R (oao Caroline Probyn) v. First Secretary of State and Faccenda Group Ltd

Transcript date:

Friday, February 24, 2006



High Court

Judgement type:



Burton J


Neutral Citation Number: [2005] EWHC 398 (Admin)




Royal Courts of Justice


London WC2


Friday, 24 February 2006


B E F O R E:




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Computer-Aided Transcript of the Stenograph Notes of

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MR RICHARD HARWOOD (instructed by Richard Buxton) appeared on behalf of the CLAIMANT

MR JAMES MAURICI (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT

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(As Approved by the Court)

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1. MR JUSTICE BURTON: This has been the hearing of an application for permission to apply for judicial review after initial refusal on the papers by Goldring J. The claim is another case relating to the question of EIA (Environmental Impact Assessment). The facts are not in issue and do not need to delay me long. There is a combined slaughter and cutting facility for chickens in a village in Dorset. In August 2002 a 25 metre-high fume extraction stack was erected following the grant of a planning permission which was subsequently quashed by the High Court. The chimney operates still and has not been prevented from operating by the continuation of these proceedings.

2. The issue arises out of a planning application for retention of the chicken stack, which was considered by the local planning authority and subsequently by the First Secretary of State. Local residents, including the claimant, asked the First Secretary of State to make an EIA screening direction under Regulation 4(8) of the EIA Regulations. It was conceded that this development, which is a small development compared with others, does not qualify for an automatic screening direction that an EIA is required within the Regulations. But Regulation 4(8) entitles the Secretary of State to direct that particular development of a description mentioned in column 1 of the table in Schedule 2 is EIA development, that is, development for which an EIA is required, in spite of the fact that none of the conditions contained in sub-paragraphs (a) and (b) of the definition of Schedule 2 development are satisfied in relation to that development. The words are: "the Secretary of State may so direct".

3. In this case, the Secretary of State considered submissions made, inter alia, by those representing the claimant, and gave a decision that he did not conclude that he should apply Regulation 4(8). In the decision letter of 6 April 2005 the relevant official on behalf of the First Secretary of State indicated as follows:

"In the opinion of the Secretary of State, and having taken into account the selection criteria in section 3 to the 1999 Regulations, the above proposal would not be likely to have significant effects on the environment by virtue of factors such as its nature, size or location such as to require an Environmental Impact Assessment."

4. The challenge by these claimants is that that amounted to insufficient reasons, or no reasons, for a decision. The Secretary of State's position is that he is not required to give reasons; alternatively that those reasons were sufficient. Although various other ways of putting the case were canvassed in the letter before action pursuant to the protocol, the only legal challenge by the claimants in these proceedings is as follows: "the Secretary of State unlawfully failed to give reasons for his decision not to require Environmental Impact Assessment in this case".

5. There is relevant authority of the Court of Appeal, as both sides accept: R v Secretary of State for the Environment, Transport and the Regions ex parte Marson [1998] Env LR 761, a decision of a very well qualified Court of Appeal, if I may say so with respect, of Nourse, Pill and Mummery LLJ. That decision did not relate to the identical Regulation, but it is seemingly common ground, certainly it was before me, that that does not make any difference and that the decision of the Court of Appeal has the same effect on these Regulations as in relation to the specific Regulation it was considering, and that the fundamental principle was very fully set out by the Court of Appeal in that case, namely that there was no obligation on the Secretary of State to give reasons when giving a decision as to whether or not an environmental assessment is necessary: such a decision is discretionary and is only one part of the procedures provided for planning control and environmental protection.

6. The decision in question by the Court of Appeal was given on a renewed application for permission to apply for judicial review, following earlier refusal by the Administrative Court per Jowitt J. The claimant well knew the existence of that decision, not least because the same solicitor, Mr Buxton (who acts in this case), was instructed in Marson.

