Case No: C1/2008/1567
Neutral Citation Number:  EWCA Civ 1611
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
(SIR MICHAEL HARRISON)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Monday, 13th October 2008
LORD JUSTICE RICHARDS
LORD JUSTICE HUGHES
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THE QUEEN (on the application of LITTLEWOOD)
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BASSETLAW DISTRICT COUNCIL
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Mr W Upton (instructed by Messrs Richard Buxton) appeared on behalf of the Appellant.
Mr D Forsdick (instructed by Farrer & Co) appeared on behalf of the Respondent.
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Lord Justice Richards:
1. This is a renewed application for permission to appeal against an order of Sir Michael Harrison dismissing a claim for judicial review. The neutral citation number of his judgment is  EWHC 1812 (Admin).
2. The judicial review claim sought to quash the grant of planning permission by Bassetlaw District Council on 18 December 2007 for what was described as "Steetley Regeneration Phase 1 including a manufacturing facility" on the site of former industrial works at Steetley in Nottinghamshire. The relevant facility was a pre-cast concrete manufacturing facility. The applicant for planning permission was Laing O'Rourke. The claimant, Mrs Littlewood, was one of a number of local residents who objected to the proposed development. Her claim was brought on numerous grounds, for only some of which was she granted permission to apply for judicial review. The grounds for which permission was granted were all considered and rejected by Sir Michael Harrison. Three substantive issues together with a costs issue were then raised in the grounds of appeal to this court. Following the refusal of permission to appeal by Mummery LJ on the papers and further developments on the ground, only two substantive issues plus the costs issue are now pursued before us.
3. The first issue, ground 1, arises out of the fact that the development for which planning permission was granted related to only part of the site of the former industrial works, and it was contemplated that there would be further development on the remainder of the site. Various consultees and interested parties had requested the submission of a masterplan for the whole of the site; and the council, in deciding that the Phase 1 proposal required an environmental statement pursuant to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 as amended ("the EIA Regulations"), listed as one of the factors "...the possible cumulative effects in that the proposed application should not be considered in isolation from the whole of the Steetley site."
4. The developer agreed that a masterplan needed to be prepared but said that time was needed to assess all the options and that it was proposed that a planning application covering the entire site would be made later. In the meantime, Laing O'Rourke had an extremely urgent business need for a new pre-cast concrete manufacturing facility to replace an existing facility elsewhere in the United Kingdom on which the lease was due to expire. It was said that the planning application for the concrete manufacturing facility (Phase 1) could not therefore wait for a full site masterplan to be approved. The council was asked to treat the Phase 1 application on its own merits, on the basis that it was designed to be capable of implementation without a requirement for other parts of the site to be involved. A masterplan would then be submitted within an appropriate period; any future phases of the development at the Steetley site would be the subject of an environmental impact assessment, and the potential cumulative impacts of Phase 1 and future phases of the development would be addressed at that point.
5. The council decided to proceed on that basis, granting planning permission for Phase 1 subject to a condition that the developer enter into a section 106 agreement requiring the provision of a masterplan within 12 months of the commencement of the development.
6. The case for Mrs Littlewood was that this was in breach of the EIA regulations and the EIA directive to which those regulations give effect (Directive 85/337/EC). Phase 1 was part of a wider regeneration proposal and it was necessary, as part of the EIA process, to have a masterplan to assess the cumulative effect of Phase 1 together with future proposals for the site as a whole. Reference was made to European Guidelines for the assessment of cumulative impact, which referred to the cumulative impact as including reasonably foreseeable actions and potential future impacts. If the council lacked relevant information, it was said that it had the power under the EIA regulations to request further information before making a determination. Moreover, it was submitted that the council, having decided that a masterplan was necessary (as shown by the imposition of the condition as to a section 106 obligation), erred in law by not requiring such a masterplan when determining the application for Phase 1: this involved a failure to take into account a material consideration and was perverse.
7. The judge, effectively accepting the submissions made on behalf of the council, held that a masterplan was not legally required to be produced before planning permission for Phase 1 was granted. Whilst the council had originally thought that the Phase 1 site should not be considered in isolation from the whole of the Steetley site, by the time the application came to be determined no proposal for the wider area had yet been formulated. Laing O'Rourke had an urgent need for the Phase 1 facility and the council accepted that, owing to the complex nature of the site, it would not be possible to complete a masterplan for the whole of the Steetley site in time for a decision on the Phase 1 application to meet Laing O'Rourke's required timescale. The social and economic benefits of the Phase 1 development had to be weighed against the harmful effects. Meeting the required timescale was obviously important to achieve those benefits. The judge said that the council could have insisted on the production of a masterplan as a prerequisite to the grant of permission, but that would have meant deferring consideration of the application with consequential delay and failure to meet the required timescale. The council had a difficult decision to make. Its decision to determine the application without insisting on a masterplan as a precondition but requiring subsequent production by a section 106 obligation was a planning judgment which could not be said to be Wednesbury unreasonable.
