In that situation it is beyond doubt that no more restrictive condition could reasonably have been imposed than condition one. If any different condition were thought to be appropriate on revised arithmetic, it would, if anything, have been one more favourable to the interested party.
31. I come now to ground 3. For this purpose we are concerned with bats, badgers and great crested newts. Certain preliminary observations may be made. As a matter of fact, according to an authoritative report dated 16th August 2002 which nobody criticises, there are no badgers or great crested newts on the site. There are no great crested newts anywhere near the site. There are some badgers nearby, but they do not come on the site and certainly do not live there. No bats live there either, nor are they likely to, given the terrain, ie poor grassland. However, they may forage around the woodland and pond at the edge of the site, as very likely they have been doing since 1927 and before.
32. I venture to think that most members of the public, including the vast majority who support the preservation of bats, badgers and great crested newts, would immediately conclude that whatever other objections there were to this development, the adverse effect on bats, badgers and newts could not seriously be included among them. But I fear that when one is dealing with matters of law such apparently elementary common sense cannot be taken for granted. If Mr Brown is right, such high authorities as European law, the Town and Country Planning (Environmental Impact) Regulations 1999, and the House of Lords compel this court, arguably at least, to say that the planning permission should be quashed as unlawful for failing properly to follow the law designed to protect the species in question.
33. He says that there was not in the environmental statement a description of the species likely to be significantly affected by the development, nor a description of the likely significant effects upon them, or no adequate description as required by the regulations from which I have quoted. The defendant and its advisers had accepted in the scoping exercise that these were matters which fell to be considered. The defendant should have noted the admitted inadequacies in the surveys on which the updated environmental statement was based, especially those referred to at 4.61 and 4.61A. These inadequacies prevented a proper evaluation of the significant or main effects of the development under schedule 4 of the Regulations. Accordingly, the defendant fell into the error described by the House of Lords in Berkeley v Secretary of State for the Environment and another  2 AC 603. That is, they purported to deal with the matter on the basis of a seriously flawed procedure. In the light of the legislative framework the validity of the decision cannot be saved by the subsequent discovery that the relevant species would not be adversely affected, since the flawed procedure would have made it ultra vires.
34. A similar situation arose in R v Cornwall County Council, ex parte Hardy  Env LR 473, a decision of Harrison J in this court. He quashed the planning decision on the ground that on the limited information in that case available to the planning authority, they could not rationally have found that there was no significant adverse nature conservation effect flowing from the development. The information was insufficient to evaluate the risk, and until the extent of the risk had been established, it was not properly in a position to evaluate the necessary measures to meet the risk. It was insufficient to impose conditions, or by condition to require further surveys as a means of mitigating an unquantified and unquantifiable risk. That case related to a landfill site. The risk in question related principally to the presence of rare bats in disused mine shafts. Although a preliminary survey some years before had not detected bats, it was thought that detailed underground surveys would be needed to see whether, in fact, bats roosted down there.
35. I accept, of course, the authority of their Lordships' speeches, as I do the applicability of Harrison J's findings on the facts of Hardy . But the facts here are very different. Here the possibility of adverse effects on the species in question had been identified. There had been a full evaluation of that risk in a survey in the recent past; that is to say 1999. There was a re-evaluation and a re-survey of the site in the context of the previous assessment. Its methodology had been approved by English Nature. The re-survey, however, was not as extensive as would ideally have been required for a further full evaluation. What was said about it by the experts in the environmental statement was this:
"Given the study site in question, a single visit in the spring or summer season would be the ideal. However, as the visit was required during the early autumn period it should be noted that the species list recorded is not the most inclusive. However, given the type of intensively managed species habitats present in the study site at Sywell Aerodrome, it is considered that the baseline information gathered was sufficient for the purposes of the assessment. It is considered unlikely that an earlier summer survey would affect the results of the assessment made, other than providing a more detailed botanical species list. Therefore, although the field survey was conducted late in the season, the assessment made is considered to be robust."
36. Under the heading "Environmental Effects" at 4.6.4, it was said that no protected species were found to be present within or crossing over the aerodrome site, and so will not be affected by the proposals. It went on to say that any effects of the development would be either nil or insignificant.