7. The claim which was originally pursued in this court was accompanied by a request for a stay of these proceedings, on the basis that it was suggested that the European Commission was unhappy with the Government's position, and that there might be some suggestion of some ruling by the Commission that reasons ought to be given in such a situation. That stay application has not been pursued before me today. It would clearly carry with it all kinds of problems: first, the position so far as what the Commission were doing at all was wholly unclear; second, the stage which the Commission has reached in whatever investigations it is carrying out, is also unclear; and third, the timescale would be wholly uncertain, as to what any such investigation would lead to. The fact is that there is a decision of the Court of Appeal, to all intents and purposes on all fours with the issue that the Administrative Court is requested to resolve, and it is no longer suggested that the possible interest of the Commission in the consequences of Marson, or in the approach of the United Kingdom in Environmental Impact Assessment cases, is of any significance at all to my decision.

8. What has been pursued before me, very ably and persuasively by Mr Richard Harwood of counsel on behalf of the claimant, is an application for permission upon the basis that he asserts that the decision in Marson ought not to be followed. He puts that before me on two bases. One, that if there is a binding authority of the Court of Appeal, there have been subsequent decisions -- and one in particular -- by the European Court which are inconsistent with Marson and which ought to lead the Administrative Court not to follow Marson. The reference is to two decisions of the European Court, both involving the Italian Republic. One is Commission of the European Communities v Italian Republic C-87/02; and the other is Commission of the European Communities v Italian Republic C-83/03. It is the former which is the more relevant.

9. In that case, which involved an Environmental Impact Assessment consideration in Italy, the European Commission was, it seems, seeking to argue that a screening decision, by which it was concluded that an EIA was not necessary, was challengeable on the grounds that it was not explained by reasons. It is not entirely clear that that was the basis of the Commission's objection because it can be seen that, at least in fuller form, a case was put forward by the Commission that there had not been a screening at all, and that the best evidence of the absence of screening was that there had not been any reasons given.

10. The case, however, was more dramatically put by the Advocate-General in his opinion at paragraph 36: "An administrative decision which concludes that the particular features of a project are not such that it is damaging to the environment must be explained by reasons": which appears to suggest that the Advocate-General was arguing that, even if there was a screening decision, it was effectively null and void or to be disregarded, unless reasons were given.

11. That does not appear to form the basis of the judgment of the European Court, in paragraph 46 to 49 of its judgment. It appears that the European Court was concluding more along the lines of my assessment of the fuller case of the Commission than in accordance with the short statement which I have cited from the Advocate-General.

12. Mr Harwood submits that, in fact, the decision was that a screening without reasons is void, while Mr Maurici, who has argued the matter forcefully on behalf of the Secretary of State before me, submits that all that was being decided by the European Court was that it could not be satisfied that screening had occurred. Whichever of those two submissions is correct, it is plain that the drift of the European Courts -- or, at any rate, that of those arguing before the European Court -- is flowing in the other direction from Marson.

13. The submission of Mr Harwood is that I should grant permission because it is arguable that the Administrative Court would not be bound by the decision of the Court of Appeal because of the subsequent decision of the European Court to which I have referred. He refers me to section 2 of the European Communities Act 1972, by which judicial notice shall be taken of any decision of or expressed opinion by the European Court on any relevant question. I have no doubt at all as to the following: (1) that the European Court has not pronounced, in either of the two decisions which I have seen, in such a way as to make it plain that Marson is wrong, or falls to be disregarded or overruled; (2) unless and until that occurs, ie that Marson is overturned by a higher court (either the House of Lords or the European Court), I am bound, if I am bound, by the Court of Appeal decision in Marson, and it would be for the Court of Appeal to decide whether Marson should be reconsidered, or whether it too is bound by its previous decision, and either leave the matter to the House of Lords or refer the matter to Europe.