8. The judge went on to say that, equally importantly, he did not see how there could be a cumulative assessment of the Phase 1 development and the development of the rest of the site pursuant to the EIA regulations when there was no way of knowing what development was proposed or was reasonably foreseeable for the rest of the site. The site was not allocated for development in the local plan; no planning application had been made; no planning permission had been given in respect of the rest of the site, and no proposals had yet been formulated for that part of the site. There was not any, or any adequate, information upon which a cumulative assessment could be based. In those circumstances, he said, there was no legal requirement for a cumulative assessment under the EIA regulations. The council was entitled to decide the application as a stand-alone development and to require the subsequent production of a masterplan so that cumulative impact could be considered when future proposals for the rest of the site were forthcoming.
9. Mr Upton seeks to advance in this court the same line of argument as was rejected by the judge. In his written statement for the purposes of today's hearing he states that the essence of the appeal under this ground is that the failure to consider cumulative effects is a matter of law and not just a matter of Wednesbury unreasonableness, and that the judge erred in limiting the court's review to one of reasonableness. Phase 2 was foreseeable and needed to be taken into account in the EIA process and the planning decision. If the council lacked information about the masterplan it had the power to request further information before making a determination. The EIA directive requires that the planning authority should have the necessary information. It was, he submits, unlawful to consider the development on the Steetley site in a piecemeal fashion.
10. Those arguments are developed in Mr Upton's written skeleton argument. They have been explained further in oral submissions, but since this is a permission hearing I do not propose to set them out in any further detail. It suffices to state my conclusion on them.
11. I do not accept that the judge fell into error as Mr Upton contends. In particular, I think it plain that the judge did not limit himself to the question of Wednesbury unreasonableness. He found that there was no legal requirement for a cumulative assessment extending to the rest of the site, and it is clear from the reasons that he gave that he did not consider the nature of the development on the rest of the site to be reasonably foreseeable so as to require consideration of the cumulative impact of development on the site as a whole. There was nothing to show what might come forward for the rest of the site. It was not a question of the council being able to use its power to request more information. There was no further information yet to be had. In those circumstances, as the judge held and in my view was right to hold, there was no breach of the EIA regulations, or indeed of the EIA directive, in the council proceeding to determine the Phase 1 application as a stand-alone application, taking into account all the available environmental information relating to that proposal and recognising that in the assessment of any future application for development on the rest of the site the cumulative impact of Phase 1 together with the proposed further development would have to be taken into account.
12. To put it another way, it may well be that, as the judge said, the council could have waited until a masterplan was produced, but in my view the EIA regime did not require it to wait, and I agree with the judge that it could not be said to have been Wednesbury unreasonable for the council in the exercise of its judgment to decide not to wait but to proceed as it did.
13. Mr Upton has submitted in his skeleton argument, as he did below, that the council must have thought a masterplan to be necessary -- thus the Section 106 obligation -- and that by proceeding without the masterplan it failed to take account of environmental information that it had itself identified as necessary. The judge plainly, and in my view rightly, accepted a submission for the council that as a matter of law a section 106 obligation only has to be reasonably related to the development in order to be a material consideration; it does not have to be necessary to the grant of permission. I think it clear, as the judge evidently thought to be the case, that the council imposed the obligation as to a masterplan so that cumulative impact could be considered when future proposals for the rest of the site were forthcoming, not because it regarded the masterplan as containing information necessary for its decision in respect of the Phase 1 application. Thus the imposition of the section 106 obligation relating to a masterplan did not involve any defect in the council's approach to the Phase 1 decision.
14. For those reasons I am satisfied that an appeal has no real prospect of success on ground 1.
15. I turn to ground 3, which is the other substantive issue. It relates to the council's alleged failure to consider the adverse effect of the concrete facility on climate change, in particular from CO2 emissions. There was nothing about climate change in the general guidance applicable at the time, in particular in circular 2/99, and the issue was not raised in any of the representations made to the council prior to its decision to grant planning permission. In a letter sent the day before the actual issue of the grant of planning permission, the claimant's solicitor made a reference to an alleged failure to consider the issue of climate change, but it was expressed in the barest of terms and no substantial argument was put forward in support of the point. Nonetheless, the claimant's case before the judge was that climate change should have been included in the environmental statement. For the council it was accepted that the environmental statement had omitted to deal with climate change, but it was pointed out that the planning statement had a section dealing with the issue of sustainability to which the environmental statement had cross-referred and which did include measures to reduce carbon footprint. The environmental statement also dealt with the effect of emissions on a wide range of matters including air quality, and it was submitted that the argument relating to the omission of climate change as such was a counsel of perfection which was not fundamental to the validity of the environmental statement.
