IN THE SUPREME COURT OF JUDICATURE FC3 1999/7614/C
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(MR JUSTICE RICHARDS)
Royal Courts of Justice
Tuesday 21 December 1999
B e f o r e:
LORD JUSTICE SWINTON THOMAS
LORD JUSTICE MAY
MR JUSTICE SINGER
- v -
LONDON BOROUGH OF HAMMERSMITH AND FULHAM
Ex parte TRUSTEES OF CPRE (LONDON BRANCH)
(Computer Aided Transcription by
Smith Bernal, 180 Fleet Street, London EC4A 2HD
Telephone 0171 421 4040
Official Shorthand Writers to the Court)
MR GREGORY JONES and MR H PHILLPOT (21.12.99) (instructed by Messrs
Richard Buxton, Cambridge CB1 1JX) appeared on behalf of THE APPLICANT
MR ANTHONY DINKIN QC and MR MICHAEL BEDFORD (instructed by the Legal
Department, London Borough of Fulham) appeared on behalf of
THE RESPONDENT1. MR DUNCAN OUSELEY QC, MR TIMOTHY STRAKER QC and MISS SARAH MOORE (instructed by Messrs Berwin Leighton, London EC4R 9HA) appeared on behalf of THE INTERESTED PARTY
J U D G M E N T
(As Approved by the Court)
2. Tuesday 21 December 1999
3. LORD JUSTICE SWINTON THOMAS: I will ask Mr Justice Singer to give the first judgment.
4. MR JUSTICE SINGER: The Trustees of the London Branch of the Council for the Preservation of Rural England (to which organisation I shall refer as "CPRE"), a public interest group, make renewed application for permission to apply for judicial review of a variety of planning decisions reached by the respondent Council, the London Borough of Hammersmith and Fulham ("the local authority") in relation to a 40 acre urban regeneration project at White City. The project involves about 600,000 square feet of retail and leisure development with access and transport facilities including a major new road junction, car parking provision, and a link to the London Underground network. An interested third party, the developer Chelsfield Limited, has also been represented before us, as it was when the application first came before Richards J on 26 October 1999.
5. In relation to two stages of the local authority's decision-making process, the challenge before this court has been indeed renewed, relief having been refused by Richards J. The first renewed attack is upon the grant on 20 March 1996 of outline planning consent for the development. The second challenges the propriety of the local authority proceeding (as at the time it was) upon the process of giving reserved matters approval.
6. Since the date of that hearing it has become known that reserved matters approval has been given. Assault is launched on aspects of that decision and permission is requested to amend Form 86A to raise these fresh matters. Scrutiny is principally directed at car parking spaces and the allocation of restaurant (A3) development.
7. On 26 October 1999 Richards J in fact gave CPRE permission to apply upon the third decision the subject of challenge before him. This related to the local authority's decision not to exercise powers available to it under section 97 of the Town and Country Planning Act 1990 to revoke the outline consent. It is to be noted that no question arose, in regard to this aspect of the application, of delay in seeking the court's permission.
8. We heard argument on the merits both of the renewed and the fresh issues on 14 and 15 December 1999. The hearing of the application relating to the section 97 decision was to commence in the High Court on 17 December, and therefore at the conclusion of the argument our decision was announced, namely that leave to amend Form 86A was refused, as was the renewed application. For reasons then given by Swinton Thomas LJ, CPRE was ordered to pay the local authority's costs, but no order was made upon the developer's similar application. I now give the reasons why I reached those conclusion on the substantive applications.
9. The History of the Proposed Development
10. I need only state some salient dates to put the present applications into historical perspective.
11. Application for outline planning permission was made on 20 December 1993. It referred explicitly to the intended provision of 4,500 car parking spaces for shoppers. This is the first of the references to that scale of parking provision with which the documentation relating to this project is replete. The application and the scale of intended parking provision received widespread press and other media coverage, both locally and nationally.