37. In my judgment, having regard to the objective facts of the case, which included the obviously extremely limited potential extent of any adverse effects, and the findings in the passage from which I have just read, it was clearly open to the defendant to act on the information and advice they had already received. It formed part of the environmental statement. Unsurprisingly, it was not the subject of any specific treatment in the officer's report. It can be inferred that the defendant did act on the advice and information in the statement. Despite the acknowledged limitations of the most recent survey, it is not arguable that the defendant erred in concluding that they had a sufficient description under regulation 4 or regulation 3 of the Regulations in order to identify the likely significant environmental effects and the aspects likely to be affected. Nor did they err in concluding as they must have done that the effects were insignificant.
38. I now come to grounds 4 and 5. As put in the skeleton argument, that has three aspects: (1) that the report, or Green Paper as it is called, was not available within the statutory minimum of three clear days and/or within sufficient time; (2) that the report from STM relied upon by council officers in preparing their advice to the committee was not made available; and (3) that objectors were given insufficient time to address the committee.
39. The third argument is not seriously pursued orally. I have considered the written submissions, and I do not consider that there is an arguable case on that point.
40. I come next to the argument that the defendant was unreasonable and/or wrong to decide that the period of three days under statute was insufficient in this particular case. I reject that submission as unarguable. The defendant had the opportunity to consider the issues, as did their experts. Some of the issues were contentious, but none were unduly complex. The nature of the proposed development was such that the defendant could reasonably conclude that the normal statutory period was sufficient.
41. But the question of whether the statutory required period was complied with is a different matter. The question is: can it reasonably be argued that it was not, on the material before me? As I understand it, the defendant and interested party do not contend that an arguable failure to comply with the requirement could at this stage be overlooked. I am of the view that if there is an arguable case that the statutory requirements as to the availability for inspection of the agenda and report were broken, then permission for review on that ground should be given.
42. The meeting was on Wednesday 27th March. On Thursday 21st March Mr Richard Humphreys, an objector who is not a claimant, but is, I am told, a senior member of the planning bar, wrote to the defendants inter alia in these terms:
"When I visited the council offices today, the 21st March, I was able to see the green Report, but I was informed by Mr Kilpin that it was not strictly available until tomorrow. Thus, it is plain that the council will be acting unlawfully if it proceeds to determine this matter next Wednesday. The law requires that the report be open to inspection to members of the public three clear working days before the meeting; in other words by the end of today, Thursday. The fact that I was able to see it today was wholly fortuitous and does not render the council's actions unlawful vis-à-vis the public at large."
Mr Humphreys then goes on to request a deferment of the meeting.
43. By a fax after the event on 23rd April 2002 Mr Crichton, on behalf of his organisation, wrote a fax to Mrs McShane, the director, as I understand it, of Legal Services at the defendant council. It included this:
"During the week beginning the 18th March SAAC was advised on three separate occasions by the council that the report would not be available until the council offices opened on Friday 22nd March. As a result of this advice we requested the council to fax a copy of the report as soon as it was available and to make a copy available for collection from the council's offices first thing on Friday morning. The report was ultimately faxed through to me at 10.10 on the 22nd. Mr Hilton, who arrived at the council's offices at 9 o'clock on the 22nd, did not receive a copy until 9.45."
44. In response to the point, Mr Steel has put before me a letter from Mrs McShane to Mr Humphreys setting out her understanding that at a meeting subsequent to his letter he accepted that the statutory requirement had not been broken. In addition, Mr Steel, in the course of this permission hearing, obtained a statement from Mr Newbold, the clerk to the Regulatory Committee, who states in somewhat general terms:
"From memory I can confirm that the papers for the Regulatory Committee on 27th March were available on Thursday 21st March 2002 for inspection and collection by members of the public at the reception desk at the council's offices."
45. Mr Steel further relies on an earlier letter emphasising the responsibility of the individual objectors to ascertain the date of the planning meeting for themselves from Mrs McShane as director of Legal Services, and not to rely on what individual officers might tell them. He submits that in totality the evidence is sufficiently conclusive to rebut any arguable case that three clear days were not given.
46. On this point I find that the claimants have an arguable case. Put neutrally, it is unfortunate that there appears to be a conflict of evidence. The indications are, from counsel having taken instructions, that there is more potential evidence on the matter which may or may not resolve the conflict, or assist the court, if necessary, to resolve it. That evidence was not available before me. I urge the parties before the substantive hearing to obtain and exchange such further evidence as they may wish to deploy in the hope that the matter may be factually resolved. If not, then it may be one of those rare cases in which witnesses may need to be tendered for cross-examination. That will be a matter for the judge dealing with the review hearing if it arises, but some prior agreement or arrangement about the appropriateness of that as between the parties would helpful.