16. The judge accepted those submissions. He held that the omission of the effect of the production of concrete on climate change did not render the environmental statement as a whole so deficient that it could not reasonably be described as an environmental statement. Even if he were wrong about that, he said he would not have granted the relief claimed, in view of the fact that the point had not been raised when it should have been raised and in view of the effect of granting relief on the proposed development.
17. Mr Upton submits that the judge should not have treated this as a counsel of perfection. A significant adverse environmental effect was not assessed, contrary to the requirements of the EIA regulations and EIA directive. Even though not raised in the environmental statement or by consultees, it should have been taken into account as a material consideration by the council. The impact on climate change is not something that can be ignored.
18. I am not satisfied from the material I have seen that the issue of climate change as such added anything material to the matters that were considered by the council, and the absence of reference to it in any of the representations made to the council is perhaps unsurprising. In any event, the judge was in my view entitled to conclude that the omission to deal with climate change did not invalidate the environmental statement or give rise to a breach of the EIA regulations. I also consider that this is the kind of situation where a judge has a discretion to refuse relief, even though such a discretion is limited in relation to breach of EC environmental regulations, and it seems to me that the judge was entitled to indicate, as he did, that he would have refused relief in the exercise of a discretion in any event. I am wholly unpersuaded that there is any real prospect of the claimant succeeding in getting this planning permission quashed on the climate change point.
19. That deals with the substantive grounds, and for the reasons I have given I would refuse permission to appeal in relation to them.
20. There remains for consideration ground 4, the costs issue. The judge ordered the claimant to pay the council's costs subject to a cap of £50,000. The submission made is that he should have made no order for costs, or should have made a more restrictive order capping the council's costs at a substantially lower sum. The background to this is that before the hearing the council had informed the claimant that its costs would be in the region of £135,000 and had rejected a proposal as to a costs limit. Following the hearing and the judgment, however, the council said that the figure of £135,000 had been a mistake and had included the costs of the interested party which, as I understand it, was at one stage jointly represented with the council. The costs order sought from the judge was limited to certain items, in particular the costs of the council's solicitor, of the acknowledgement of service and of the fees of counsel (and I should mention that the fees of leading counsel were a very substantial element in the total figure). The total sum was estimated at between £41,000 and £47,000 and an order for costs subject to the cap of £50,000 was sought. This compared with a figure of about £42,000 for the claimant's own costs.
21. I should mention that the claimant was herself represented under a conditional fee agreement. She had also secured after the event insurance in respect of any award of costs against her, but this was considered irrelevant in the discussion below and plays no part in the analysis.
22. The argument for the claimant, which is essentially the same as that advanced before the judge, is twofold. First, reference is made to the normal principles governing costs and it is submitted that the sum ordered in this case was disproportionate and unreasonable. One particular aspect of the argument is that the work, it is said, could have been carried out by competent junior counsel and the claimant should not have to pay the costs of leading counsel. Secondly, it is submitted that costs in environmental cases are subject to special considerations in that Article 9.4 of the Aarhus Convention, as given effect in EC law by Article 10a of the amended EIA directive, requires, as part of the measures directed to ensuring access to the court in environmental cases, that proceedings shall be fair and shall not be prohibitively expensive. That there is a duty on member states to ensure that effect is given to these requirements was stressed in the report of a working group chaired by Sullivan J on access to environmental justice. It is submitted on the applicant's behalf that a costs order of up to £50,000 in a case of this nature makes the proceedings unfair and prohibitively expensive and involves a breach of duty under EC law.