12. On 21 September 1994 the local authority resolved to grant outline permission. Detailed and extensive consultation, negotiation and professional input over the next 18 months culminated in the simultaneous signing on 29 March 1996 of a section 106 agreement, and the issue of outline permission.
13. On 25 September 1999 the developer made final application for the approval of reserved matters.
14. On 11 October 1999 CPRE lodged its Form 86A in its original form at the commencement of these applications. Just over five years had thus elapsed since the resolution to grant outline permission, and over three-and-a-half since its issue.
15. On 12 October 1999 the local authority granted approval in respect of the reserved matters.
16. Outline Consent
17. Mr Dinkin QC and Mr Ouseley QC (for the local authority and the developer respectively) in my view correctly analysed the very narrow basis of the CPRE's legal challenge to the 21st September 1994 grant of outline permission. What is said by Mr Gregory Jones (who appears for CPRE) is that the grant should be impugned because in relation to one stage of the decision-making process an incidental but (nevertheless, as CPRE suggest) critical decision was taken not to require an environmental survey, for which in certain circumstances the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 made provision. The complaint is that the person who took that decision had not the authority to do so.
18. A certain amount of argument as to that proposition was advanced to us. For my part I am content to approach this aspect of the case in a similar way to Richards J. I am prepared to proceed upon the basis, without expressing any view upon the merits save that it appears arguable, that the individual concerned lacked necessary authority.
19. But it by no means follows that a correctly-constituted decision-maker would have been obliged by those Regulations to require an environmental survey, and/or would have been irrational not to have done so. Mr Jones ultimately conceded that CPRE's challenge does not assert that a decision not to require an environmental survey could be impugned. Yet it is the absence of environmental survey which is the real burden of CPRE's grievance, as I understand it, in respect of this aspect of the case.
20. In terms of domestic law the position as it was under those 1988 Regulations can be shortly stated. They have now been revoked and replaced, but it is they which are relevant at all stages of the
21. matters with which we are concerned.
22. An environmental survey is defined and the information which it must contain is specified by Schedule 3 to the Regulations.
23. An environmental survey is mandatory for a planning application falling within the categories of application defined in Schedule 1, of which the first three are oil refineries, nuclear power stations and radioactive waste installations. But if a planning application of relevant sort is sought to carry out development of a description mentioned in Schedule 2, then an environmental survey is only required if the development "would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location".
24. This, as "an urban development project", was a Schedule 2 application. Thus whether to require an environmental survey would be a matter for the judgment of the appropriate decision-maker as to the significance of any relevant environmental effects. The decision taken (whether or not by the appropriate person) in relation to this application was that an environmental survey should not be required.
25. Mr Jones argues however that the domestic law informs only the rotten part of what he says is a curate's egg. He points out that the 1988 Regulations were passed so as to implement EC Directive 85/337/EEC, suggests that they do so imperfectly, and submits that the supremacy to be afforded to European law required the local authority at the time, and requires domestic courts now, to operate the Regulations as they should have been rather than as they were.
26. The sixth paragraph of preamble to the Directive reads as follows:
"Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after proper assessment of the likely significant effects of these projects has been carried out; whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question;"
27. "Development consent" is by Article 1.2 defined as "the decision of the component authority or authorities which entitles the developer to proceed with the project".
28. Clearly, the "component authority" is the local authority "which the Member States designate as responsible for performing the duties arising from this Directive": Article 1.3.
29. Article 2.1 reads:
"Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia, of their nature, size or location are made subject to an assessment with regard to their effects."
30. Article 4 divides projects between Annexes I and II in a manner precisely analogous to the differentiation between descriptions of development to be found in Schedules 1 and 2 to the 1998 Regulations. In the same way, Annex 1 projects are mandatorily subject to "an assessment" as described and defined in Article 3. What is thereby required translates into an environmental survey. But when it comes to an Annex II project such as this for an urban development project, the requirement arises only in respect of projects "where Member States consider that their characteristics so require".