14. The second way in which the argument is put by Mr Harwood is that, in any event, I am not bound by Marson, because Marson was a decision on a renewed application for permission to apply for judicial review. It is certainly the case that, under the guidance of the Vice-President of the Civil Division, Brooke LJ, in recent years the Court of Appeal has made it clear that decisions of the Court of Appeal made on applications for permission to appeal should not ordinarily be regarded as authority. Strictly speaking, Marson was not such a judgment. It was a renewed application for permission to apply for judicial review. Nevertheless, I have had my attention drawn to R v Home Secretary ex parte Robinson in which Lord Woolf (then Master of the Rolls) indicated in relation to such a renewed application that the Court of Appeal should not regard itself as bound by an observation made in the course of such an application. What Lord Woolf said at page 945 at G was this:

"If Hobhouse LJ's dictum is interpreted as adopting a more restrictive approach to the duty of a special adjudicator, then it should not be followed. It has no greater authority than any other observation made in this court when it refuses a renewed application for leave ... and this court, which has heard full argument on the present appeal, is not bound by it."

15. I am not persuaded that that necessarily means that the Court of Appeal is not bound by a previous clear, unanimous judgment of the Court of Appeal on a renewed application. But, in any event, I accept the submissions of Mr Maurici, namely that any doubt about a decision of an interlocutory Court of Appeal, which is how Mr Harwood described it, would ordinarily arise where one or more of the following factors arose: (1) that it was an extempore judgment of the Court of Appeal; (2) that it was heard without full argument; (3) that there was not a written judgment from the court below; and (4) that it was, as is so often the case on interlocutory matters, and in particular on oral applications for permission to appeal, a two-judge court.

16. In relation to the decision of the court in Marson, either none of those conditions apply or at best one. First, it is plain that the full judgments of the court, with the fullest of reasons given by Pill LJ, with all his experience in this field, was not extempore; it was reserved. Secondly, it was delivered after full argument which lasted four hours and which had embraced three parties -- the applicant, the first respondent and the second respondent, including argument from Mr Gordon QC for the applicant. Thirdly, it is not clear whether there was a written judgment from Jowitt J, although it would appear so, given that the Court of Appeal appeared to be in a position to agree with reasons that he had given (see page 79). Fourthly, it was not a two-judge court.

17. I have been referred, through the assistance of Mr Maurici, to a text book, Tromans and Fuller on Environmental Impact Assessment, Law and Practice at 104, which refers to Marson, and refers to the fact that Marson had been re-appraised by Richards J in a first instance decision, which judge did not regard the lack of reasons as seriously prejudicing the ability to obtain judicial review, and that Marson was still regarded as good law. Richards J is there cited as saying this:

"Although the judgment of the Court of Appeal in Marson was on a permission application, it was a detailed judgment and is of strong persuasive authority."

18. Encouraged by the fact that a fellow judge of the Administrative Court (as he then was), also with experience in this field, found Marson at the very least to be extremely persuasive (although of course Mr Harwood points out that that ante-dated the Commission of Italy cases, but that is not the point that I am here addressing), I addressed the question as to whether on full hearing of this application by the Administrative Court, a judge of the Administrative Court would be likely to do anything other than follow Marson, as Richards J did, in a case which it does not appear was on all fours with Marson, whereas this case admittedly is.

19. I am clear that the authorities, at any rate those which I have been shown, would suggest that, whereas it may be that a judgment such as was here given by a three-judge court on a reserved basis in Marson might not be binding on a subsequent Court of Appeal, it would certainly be binding -- and if not binding, very persuasive indeed -- on a decision of a judge in the Administrative Court.

20. I conclude that it would, in those circumstances, be quite inappropriate, and in the interests of neither of the parties in this case for me to grant permission to send this through to a full hearing by the Administrative Court, where the overwhelmingly likely result would be that the Administrative Court would consider itself either bound or extremely persuaded by Marson, and would leave the matter to the Court of Appeal to decide whether it was or was not bound by its own previous decision, and whether it should or should not reconsider it in the light of the apparent dicta of the European Court in the Italy cases, or refer the matter to the European Court. Consequently, it is only a mercy, and a saving time and costs, if I prevent that unnecessary course now, but enable the parties to take the matter straight to the Court of Appeal by way of a renewal of this application; or, if that is the way it must be, by way of an application for permission to appeal against my refusal.

