Neutral Citation Number:  EWHC 1769 Admin
IN THE HIGH COURT OF JUSTICE CO/1564/2002
QUEEN'S BENCH DIVISION
Royal Courts of Justice
London WC2A 2LL
Wednesday 31st July 2002
B e f o r e
SIR RICHARD TUCKER
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T H E Q U E E N
ON THE APPLICATION OF
(1) ANNE-MARIE GOODMAN
(2) KEITH HEDGES
LONDON BOROUGH OF LEWISHAM
BIG YELLOW PROPERTY CO LTD
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(Computer Aided Transcription of the Stenograph Notes of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG Tel: 020 7421 4040
Official Shorthand Writers to the Court)
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MR RICHARD HARWOOD (instructed by Messrs Richard Buxton, Cambridge CB1 1JX) appeared on behalf of the Claimants.
MR JAMES MAURICI (instructed by Legal Services, London Borough of Lewisham) appeared on behalf of the Defendant.
MR KEITH LINDBLOM QC and MR MEYRIC LEWIS (instructed by Messrs Park Nelson, London WC2A 2JP) appeared on behalf of the Interested Party.
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J U D G M E N T
(As Approved by the Court)
SIR RICHARD TUCKER: I wish to pay tribute at the outset to the very great assistance I have received from counsel who are skilled and experienced in this field.
2. This is an application for judicial review made on behalf of two residents who are affected by a development which is taking place on the site of a former dairy depot at Baring Road, Lewisham. On 15th February of this year the defendants, the London Borough of Lewisham Council, granted planning permission for the redevelopment of the site for the construction of a warehouse and selfstorage blocks. The site has an area of 5540 square metres. The developers are the interested party, Big Yellow Property Company Limited.
3. The grounds of the application are that the defendants erred in considering that the development did not require environmental impact assessment screening and the relevant officer did not have delegated authority. The claimants accordingly contend that the decision to grant planning permission was unlawful for the following reasons.
1. The defendants applied the wrong regulations. They referred to the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, but the applicable regulations were the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. This is undoubtedly correct but the defendants say it is irrelevant since the question to be addressed was the same under both sets of regulations.
2. The defendants failed to make a screening opinion under the 1999 regulations.
3. The defendants failed to consider whether to make a screening opinion.
4. In considering the need for EIA the defendants erred in law in considering that storage and distribution use did not fall within the categories of projects in Schedule 2 of the appropriate regulations.
5. The defendants erred in law in their interpretation of urban development project and industrial estate development project.
6. The defendants' finding that the warehouse development was not Schedule 2 development for the projects referred to was Wednesbury unreasonable.
7. The scheme as one or other of those projects is over 0.5 hectares in area and so is a Schedule 2 development.
8. The defendants failed to apply the screening criterion in Schedule 3 of the 1999 regulations.
9.The officer did not have delegated authority to determine whether EIA was required.
On behalf of the defendants it is submitted that they acted lawfully in granting planning permission and that in the circumstances of this case an EIA was not appropriate and there was no necessity for a screening opinion. Their fundamental submission is that the only way in which their decision can be impugned is if the claimants can demonstrate that it was Wednesbury unreasonable, ie perverse; and the defendants submit that it plainly was not.
5. Both the defendants and the interested party raised a point on delay. They submit that the application was not made promptly and that the interested party has suffered prejudice as a result.
6. By Civil Procedure Rule 54.5(1) it is provided that an application for judicial review must be made promptly and in any event within three months from the date when grounds for the application first arose. The submission is that there is a particular requirement for promptness in applications such as this relating to and affecting the development of land.
7. I accept that submission so far as it goes. There are a number of authorities which bear it out. I have in mind the judgment of Mr Justice Keene, as he then was, in R v. Cotswold District Council ex parte Barrington Parish Council 75 P&CR QBD 515, quoting Mr Justice Simon Brown, as he then was, in R v Manchester City Council:
I cannot sufficiently stress the crucial need in cases of this kind for applicants to proceed with the greatest possible urgency..."
It also appears from the authorities that the time may be regarded as starting to run before the final and formal grant of planning permission takes place.
9. The leading case on this topic is the decision of the House of Lords in R (Burkett) v Hammersmith & Fulham London Borough Council  1 W.L.R. 1593.