31. Mr Jones points out that the Directive must be construed purposively. The purpose of Article 2.1 and of the Directive generally is to inhibit development projects likely to have environmental impact without the preparation and consideration of an environmental survey or assessment. But from that proposition he leaps, or so it seems to me, to the non sequitur that if the Directive
32. had been fully implemented an environmental survey would have been mandatory in this case.
33. What this approach overlooks is that if a local authority validly decides in relation to a Schedule 2 application that the development sought is not "likely to have significant effects on the
34. environment by virtue of factors such as its nature, size or location", then both the letter and the purpose of the Directive are met.
35. For my part therefore, as the case now stands, I do not see it as involving any point of principle of European law. But I have to add that even had I arrived at the conclusion for which CPRE contend, I would have regarded the unexplained and in fact inexplicable delay and the prejudice which third parties would risk as decisive of the outcome. I have not overlooked the argument that in the European context I should not, or indeed cannot, exercise discretion to refuse permission. But before I respond to that I should briefly sketch the elements which in my judgment are highly influential in forming my view that we should refuse permission, albeit always upon the assumption that there may be arguable points both on the delegation and Directive issues.
37. It appears that it was in November 1997 that CPRE first had contact with the developer, at one of the series of explanatory meetings the developer held. But already the previous month, on 3 October 1997, CPRE had written to a Minister of the Department of the Environment specifically commenting upon and complaining about the local authority's failure previously to have required an environmental survey. On 30 March 1999, 17 months later, the solicitor for CPRE, Mr Buxton, who specialises in environmental and public law, intimated to the local authority his anticipation that he might be instructed to file judicial review proceedings. The applicant allowed seven more months to elapse before doing so. No explanation has been vouchsafed.
38. I am prepared to operate for this purpose upon the basis that the relevant decision was the grant of outline permission on 29 March 1996. Forty-two clear months passed from then before the month when these applications were initiated.
39. RSC Order 53, rule 4 is preserved in Schedule 1 to the Civil
40. Procedure Rules. Its provisions are well known to whose who operate in the planning field inhabited by CPRE and its advisers. This is not an application "made promptly and in any event within three months from the date when grounds for the application first arose." Far from it.
41. It is possible that there might be a case where the error alleged was of such import and the consequences thereof so huge that those considerations might constitute "good reason for extending the period", but this in my judgment is far from being such a case.
42. For my part the degree of delay, even if it stood alone, and the compounding factor that it is unexplained, would lead me to refuse to extend time. But as this application has in fact been heard inter partes, evidence of the scale of potential prejudice has also been available. On any basis it can only be categorised as extremely substantial. In my estimation, were permission to apply granted and were CPRE at the judicial review hearing to establish the invalidity of decisions taken and process followed which culminated in the outline permission, discretion would nevertheless be exercised decisively to refuse relief. The operative provision in such circumstances would of course be section 31(6) of the Supreme Court Act 1981 pursuant to which the conjunction with "undue delay" of the prospect that the grant of relief "would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration" gives the court a discretion to refuse to grant that relief.
43. As did Richards J, I derive clear guidance as to the approach the court should adopt and the standards and the speed it should expect from what Pill LJ said in R v Newbury District Council, ex
44. parte Chieveley Parish Council (1998) 10 Admin LR 676, at 689G:
"The lapse of time between the grant of outline permission and the application for judicial review approached three years. Notwithstanding the points made on behalf of the parish council, including the fact that the permission was outline only and would not be implemented without approval of reserved matters, that lapse of time did in my judgment constitute 'undue delay' within the meaning of that term in s 31(6) of 1981 Act. I agree with the approach of Simon Brown J in R v Exeter City Council, ex parte J L Thomas & Co Ltd  QB 471, 484:
'I cannot sufficiently stress the crucial need in cases of this kind of the significance to proceed with the greatest possible urgency, giving moreover to those affected the earliest warning of an intention to proceed. In this connection it should be remembered that there is conspicuously absent from the legislation any right to appeal in fact or law from a planning authority's grant of planning permission. And even when a right of challenge is given -- the right of statutory application under section 245 [of the Town and Country Planning Act 1971] to challenge a ministerial decision -- it must be exercised within six weeks. Only rarely is it appropriate to seek judicial review of a s29 permission (s70 of the 1990 Act); rarer still will be the occasions when the court grants relief unless the applicant has proceeded with the greatest possible celerity.'
