Malster v. Ipswich Borough Council

Transcript date:

Friday, August 17, 2001



High Court

Judgement type:

Permission and Substantive


Sullivan J

Neutral Citation Number: [2001] EWHC Admin 711




Royal Courts of Justice


London WC2

Friday, 17th August 2001

B e f o r e:


- - - - - - - - - - - - -






Interested Party

- - - - - - - - - - - - -

(Computer­aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

190 Fleet Street, London EC4A 2AG

Telephone No: 0207­421 4040/0207­404 1400

Fax No: 0207­831 8838

Official Shorthand Writers to the Court)

- - - - - - - - - - - - -

MISS E SHARPSTON QC and MR M EDWARDS (instructed by Richard Buxton, 40 Clarendon Street, Cambridge CB1 1JX) appeared on behalf of the Applicant.

MR J LITTON (instructed by Ipswich Borough Council, The Civic Centre, Civic Drive, Ipswich, Suffolk IP1 2EE) appeared on behalf of the Respondent.

MR D ELVIN QC and MR J MAURICI (instructed by Ashurst Morris Crisp, Broadwalk House, 5 Appold Street, London EC2A 2HA) appeared on behalf of the Interested Party.

- - - - - - - - - - - - -


(As Approved by the Court)

Crown Copyright

Friday, 17th August 2001



1. In these proceedings the claimant, Mrs Rose Malster, challenges a grant of planning permission on 4th May 2001 by the Ipswich Borough Council (the Council) to the Ipswich Town Football Club (the Club) for the redevelopment of the north stand at the Club's Portman Road stadium. Permission to apply for judicial review was refused on the papers by Turner J. When the renewed application came before me on 18th July, I directed that the application for permission and the substantive hearing be listed together and be dealt with as a matter of urgency.

Factual background

2. The claimant lives at 42 Alderman Road. Number 42 is part of a terrace of two­storey Victorian houses on the east side of Alderman Road which runs north/south. At its southern end is Sir Alf Ramsey Way, which runs east/west. The north stand which existed until a few weeks ago was on the south side of Sir Alf Ramsey Way. On the northern side there is, running from west to east, a park (on the western side of Alderman Road), a three­storey hostel, which largely faces south at the end of the terrace, but which has a return frontage to Alderman Road, and then a car park. Moving north up Alderman Road, after the hostel at the corner comes number 43, which is owned by the Council and is tenanted, and then number 42, the claimant's property. Number 42 is within 50 metres of the proposed new stand.

3. Until a few weeks ago there were stands on all four sides of the stadium. The south stand, which is currently under redevelopment, will provide a two­ tier stand with capacity for over 7,000 spectators. On the eastern side there is the Cobbold Stand with a capacity for over 7,000 spectators, also on two tiers. And on the western side there is the Britannia Stand, which has a capacity for nearly 9,000 in three tiers. These three stands range between 17.5 and 26.5 metres or so in height.

4. The recently demolished north stand was a functional, single­tier structure clad in asbestos sheeting with a capacity of 3,363 seated. Its standing capacity used to be nearly twice that number. Prior to the implementation of the recommendations in the Taylor Report limiting standing numbers, its capacity was even higher than that, up to around 12,000. The new two­tier northern stand will provide seating for 7,035 spectators and will have a maximum height of 25 metres and a substantive height of around 20 metres.

5. The application for planning permission for the redevelopment of the north stand was submitted on 8th March 2001, but prior to that there had been extensive discussions with the Council's planning officers. The application was advertised and was the subject of considerable press interest. It is unnecessary to set out the details of the advertisements, because there is no doubt that the process of public consultation considerably exceeded that required under the provisions of the Town and Country Planning General Development Order.

6. On 19th March the residents of Alderman Road sent a letter and a petition to the Council alleging, inter alia, that there would be a loss of sunlight for the residents at the southern end of the road. On 21st March there was a meeting between the Council's planning officers and the Club's planning and architectural consultants. That meeting was also attended by Mr Redler, a partner in Delva Patman (daylight consultants to the Club). He had prepared initial shadow drawings dealing with the position as at 21st March (the spring equinox). The planning officer asked for further analysis to be done showing the position at both mid summer and mid winter. The planning officer also visited the site and carried out his own informal assessment of the shadowing effect of the proposed new building.

7. On 23rd March the area planning officer, Mr Miller, wrote to the Club in these terms:

"The Borough Council has considered the application in accordance with regulation 7(1) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ('the 1999 Regulations').

The development proposed falls within the description at paragraph 10b of Schedule 2 to the 1999 Regulations and meets the criteria in column 2 of the table in that Schedule. In the opinion of the Borough Council, having taken account of the criteria in Schedule 3 to the 1999 Regulations the development proposed would not be likely to have a significant effect on the environment by virtue of factors such as the development's nature, size or location.

Accordingly the Council adopts this Screening Opinion in accordance with regulation 5(4) of the 1999 regulations to the effect that the development for which planning permission is not EIA development and therefore an Environmental Statement is not required.

In accordance with Regulation 20(1) of the 1999 Regulations this screening opinion has been placed on Part 1 of the Planning Register."

8. At the instigation of a local councillor, a meeting was arranged by the Council for the residents of Alderman Road on 9th April. The Club had arranged an earlier meeting, and held a further meeting on 17th April. By that time Delva Patman had prepared its full daylight assessment, and shadow analysis drawings were made available for inspection at that meeting. Mr Smith, the Council's head of Development Control, attended the meeting and explained the drawings to those who were interested. The next day revised drawings were sent to the Council showing house numbers so that the extent to which individual properties would be affected could be seen with greater clarity.

9. On 19th April the Club sent a planning statement in support of its application to the Council. The application was due to be considered by the Council's Development Control Committee on Wednesday, 25th April. Mr Miller's report on behalf of the Chief Planning Officer was made available to the public on the previous Friday, 20th April. The report described the proposal. It is relevant to note that the report said, inter alia:

"The floodlights are not part of the application and will be the subject of a further submission but it is likely that these would be angled off from the end blocks as opposed to being an integral part of the cross lattice steel work as at the south stand."

"The structure would be located parallel to the hostel at 3 Sir Alf Ramsey Way and approximately 7 metres away from the building."

10. Having described the proposal, the report set out the outcome of the consultations and the representations that had been received by the Council. These included the petition from the Alderman Road residents, and also the Club's supporting statement. The issues raised in these representations were then summarised in a number of bullet points. They included "Residents ignored in favour of 'Big picture' of [the Club]" and "Will block view/light (daylight and sunlight)."

11. The report then set out those policies of the Ipswich Local Plan which Mr Miller considered to be relevant. Following a number of policies which are essentially concerned with securing a high standard of design, he referred to Policy RL17:

"Proposals for the development of new indoor sport and leisure facilities, the extension of existing facilities and the conversion and change of use of buildings to sport and leisure uses will be acceptable providing;

(b) there is no significant loss of residential amenity enjoyed by residents of nearby properties."

12. The report then proceeds to comment under a number of headings. First of all, public consultation is dealt with, and it is concluded:

"The consultation undertaken by the planning department goes far beyond what is necessary under the Regulations and is considered satisfactory."

13. Concern had been expressed about the speed with which the Council was considering the application. The report dealt with that and said this:

" is acknowledged that the club have a tight timetable requiring the lower tier to be constructed during the closed season and the upper tier to be completed before the end of next season."

14. Highways matters were dealt with in some detail, and the report then said:

"The main planning issues in this case are design, materials, impact on the street scene and the impact on nearby housing."

15. The design was then considered in some detail, and as part of that analysis the report said this:

"There will undoubtedly be a very close relationship to the hostel at 3 Sir Alf Ramsey Way. The turnstiles will be approximately 14 metres away, the upper concourse 11 metres away with the curved top most part of the structure angled 60 degrees from the eaves of the hostel at 12.5 metres away. This is very close, but generally it is within an area of contrasts."

16. And certain examples are given. The report continues:

"Generally, the 3 story hostel at no. 3 Sir Alf Ramsey Way screens off the remainder of the 2 storey terrace. Importantly, Alderman Terrace is orientated towards the park and therefore has a flank relationship to the proposed stand. The Britannia Stand is approximately 5 metres taller than the proposal and this is an existing relationship of a large building to Alderman Terrace. The old floodlights now removed were again, a much taller structure than the adjacent terrace. Therefore, there are existing stark contrasts of scale within the area."