21. I would ordinarily think twice about that prospect if there were any assistance that the Administrative Court could give to the Court of Appeal, if the Court of Appeal is going to have to decide this in the end anyway, as I conclude would be the case even if there were a full hearing before the Administrative Court. But there are no facts to be found in this case. There are no other issues other than whether the Secretary of State was obliged to give reasons, or more reasons than he gave in the letter which I have recited. That is a matter which the Court of Appeal can decide upon without a further hearing in the Administrative Court just as well as the Administrative Court. Consequently, I refuse permission to apply for judicial review, but if the Court of Appeal should consider it appropriate, I would respectfully encourage them to hear a renewed application, so that the issues which I have set out in this judgment can be canvassed before it, and the result which, in any event, will have occurred after a further hearing in the Administrative Court could thus be achieved more speedily. In those circumstances this application is refused.

22. MR MAURICI: My Lord, in order to protect my client's position in case for whatever reason it did not go further, or in case we were successful, I do ask for an order for costs to cover costs of our acknowledgment of service. My Lord, the schedule was attached to our summary grounds. It comes to a total of £1,461.

23. MR JUSTICE BURTON: And that is all you are asking for?

24. MR MAURICI: That is all we are asking for.

25. MR JUSTICE BURTON: That is all right, is it not, Mr Harwood? Of course, not to be enforced without leave of the court.

26. MR MAURICI: My Lord, we received a letter saying that legal aid was granted. That letter was quite recent. We have not seen the certificate. We do not know what the date --

27. MR HARWOOD: My Lord, legal aid was granted on Wednesday.

28. MR JUSTICE BURTON: So there would be some costs before that.

29. MR HARWOOD: There were costs before that, my Lord.

30. MR JUSTICE BURTON: The fact is, if you are going to the Court of Appeal, I am not going to suggest that this be enforced. The £1,461 would all have been incurred before last Wednesday.

31. MR MAURICI: Yes, it is just the summary grounds costs.

32. MR HARWOOD: Obviously, I have not heard you yet, but my provisional view would be that that sum should be paid. I cannot see any reason why it should not. You have been unsuccessful, but, of course, I am prepared to put a stay on any enforcement because, if the Court of Appeal were to allow your application/appeal, on it goes hereafter and the costs would go the other way in any event.

33. MR MAURICI: I would not oppose that.

34. MR HARWOOD: My Lord, I resist it for a number of reasons. First of all, the question of the costs application by the Secretary of State in respect of summary grounds was made and was considered by Goldring J on the papers. I do not know if my Lord has a copy.

35. MR JUSTICE BURTON: Yes, I have seen it.

36. MR HARWOOD: He made no order as to costs.

37. MR JUSTICE BURTON: You say the matter has been decided, and if they were renewing an application for costs of today not to be enforced without leave of the court, that would be a different matter.

38. MR HARWOOD: Yes, my Lord. Costs on the summary grounds have already been dealt with by the court and that has not been appealed.

39. MR MAURICI: My Lord, what Goldring J said in the order was he was not going to make an order for costs. If the matter was going to be renewed, it might be a different matter. My Lord, the only costs I can see are the costs of the acknowledgment of service because that is what Mount Cook --

40. MR JUSTICE BURTON: Let us look at the precise words used by Goldring J, if we are now to start construing.

41. MR MAURICI: It says: "I make no order for costs. Any renewed oral application may well have a different result." I can hand mine up if it assists.

42. MR JUSTICE BURTON: I have it. "I make no order for costs. Any renewed oral application may well have a different result." That does not need much construction, does it?

43. MR MAURICI: No. He could only have been referring to the costs of the summary grounds because that is the only costs I would be entitled to. So that is what he was saying.

44. MR JUSTICE BURTON: He seems to have resisted it. But I should make an order for the costs of the renewed application to be paid by your clients, but not to be enforced without leave of the court.