23. The principles applicable to costs in environmental litigation were considered by the Court of Appeal in (R) Davey v Aylesbury Vale DC  1 WLR 878, albeit specifically in the context of costs of the pre-permission and permission stages of a judicial review claim. The Aarhus Convention and the EIA directive, along with other materials, were referred to in the judgments in that case and, as it seems to me, were taken into account in the formulation of the guidance given by the court. It was accepted that planning cases tend to lie on or near the boundary between private or commercial judicial review and public interest litigation and that many such cases straddle it. They are brought, as the present case was brought, by a personally interested individual, but they raise issues of wider environmental concern. Sedley LJ observed at paragraph 21, in relation to a costs order on the refusal of permission to apply for judicial review, that a claim brought partly or wholly in the public interest may properly result in a restricted or no order for costs. The Master of the Rolls, at paragraph 29, agreed but added a note of caution that costs should ordinarily follow the event and that it is for the claimant who has lost to show that some different approach should be adopted on the facts of a particular case. He pointed out that an unsuccessful claim against a public body imposes costs on that body which have to be met out of money diverted from the funds available to fulfil its primary public functions.
24. Whilst Mr Upton has questioned what was said by the Master of the Rolls, I am not satisfied that anything put forward to us today gives rise to an arguable point that the guidance in Davey was incorrect. In giving his ruling in the present case, the judge referred to Davey. He said it was reasonably arguable that the proceedings were partly in the public interest although there were a number of points which would not come within that ambit. However, he did not see anything exceptional in the case such as to mark it out as a case which should be dealt with in an exceptional way. He did not consider that the order of magnitude of costs mentioned was prohibitively expensive. As to the fact that the council's costs exceeded those of the claimant, the judge recognised that one element in that was that leading counsel was instructed by the defendant council, but he did not feel able to contradict what he had been told to the effect that the council was faced with the loss of a major infrastructure project and it was quite reasonable in the circumstances to instruct leading counsel. The judge could see no grounds for saying that there should be no order for costs, nor did he consider there to be grounds to make it appropriate to make a restricted order (that is, below the cap accepted in any event on behalf of the council).
25. Mr Upton's submissions that the judge was wrong are reinforced by a witness statement from the claimant's solicitor, Mr Richard Buxton, which consists in part of submissions but also provides some additional information relevant to the costs issue. The matters to which he refers include the possibility that the European Commission may bring infringement proceedings against the United Kingdom for failure to transpose and apply the provisions of Article 10a of the EIA directive relating inter alia to prohibitive expense. But we are not concerned in this case with whether there has been adequate transposition into domestic law. The question is whether the particular decision of the judge in this case was itself affected by an arguable error, justifying permission to appeal.
26. Mr Buxton also draws attention to a number of other cases before the courts in which, in different contexts, the issue of prohibitive expense arises or may arise, and he raises in very clear terms the question whether a costs figure of up to £50,000 in the particular circumstances of this case can be said to amount to prohibitive expense so as to be in breach of the directive. He submits that the answer is clear in the applicant's favour, but otherwise there is an issue which would require this court not to refuse permission to appeal without making a reference to the European Court of Justice for a preliminary ruling on the interpretation of Article 10a of the EIA directive.
27. As it seems to me, there is a danger of losing sight in all of this of the fact that a decision as to costs lies in the discretion of the judge. Unless he misdirected himself or reached a decision that was plainly wrong, this court should not interfere. The judge directed himself by reference to Davey, in which due regard was paid to the principle that proceedings should not be prohibitively expensive, and I find it difficult to see how it could be said that he misdirected himself. Could it be said that he reached a conclusion that was plainly wrong? In my judgment, no. The suggestion that there should have been no order for costs at all seems to me to be simply untenable on the facts of this case. In my view the judge was entitled to find that a costs figure capped at £50,000 was proportionate to the nature of the case and the work to which the council had been put in defending it, and that the costs awarded should properly include the fees of leading counsel. In ordinary domestic law terms, the order made seems to me to have fallen clearly within the reasonable limits of the judge's discretion.
28. Nor do I think that a costs order of this size in proceedings of this nature could properly be said to give rise to a breach of the duty to ensure that proceedings in environmental cases should be fair and not be prohibitively expensive. I include within that the costs arising out of instruction of leading counsel.
29. Moreover, in considering the question of prohibitive expense in relation to environmental cases as a category, it needs to be borne in mind that there exists a regime for the making in advance of protective costs orders in appropriate cases. That is a mechanism by which a claimant can seek to protect himself against the operation of the normal costs provisions in the event that the claim is unsuccessful. One cannot simply focus on a particular order made at the end of proceedings in a case where no protective costs order has been sought or made.
30. In conclusion, it is my judgment that an appeal against the judge's costs order in this case does not have a real prospect of success and, although I do not dispute the importance of costs orders in environmental cases, I do not regard that as a sufficient reason for granting permission. Accordingly, I would refuse the application.
Lord Justice Hughes:
31. I agree on each of the grounds and for all the reasons that my Lord has given.
Order: Application refused