17. Under the heading of "Design/Materials", the report concluded:

"Substantial external environmental improvements will be made. The existing stand is an eyesore in the area. The associated paving, landscaping lighting improvements will generally upgrade the appearance of Sir Alf Ramsey Way."

18. The report turned to the issue of residential amenities and said:

"There are two issues in this case; the effect on the hostel at 3 Sir Alf Ramsey Way and the effects on the adjoining dwellings. Portman Road flats are approximately 60 metres away from the structure and are not considered to be unduly affected."

19. In considering 3 Sir Alf Ramsey Way, the report said that some rooms in the hostel had their sole windows facing south towards the proposed building:

"The size and proximity of the structure will have a severe impact on light into these rooms. The proposal is therefore not acceptable unless significant alterations are carried out to provide more windows at the rear."

20. The report said that the Club and the Council were in discussions as to how that might be achieved. The officer advised the committee:

"Planning permission should not be granted until the issue of this hostel is resolved."

"With regard to the effect on other dwellings­ according to the nationally adopted indicators, sunlight and daylight into specific rooms is not an issue because of the east west orientation of these dwellings. Front and rear windows would receive adequate sunlight/daylight generally, notwithstanding any over­shadowing by the Stand. None of these dwellings have windows facing south. The main issue, therefore, is the shading effect of the new stand. These judgments are made according to the situation at the equinox, March 31st, being an average between the high summer and low winter sun positions. The rear garden of 43 at that time will remain in shadow between 8 am and 3 pm. No. 42 will have approximately half of its rear garden clear by 3 pm. The rear garden of 41 would clear by approximately 1.30 pm. The rest of the terrace would be unaffected. The situation will improve substantially during the summer months when gardens are in use more. The planning standard is that no more than 75% of gardens should be in shade between 8 am and 4 pm at the equinox. The gardens of 41 and 42 would meet this standard. Regarding 43 this is IBC owned and the tenant is already seeking a move elsewhere..."

21. The report considered the general issue of nuisance. It said:

"The proposed ground capacity of just over 30,000 is still significantly less than the one­time maximum of c.38,000. Whilst crowd behaviour may not be as good as it was, it is not considered that problems of general nuisance are critical.

On balance, given the substantial improvements to the locality which would occur as a result of this proposal and the wider benefits of the new stand to the town and its sporting context, the proposals are considered to be acceptable in planning terms, provided an agreement can be reached over the Hostel. There is no escaping that this is a large building that will be a significant feature in the area, but it is not considered that any adverse effects on nearby residents are so significant as to warrant refusal of permission."

22. The report referred to the question of overlooking and said that obscure glazing was being pursued by the architect. It then dealt with an objection that had been raised by the Environment Agency and said that a flood risk assessment/defence strategy should be carried out, and it can be added that this approach was accepted by the Environment Agency. The report recommended that permission be granted subject to resolution of the issue of the hostel.

23. Shortly before the meeting letters objecting to the proposals were received from the Federation of Stadium Communities dated 23rd April and a firm of solicitors, Messrs Marrons, acting on behalf of Mr Cox at 28 Alderman Road, dated 24th April. The former said, inter alia:

"There is no environmental impact assessment available that considers in a formal way the likely effect of the development on the human environment and on the natural environment. Your report acknowledges the likely overshadowing and loss of amenity to the gardens on Alderman Road but fails to make any reference to the impact of the development on the open space to the west side of Alderman Road that is such a valuable and cherished resource to the local community. Its amenity and the ecological balance could well be affected. Yet you have failed to consider this or to reassure the residents and users by insisting that an environmental impact assessment be carried out and published."

24. The latter was lengthy and raised very many issues. They included the question of light in these terms:

"RL17: The planning report states (b) that there should be no loss of residential amenity enjoyed by residents of nearby properties. This will obviously happen because of the size of the proposed structure and its nearness to residential dwellings. The loss of light and the Right to Light are enshrined in the law and the fact that these properties are at right angles to the ground doesn't mean the effect will be any less noticeable. The report is incorrect when it states that no properties in the terrace of Alderman Road have south­facing windows, because at least half of them have, and the effect of loss of sunlight and daylight will be significant. You will notice from your diagrams that on 21st December the complete section of the terraced area of Alderman Road is in shade for the whole day, apart from a couple of houses at the top and whose fronts, at 2.00 p.m. start to get some sunlight prior to sundown from 3.30 p.m. approximately. This will obviously mean that from the end of October to the end of March all of this section will receive no direct sunlight for five months. We all know that the weather as it is these days, it is just as likely to be sunny on December 25th as June 25th."

25. The letter amplified the results of the prolonged shadowing effect over the houses and gardens.

26. Under the heading "Environmental" the letter argued:

"To comply with European Union Legislation, all major developments that will have a potential impact on the environment must undergo an environmental assessment prior to Planning permission being granted."

27. Reference was made to the relevant EC Directive.

"It has been noted that the Planning Department have assessed this application as a Schedule 3 and not Schedule 2 project. It obviously comes under Infrastructure Projects 10B as this proposed development is over 0.5 of a hectare. Under the circumstances set out previously in this report, the Council...have not done enough assessment or studies to suggest that the decision that 'this would not have a significant effect on the environment by virtue of factors such as the development nature, size or location' would fall outside Schedule 2.

In considering all other previous environmental statements, it must be remembered that large numbers of people, plus the extra pollution from motor vehicles that increased capacity brings could have serious consequences for the area known as Alderman Road Canal Local Nature Reserve (Policy NE18, site 3.3) also the environmental impact on the park itself and its wildlife of squirrels, ducks, geese, owls and various other birds most certainly needs to be assessed... The need for an Environmental Impact Study cannot be overstated as the damage that would be caused by this proposed development would be irreversible..."

28. The letter concluded:

"On Balance

Given the substantial environmental impact, the loss of light (both sunlight and daylight), the congestion, the noise and pollution and the lack of access to this proposed development will cause, we the residents request the Committee to take into consideration the following:

The policies of the Ipswich Local Plan state..."

29. Reference is then made, inter alia, to RL17, which I have set out above.

30. The planning officer dealt with these letters during the course of his oral presentation to the committee. The presentation explained the position in respect of the hostel in a little more detail, pointing out that it had a double aspect, but south was important because certain of the flats had their sole aspect to the south. It also made the point that:

"Hostel is for homeless people who will already be vulnerable ­ loss of daylight/sunlight and increased shadow will not be satisfactory particularly in the light of the vulnerable nature of the occupants."

31. So far as the effect on the terrace is concerned, the notes say:

"This has east/west aspect, therefore park aspect mainly."

32. There is then a detailed explanation of the effects of the proposal in daylight terms and the conclusion is reached that the very slight infringements of the relevant standards are not considered to be significant. In terms of the shadow effect, the oral presentation reiterated and amplified the explanation given in the report, pointing out that number 43 failed the relevant standard, number 42 passed the relevant standard. Apart from the position at the equinox, the report said that at other times:

"Up to 12 extra gardens would be affected at the December Solstice. But by 2 pm these gardens would be shadowed anyway by the existing dwellings. Exercise caution in applying too much weight to this situation at the Winter Solstice. This is the worst case, limited sunlight, limited use of gardens, and crucially 2 metres high fences/hedges would shadow the gardens anyway ­ see section drawings provided."

33. So far as the summer solstice was concerned, the notes of the oral presentation say "No shadow difficulties."

34. Marrons' letter is dealt with. The letter had suggested a site visit. The officer said that this was a possible option but he did not recommend it. He said, apropos of a lengthy argument as to the position of the Environment Agency, that the Agency had now accepted the Council's position. He dealt with the argument that the proposal was a departure from the development plan and refuted that. He said again that so far as shadow was concerned, the standards were complied with, with the exception of number 43, and said that the effect was not so bad as to warrant refusal. So far as the proposition that there should have been an environmental impact analysis is concerned, the notes say this:

"Schedule 2 development ­ schedule 2 development is not generally EIA development unless the thresholds in Schedule 3 are exceeded. They are not in this case. I gave Power Stations as an example."

