IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Monday, 20th January 2003
B E F O R E:
MR JUSTICE COLLINS
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THE QUEEN ON THE APPLICATION OF RICHARDSON AND ORME
(1) NORTH YORKSHIRE COUNTY COUNCIL
(2) FIRST SECRETARY OF STATE
BROWN & POTTER
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MR ROBERT MCCRACKEN QC AND MR G JONES (instructed by Richard Buxton, Solicitors) appeared on behalf of the CLAIMANTS
MR T STRAKER QC AND MR P GREATOREX (instructed by North Yorkshire County Council) appeared on behalf of the FIRST DEFENDANT
MR J MAURICI (instructed by the Treasury Solicitor) appeared on behalf of the SECOND DEFENDANT
MR T HILL (instructed by Walker Morris, Solicitors) appeared on behalf of the INTERESTED PARTY
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P R O C E E D I N G S
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1. MR McCRACKEN: May it please your Lordship, I appear in this matter for the two applicants, County Councillor Richardson and Parish Councillor Orme, with my learned friend Mr Gregory Jones. The first defendant is represented by Mr Timothy Straker QC, leading Mr Paul Greatorex. The second defendant is represented by Mr James Maurici and the interested party is represented by Mr Thomas Hill.
2. My Lord, there are in the claim quite a large number of points but, without, as it were, resorting to the categorisation that I think Sir Charles Russell once categorised his points -- those that were unarguable, those that were arguable but not certain and those that were unanswerable -- I think I can identify three points which should enable your Lordship to grant permission, without of course ultimately deciding the final question, fairly shortly, and that is what I propose to do, if that is a convenient course to your Lordship.
3. Could I first of all direct your Lordship's attention to the fact that the decisive vote was very close.
4. MR JUSTICE COLLINS: 5:4.
5. MR McCRACKEN: 5:4. My Lord, that is right. And your Lordship is aware that, quite apart from the County Councillor Richardson, who did not participate at all, in any meeting, there was a Councillor Thomas who was opposed to the development but who felt, because he had spoken to County Councillor Richardson, but not about this case, he had to withdraw.
6. MR JUSTICE COLLINS: But neither of those were on the committee, were they?
7. MR McCRACKEN: Certainly, County Councillor Richardson is not somebody who could have voted, and it is part of our case that the requirement that County Councillor Richardson should withdraw from the meeting and was not allowed to address the committee on behalf of his constituents was unlawful and disproportionate, applying the principle of proportionality as a principle of domestic English law, as suggested by Lord Slade in Auchenbury.
8. MR JUSTICE COLLINS: Assuming that is right, or at least arguably right, does not one have to go further and ask oneself whether it could have made any difference?
9. MR McCRACKEN: My Lord, yes, but one does so bearing in mind what a former Vice Chancellor said in Reece v John and that is --
10. MR JUSTICE COLLINS: That is always cited, I know.
11. MR McCRACKEN: -- replete with examples of open and shut cases, and I think I can satisfy your Lordship, at least for these purposes, fairly clearly with this point: County Councillor Richardson had been to a site visit where Mr Brown -- that is the partner, proprietor or principal shareholder or certainly an eponymous participant in the interested party's business --
12. MR JUSTICE COLLINS: Someone who had an important role in the (inaudible).
13. MR McCRACKEN: -- and who was speaking, as it were, against interest -- had said that there were eight employees. At the --
14. MR JUSTICE COLLINS: Well, that seems to me to be really a non-point. The fact is that they say, and they have produced evidence as to establish, that they have 25, I think it is, is it not, whose jobs will be at stake. The suggestion that there are less seems to me to be utterly absurd unless you have some positive evidence that there are in fact fewer. They produced the records, they produced details to show that these people are employed. This is an absurd point, with great respect.
15. MR McCRACKEN: Well, with even greater respect, my Lord, it is not, for this reason, that one of the arguments that my clients would have liked to have advanced was this: that, as the market was said to be an entirely local market, then, had this particular source of material not been available, then another local source would have been available.
16. MR JUSTICE COLLINS: Assuming there was another quarry in the area, yes.
17. MR McCRACKEN: Indeed, my Lord, and that is something that my client would have liked to have addressed the committee on.