45. MR HARWOOD: No, my Lord. My Lord, we are moving on to the costs of today's hearing.

46. MR MAURICI: I am not seeking those.

47. MR JUSTICE BURTON: Oh well, all is well.

48. MR MAURICI: My Lord, it is just the costs of the acknowledgment of service.

49. MR JUSTICE BURTON: You cannot have those because the decision has been made.

50. MR MAURICI: No, my Lord, that cannot be what the learned judge meant in refusing costs, because, my Lord, the only costs I could ever be entitled to of the permission hearing are the acknowledgment of service costs because that is what Mount Cook in the Court of Appeal established. So what often happens is a judge on the papers, as your Lordship will know, says: I am not going to make an award now in relation to the costs of the acknowledgment of service, if, however, you renew, the issue of costs reopens, including the costs of the acknowledgment of service and the decision may be different.

51. He cannot have meant only costs of today because I would never be entitled to those in any circumstances because I am limited to the costs of the acknowledgment of service.

52. MR JUSTICE BURTON: And that is the Court of Appeal.

53. MR MAURICI: My Lord, yes, that is Mount Cook.

54. MR JUSTICE BURTON: Mount Cook says in no circumstances can you ever get the costs of coming along to resist a renewed application.

55. MR MAURICI: My Lord, it does. Only in exceptional circumstances can you get costs for today for effectively the hearing we had today. My Lord (inaudible) reconfirms that and says that costs --

56. MR JUSTICE BURTON: Let us look again at those words, which I have carefully closed up. Read them out to me again.

57. MR MAURICI: "I make no order for costs. Any renewed oral application may well have a different result." My Lord, a different result, I say, only in relation to the costs we have already made, because that is the application effectively barring exceptional circumstances which can be made. So, my Lord, I say that that issue is large and we are entitled to ask for those costs, which are a small amount, I would say, in the context.

58. MR JUSTICE BURTON: No, I make no order as to costs, save for legal aid assessment.

59. MR HARWOOD: My Lord, a couple of matters. Firstly, the question of the timetable for the transcript coming forward.

60. MR JUSTICE BURTON: Can I make an order for an expedited transcript? I think I will do.

61. MR HARWOOD: My Lord, that is helpful. In terms of when my Lord comes to correcting the transcript, my Lord in his judgment referred to the extract from Tromans, and having quoted Richards J, my Lord then went on to refer to the description of Marson as being persuasive.

62. MR JUSTICE BURTON: That is his judgment. It is not the learned author's.

63. MR HARWOOD: It was actually still quoting from the judge.

64. MR JUSTICE BURTON: Thank you. You are quite right, I read it as 9.13, but it is actually 93, which is in his concise judgment.

65. MR HARWOOD: My Lord, we may want to send a copy of that page to you when it comes to correct it.

66. MR JUSTICE BURTON: That would be helpful. If you could send that to my clerk. Thank you both very much.

67. MR HARWOOD: Sorry, my Lord, the other question I can actually ask my Lord for is permission to appeal to the Court of Appeal.

68. MR JUSTICE BURTON: I just do not know that you can seek that. As I say, it is a question of renewal. In order to avoid any doubt, why do I not say -- because I do not think I can give permission to appeal -- I am sure Mr Maurici is right -- what I shall say is that your time for renewal of your application for permission to apply for judicial review to the Court of Appeal will be extended to 14 days after receipt of the transcript. That gives you something helpful, but it also wraps up something which makes it look as though I am considering that I cannot give you permission to appeal, but I am encouraging it in my judgment.

69. MR HARWOOD: I am obliged.

70. MR JUSTICE BURTON: There will be a specific provision in the order: (1) dismissing the application for permission to apply for judicial review; (2) expedited transcript; (3) extension of time for renewal of the application for permission to apply for judicial review to the Court of Appeal to 14 days after receipt of the transcript; and (4) no order for costs save for legal aid assessment.