A reason for that approach is that a planning permission is contained in a public document which potentially confers benefit on the land to which it relates. Important decisions may be taken by public bodies and private bodies and individuals upon the strength of it, both in relation to the land itself and in the neighbourhood. A chain of events may be set in motion. It is important to good administration that, once granted, a permission should not readily be invalidated. As confirmed in the House of Lords, s31(6) recognises that there is an interest in good administration independent of hardship, or prejudice to the rights of third parties. The court is entitled to look at the interest in good administration independently of those other matters. It is important that citizens know where they stand and how they can order their affairs in the light of the relevant decision (Caswell v Dairy Produce Quota Tribunal for England and Wales  2 AC 738). In my judgment, weight should be given to this aspect of the case notwithstanding the absence of convincing evidence that the applicants for planning permission have been prejudiced by the delay."
45. I also have regard to what Laws J (as he then was) had to say about the duty incumbent upon a public interest claimant which challenges a decision where third party interests are involved: see R v Secretary of State for Trade and Industry, ex parte Greenpeace Ltd  Env LR 415, at 438 to 439.
47. I am content simply to quote and to adopt what Richards J found and said on this topic in October. The passage of nearly another two months has not detracted from its impact:
"Relevant matters include the fact that Chelsfield has acquired substantial parts of the site; has entered into a development agreement with London Underground; has entered into an agreement for a lease with Sainsbury and has made other agreements. It has made a rights issue in excess of £100,000,000 to maximise its ability to develop the site. The evidence is that none of those steps would have been taken but for the council's resolution of the grant of planning permission.
Moreover, the Secretary of State has made transport orders authorising the construction of access roads. Chelsfield has entered into a section 278 agreement with the Secretary of State and has agreed to meet the costs of carrying out work to an estimated value of £16,000,000. The Secretary of State let contracts for the work in April of this year and work commenced in May."
48. Detriment to good administration
49. This is by no means a peripheral consideration on the facts of this case. Planning blight might well proliferate if the public and the commercial expectation became that delay to challenges such as this could throttle legitimate development which has been planned and sanctioned.
50. Whether the Order 53, rule 4 prescription and the Section 31(6) discretion survive the Directive
51. Mr Jones submits that the supremacy and purposive impact to be accorded to the Directive deprive the court of any ability to weigh merit against delay, prejudice and the maintenance of administrative credibility. He relies upon authorities such as Humblet v Belgium  ECR 559; Francovitch v Italian Republic  ECR I-5357 at paragraph 36; Kraaijveld Case C-72/95  Env LR 265 at paragraph 61; and World Wildlife Fund v Bozen Case C-435/97, ECJ, at paragraphs 68 to 71. Were arguable complaint made in time I would acknowledge the force of the propositions that can be culled from these decisions. But where as here delay has staled and prejudice has corroded any merit there may be, I regard as yet more imperative the consideration to which Fantask Case C-188/95  ECR I-6783 at paragraph 48 directs attention, that
"in the interests of legal certainty .... setting of reasonable limitation periods for bringing proceedings is compatible with Community law. Such periods cannot be regarded as rendering virtually impossible in practice or excessively difficult the exercise of rights conferred by Community law, even if the expiry of those periods necessarily entails the dismissal in whole or in part of the action brought."
52. As did Richards J, I draw support for this approach from the passage in R v Customs & Excise Commissioners, ex parte Eurotunnel  CLC at 408B, Balcombe LJ saw no reason to disregard or modify the time-limit provisions of English domestic law because the facts of that case concerned the validity of Community measures.