10. The law was comprehensively reviewed by Lord Steyn in his speech, to which I have been referred by counsel. Lord Steyn analysed the various considerations to be borne in mind in deciding whether or not a party has acted promptly and the question when grounds should be deemed to arise. In this latter context Mr Lindblom QC for the interested parties very nearly concedes, if he does not actually do so, that in the present case time began to run when the grant was made, ie 15th February. However, he contends that, by not making the application until 28th March, the claimants failed to act with the necessary promptness which the courts still expect even postBurkett.
11. I have been referred to the very recent judgment of Lord Justice Pill in R (Young) v. Oxford City Council, unreported, 27th June 2002:
It is in principle clear that the public interest in good administration and the avoidance of possible prejudice to the interests of developers ... demand prompt action on the part of an applicant seeking judicial review in respect of planning permission once granted."
I bear these decisions in mind and apply the principles which I have distilled from them to the present case. For the claimants, who are private individuals, this is an important and complex case which affects them and the neighbourhood in which they live. They had to seek legal advice in order to ascertain whether they had a good case for challenging the decisions which were being taken; they had to raise the necessary funds from their own or other resources; all this took time.
13. I am satisfied that the point at which I should conclude that grounds for the application first arose was the grant of planning permission. I am equally satisfied that from that moment, even bearing in mind what had gone before, the claimants acted promptly. The relevant period was six weeks and I do not regard that as amounting to a lack of promptness.
14. I appreciate that the interested parties may have suffered an actual or potential loss of income and may thereby have been prejudiced. But I should not allow that to prevent the claimants from pursuing what might be a legitimate right of challenge. Therefore, I now go on to consider the application on its merits.
15. It is of course most unfortunate that the defendant's officers should have dealt with the matter by reference to the wrong regulations, which had been replaced two years before. Mr Harwood for the claimants submits that the new regulations are materially and crucially different in respect of the need for screening. He submits that the fact that the defendants were unaware of the correct regulations shows that they cannot properly have directed themselves.
16. A planning application such as this is governed by the Directive on Environmental Assessment 85, 4/337/EEC, as amended by Directive 97/11, and transposed into English law by the 1999 regulations. It has been held that the directive has a wide scope and a broad purpose. It requires member states to adopt all measures necessary to ensure that projects likely to have a significant effect on the environment by virtue, inter alia, of their nature, size or location, are made subject to a requirement for development consent and an assessment with regard to their effects. The projects are defined by Article 4.
The Member States shall determine ... whether the project shall be made subject to an assessment..."
Annex II projects include at paragraph 10(a) "industrial estate development project projects" and at 10(b) "urban development projects".
18. Annex II is given effect to by Schedule 2 of the 1999 Regulations. Schedule 2 development is defined by Regulation 2(1) as development
of a description mentioned in Column 1 of the table in Schedule 2, where
a.[sensitive areas are concerned - this is immaterial]; or
b.any applicable threshold or criterion in the corresponding part of Column 2 of that table is respectively acceded or met in relation to that development."
Regulation 2(1) also provides that EIA development means development which is either
(a)Schedule 1 development; or
(b)Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location."
Further provisions require the defendants to adopt a screening opinion within three weeks of receiving the planning application. A screening opinion is a written statement of the opinion of the relevant planning authority as to whether development is EIA development.
21. As for the 1998 Regulations, Schedule 2 also included industrial estate development projects and urban development projects. However, Mr Harwood submits that there are two material differences. The 1988 definition of the Schedule 2 application included only those projects within the categories which were likely to have significant effect and so required EIA. The 1999 definition applies to all projects within the categories listed in the first column of Schedule 2 which meet or exceed the thresholds, or are in defined sensitive areas. Schedule 2 development under the 1999 Regulations requires EIA if it is likely to have significant effects and so is EIA development. It is rightly submitted that the court is obliged to quash a grant of planning permission made in contravention of the EIA regime unless the error was de minimis; see Berkeley v. Secretary of State for the Environment  2 A.C. 603.
22. I agree with Mr Maurici for the defendants that the reference to the 1988 regulations was an error of reference, not a material error of law. The reason it was not material is, he submits, because it would have made no difference. In this case, as opposed to the Berkeley case, the defendants did consider whether the development required EIA. The reason it would have made no difference, it is submitted, is that under both sets of regulations the first issue is whether or not the development falls within any of the categories included in Schedule 1 or 2. That is a precondition to the application of the Regulations and it is the same whichever set of Regulations is referred to. If the development does not fall within those categories then it is not development which requires EIA. It is only if the development does fall within the categories of Schedule 2 that the differences between the Regulations becomes material.