35. The Council's procedures allow the public to address the committee. Normally, one person will be allowed to speak for and one person will be allowed to speak against a development proposal, with a time limit of three minutes each. Mr Cox addressed the committee for three minutes. He made the point that sunlight/daylight for the properties in Alderman Road would be affected and that there were some south­facing windows in the terrace. He also made a number of other points relating to, for example, congestion and overlooking. He pointed out that three minutes was an inadequate time, in his view, to make all the points that he wished to make. Because of the shortness of time allowed for oral presentation, the residents also circulated written representations to the councillors. These largely echoed the points that had already been made in the letter from Marrons. They, therefore, included the shadowing effect of the two­tier stand.

36. The Council resolved to grant planning permission and planning permission was duly issued on 4th May 2001. Condition 06 provided:

"Works to construct the upper tier of the stand shall not be commenced until a scheme of the reprovision of the Hostel at 3 Sir Alf Ramsey Way has been submitted and approved by the Local Planning Authority."

37. The reason given was:

"The development would be obstructive and cause unacceptable loss of sunlight/daylight to the southern aspect of the Hostel."

38. Condition 10 required details of a technical assessment of possible interference to TV/audio/satellite reception and flue operation on flats and dwellings to the north of the development to be provided. The reason given was that would be in the interests of residential amenity.

39. In its supporting statement, the Club had made it clear that it intended to commence construction of the lower tier of the new stand in the summer of 2001, during the closed season for football. The upper tier would follow at a later stage, during the season. True to its word, the Club commenced demolition of the old northern stand on 9th May. Those works were well publicised in the local press and would have been only too obvious to the residents in Alderman Road. By 4th June the old stand had been completely demolished. Construction of the new stand has continued apace. Foundations have been completed, and it is now between a third and a half complete. Subject to these proceedings, it is anticipated that the first tier will be ready for spectators by some time around the end of next month.

40. By letter dated 28th May, received on 29th May, the claimant's solicitors notified the Council that an application for permission to apply for judicial review had been lodged. In fact, the application was lodged with the Administrative Court on 1st June and the papers were served on the Council and the Club on 6th June. Apart from a wholly unparticularised assertion that there had been a breach of the claimant's rights under the Human Rights Act, the sole ground of complaint at that stage was that the screening opinion (that an EIA was not required) was erroneous in law. Amended grounds were served on 27th June. These raised the additional matters referred to under grounds (2) and (3) below.

The claimant's grounds

41. On behalf of the claimant, Miss Sharpston QC challenged the grant of planning permission on three grounds:

(1) The screening opinion dated 23rd March that the proposed development would not be likely to have a significant effect on the environment, and that therefore an EIA was not required, was erroneous in law.

(2) The proposed development contravened Policy H7 of the development plan, and the Council failed to consider the presumption against granting planning permission contrary to the development plan: see section 54A of the Town and Country Planning Act 1990.

(3) The proposed development infringed the claimant's rights under Article 8 and Article 1 of Protocol 1 to the European Convention on Human Rights because of the severity of overshadowing. The Council failed to consider the interference with the claimant's rights and the procedures adopted failed to provide the claimant with a fair determination under Article 6 of her civil rights. I will consider these grounds in turn.

Ground (1)

42. As is evident from the Council's screening opinion, there is no dispute that the proposed development falls within paragraph 10(b) in Schedule 2 to the 1999 Regulations:

"Infrastructure projects

(b) Urban development projects, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas".

43. The threshold set out in column 2 in the Schedule is met. An EIA is required for Schedule 2 development if it is "likely to have significant effects on the environment by virtue of factors such as its nature, size or location" ;: see regulation 2(1).

44. By regulation 4(5):

"Where a local planning authority or the Secretary of State has to decide under these Regulations whether Schedule 2 development is EIA development the authority or Secretary of State shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development."

45. Schedule 3 is headed "Selection Criteria for Screening Schedule 2 Development" and groups the criteria under three headings: characteristics of development, location of development and characteristics of the potential impact. Under the first heading, one finds (a) the size of the development, and (b) the cumulative effect together with other development. Under the second heading, "Location", one finds:

"The environmental sensitivity of geographical areas likely to be affected by development must be considered, having regard, in particular to ­

(a) the existing land use;

(b) ...

(c) the absorption capacity of the natural environment, paying particular attention to the following areas..."

46. A number of areas are then set out, including, for example, wetlands and coastal zones. They include at (7) densely populated areas. Under " Characteristics of the Potential Impact", one finds (a) the extent of the impact (geographical area and size of the affected population), and (c) the magnitude and complexity of the impact.

47. Circular 2/1999, Environmental Impact Assessment, gives guidance as to the approach to be adopted in deciding whether an EIA is required for Schedule 2 development. Paragraph 33 refers one as a starting point to Schedule 3 to the Regulations. Having referred to the three broad criteria set out in Schedule 3, paragraph 33 continues:

"In the light of these, the Secretary of State's view is that, in general, EIA will be needed for Schedule 2 developments in three main types of case:

(a) for major developments which are of more than local importance;

(b) for developments which are proposed for particularly environmentally sensitive or vulnerable locations; and

(c) for developments with unusually complex and potentially hazardous environmental effects."

48. Paragraph 34 continues as follows:

"The number of cases of such development will be a very small proportion of the total number of Schedule 2 developments. It is emphasised that the basic test of the need for EIA in a particular case is the likelihood of significant effects on the environment. It should not be assumed, for example, that conformity with a development plan rules out the need for EIA. Nor is the amount of opposition or controversy to wich a development gives rise relevant to this determination, unless the substance of opponents' arguments reveals that there are likely to be significant effects on the environment."

49. The following paragraphs of the Circular then deal in a little more detail with the three main types of case identified in paragraph 33.

50. In his witness statement Mr Miller explains why, having had regard to Schedule 3 and the Circular, he concluded that the proposed development was not likely to have a significant effect on the environment:

"I was drawn to this conclusion for the following reasons;

(i) Whilst the application site exceeds 0.5 hectare, unusually, this application site area included extensive areas of highway outside the development itself, to incorporate proposed improved surfacing and landscaping works to Sir Alf Ramsey Way. The actual area of the new stand is in fact 0.34 hectare, in other words it is below the 0.5 hectare threshold given in the Regulations.

(ii) The capacity at the ground after development would be 8000 people less than the one time previous standing capacity.

(iii) I therefore concluded that the development itself was not of a size to merit EIA (category 1(a)) and that neither were there implications in relation to Category 1(b)­(f) of the selection criteria in Schedule 3.

(iv) The development is not located within an environmentally sensitive geographical area (Criteria 2 Schedule 3) and

(v) The effects of the potential impact were not of sufficient magnitude, or complexity, to warrant EIA (Criteria 3.Schedule 3).

8. Circular 02/99 confirms that the approach adopted as set out above is correct (see paragraph 33). The Circular gives advice on how to determine when EIA is required generally and under A18 reference is made to the fact that EIA is unlikely to be required for the redevelopment of land unless the new development is of a significantly greater scale than the previous use or the types of impact are markedly different. Further, A19 refers to 'greenfield' sites of 5 acres or 10,000 sq.m of new commercial floorspace, neither of which apply to the planning application/proposal in this case. I therefore concluded, having taken all of the above into account, that the proposal for the redevelopment of an existing stand at the football ground was not EIA development...

9. I took account of the fact that the existing floodlights were likely to be replaced in conjunction with the proposed redevelopment of the North Stand (albeit that this did not form part of the planning application). Any replacement floodlights will face into the stadium and away from neighbouring properties. I did not consider the replacement of the floodlights to be significant."

51. Miss Sharpston sought to persuade me that Mr Miller's conclusion was wrong. As a subsidiary point, she argued that, in forming his opinion, Mr Miller failed to consider the whole scheme because the application for permission did not include the replacement floodlighting which the Club proposed to apply for in a further application: see R v Swale Borough Council, ex parte RSPB [1999] 1 PLR 6, per Simon Brown J (as he then was), at page 16G. Piecemeal development proposals would defeat the object of the regulations.