53. Conclusion (1)
54. For these reasons I would refuse permission judicially to review the outline planning permission.
55. The reserved matters approval: the Environmental Survey Argument
56. CPRE repeated and developed before us the proposition that the local authority was not lawfully entitled to proceed to consider the approval of reserved matters in the absence of an environmental survey.
57. Primarily it is said that the Directive definition of "development consent" in Article 1.2 (which I have quoted) implies, when effect is given to it in the context of English planning law, that the decision which "entitles the developer to proceed with the project" is not the outline permission, but rather the final approval of reserved matters (or perhaps an amalgam of both stages). Thus, the argument runs, the obligation to consider the need for, and indeed to require, an environmental survey arises at (or again at) the reserved matters application stage, and was here disregarded.
58. I categorise this submission as unarguable. In my view the
59. precondition of the development is the outline planning permission stage, without which it is a non-starter. That there are conditions subsequent which (if not resolved) may preclude the project does not have the effect of promoting the approval of reserved matters (if granted) to the status of entitling (that is to say, activating and enabling) decision.
60. I reach that conclusion not least in reliance upon the reasoning to like effect necessarily inherent in the speech in R v North Yorkshire County Council, ex parte Brown  2 WLR 452 from page 455 of Lord Hoffmann. There (in the context of a dispute concerning a distinctly different planning regime) he considered the
61. meaning of the concept of "development consent" in the Directive. He draws a distinction (at page 458) between decisions which do, and those which do not, "involve merely the detailed regulation of activities for which the principal consent, raising the substantial environmental issues, has already been given". I would categorise the outline permission as the principal consent, and reserved matters as mere detailed regulation.
62. Furthermore, the wording of the 1988 Regulations seems to me to militate against the position adopted by CPRE. For it would be necessary to construe the "application for planning permission" (which must be either a "Schedule 1 application" or a "Schedule 2 application", as defined by Regulation 2(2), before any question of the need for an environmental survey can arise) as extending to the decision at reserved matters stage, but as excluding the prerequisite application for outline permission. If this were so, the requirement for an environmental survey could not arise or be imposed at the earlier, but only at the later, stage. Such an outcome would, as Richards J observed, turn our planning system on its head and would (I would add) produce total uncertainty and manifest absurdity. (It would also put paid, as May LJ in the course of argument in this case observed, to the inherent though unexplicit complaint that the local authority should not here have granted outline approval without an environmental survey. But that is by-the-by.)
63. Upon that basis there is no room for CPRE's claim that the local authority should and could not proceed to approve reserved matters without considering whether under the 1988 Regulations an environmental survey was required. That being so, I take the same view as did Laws J (as he then was) in Greenpeace  Env LR 415, 424, where he said:
".... a judicial review applicant must move against the substantive act or decision which is the real basis of his complaint. If, after that act has been done, he takes no steps but merely waits until something consequential and dependent upon it takes place and then challenges that, he runs the risk of being put out of court for being too late. .... It [the strict discipline imposed by the court] is marked by an insistence that applicants identify the real substance of their complaint and then act promptly, so as to ensure that the proper business of government and the reasonable interests of third parties are not overborne or unjustly prejudiced by litigation brought in circumstances where the point in question could have been exposed and adjudicated without unacceptable damage."
64. Pill LJ in Chieveley at page 619G spoke to the same effect
65. when he said:
"The consequence of the delay cannot be avoided by attacking the acknowledgement of the reserved matters application, rather than attacking the outline permission directly. The court should look to the decision which in substance is being challenged, and not the claimed acknowledgement of its validity. The outline permission not having been declared invalid, it was open to the society to apply for the approval of reserved matters and I would hold that application to have been made validly."
66. Conclusion (2)
67. I therefore reject the "root and branch" submission made to Richards J and repeated before us, which would seek to stultify the planning process in reliance in substance upon the claimed invalidity of the outline permission.