47. The remaining point relied upon in grounds 4 and 5 is the failure by the defendant to make available the report by their transport consultants, SMT, for information before the meeting. The defendant contends that the substance of the recommendation of the consultants was summarised and included in the officer's report. The claimants respond by saying that the summary was inadequate, and in one respect actually misleading. As to the latter point, I have already dealt with that. I have considered the submissions carefully. I do not find that the criticisms made by the claimants in this regard give rise at their highest, even arguably, to a challenge as to the lawfulness of the decision. It is true that there was the one alteration to the consultants' views as reported which should not arguably have been made, at any rate in the form that it was, which watered down their views. But generally the way in which the defendant dealt with the consultants' report was adequate and not arguably such as to render the decision unlawful.
48. The sixth ground refers to a failure by the defendant to adjourn or defer the meeting. If documents had not been made available for inspection until two days before the meeting, then an adjournment or deferral was the only way to cure the breach of that statutory requirement. However, if the statutory requirements were complied with, then no arguable ground is revealed by the refusal to defer. The request for deferral was made by Mr Humphreys, who is not a claimant. No application was made at the meeting to defer. There is no reason to suppose that Mr Humphreys' letter was not read. There is no arguable ground for criticising the defendants or the committee for not referring to Mr Humphreys' request, still less for suggesting that such criticism could arguably found a ground for challenge to the decision itself.
49. Ground 7 sets out the Human Rights points. Mr Brown did not address these separately in his submissions. In my view he was right not to. The human rights points which arise under article 6 and 8 points are, in the context of this case, co-extensive with the points made under the other individual grounds and add nothing to them, whether in relation to those which I have found to be arguable, or to those which I have rejected as unarguable.
50. I come now to the points made by Mr Druce. He submits that, whether or not there are any arguable grounds, I should dismiss the application because it is out of time. Time should not be extended, and/or I should dismiss the application on the ground of material non-disclosure. Mr Druce put his arguments attractively and concisely. He says that the claimants are a day out of time. Mr Brown responds that the planning permission was granted on 10th June. The claim was issued on 10th September. If one looks at CPR part 2 for the interpretation of the meaning of three clear days, it is plain that the day on which the notice of the decision itself is given should be excluded from calculation. Thus, by analogy, since the time limit here is three months, the day of the decision itself should be disregarded in calculating three months, and therefore the claim form was lodged in time, albeit on the last day. He explains that it is because the claimants are of that view and have been so advised that no application for an extension of time was lodged.
51. Mr Brown further relies on R (Burkett) v Hammersmith and Fulham London Borough Council  1 WLR 1593. He submits that in the light of that decision of the House of Lords, it would not be right or safe to say that claimant should be penalised for failing to make an application before the expiry of three months from the grant of planning permission; at least arguably, that would be an approach contrary to the spirit of the European Convention on Human Rights.
52. Mr Druce argues that the interpretation of clear days has no application to the computation of three months; that three months from the grant of planning permission should mean what it says, and that the claimants are a day out of time. He says that no extension of time should be granted. He invites me to the chronology and the correspondence which passed between the parties, and relies on the following points. First, although no planning permission was granted on 10th June, this was effectively the date of signature of the section 106 agreement. The claimants knew the position as from the 27th March resolution onwards. Second, the letter of 27th June from the interested party's consultants is relevant because it specifically invited the claimants to indicate their position regarding challenge of the planning permission, because of the commercial imperative to start construction work at the earliest opportunity. He says that there was no prompt response at all to that invitation; that the first response was a letter on 20th August from the claimant's consultants, which, as a letter before action, was late in the day, as well as being in the middle of the summer holidays. He points to a letter of 11th September in response, from the interested party's consultants, setting out the prejudice and the delay which would occur as a result of the challenge. He submits that the chronology shows that it would be wrong to grant an extension, and I should refuse the relief asked because of the undue delay which has caused prejudice. He refers to section 31(b) of the Supreme Court Act.
53. Further, Mr Druce submits that the correspondence to which I have just referred, and in particular the letter of 27th June and the letter of 11th September, were not disclosed when the claim was lodged. They were clearly material to the merits of the claim, so this was culpable and material non-disclosure. Mr Brown responds that this last point is made without notice. In practice the permission application is not considered by the court, even on paper, without grounds of opposition contained in an acknowledgment of service having been lodged with the court. No complaint was made by the interested party in the acknowledgment of service. Mr Druce has not raised the matter in any written skeleton argument, and thus Mr Brown is faced with the allegation at the door of the court.