23. Therefore, Mr Maurici submits, in order to succeed the claimants must show either that the question whether the development fell within the Schedule was not addressed (and it plainly was) or that it was wrongly addressed. I agree with Mr Maurici that the only difference in the relevant part of the 1999 Regulations is that category (b), an urban development project, is extended by the words "including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiple cinemas".
24. Mr Maurici submits that the question whether the development is or is not within Schedule 2 is entirely a matter for the defendants to decide, subject only to challenge on the grounds of Wednesbury unreasonableness. He submits that this is not a question of law at all but is a question of fact and planning judgment. In this context I have been referred to the judgment of Mr Justice Sullivan in the R (Malster) v. Ipswich Borough Council , unreported, where at paragraph 57 the learned judge said:
The 1999 Regulations made it clear that it is for the Secretary of State or the local planning authority to decide whether Schedule 2 development is EIA development..."
In paragraph 62 Mr Justice Sullivan quoted the words of Mr Justice Simon Brown, as he then was, in R v. Swale Borough Council, ex parte RSPB  1 PLR 6:
The decision whether any particular development is or is not within the scheduled descriptions is exclusively for the planning authority in question, subject only to Wednesbury challenge. Questions of classification are essentially questions of fact and degree, not of law".
Therefore it is submitted, and I agree, that the question to be resolved is whether the defendants did err in a Wednesbury sense: was the view which they came to one which was open to them to reach or was it irrational?
27. I agree with Mr Maurici that Schedule 2 is concerned with major development and that it is not intended that all industrial and commercial development should be included. There is no mention of distribution purposes and they do not appear to fall within any of the listed categories. Ought this to be considered to be an industrial estate development project? It is conceded that such a project could have storage and distribution uses within it, but it is submitted - and again I agree - that such uses cannot logically be said to be industrial estate development projects. In my view there is no meaningful way in which this development could be labelled an industrial estate and the defendants acted reasonably in concluding that it was not.
28. Were the defendants unreasonable to conclude that it was not an urban development project? The context from which this expression takes its meaning is under the heading "Infrastructure". This was an existing urban site and of course it exceeds more than 0.5 hectares in area.
29. Does its redevelopment constitute an urban development project falling within the broader description of an infrastructure project? The defendants were entitled to regard it as a single site with a single planning use (B8). The scheme proposed was much smaller and simpler then the developments referred to in some of the cases cited to me. There was no suggestion in a duplicate application, of which the Secretary of State was seised, that there was any requirement for EIA.
30. I have been referred to a number of cases decided by the European courts. They give no general guidance as to what is meant by urban development project. Mr Maurici submits that there is no case to suggest that the defendants got it wrong.
31. In my judgment, having regard to the scale and intensity of the proposed use, i.e. the provision of a self-storage facility, and having regard to the factors which I have set out in the preceding paragraph, it could not be said that the defendants came to an irrational or perverse decision in concluding that this was not an urban development project and that it did not require screening or an EIA. The decision which the defendants took was one which they were entitled to come to and could not be described as unlawful or Wednesbury unreasonable.
32. I next have to consider the allegation that the defendants' officer did not have delegated authority. I do not need to have cases cited to me in order to convince me that the decision whether or not to require an EIA is an important one. In this case the defendants' letter of 16th January 2002, containing the decision not to seek an EIA, was written by a Ms Michele Sterry, describing herself as "Planning Officer". It appears from the document from the defendants headed "Delegation of functions" that three officers were listed to exercise the relevant powers of the council and they do not include Ms Sterry. One of the delegated officers, Mr Mark Gibney has provided a statement dated 23rd May of this year. At paragraph 16 Mr Gibney says this:
I was subsequently made aware of Ms Goodman's letter of 2 January 2002, relating to the need for E.I.A. Although I did not reply personally, I did discuss the need for E.I.A. again at this time with Ms Sterry who had also discussed the matter with Louise Holland, Area Team Leader. Although Ms Sterry's reply of 16 January 2002 was technically incorrect in its reference to the 1988 regulations, both myself and Louise Holland were aware of the correct regulations in giving advice."
Mr Harwood relies on this as showing that the decision taken was that of Ms Sterry. Mr Harwood draws a distinction between giving advice and making a decision. He submits that the statement does not say that Ms Sterry merely recorded someone else's advice. He submits that the officers with delegated authority did not make a decision but merely gave advice to an officer who did not have delegated authority. Consequently the decision was not made by a person of authority. This represents a substantial failure on the part of the defendants, thereby rendering their decision unlawful.