52. I find it convenient to deal with this subsidiary point at the outset. The principle established in the Swale case is not in doubt. Its application to the facts of the present case is. I have referred to Mr Miller's witness statement. He says that he had regard to the fact that there would need to be replacement floodlighting. There is no reason whatsoever to doubt that evidence. What was proposed was not the introduction of floodlighting where none previously existed. The old floodlights had been taken down in order to enable the proposed redevelopment to take place. It was obvious to everyone that they would have to be replaced, not least because replacement floodlights were shown, albeit in illustrative form only, on the proposed site plan and the proposed elevations forming part of the application drawings.

53. In due course, Mr Miller drew the members' attention to the fact that floodlights were not part of the application and would be the subject of a further application, "but it is likely that they would be angled off from the end blocks" (as shown by way of illustration on the application drawings). There is no substance in this subsidiary point.

54. The main thrust of Miss Sharpston's criticisms under this heading was that the screening opinion was issued prior to the relevant information (the shadow diagrams) becoming available. Once that information became available, the planning officer then had to deal on an ad hoc basis in his report with the significant environmental impact in terms of the shadow effect of the two­ tier stand, which should have been dealt with in a structured, orderly and detailed way as part of the EIA process.

55. Pausing there, it is relevant to note that this is not a case where it is suggested on behalf of the claimant that there is likely to be any significant effect on the environment apart from the shadow effect of the building. The residents in Alderman Road, including the claimant, do, of course, have many other concerns (additional crowds, additional traffic, et cetera), but there has been no credible suggestion that, save for the shadow effect, Mr Miller "missed" a likely significant environmental effect.

56. Miss Sharpston sought to persuade me that whether a proposed development would be likely to have a significant effect on the environment was a question of jurisdictional fact for the court to decide so that the court could substitute its own view on that matter for that of Mr Miller acting on behalf of the Council under delegated powers. In support of that submission, she relied on dicta of the New South Wales Court of Appeal in Timbarra Protection Coalition v Ross Mining [1999] NSWCA 8, and to the European Court in what is commonly called the " ;Dutch Dykes Case", reference C­72/95.

57. I am unable to accept that submission. As the New South Wales Court of Appeal emphasised in Timbarra , "every case turns on the particular statutory regime" (see paragraph 54). The 1999 Regulations make it clear that it is for the Secretary of State or the local planning authority to decide whether Schedule 2 development is EIA development (see Regulation 4 which I have set out above).

58. In Berkeley v Secretary of State for the Environment [2000] 3 WLR 420, Lord Hoffmann said this in his speech, between pages 429H and 430D:

"The Regulations do not expressly impose upon either the local planning authority or the Secretary of State a general obligation to consider whether an application is a Schedule 2 application or not. Regulation 5 requires the planning authority to express an opinion only if so requested by the applicant and regulation 10 requires the Secretary of State to notify the applicant that an environmental statement is required if it 'appears' to him that the application is a Schedule 1 or Schedule 2 application, without imposing an express obligation to consider the matter. The prohibition upon the grant of planning permissions without an E.I.A. regulation in 4(2) applies expressly only to 'any Schedule 1 or Schedule 2 application'. But, since the question of whether an application is a Schedule 2 application is primarily entrusted by regulation 2(2) to the Secretary of State, it is not difficult, in order to make regulation 4(2) effective, to imply into that regulation an obligation upon the Secretary of State to consider the matter...

If no reasonable Secretary of State could have considered that the club's application was a Schedule 2 application, the judge would of course have been entitled to rule that no E.I.A. could have been required. But [Counsel for the Secretary of State] does not so contend. It is arguable that the development was an 'urban development project' within paragraph 10(b) of Schedule 2 and the conflicting evidence on the potential effect on the river is enough in itself to show that it was arguably likely to have significant effects on the environment. In those circumstances, individuals affected by the development had a directly enforceable right to have the need for an E.I.A. considered before the grant of planning permission by the Secretary of State and not afterwards by a judge."

59. In R v Rochdale Metropolitan Borough Council, ex parte Milne [2001] 81 P&CR 27, it was argued on behalf of the claimant that it was for the court to decide, as a question of primary fact, whether the information provided in an EIA was sufficient to provide "a description of the development proposed". In paragraph 106, I rejected that submission, saying:

"That would be contrary, not merely to the structure of the regulations, but to the statutory Town and Country Planning framework of which they are but a part. Under the regulations it is for the local planning authority, or the Secretary of State, to decide whether a proposed development falls within the descriptions of the development set out in Schedules 1 and 2, and in the case of the latter whether it would be likely to have significant effects on the environment: see the speech of Lord Hoffmann at 429H to 430A in Berkeley . The local planning authority's or the Secretary of State's decision is subject to review on Wednesbury grounds. Regulation 4(2) requires the local planning authority or the Secretary of State to take the environmental information (which includes the environmental statement) into consideration before granting planning permission. Against this background the regulations plainly envisage that the local planning authority or the Secretary of State will also consider the adequacy of the environmental information, including any document or documents which purport to be an environmental statement."

60. And at paragraph 110:

"The question whether such information does provide a sufficient 'description of the development proposed' for the purposes of the assessment regulations is, in any event, not a question of primary fact, which the court would be well equipped to answer. It is pre­eminently a question of planning judgment, highly dependent on a detailed knowledge of the locality, of local planning policies and the essential characteristics of the various kinds of development project that have to be assessed."

61. In my judgment, those observations apply with equal force to the question whether a proposed development is likely to have significant effects on the environment. A detailed knowledge of the locality and expertise in assessing the environmental effects of different kinds of development are both essential in answering that question, which is pre­eminently a matter of judgment and degree rather than a question of fact. Unlike the local planning authority, the court does not possess such knowledge or expertise.

62. Such considerations led Simon Brown J (as he then was), to conclude in the Swale case (see above) at page 16C:

"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. I reject [counsel's] submission that only one possible view was open to [the Council]. I accordingly decline now to take the decision myself. Even less am I persuaded that this court is entitled upon judicial review to act effectively as an appeal court and to reach its own decision so as to ensure that our EC treaty obligations are properly discharged."

63. The position is entirely different in New South Wales, where the Land and Environment Court is a specialist court which combines two roles, one being that of a traditional court of Supreme Court status (albeit not part of the Supreme Court), the other being that of an Administrative Appeals Tribunal. The court comprises judges and assessors. The latter have relevant expertise in the environmental field. Thus, the Land and Environment Court has both the jurisdiction and the necessary specialist knowledge to enable it to deal with environmental disputes on their merits, in addition to the more traditional role of the court carrying out a review jurisdiction which it exercises in certain classes of case.

64. This led the New South Wales Court of Appeal to say this, in paragraph 90 of the judgment in Timbarra:

"In the present case, the primary decision maker either has, or has ready access to, a relevant body of expertise and experience. However, the Court in which proceedings are taken also has considerable experience, particularly in its Class 1 jurisdiction, of making judgments of this character. Indeed, in a Class 1 case, i.e. if an unsuccessful applicant brings an appeal to the Court, the Court may have to make the very same judgment, because the Court itself must take into account s90(1)(c3) of the EPA Act. The nature of the judgment, which may be entitled to significant weight in another judicial review context, is not of such significance in the present context."

65. The Dutch Dykes Case is of no assistance to the claimant. There is no suggestion that the 1999 Regulations do not faithfully transpose the requirements of the Directive into domestic law, or that the threshold set out in column 2 in Schedule 2 or the factors set out in Schedule 3 are inappropriate in terms of the Directive. The Regulations do provide a mechanism for ensuring that Schedule 2 developments which are likely to have a significant effect on the environment are subject to EIA. The body with the necessary knowledge and expertise (the local planning authority or the Secretary of State) reaches its decision, and that decision is then subject to judicial review in the courts.

66. Where a developer disagrees with a local planning authority's screening opinion that an EIA is required, or where the local planning authority fails to adopt any opinion within three weeks, the developer may apply to the Secretary of State for a screening direction: see Regulation 5(6) and paragraph 59 of Circular 2/99.

67. Whilst there is no formal right of appeal against a local planning authority's screening opinion that an EIA is not required, regulation 4(7) provides as follows:

"The Secretary of State may make a screening direction irrespective of whether he has received a request to do so."