68. Specific reserved matters: (a) car parking
69. Neither this nor the next and final point of challenge is tainted by considerations of delay and prejudice.
70. Final application for approval of reserved matters having been made on 25 September 1998, the local authority's officers reported to the planning committee in preparation for the 12th October 1999 meeting when reserved matters (and some section 73 applications for variation of conditions) were to be considered. The substance of the report relating to the White City development runs to 43 closely-typed pages.
71. CPRE challenges the decision to approve reserved matters first upon the basis that the members did not sufficiently or at all have drawn to their attention the option to reduce the scale of car parking provision envisaged expressly in the outline permission and the contemporaneous section 106 agreement.
72. Mr Jones focused attention upon five words in paragraph 3.72 of the officers' report which, he says, were inaccurate and misleading and which, in the light of current planning policy considerations, should justify the grant of permission to seek judicial review of this decision. Paragraph 3.72 reads as follows:
"A highway access plan has been designed and agreed with the Council and the Highways Agency as the relevant highways authorities. The plan provides for 3,500 managed car parking spaces within the development with 1,000 over-spill spaces for use during peak periods as agreed and provided for in the outline planning permission issued in 1996."
73. The words complained of are "as agreed and provided for". I regard them as totally unexceptionable when one takes into account that "agreed and provided for" is precisely what this scale of parking provision was in the section 106 agreement which formed so intimate an accompaniment to the outline permission. The relevant parts of clauses 14.1, 14.1.4 and 14.1.5 of that agreement are in these terms:
"In constructing the Development the Developer shall provide [my emphasis] car parking on the Application Site in the following manner .... a maximum of 3,500 .... car parking spaces .... and 1,000 overspill car parking spaces."
74. The complaint with about the use of these words in the report to the October 1999 meeting is thus baseless.
75. The argument for judicial review proceeds however to assert that the officers did not adequately draw attention in that report to policy changes since 1994 and 1996 which might have led the members to impose a reduction in parking provision when they considered reserved matters.
76. Mr Jones maintains that this option was indeed open, and that the local authority was not bound by the section 106 agreement. The contrary is argued both by Mr Dinkin and Mr Ouseley. Their position derives support from observations made in Chieveley by Pill LJ at page 683E and followed by Sullivan J in R v Rochdale Metropolitan Borough Council, ex parte Tew  3 PLR 74, 85B. Whichever be the correct view, however, Mr Jones does not go so far as to suggest that a decision not to reduce the scale of permitted car parking would necessarily be unreasonable. His argument stands or falls upon the assertion that the officers' report misled the Committee. I disagree.
77. Conclusion (3)
78. I would not grant permission to challenge the decision on reserved matters upon this basis, which I regard as unsustainable.
79. Specific reserved matters: (b) extended A3 use
80. CPRE maintains that the decision of the local authority to permit additional A3 development, beyond that envisaged at the outline stage, constitutes an impermissible use of the reserved matters procedure. It is argued that the scale of the departure is such (an increase in restaurant and bar provision from 3,558 to 20,468 sq meters) that it would of itself resurrect the requirement for an environmental survey. That argument, for reasons already given, I reject. Not least because the increase in A3 use was permitted as a result of a section 73 application to vary the relevant condition imposed upon the outline grant. Such an application is expressly excluded from the 1988 Regulations definitions of both "Schedule 1" and "Schedule 2 Applications", so that there can have been no requirement whatever for an environmental survey. That result would follow even if the subject matter would otherwise have brought the nature of the application within the definition of a "Schedule 2 Application", which to my mind could not sensibly be suggested.
81. That would be sufficient to dispose of this point. But in fact the officers' report for the meeting at which this application was considered did address the fact that Government policy had changed since 1996 and that a Ministerial statement bore on the topic.
82. Conclusion (4)
83. There is no substance to this challenge to the decision to vary the conditions as to A3 use of the outline permission. It is not arguable. I would refuse CPRE the permission which it seeks.
84. LORD JUSTICE MAY: I agree.
85. LORD JUSTICE SWINTON THOMAS: I also agree.
86. ORDER: Application refused.