34. I have used the expression "unfortunate" before in so describing Ms Sterry's reference to the wrong regulations. I repeat it now. It was unfortunate that the important letter of 16th January was not signed by one of the three delegated officers so as to avoid criticism of the sort now raised on behalf of the claimants.
35. However, Mr Maurici submits that on a full reading of Mr Gibney's statement it is apparent that he had looked at the matter. Mr Gibney says at an earlier passage that he did not consider that the development fell within the Schedule and did not fall within the categories of development described in Schedule 2. Mr Maurici submits that the evidence clearly shows that the decision was taken at an appropriate level by persons with delegated authority.
36. I can readily accept Mr Maurici submission that the decision-making process was far more complex than appears in the letter itself. I agree that Mr Gibney's statement shows that there was a detailed and close involvement of officers who did have delegated powers. This case can be distinguished from the decision of Mr Justice Hooper in R v. St Edmunds Borough Council, ex parte Walton  JPL 805, where no officer with delegated powers had contact with the decision, which was undoubtedly taken by a planning officer without such power. I am not persuaded that there was a failure on the part of the defendants which gives grounds for complaint. I take the view that there was sufficient oversight and control by officers who did have delegated power such as to render the complaint groundless.
37. Even if I were minded to consider granting judicial review I would have to bear in mind that the defendants have in any event carried out an extensive non-statutory reconsideration of their position. This is contained in a delegated report dated 23rd May, signed by Mr Miller, Head of Planning Service. There is a criticism that in one passage the writer has misguided himself. Apart from that, the report contains a thorough and detailed analysis of the position and reaches conclusions which could not in my view be categorised as wrong in law or unreasonable.
38. I am aware that such exercises have to be scrutinised with care and I bear in mind the reservations placed them it by Lord Justice Pill in R (Carlton-Conway) v. London Borough of Harrow  EWCA Civ 927. Since I do not reach the position where I have to consider whether in my discretion I ought to grant judicial review, I think I need say no more about it. Suffice it to say that, for the reasons I have endeavoured to set out, I have reached the conclusion that no grounds have been made out and that the application must accordingly be refused.
MR MAURICI: My Lord, in addition to an order dismissing the application, I would seek an order for costs. My Lord, I had a word with Mr Harwood before we came into court. My Lord, do you have a schedule?
SIR RICHARD TUCKER: Yes, I have a revised schedule.
MR MAURICI: The position in this case is that the hearing did last more than a day, so the normal rule about summary plus the costs does not automatically apply. Unless my learned friend is minded to agree a figure, I am happy for this matter to be referred to detailed assessment. My Lord, rather than having your Lordship deal with that matter now, given that this case lasted more than a day in any event, we are content that the matter go on detailed assessment, unless my learned friend is happy to agree quantum of the costs.
SIR RICHARD TUCKER: What is your view on this, Mr Harwood?
MR HARWOOD: My Lord, I do not agree quantum of the costs; and in terms of the assessment of quantum, that is a matter which is contentious given the levels of time involved. In that respect it is a matter for detailed assessment. My Lord, there is a point of principle in terms of whether the council should recover all of those costs, given the errors which were made and the way in which your Lordship referred to those as being unfortunate; anyway that a matter for litigation.
SIR RICHARD TUCKER: What are you asking me to do in that regard, Mr Harwood?
MR HARWOOD: My Lord, I ask simply that the council be ordered to pay a proportion of its costs.
SIR RICHARD TUCKER: What proportion?
MR HARWOOD: A half, my Lord. There are two matters which the council got wrong or put badly. The first matter which it got wrong is the reference to the wrong regulations and with that the failure to produce a screening opinion as required by the 1999 regulations; and then the way in which delegation was addressed and the letter from an officer who did not herself have delegated authority. My Lord, in those circumstances, given that the court is concerned to ensure that local authorities act in accordance with the law, and in accordance with principles of good administration, they should only receive a proportion of costs. My Lord, I can pass up a decision of the Court of Appeal in Berkeley v. Secretary of State, if that is of assistance.
SIR RICHARD TUCKER: What was the order there made?
MR HARWOOD: My Lord, the order in that case was that the Secretary of State is to receive only two-thirds of his costs in the High Court in that matter.
SIR RICHARD TUCKER: That was a figure which I must say I had in mind. But shall I hear Mr Maurici on the question of apportionment. Mr Maurici, you have heard me say - and you must, I hope, agree - that certainly in one of those respects it was most unfortunate, and the letter may have perhaps given rise to hope where, on closer analysis, none existed. What do you say about an apportionment of your costs?