68. Regulation 4(8):

"The Secretary of State may direct that particular development of a description mentioned in Column 1 of the table in Schedule 2 is EIA development in spite of the fact that none of the conditions contained in sub­paragraphs (a) and (b) of the definition of 'Schedule 2 development' is satisfied in relation to that development."

69. These are wide powers, as is explained in paragraph 77 of the Circular. It was therefore open to the claimant to write to the Secretary of State contending that the local planning authority's screening opinion was erroneous, and inviting the Secretary of State to make a direction that there should be an EIA. Thus, there was an opportunity to have the merits of the Council's screening opinion "reviewed" by the Secretary of State.

70. Upon the basis that the question is not one of jurisdictional fact for the court, it is impossible to conclude that Mr Miller's opinion was Wednesbury unreasonable. He had regard to all the relevant considerations, those set out in Schedule 3 of the Regulations and the advice contained in Circular 2/99. Although the final drawings were not available, he did have Delva Patman's assessment of the likely shadowing effects on March 21st, the spring equinox, and his own informal assessment as a result of his site visit. A very full summary of the position is set out in his report to the committee (see above).

71. In a nutshell, at the 21st March, the Council's normal planning standards would not be met at the hostel and at number 43. Although there would be increased shadow in the garden of number 42, the planning standards would still be met. The further information which had become available by the time the committee came to consider the matter confirmed, as would be expected, that the position would be much improved on 21st June. On 21st December (winter solstice) the two­tier stand would obviously cast a much longer shadow; but the houses at the southern end of the terrace, including number 42, would be in shadow in any event from the existing buildings, including the recently demolished northern stand. The gardens at the northern end of the terrace would be in shadow from the terrace itself by 2.00 pm in any event.

72. This further information as to the position in the summer and at the winter solstice, whilst no doubt useful, did not materially alter the picture that was already apparent to Mr Miller when he gave the screening opinion on 23rd March. There would be a significant shadowing effect on a few properties at the southern end of Alderman Road, but only two of them, the hostel and number 43, would fail to meet the Council's standards.

73. The 1999 Regulations are concerned to protect the environment in the public interest. Whilst this may have the effect of avoiding harm to residential amenity, the purpose of the 1999 Regulations is not to protect the amenity of individual dwelling­houses. There may be a "significant" impact upon a particular dwelling or dwellings without there being any likely " significant effect on the environment" for the purposes of the Regulations.

74. In Rochdale (above) it was argued that reserve matters were capable of having an effect on the environment; that was why they were reserved for subsequent approval. It followed, it was submitted, that an outline application with some matters reserved for subsequent approval could not adequately describe the " design" of the proposed development for the purposes of the 1999 Regulations. In paragraph 113 I rejected that submission in these terms:

"That ignores the fact that the environmental statement does not have to describe every environmental effect, however minor, but only the 'main effects' or 'likely significant effects'. It is not difficult to see why this should be so. An environmental statement that attempted to describe every environmental effect of the kind of major projects where assessment is required would be so voluminous that there would be a real danger of the public during consultation, and the local planning authority in determining the application, 'losing the wood for the trees'. What is 'significant' has to be considered in the context of the kinds of development that are included in Schedules 1 and 2. Details of landscaping in an application for outline planning permission may be 'significant' from the point of view of neighbouring householders, and thus subject to reserved matters of approval, but they are not likely to have 'a significant effect on the environment' in the context of the assessment regulations."

75. At one stage Miss Sharpston criticised Mr Miller for advising the members in his oral presentation that "Schedule 2 development is not generally EIA development unless the thresholds in Schedule 3 are exceeded. They are not in this case. I gave Power Stations as an example." She said that this advice, in effect, set the threshold too high because power stations were included as Schedule 1 developments. It is true that some kinds of power station, those over a certain capacity, do fall within Schedule 1. Others, over a certain hectarage, fall within Schedule 2. But the general thrust of Mr Miller's advice to the members was entirely correct. Paragraph 34 of Circular 2/99 advises that the three main types of Schedule 2 developments which will require an EIA "will be a very small proportion of the total number of EIA developments".

76. Even if the question whether the proposed development would be likely to have a significant effect on the environment was a question of jurisdictional fact for the court to resolve, I would have reached the same conclusion as the Council. Looking at the factors in Schedule 3, the size of the development, replacing a single­tier stand with a two­tier stand, is relatively modest by comparison with the types of infrastructure project that are listed in column 1 of Schedule 2 and the thresholds set out in column 2 of Schedule 2.

77. This is an area of mixed use. Although it contains residential properties, it could not possibly be said to be an area of "environmental sensitivity" of the kind referred to in Schedule 3. In particular, it is not "densely populated". Apart from the terrace, there are large areas of car parking, the park, the stadium and the Club's practice ground. The extent of the impact is limited in terms both of its geographical area and the size of the affected population.

78. When considering "the magnitude and complexity" of the impact, it is important to bear in mind that this is not the introduction of an entirely new use, nor does it significantly alter the scale or character of the existing use, for example by converting an open playing field with rudimentary provision for spectators into a full­blown stadium. The stadium already exists. There are, or were, stands on all four sides. The new two­tier north stand would be of a comparable scale and capacity to the stands on the other three sides of the stadium. There would be some intensification of use by reason of the additional seating capacity, but it could not be described as significant given the capacity of the other stands and the much higher capacities that existed in days when spectators were allowed to stand. There is no reason to suppose that adding an extra tier to the northern stand and realigning it so that it overhangs Sir Alf Ramsey Way will have environmental effects of any magnitude or complexity.

79. In reality, there is a severe, but highly localised, shadowing effect upon a relatively few properties, all of which, apart from the hostel, have their main aspect facing east/west towards the park. Insofar as it is a matter for my judgment, that does not, in the context of the Regulations, amount to a likely significant effect on the environment such as to warrant an EIA.

Ground (2)

80. Policy H7 is contained in Chapter 6 of the Ipswich Local Plan, which is concerned with housing. Paragraph 6.40 says:

"The protection of residential areas from the introduction of commercial and industrial uses causing unreasonable levels of traffic, noise, air pollution and general activity is viewed as a key objective of the Plan."

81. Against that background, Policy H7 says this:

"Non­residential uses in residential areas will be permitted where the proposed use:­

(b) is compatible with the size and scale of housing in the surrounding area and would not have an adverse effect on that area relating to noise, vibration, smell, safety, illumination, health, traffic generation and general activity caused by excessive numbers of people calling at the premises throughout the day and night."

82. In paragraph 17 of his witness statement, Mr Miller explains why he did not refer the committee to Policy H7:

"Policy H7 ­ is reflected in RL17 which requires that development proposals must not result in a significant loss of residential amenity. That requirement is met in this case. Moreover, the locality is a mixed residential and commercial area ­ this is reflected in the allocation in the Local Plan of the football stadium as a playing field facility. Policy H7 relates to primarily residential areas."

83. Reference is made to paragraph 6.40.

"Given that this area already has a substantial commercial use then Policy H7 would not be directly relevant."

84. Mr Miller's interpretation of Policy H7 is not merely within the reasonable range of interpretations open to the local planning authority (see Virgin Cinema Properties v Secretary of State for the Environment 2 PLR 24, between pages 27 and 29). It is plainly and unarguably correct. Policy RL17 is the relevant policy to apply to this proposal to redevelop part of a commercial football stadium. That, no doubt, explains why none of the objectors suggested to the committee that Policy H7 was applicable. The first suggestion that it was relevant was contained in the amended grounds which were served on 27th June. The suggestion is misconceived for the reasons given by Mr Miller.

85. In any event, the point is entirely academic. Both Policy H7 and Policy RL17 seek to prevent a significant loss of residential amenity. The report to committee made it clear that due to the shadowing effect, there would indeed be a loss of residential amenity and that this loss would be severe for a limited number of properties. It was for the Council to decide whether this would amount to a "significant loss of residential amenity" in terms of the policy and, if so, whether that loss would be outweighed by the advantages of the development.

86. On behalf of the claimant, it is submitted that the Council's conclusion that the loss of residential amenity would be outweighed by the advantages of the development was Wednesbury unreasonable. The benefits are nowhere explained. Having looked at the photographs of the former north stand, it is not difficult to understand why the Council accepted the conclusion in the report that "the existing stand is an eyesore in the area" and that "substantial external environmental improvements would be made".