54. Further, the letter of 11th September does not make it clear whether the alleged expenditure is actually attributable to any delay in lodging the judicial review claim. In any case, he says, the claimants are at most guilty of not replying to the letter of 27th June, at a time well within the time limit for lodging judicial review proceedings. As for the failure to disclose, no chance has been given to explain that, but even at its worst, any failure is consistent with mere inadvertence, and no prejudice actually flows from the non-disclosure in terms of the court having been even inadvertently misled.
55. On these matters I find as follows:
56. (a) I am inclined to the view that the claimants are a day out of time. The interpretation of CPR part 2 probably does not apply to the three month time limit. However, the contrary is arguable.
57. (b) On the assumption that the claimants are a day out of time, I would, and do, grant the necessary one day extension. It would wrong to shut out the claimants on the basis of an arguable point simply because they are one day late.
58. (c) The non-disclosure of admittedly potentially material correspondence is not of such degree of seriousness as to warrant refusing permission for judicial review in circumstances in which the grant of permission would otherwise be appropriate. The non-disclosure was probably, and certainly arguably, inadvertent and in the event the non-disclosure itself does not cause prejudice.
59. However, the question of such delay as there has been causing prejudice does remain a live one. I therefore expressly indicate that at the hearing of the full application for judicial review, the matter of delay may be recanvassed; see the White Book, autumn 2002, Volume 1, 54.5.7, and R v Lichfield District Council, ex parte Lichfield Securities Limited  EWCA CO/304. The interested party will be free to raise the question of such delay when addressing the court on its discretion as to whether or not to grant relief. I expressly leave open the argument under the Supreme Court Act, section 31(6), on the basis that culpable delay may be argued to have caused prejudice to the interested party.
60. On those points, I will just note that if either party wishes to introduce any further evidence, especially regarding prejudice or the absence of it, then I think provisionally that such evidence should be put in at least 21 days before the date of the substantive hearing, response by ten days before such hearing; in each case, for the avoidance of doubt, clear days. Undue delay can be recanvassed, as I have made clear.
61. Just to summarise this, in case the parties may wish to suggest any further or varied directions or orders consequent on it, it follows that I give leave to extend time for applying for judicial review, in so far as it is necessary, by one day. I have found that there are two arguable grounds for arguing judicial review. First, the inadequacy or defect in the environmental statement as to the percentage predicted increase in flights. Second, as to the availability for inspection three days before the meeting of the agenda and the report. I have expressly reserved the right for the interested party to raise the matter of delay and consequent prejudice at the full hearing. On two of those issues there is the potential for evidence, or further evidence, namely on the three days point, as well the question of delay and prejudice. I suggest that directions in regard to evidence on those should follow the timetable that I have suggested, namely the 21 days and seven days before the hearing.
62. MR BROWN: I am grateful for that. Can I address firstly the question of permission? Your Lordship has been kind enough to indicate what you think the arguable grounds are. Your Lordship, I am sure, will appreciate there is a distinction between giving permission specifically on certain grounds, but not excluding the right to pursue others, and specifically ruling that permission is not given on those other grounds. My Lord, in the present case, I am going to ask your Lordship to do the former and not the latter, not because at this stage we specifically wish to argue the points which you have indicated are unarguable, but because we would like time to take away what your Lordship has said, and to think about that in the knowledge that if we go ahead and argue points which you have told us are unarguable, then there may be certain costs and consequence in relation to that. My Lord, the alternative is that if we go away and contemplate what your Lordship has said, and decide that there is actually a better point there than your Lordship has thought, we have to go the Court of Appeal to get permission for that to be reinstated.
63. MR JUSTICE GIBBS: These thoughts did go through my mind. This is a procedural matter in which it may be that the parties have a common interest. Because if you do not like what I say about the grounds which I say are unarguable, the case will presumably then be split in two, in the sense that you will appeal to the Court of Appeal my decision on the unarguability of certain points, and then subject to that, the outcome of that, you will go on to judicial review on the matters that I have said are arguable. I am not sure -- I cannot entirely foresee the costs consequences of it, but it seems to me that the costs consequences of that may, at any rate, potentially be greater than if I take the former course. Before I make a decision on it, obviously, I am going to hear counsel for the other two parties.