MR MAURICI: My Lord, there are two things really. My learned friend relies on two-thirds of all the costs made by the Court of Appeal in Berkeley ----
SIR RICHARD TUCKER: He relies on that but it was an apportionment which I myself, quite independently, provisionally had in mind.
MR MAURICI: I think it is important to consider that the Court of Appeal thought it was appropriate in that case that the Secretary of State would have two-thirds, because the errors in that case were plainly - and indeed your Lordship's judgment in this case supports this view - more serious than the breaches in this case. My Lord, you will recall that the Secretary of State in that case totally failed to consider whether EIA was required. What the Court of Appeal say, if your Lordship look at page 4 of the judgment -- the analysis that the Court of Appeal are undertaking here is they have accepted that what the Secretary of State did was a material error of law, but they are refusing to exercise their discretion to quash; they reached very much the same decision as your Lordship did at first instance.
So it is in that context, if you look in the second paragraph on page 4, they say:
So in my judgment the normal orders for costs ought to be made in favour of the Secretary of State, subject to two points. The first is an important one. I repeat that this court has held that the Secretary of State was in breach of his obligations under Regulation 4(2) of the 1988 Regulations. Although in the end it has not affected the outcome of the proceedings, it is a matter of which it is proper the court should take into account in considering an award of costs."
My Lord, there are two differences between Berkeley and this case: first, the errors are less serious because the EIA was considered; secondly, in that case the court found a material error of law but that they should not quash it in their discretion, whereas your Lordship's judgment in this case is that there is no material error of law.
My Lord, if you were going to make a reduction of costs, an apportionment, my submission would be that it would have to be more than two-thirds of our costs which are payable to us, because effectively the errors are less serious and because in your Lordship's judgment effectively those errors are de minimis errors. So, my Lord, if you are going to apportion costs I would suggest that certainly 90 percent would be appropriate, given the differences between the two cases. My principal submission is that the errors are so small such that they did not cause your Lordship to say that they amounted to error of law and hence we should have all our costs.
SIR RICHARD TUCKER: It is a matter of apportionment, is it not? Do you want to say anything more in reply, Mr Harwood?
MR HARWOOD: My Lord, simply to emphasise that the point in Berkeley was observing the high standards of civil administration and that does go beyond an error of law; it does extend to a local authority referring to the wrong regulations, relying on the wrong regulations in making decisions and handling it with the problems which this decision has had. So if your Lordship is minded to go to two-thirds, that would be an entirely appropriate order.
SIR RICHARD TUCKER: I take the view that the defendants are entitled to an order for costs to be assessed on a detailed assessment, but that there should be some deduction to mark their errors in making reference to the wrong regulations and in not seeing that the letter which set out their decision was signed by an officer with proper delegated authority. The apportionment I arrive at is three-quarters.
MR HARWOOD: My Lord, may I apply for permission to appeal? I can put the point briefly.
SIR RICHARD TUCKER: Shall I just hear Mr Maurici on that?There were certainly arguable matters here, Mr Maurici. The cases are detailed and may permit a further review. What do you say?
MR MAURICI: My Lord, my submission is that my learned friend would have to persuade your Lordship that either he has a reasonable prospect of success or there is an important issue which nonetheless justifies the grant of permission. In my submission your Lordship's judgment has analysed all the relevant authorities and, my Lord, you have had a huge number of authorities submitted to you. I do say that there is no prospect of success on an appeal. Your Lordship has given a very detailed judgment following a day and a half's argument. So my Lord I say there is no prospects of success.
As to the point of principle, the points of principle, I say, have already been decided in other cases, for example in Malster and in Swale , and your Lordship simply applied those principles to this case. What your Lordship's judgment comes down to is that you have decided that the local authority were not being unreasonable in applying a test that has been decided in other cases. That does not give rise, in my submission, to any point of principle. So, my Lord, my submission is that it is not a proper case for permission to be granted.
SIR RICHARD TUCKER: I think you should have leave, Mr Harwood, and I grant leave to appeal. I make it plain that I am not encouraging any such appeal and your clients must understand that they are by no means bound to succeed if they take up the appeal; but I simply grant you leave.
MR HARWOOD: My Lord, I appreciate that.
SIR RICHARD TUCKER: I know you will appreciate it.
MR MAURICI: My Lord, on behalf of all counsel we are grateful for your Lordship sitting through the lunch hour, and of course that goes for court staff as well.
SIR RICHARD TUCKER: That is very good of them. Thank you very much. I was anxious that you should have a decision before the end of term and we have just managed it.