87. In addition, the relevant policies, both national and local, encourage the improvement of sporting facilities (see for example RL17). The benefits of so doing for the local professional football club would have been readily apparent to local councillors. Planning officers' reports are intended to provide practical assistance to councillors. They do not have to spell out the obvious.

Ground (3)

88. Whilst severe environmental pollution may result in a breach of Article 8: see Lopez Ostra v Spain [1994] 20 EHRR 227, and Guerra v Italy [1998] 9 EHRR 235, at paragraph 60, it is doubtful that the shadowing effect upon the claimant's garden crosses that threshold, in view of fact that the Council's own standards are not infringed. But if one assumes that the threshold is crossed, what then? The right to respect for private and family life and home is not absolute. Interference may be justified on the grounds set out in Article 8(2). This required the local planning authority to carry out a balancing exercise between the claimant's interest in the enjoyment of her home (in this particular case her garden), especially during the spring and autumn, and the public interest in removing an outmoded stand and replacing it with a new one, giving improved sporting facilities and additional capacity for the Club. That is precisely what the Council did. There is no sug gestion that Mr Miller's report omitted any relevant impact upon the claimant or that any of her concerns were ignored in the report.

89. The shadowing effect on the properties at the southern end of Alderman Road was set out in considerable detail in terms which are not challenged. Armed with this information, it was for the members to carry out the balancing exercise. Article 1 of the First Protocol does not take the matter any further, since the Club is equally entitled to the enjoyment of its possessions. It should not be prevented from redeveloping the north stand unless there are good reasons for refusing planning permission in the public interest. The committee decided that refusal would not be justified.

90. Turning to Article 6, there is no suggestion, nor could there be following the decision of the House of Lords in Alconbury Developments Limited v Secretary of State for the Environment, Transport and the Regions 2 WLR 1389 that the procedure adopted in the present case, whereby the local planning authority determines the planning application and that determination is subject to judicial review in the courts, is contrary to Article 6 in principle. It is said that the claimant was deprived of a fair hearing because the three minutes allowed for objectors to put their points was woefully inadequate.

91. In The Queen on the application of Vetterlein v Hampshire County Council & Hampshire Waste Services Ltd EWHC Admin 560 (14th June 2001) I rejected a submission that arranging a non­statutory public inquiry would have been the only way to provide the claimant in that case with a fair hearing in respect of his objection to a proposed energy recovery facility. At paragraph 68 I said this:

"The special meeting was held in public. The agenda was available to members and to the public beforehand. In deciding whether there has been a breach of article 6(1) the procedures have to be looked at in their entirety, including the earlier opportunities to make representations during the consultation process and the subsequent right to seek relief by way of judicial review if the Council errs in law. A 'fair' hearing does not necessarily require an oral hearing, much less does it require that there should be an opportunity to cross­examine. Whether a particular procedure is 'fair' will depend upon all the circumstances, including the nature of the claimant's interest, the seriousness of the matter for him and the nature of any matters in dispute. As indicated above, the claimants' interest in this matter is remote and on the evidence it could not be said that the consequences of the decision to grant planning permission will be significant, much less serious for them."

92. In paragraph 71 I concluded:

"Given the nature of their interest and the nature of the points in issue, the opportunity to make detailed representations during the public consultation process and to address the committee, I am satisfied that even if article 6(1) did entitle the claimants to a fair and public hearing, the procedures adopted by the County Council when looked at in totality did afford them just that opportunity."

93. Understandably, Miss Sharpston points to the fact that in the present case the claimant's interest is far more direct and the impact upon her property is severe. That is undoubtedly true, but the opportunity to address the committee on behalf of objectors for three minutes was merely the culmination of a consultation process which was designed to, and did, elicit the residents' concerns. In addition to the petition, there were letters to the Council and there were the meetings arranged by the Council and the Club, in the latter case with a Council officer present.

94. Looking at the proceedings in totality, it is impossible to escape the conclusion that the claimant had ample opportunity to place her concerns before the Council and indeed that she did so. There is no suggestion that those concerns are not fully set out in the report itself. This is not a case where a planning officer's report has omitted to mention a matter that is of real concern to an objector.

95. In The Queen on the application of Kathro and others v Rhondda Cynon Taff County Borough Council EWHC Admin 527 (6th July 2001), Richards J raised the question of whether the conventional procedures for determining planning applications would be compatible with Article 6 if there were disputed issues of fact (see paragraph 29 of his judgment). I find it unnecessary to consider that question in the context of the present case because here there were no disputed issues of fact. The shadowing diagrams relied on by Mr Miller in his report are not challenged. This is not a case where the planning officer is saying that a particular property would not be affected by some environmental impact and the owner is saying that it would. The extent of the shadowing to the claimant's property was agreed. The issue for the committee was whether it was so serious as to warrant refusal of planning permission.

96. In the case of the hostel on the other side of the road from the new stand, which has its principal elevation to the south and houses vulnerable people, it is not surprising that the Council considered that there was such an objection which had to be overcome before the second tier could be constructed. For understandable reasons, it did not reach the same conclusion in respect of the two­storey terrace behind the hostel which predominantly faces east/west.

97. It is not suggested that the claimant would have wished to add to the information put before the Council. She simply disagrees with the Council's conclusion on the merits. In all the circumstances, there can be no doubt whatsoever that she has had a fair opportunity to put her case.


98. It would have been logical to deal with this issue at the outset, but having heard extensive submissions from Miss Sharpston on the merits, I concluded that it was desirable to resolve this dispute on the substantive merits insofar as it was possible to do so. Having done so, I should make it clear that in my view this application was not made promptly in all the circumstances. In the Rhondda case (above), Richards J said in paragraph 40 that it "would not generally be an appropriate time to apply for judicial review" after a screening opinion and before a decision had been taken on the planning application. In that case the screening opinion was not challenged. In the present case the only substantive challenge prior to service of the amended grounds was to the lawfulness of the screening opinion.

99. Ground (1) remains the main complaint made on behalf of the claimant. Where such a challenge is to be made, it is of vital importance that it is made promptly. Faced with a challenge to the lawfulness of a screening opinion, the local planning authority may wish to reconsider its position and ask the Secretary of State to make a direction accordingly (see paragraph 66 of Circular 2/99), or the developer may volunteer an EIA. It is not appropriate to wait until after planning permission has been granted, when it is too late to remedy the omission, and then complain that the screening opinion, which has been on the public register for some months, was erroneous. Each case will of course depend on its own particular facts, but, as a general rule, where there is a discrete challenge to a screening opinion, it should, in my judgment, be made promptly so that any error, if there is one, can be remedied before the planning application is considered by the local planning authority.

100. Turning from the screening opinion to the challenge to the planning permission itself, whether a challenge to a grant of permission has been made promptly depends on the circumstances of the particular case: see Re Burkett's Application [2001] JPL 775. I can readily accept that all other things being equal, in most cases a claimant would be acting sufficiently promptly if a resolution to grant planning permission on 25th April was challenged on 1st June. But all other things are not equal. The Club had made it clear that it needed to proceed as a matter of urgency with the proposed redevelopment in the closed season. The tight timetable was referred to in the report to committee. As soon as the decision was issued, demolition began at the end of Alderman Road. This is not a case where a local resident is suddenly confronted out of the blue with an unexpected and unwelcome planning decision because, for example, there has been a failure to notify residents of a proposed development. It was well known by all the residents in Alderman Road that the Council would be considering the application for permission on 25th April. The claimant could see the old stand being demolished. By the time the application for judicial review was made, it had been completely demolished.

101. In my judgment, it is plain that in the particular circumstances of this case, the challenge to the grant of planning permission was not made promptly; and moreover, that this lack of promptness has resulted in substantial prejudice to the Club. It has proceeded with the demolition of the existing stand. It is clear from the evidence provided on behalf of the Club that had it appreciated that there was doubt as to the lawfulness of the permission, it would not, for obvious reasons, have proceeded to demolish the existing accommodation for spectators.

102. Very considerable costs have been incurred by the Club which would be wasted if this permission had to be quashed or indeed if the development was to be delayed. It is unnecessary to set out those figures in any detail because of my views on the substantive issues. Suffice it to say that even if I had concluded that there was some merit in any of the grounds of challenge, I would, as a matter of discretion, have unhesitatingly refused to grant permission to apply for judicial review upon the ground of delay and substantial prejudice.