64. MR BROWN: Before your Lordship does that, can I make the second point that I want to make? In relation to further evidence -- I think your Lordship is quite right -- it is plainly in regard to points that the interested parties have raised, and in relation to the way argument and consultation has gone, there will be a need for evidence from both sides in this case. But, my Lord, rather than setting a timescale before the hearing, as your Lordship has done, can I respectfully suggest it might be more appropriate and, indeed, more in accordance with the way the rules anticipate evidence should be done, for your Lordship to set dates from today, and in the first instance to give us (inaudible) witness statement, and then for the defendant and the interested party to apply to that. My Lord, one of the points I make is that your Lordship anticipated a timescale, I think, of 21 days before the substantive hearing. My Lord, that is precisely the point at which skeleton arguments should be before the court, and therefore, on your Lordship's timetable, it would not be possible to take on board the points raised in the witness statements in the skeleton arguments. It would obviously be helpful and necessary for the court to have those submissions in advance, and therefore, whatever timetable your Lordship is minded to set, it should be engaged well before the skeletons are due.
65. MR JUSTICE GIBBS: You will forgive me for smiling slightly, but, of course, I had overlooked that fact that skeleton arguments must be in 21 days in advance, and it would be very helpful if the system permitted those who had to try the cases to see skeletons one day in advance.
66. MR BROWN: My Lord, I think that most of these sitting here would agree entirely with that.
67. MR JUSTICE GIBBS: That is the reason why I overlooked that. Yes, in principle I think it is better to timetable from today.
68. MR BROWN: Ordinarily the rules would give the defendant and the interested party 35 days for their evidence. In the present case, I anticipate that we should probably put in our witness statements first, and there will then be, whether it is 35 days or some shorter period of time, time for the defendant and the interested party to put theirs in. The usual rules for skeletons will then be engaged. In terms of our witness statements, my Lord -- the only reason I hesitate is because we have Christmas coming up, which always complicates matters.
69. MR JUSTICE GIBBS: I do not want to have undue delay here, because there may well be a commercial imperative on the part of the interested party. It is now 12th December. If I were to --
70. MR STEEL: My Lord, may I?
71. MR JUSTICE GIBBS: Certainly. I was to going to hear you anyway. I was going to try and identify a possible timetable and then hear you in response. But if you have a positive proposal --
72. MR STEEL: I hope I have. Obviously, I have not discussed it with my colleagues, but I was going to put forward the idea that it may be 24th January, which I understand is a Friday; the reason being that I understand that there may be certain people taking leave in the authority concerning the three days point. They would have to be contacted. I do not know today whether that is so, and obviously one does not want to delay matters to find whether that is so or not. Furthermore, if one takes 24th January, it takes the Christmas and New Year period out of it, and given this week coming and also the weeks in January, it will be equivalent, less those holiday periods, of about 21 days, slightly less.
73. MR JUSTICE GIBBS: I am quite prepared to have the first stage on 24th January. I was about to look at the diary, and I think that is probably about what I would have arrived at. So, unless there is dispute about that --
74. MR BROWN: I have no argument with that, my Lord. I do not know what my learned friends will say about it.
75. MR WALTON: I am without instruction, but I consider that to be reasonable for a starting point.
76. MR JUSTICE GIBBS: I do not think, if I may say so, Mr Steel, that the production of your evidence in response to that of the claimants is particularly dependent upon it, and therefore if I were to say 7th February, which is a further 14 days for the defendant and interested party to put in any further evidence. The interested party was invited rhetorically to clarify whether the expense that it had undertaken was a result of the lapse of time following the warning letter they sent in June, and they may well wish to put in some evidence or document in relation to that. It is, on the face of it, somewhat unusual at this stage for further evidence to be contemplated, but, of course, this further evidence does all go to material matters which have occurred since the decision with regard to timing and so on. So, unless anyone submits to the contrary, I think this approach is appropriate.
77. MR STEEL: May I also suggest that there is a potential amount of further evidence which has to go, in respect to what is your 2A, that is the point concerning the increase in flights. The reason for that is that I did not wish yesterday to put forward matters on inadequate information and inadequate instructions, because what occurred to me during the course of argument was that it may be -- I do not put it any higher that this at all -- that the matter concerning the report from SMT was referred back to them by way of a telephone conversation, which I am instructed took place. There was one. But what actually happened, I do not know. Since it was a material part of my Lord's judgment, which is wholly acceptable in terms of being so, it would be only right that we investigate what was said to see whether or not SMT accepted the point, or whether it was a matter from the officers alone.
