R (Eley) v Watford Borough Council

Transcript date:

Thursday, February 18, 2010

Matter:

Court:

High Court

Judgement type:

Permission

Judge(s):

Collins J

CO/9685/2009 
Neutral Citation Number: [2010] EWHC 436 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL

Thursday, 18 February 2010

B e f o r e:

MR JUSTICE COLLINS

Between:
THE QUEEN ON THE APPLICATION OF ELEY 
Claimant

v

WATFORD BOROUGH COUNCIL 
Defendant

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MR P STOOKES appeared on behalf of the Claimant 
MR S WHALE appeared on behalf of the Defendant

J U D G M E N T 
(As Approved by the Court)

Crown copyright©

1. MR JUSTICE COLLINS: This is a renewed application seeking permission for judicial review of a decision to grant planning permission of 23 July 2009. The claimant lives at an address which adjoins the proposed development site in Watford. There is a considerable history because there was a challenge by this claimant to a previous grant of planning permission which came before Wyn Williams J last year and which failed. The learned judge accepted that there was a failure to disclose certain matters which ought to have been disclosed, but nonetheless relief was refused.

2. The key issue so far as this claim is concerned, and Mr Stookes accepts that his application must stand or fall on whether this point is arguable, is that there were two different applications for two parts of the same site. This application which covered .39 of a hectare, and an application in relation to the other half which covered, on one view .17 of a hectare and on another view a little bit less than that since part of the .17 seems to have been included in part of the .39. There is an argument between the parties as to whether the total amounts to .49 or .52 of a hectare. The importance of that is that a development such as we are concerned with will not fall within schedule 2 of the Directive or the relevant regulations so that, at the very least, a screening opinion is required to see whether there are significant environmental effects of the development and whether in the circumstances an environmental impact assessment is required. I have not gone into the factual dispute, nor at this stage would I think it is appropriate for me to do so on an argument about arguability. However, on any view, it is very close to the boundary, if I may put it that way, as to whether schedule 2 is involved.

3. Thus, it is necessary for Mr Stookes, in order to maintain a claim, to show that it is arguable that there has been what is described as "slicing"; a "slicing" which avoids the need for an environmental impact consideration by dividing a development into different parts, each part being less than the area which qualifies to come within schedule 2. Clearly, and the European Court has emphasised this, and the Court of Appeal, in Goodman v Lewisham Borough Council EWCA Civ 140, has approached the matter in the same way, the first question must be whether the development falls within schedule 2.

4. As a general approach, the European Court, and the Directive, is concerned that there should be no attempt to avoid the need for an environmental impact consideration by a deliberate decision to split developments into different parts. Mr Whale submits that there is no evidence at all in this case that anyone, whether it be the developer or the council, has approached the matter in that way. There have always been two separate considerations, and indeed the two applications, which happened to be dealt with together by the council, or rather at the same time, were made a year apart. There have been separate considerations throughout of whether the developments should occur in each of the two sites. Of course, I recognise that there may be situations where a council should appreciate that there is a real risk that there has been an attempt to avoid the environmental impact consideration, or the case quite obviously is one where one cannot divide the two or more applications into individual parts and it is essential to look at the whole.

5. In my judgment, looking at the history, there is no such situation here. It seems to me that the council was entitled to approach this on the basis that it did, indeed an approach that, to an extent, has been upheld by an inspector who considered the one site. The argument that this is to be struck down on the basis of splitting simply goes nowhere.

6. The environmental effects relied on are increased risk of flooding, increase in noise and light pollution, increased stress and impact on sewers, loss of trees and wild life habitat I think, in fact, it seems that it was badgers that were the concern there and the badgers have disappeared, but that is another matter and impact on the main line railway tunnels underneath the site. It is submitted on behalf of the defendant that none of these, in reality, are such as could, in any event, have justified an environmental impact assessment or a different approach. Indeed, all those matters were in any event to be considered in deciding whether planning permission ought to have been granted. There is, in my view, some force in that. It may well, in the end, even if the splitting argument were one which prevailed, have prevented relief being granted in the court's discretion.

7. There is one further point that has been raised, rather at the last moment, and that is that there was a breach of the requirements in the plan and in PPG3 for affordable housing. That is a matter which is based, as it seems to me, on very flimsy material. The numbers of dwellings in question do not qualify unless the two have to be run together. As I say, that argument is, in my view, one which does not cross the arguability threshold. In any event, even if I were persuaded that there was merit in the affordable housing point (and I am not), there is no question that that is not an issue which could conceivably justify a protective costs order, because that is something which, if permission were granted, would be pursued by Mr Stookes. The evidence before me is that, having regard to the order for costs made in the previous proceedings, the claimant would be unable to run the risk of pursuing any claim because if she lost she would be totally unable to pay the costs.

8. In all the circumstances, for the reasons I have given briefly, I take the view that there is no chance of success on this claim and permission is therefore refused.

9. MR WHALE: My Lord, I am very grateful. I do have an application for costs. I do not know if a schedule has found its way to you?

10. MR JUSTICE COLLINS: Yes. I am not going to award costs for today I am afraid. The practice direction indicates that, generally speaking, costs will not be awarded for an oral renewal. But you have got an order from the deputy for £1,000 have you not, for the acknowledgement of service?

11. MR WHALE: Yes, indeed. May I just

12. MR JUSTICE COLLINS: You can try but you will not succeed.

13. MR WHALE: Well I will try. Maybe try, try and try again. I am very mindful of Mountcook(?), in fact I was Mr Steele QC's second string junior in that case having recently joined chambers.

14. MR JUSTICE COLLINS: Well, I started it, did I not, in the predecessor to Mountcook. I have forgotten the name of the case off hand, but

15. MR WHALE: So have I for the moment. But, your Lordship, I would ask you to bear this well in mind: there are a whole host of grounds that have been advanced, all of which have had to be addressed. The affordable housing point was put in without leave, without my client's consent, after our acknowledgement of service, and still there is nothing in it. You have seen I have put in effectively three defences. Today there has only been one point out of the many that has been unarguable. My Lord, there should be something to reflect that fact in my submission.

16. MR JUSTICE COLLINS: Well, I remain having some sympathy for defendants in this situation, but until something is done, Mountcook said it ought to be done, and I think I said it ought to have been done years ago, but the rules clearly has not got round to doing anything. So long as the matter remains as it is, it is only in exceptional cases really. I know you say this is an exceptional case, but I do not think so.

17. MR WHALE: Well, I did but try.

18. MR JUSTICE COLLINS: Yes. No, I am not going to make any order for costs covering today, but I see no reason why I should vary the order of the Deputy Judge.

19. MR STOOKES: My Lord, only that it, in itself, is prohibitively expensive. The Aarhus Convention does apply to this case.

20. MR JUSTICE COLLINS: If does not, on the basis that I do not think you have got an arguable case. It would if you had an arguable case. There has to be an element of discretion here Mr Stookes.

21. MR STOOKES: My Lord.

22. MR JUSTICE COLLINS: I see no reason why the order it was £1,000 was it not?

23. MR WHALE: Yes it was, my Lord.

24. MR JUSTICE COLLINS: Should not stand, but I am not going to award any further costs.

25. MR STOOKES: My Lord, I am grateful.

26. MR JUSTICE COLLINS: Thank you both.