103. Having heard the arguments on the merits, I am satisfied that the better procedural course is not to refuse to grant permission on the ground of delay, but to grant permission to apply for judicial review, so as to enable me to refuse the substantive application both on the merits and on the ground of delay and prejudice.

104. Yes.

MR LITTON: My Lord, I would ask for a costs order in favour of the defendants. I understand that the claimant is in receipt of legal aid, and therefore I think the appropriate order is that the claimant pay the defendant's costs, but that those costs should be assessed if not agreed.

MR JUSTICE SULLIVAN: You seek a legal aid order; is that what you are asking for?

MR LITTON: Yes, legal aid order.

MISS SHARPSTON QC: My Lord, I believe your Lordship does have the certificate, the legal aid certificate. It should be with the court.

MR JUSTICE SULLIVAN: It may well be with the court. Yes. Yes, the associate is nodding it is.

MISS SHARPSTON QC: It is indeed legally aided. Therefore, it is legal aid assessment, my Lord.

MR JUSTICE SULLIVAN: Right. Shall we just deal with things in order. Miss Sharpston, so far as the Council's application for costs is concerned, can you object to that on the normal legal aid basis?

MISS SHARPSTON QC: On the normal legal aid basis, of course, my Lord, I cannot. If I anticipate that my learned friend is going to make an application on behalf of the developers, such an application I would resist on Bolton grounds, and obviously Berkeley.

MR JUSTICE SULLIVAN: I can appreciate that. It seems to me to be entirely academic, quite frankly, but if Mr Elvin wants to make his academic application, by all means let him.

Would you like to make an entirely academic application for costs at 1.15, or do you think it is not a good idea?

MR ELVIN QC: My Lord, I am afraid I am instructed to apply simply to keep the matter open because, as your Lordship knows, post the decision of the Court of Appeal in Gunn , the matters have to be dealt with by application to the costs judge.

My Lord, it is a simple case on Bolton grounds. We had a specific interest and specific substantial evidence, both on the factual lead­up to the decisions of the authority, Mr Roberts' and Mr Sheeptan's(?) evidence, and indeed in order to protect our position on delay and prejudice. Had the matter had to be argued, in fact as you will have seen from the local authority's skeleton, the human rights issue was going to be left to us to argue and we had our discrete points on prejudice.

In my submission, this is one of the cases where two sets would be appropriate. In Berkeley there was no separate issue on the part of the football club. There was no additional matter other than as the Secretary of State raised.

Those are my submissions.

MR JUSTICE SULLIVAN: Yes, thank you very much. Miss Sharpston, I will not trouble you on that. Thank you very much.

In my judgment, the appropriate order is that the Council should have its costs, subject to the usual legal aid order. There should be no order so far as the Club's costs are concerned. I understand that it did have a specific interest. It is quite understandable that it was here, but looking at the matter in the round, I do take the view that quite frankly (a) it is entirely academic, and (b) there is an element of David and Goliath here. I am afraid Goliath can have its new stadium but not its costs.

MISS SHARPSTON QC: My Lord, I do have an application for permission. I wonder if your Lordship wishes to hear that application now or later. I am entirely in your Lordship's hands. How long is it going to take me, my Lord?

MR JUSTICE SULLIVAN: Yes. That really is the rather rude question that I would want to ask you, but if you are ­­ yes.

MISS SHARPSTON QC: Well, my Lord, I may be able to take it more quickly. What we had done, in the light of the indications your Lordship had given yesterday, was that we had roughed out what is erroneously labeled "draft grounds of appeal". It would be more aptly called issues which would form the basis of the application for permission.


MISS SHARPSTON QC: I have been annotating those as your Lordship has given judgment today.


MISS SHARPSTON QC: May I hand up a copy which I have only partially annotated and then go through. And I aplogise to my learned friends. I am going to have to give them the annotations as we go along.

My Lord, this is not necessarily taking it in the order in which your Lordship dealt with the points in the judgment. The first issue is indeed the issue of whether your Lordship is right in saying that this is not a matter of jurisdictional fact, saying you are limited to the grounds of Wednesbury unreasonableness. And there I would merely add in the impact on your Lordship's analysis of the passages in Kriefeld(?) and the Dutch Dykes Case to which I took your Lordship.

There is, in my submission, an important point which is one of real public interest as to the view your Lordship took in your judgment as to whether a significant environmental impact requires that more than a limited number of people should be affected by the proposed development. My Lord, we have overnight seen whether we could turn up any case which was in that direction, as indicated by your Lordship. We have not found ECJ authority that goes in that direction, and indeed very informally we understand that the Commission does also take the view that there is no point of principle that such a general limitation on the Directive is not the way that the Commission would see its application. Of course, that is an entirely informal contact, and I merely mention it because it does highlight the importance of saying what the scope of Article 2(1) of the Directive is, which is in fact the issue to which your Lordship's judgment goes.

The human rights point is perhaps too broadly expressed in my point three with the analysis by planning committee of the human rights issues. I would perhaps add as a gloss to that that I may be in error, but I did not take a note of your Lordship indicating matters of proportionality in relation to that.

The fourth point is really a sub­point of the third, because of course the Human Rights Act, the ECHR, confers individual rights, and this is here a balance between individual rights and community interest and how that balance is to be struck.

Then the fifth point is the negative screening opinion point. What is the unlawful act: incorrect determination that an EIA is not required or subsequent resolution? Your Lordship's judgment just now, your Lordship has stated in terms that where there is a discrete challenge to a screening opinion, that challenge should be made promptly so that any error may be remedied promptly. My Lord, I would submit that that is very important from the planning perspective. With the greatest respect to your Lordship, it would be right for that matter to be considered further because it does ­­ in all EIA cases it does have significant consequences for third parties seeking to mount a challenge.

In the centre one could add what one might call the Berkeley point within that: is there a finite period ­­ your Lordship has been against us on the promptness issue. Is there a finite period to the extent of just applying the promptness requirement of the Supreme Court Act, or does promptness override, so that even if normally we would have been in time on our challenge, as your Lordship has just held on the particular facts of this case your Lordship felt that we had not acted promptly.

Then there is the Article 6 point, that is the determination that we should challenge the screening opinion.

I have added ­­ and I aplogise for the manuscript, my Lord ­ ­ but the point your Lordship raised in relation to the route of challenge to a screening opinion via Regulation 4(7). We would obviously ­­ we would say that does not provide a legal guarantee of challenge to third parties. It does not match the developers' rights. That raises the question of whether that route of challenge identified by your Lordship satisfies the need for effective protection of directly effective environmental rights as conferred on third parties by the Directive.

Now, your Lordship will understand that these points that have been raised are very much points relating to the interpretation of EC law in relation to the proper interpretation obviously of the Directive and the way in which that has been transposed into national law and your Lordship's construction of the ­ ;­ of that transposition and the way in which it is then applied to the individual case.

Of course in a sense it is your Lordship's judgment that has identified these points, which I would submit a number of them are quite clearly points that are referrable points within the meaning of what used to be Article 177 of the EC treaty, and is now, under the renumbering, Article 234. And of course in that sense if ­­ either I seek permission from your Lordship; if your Lordship does not give it, then the Court of Appeal becomes the final court for the reference points in there.

Because we anticipate that of course the Club would want a speedy resolution of this, if there were to be any appeal, my submission would be that actually the saving of time and the expediency lies in favour of your Lordship granting permission, because that would enable the matter to be dealt with most swiftly. In that connection, I would in fact request if your Lordship ­­ in any event I would request an expedited transcript so that we may have the full benefit of your Lordship's reasoning. Indeed, I am unaware, of course, whether your Lordship is going to be taking a vacation immediately following ­ ­

MR JUSTICE SULLIVAN: Absolutely, as from 4.15.

MISS SHARPSTON QC: Well, my Lord ­­

MR JUSTICE SULLIVAN: You will not see me for dust until 1st October.

MISS SHARPSTON QC: My Lord, I am delighted for your Lordship. May I perhaps in that case request that there would be authority for Smith Bernal to release the draft transcript to us and to the other parties, obviously on terms that it is not otherwise published or released, precisely so that we should be able, in your Lordship's well­deserved absence on vacation, we should be able to take this matter further forward.