78. MR JUSTICE GIBBS: I think the best thing for me to do is simply to note what you say, and if you wish to rely on such evidence, or seek to rely on it, then please exchange it. But I am not going to make any decision admitting such evidence; that will be a matter for application to the trial judge.
79. MR STEEL: That I understand entirely, my Lord. The three days point, we will certainly investigate with respect to that as well, and whether or not there is any further evidence upon that, we shall determine. The delay of prejudice matter we shall leave entirely to the interested party, and not become involved in that.
80. MR JUSTICE GIBBS: Thank you. Mr Brown, you were about to make an observation?
81. MR BROWN: It had become redundant, my Lord. I was simply going to observe that within the rules the defendant would ordinarily have the right to put in whatever evidence they want to, within 35 days of the day of your Lordship's decision, covering whatever grounds are going to be argued. Of course, it is for us to take the point about relevance, inadmissibility, as and when we --
82. MR JUSTICE GIBBS: I felt that perhaps my comment might make further submission redundant. Some of this, particularly on the delay and prejudice, concerns the interested party, and the interested party will have a similar timetable to that which has been provided in relation to the defendant.
83. MR WALTON: 7th February, as I understand. The question arises as to how soon after that date can the substantive hearing be reasonably fixed? The question, the commercial imperative, is to get the thing going as quickly as possible. It might be appropriate to have an order for a hearing on the first available date, say a month after that date. That would give time for the skeletons --
84. MR JUSTICE GIBBS: That would be right. The first available date. A month after that is either 7th or 8th March, depending on how you view a month.
85. MR WALTON: Yes. 8th March would be appropriate, to be fixed, as my learned friend says, through the usual channels.
86. MR JUSTICE GIBBS: Certainly.
87. MR WALTON: A time estimate of two days?
88. MR JUSTICE GIBBS: I think two days, including judgment. I think -- it is something one does encounter, but very often one receives papers with an estimate of reading time which somehow gets lost in the wash, and it becomes fairly clear, once counsel start making their submissions, that the estimate provided does not include judgment time either. So I think two days.
89. MR WALTON: Thank you, my Lord.
90. MR JUSTICE GIBBS: Any other submissions? Anything said about costs, which I intend to reserve.
91. MR BROWN: In the absence of opposition from my learned friends, do I take it that you are not restricting the grounds on which we could --
92. MR JUSTICE GIBBS: I am sorry. That has not been dealt with, has it?
93. MR STEEL: I take instructions, and may I leave that to the court, because, obviously, the implications as far as costs are concerned, we do not want to find that we have a severed case, with part of it going to the Court of Appeal and part of it not, and it becomes extremely messy. I can leave it to my learned friends, who will -- I trust them entirely in respect of their professional ways -- look at my Lord's judgment properly and responsibly, having regard to what my Lord has said, and only take those grounds which they can advise have a real chance of success. I leave it to the court. The interested party may take a different view, but I think this is a matter of pragmatism more than anything else.
94. MR JUSTICE GIBBS: I agree. It would be -- instinctively I would prefer to disallow the grounds that I found unarguable. But from a practical point of view, I do not know that that would assist any of the parties particularly.
95. MR STEEL: What is sometimes done by the courts is to indicate, so that it goes on record, the degree to which you believe those grounds have arguability, having gone through the matters in terms of any further comments. But I leave it entirely to the court, rather in any way to disallow them. So it will not be taken as the fact that you think there is arguability, even though you have said that they are unarguable by reason of leaving it open to the parties. That is the only other comment I would like to suggest.
96. MR JUSTICE GIBBS: I think unarguable means unarguable, as far as my decision is concerned on those grounds. A finding of unarguability, of course, is in itself rather a paradox when one has heard very considerable argument upon them.
97. MR WALTON: My Lord, might (inaudible) the matters that are unarguable to stop here, but in view of the more pragmatic approach, that if the matter is split and permission were sought from the Court of Appeal, given the commercial imperative, it is perhaps better that the approach put (inaudible) is the adopted one.
98. MR JUSTICE GIBBS: I therefore am prepared to take the pragmatic approach and, whilst I have made my findings -- and they are in the judgment -- I would prefer that they are not entirely shut out of the substantive hearing, it being preferable that, if it is decided that any of my findings should be reviewed, it is all done by one forum. I hope that is sufficient.
99. MR BROWN: I am very grateful.
100. MR JUSTICE GIBBS: I understand that judgments on applications are not routinely returned to the judge to perfect the judgment, but in this case I would ask that it is returned to me. Thank you.