MISS SHARPSTON QC: My Lord, those are my submissions.

MR JUSTICE SULLIVAN: Thank you very much. Mr Litton, Mr Elvin, I do not need to trouble you on that. Thank you very much.

I am quite satisfied that permission should not be granted to appeal in this case. I do not think that there is any real prospect of success, nor do I consider that it raises wider issues, notwithstanding the careful submissions just now of Miss Sharpston. In brief, the question of whether the court should consider the matter as one of jurisdictional fact or on a Wednesbury basis, whilst certainly of interest is of no relevance for present purposes since whichever way it is approached, in my judgment the Council was right.

So far as point two is concerned, there cannot be any doubt from Schedule 3 that the number of people affected is a relevant factor.

So far as point three is concerned, it seems to me, for the reasons given in the judgment, that there really is no force in the human rights point. There is no question of inclusion that simply because a limited number of people are affected human rights are not engaged. I appreciate these grounds were prepared before the judgment was given, but it is apparent from the judgment that it proceeded on the basis that although there might be doubts about the matter, assuming human rights were engaged under Article 6 and 8, were they then broken on the facts of ­­ whether they infringed on the facts of this case.

So far as time is concerned, again, it might be interesting if the application for planning permission had been challenged promptly but the screening opinion had not to see whether my views about leave for promptness in challenging screening opinions were right. But since neither was challenged promptly in the present case, in addition to delay there is very substantial prejudice. It seems to me that that point, too, is of academic interest.

So far as the additional point under seven, there is no suggestion, at least on my part, that the opportunity to ask the Secretary of State to look at the matter again is the sole answer. It is part of the picture. There is an opportunity to have somebody else look at the merits. Beyond that, it does not seem to me the judgment establishes any ­­ indeed, one is really left with the impression that the judgment very largely turns upon the particular facts of this case.

There does not seem to me to be another relevant factor. No stay is being sought. For obvious reasons, if no stay is sought, by the time this matter comes to the Court of Appeal the first tier of the new stand will not simply be one third or half built; it will jolly well be almost completely built, if not with spectators in it cheering on their club.

In all of those circumstances, it seems to me that in reality further challenge would be pointless. So for all of those reasons, I refuse to grant permission.

I am perfectly happy to say that Smith Bernal can release the unapproved transcript ­­ provided the "unapproved" is put in big capital letters ­­ in my absence. This shorthand writer has prepared transcripts for me before. I suspect there will be very, very few amendments that I would have to make, so it will be almost as perfect as any transcript can be. But still put "unapproved" on the front of it. There is no need for an expedited transcript in my judgment. I do not see the point of that. But certainly when the transcript has been prepared, then Smith Bernal can release it on an unapproved basis. Any more?

MR ELVIN QC: My Lord, I am sorry to weary you.

MR JUSTICE SULLIVAN: That is all right.

MR ELVIN QC: My Lord, since there is, at least from what I was told yesterday, a high prospect of the application for permission being renewed to the Court of Appeal, as your Lordship is well aware of the difficulties of the circumstances of delay and prejudice, I would ask your Lordship to make an order under Part 52 to abridge time for applying for permission. We have been presented this morning with what are called draft grounds of appeal and they plainly are. I have put my learned friend on notice of such an application yesterday so she is aware of it.

Given those draft grounds have clearly been thought through overnight, I would ask your Lordship to abridge time for filing an appeal and serving to 4.00 pm next Monday.

MR JUSTICE SULLIVAN: Mr Elvin, it seems to me that it would not be right, if the claimants do want to ask for permission to appeal to the Court of Appeal, for the claimants to have to make their pitch, if you like, or the Court of Appeal to have to consider it actually without a transcript. That is why I have been checking with the shorthand writer.

MR ELVIN QC: So be it.

MR JUSTICE SULLIVAN: She tells me that she thinks Tuesday or Wednesday she should be able to get an unapproved transcript to the parties. My own feeling, therefore, is that what I ought to do ­­ when did you say you want ­­

MR ELVIN QC: I was suggesting 4.00 pm Monday, given that ­­

MR JUSTICE SULLIVAN: This is Monday after this weekend?


MR JUSTICE SULLIVAN: Right. Well, I do not think, with due respect ­­

MR ELVIN QC: I understand what your Lordship thinks.

MR JUSTICE SULLIVAN: I do not think that is entirely reasonable, notwithstanding the need for urgency. What I am going to say, I think, subject to anything Miss Sharpston may say to me, given what she has said about the need for urgency, and she obviously appreciates that from the claimant's point of view as much as you do from yours, because as we speak the building is going up, I would have thought if I limited time for appeal to a week from today, seven days, that means you would have the transcript, so would the Court of Appeal. The Court of Appeal would have the advantage of your grounds and my transcript, even on an unapproved basis. That must be better. Is that sensible?

MISS SHARPSTON QC: My Lord, that is certainly better, but my difficulty is, as your Lordship knows, we are legally aided, and we would need ­­ we would clearly need to write an opinion for the legal aid board. That could only sensibly be based on having the transcript. This is indeed why I asked for expedition of the transcript because I was very much in mind of my learned friend's difficulties. My Lord, my own suggestion would be that within seven days of the transcript is of course a schedule that we ought to be able to meet because I appreciate the need for urgency.

My Lord, may I just add this one point. There has never been any suggestion on the part of the claimants that we should apply for a stay because the objection is not to the first tier of the stand. And so, my Lord, that ­­ I merely say that.

MR JUSTICE SULLIVAN: Yes. The application for expedition of the transcript is pretty much academic because it is going to come so quickly anyway, Monday, Tuesday, or Wednesday.

MISS SHARPSTON QC: My Lord, I am must grateful to the shorthand writer.

MR JUSTICE SULLIVAN: Mr Elvin, I would have thought seven days from receipt of the transcript, that speeds things up.

MR ELVIN QC: My Lord, it means that, if your Lordship will ­­

MR JUSTICE SULLIVAN: Yes, of course.

MR ELVIN QC: My Lord, it means we will be into September before we can ask the Court of Appeal to list this for an early hearing. We cannot obviously do that until the application is made. My Lord, by the time ­­ I appreciate it may help my client's case in one respect but in another it will not, because one must look on the basis that there is at least a shadow of a possibility the Court of Appeal might disagree with the view your Lordship has reached. What my learned friend said is, quite frankly, a ridiculous assessment of the situation, because it is not the fact that the claimant is complaining about the upper tier, but we have planning permission which we have implemented. As your Lordship will well know, the powers of the local authority to enforce against new development which is not permitted must be discharged in the public interest, not just simply because my learned friend says we were not worried about the upper tier.

My Lord, I am genuinely concerned and submit to your Lordship that my learned friend could not be at this stage more freshly acquainted with the papers and the facts, and I do not see frankly why, given the circumstances, she cannot turn round an opinion overnight having seen your Lordship's transcript, and knowing full well both from the summary last night and the detail this morning what your Lordship's views are.

In my respectful submission, I would ask for an order for abridgement no later than seven days from today, given that that will encompass two to two­ and­a­half days when the transcript will have been available.

MR JUSTICE SULLIVAN: Bearing in mind the practicalities of persuading the legal aid fund to give you money, if you want to challenge the decision without actually having the decision to show them to cover the opinion, I think that the sensible thing to do is to abridge time to seven days from receipt of the transcript.

MISS SHARPSTON QC: I am grateful, my Lord.

MR JUSTICE SULLIVAN: Now, anymore or can we go to lunch?

MR ELVIN QC: My Lord, I am sorry. I know your Lordship has just ruled on this point. My Lord, your Lordship may have actually extended the time.


MR ELVIN QC: Because it is 14 days. If for some reason ­­ I wonder if your Lordship would fix a backstop date for the date your Lordship intends to abridge.

MR JUSTICE SULLIVAN: Yes, I am happy to do that.

MR ELVIN QC: For certainty's purposes.

MISS SHARPSTON QC: My Lord, I have no difficulty with that, of course.

MR JUSTICE SULLIVAN: Right. Seven days from receipt of this transcript, but in any event no later than 14 days from today.

MISS SHARPSTON QC: I am obliged.