18. MR JUSTICE COLLINS: Why did he not get whoever it was who was to address the committee to make the good points, if there any good points. This is what is so absurd: he knew a few days before that the committee were going to exclude him. There was an alternative -- I forget his name -- the parish council chairman, who was to make the points. Surely they had the sense to speak together, liaise and for the parish councillor to make the points that Mr Richardson thought were good points.
19. MR McCRACKEN: Your Lordship, with the greatest of respect, is adopting an approach that is inconsistent with the scheme of representative democracy that Parliament has laid down. It may be consistent with the unlawful --
20. MR JUSTICE COLLINS: I am dealing with realities at the moment. I am accepting for the sake of argument for the moment that you are right that it is arguable that he should not have been excluded, but the only point I am making is that that is not necessarily the end of the story because what he would otherwise have said could surely have been said by his, as it were, deputy.
21. MR McCRACKEN: My Lord, if that were the case, then there would never have been an advantage of being represented by Mr Straker or any other silk because one could always say, "Oh, well, it does matter whether you have a first-class advocate or whether you have an inexperienced, beginner advocate," and the proposition only has to be advanced within these halls to be seen to be one which is unsustainable, and the same things applies here. As it happens -- to deal with the facts -- County Councillor Richardson did try to make arrangements for others to speak and was told that the district councillor could not speak. This is what they were actually told: "The district councillor cannot speak." But then, come the day of the meeting, the poor old district councillor was suddenly told, "Oh, you can speak."
22. MR JUSTICE COLLINS: I see. That I had not appreciated: there was no advance notice, as it were, that the substitute, if I can call him that, would be able to speak?
23. MR McCRACKEN: My Lord, that is right. That is the first point.
24. MR JUSTICE COLLINS: I see.
25. MR McCRACKEN: The second point is that he was a beginner district councillor; he was the equivalent of the very white-wigged, stuff gownsman, who is suddenly --
26. MR JUSTICE COLLINS: They often do just as well.
27. MR McCRACKEN: Well, occasionally they do, but clients are wise perhaps to --
28. MR JUSTICE COLLINS: I take your point.
29. MR McCRACKEN: Yes. So, that is the, as it were, first point there.
30. Now, I think I can, as it were, reinforce that point in a way that will be persuasive to your Lordship by indicating this: Mr Maurici set out as an attachment to his skeleton argument, that your Lordship will have had towards the end of last week --
31. MR JUSTICE COLLINS: I am not sure that I have.
32. MR McCRACKEN: Well, it does not matter, for this reason, my Lord.
33. MR JUSTICE COLLINS: Hang on. Yes, defendant's skeleton. Yes, I have that.
34. MR McCRACKEN: It does not matter for this reason. He set out a consultation paper which dealt with the standing orders that excluded my client. Now, he has explained to Mr Jones this morning that, although he did not set out the whole of the consultation paper, he set out all the bits that are relevant and, to his knowledge, there is nothing that discusses the general problem that forms the basis of our first ground, and the general problem is this, my Lord -- and let me make it because it is actually a very interesting point relating to democracy, whatever conclusion one comes to. It is this: as the model standing orders are currently drafted, if you have an interest that might make people think that you would be prejudiced, you have to withdraw and you cannot participate in the meeting at all.
35. Now, that may be appropriate for all sorts of categories of situation, but it is not appropriate for planning decisions where there will be an adverse environmental effect within one ward but benefits to be felt over a wider area because in all cases a resident councillor -- or in a very high proportion of cases a resident councillor will have to withdraw because he will inevitably suffer if there are adverse environmental consequences in his constituency, in his ward, and he will have to withdraw. So it is a very substantial problem associated with the model standing orders.
36. MR JUSTICE COLLINS: I am wondering whether there has actually been a correct construction of these regulations. The purpose behind them surely was to prevent councillors who had a prejudicial interest taking part in decision-making, and it is obvious that, if a member of the planning committee has that sort of an interest, he should not be on the planning committee to deal with the relevant application, and he probably should withdraw. In fact, he should withdraw from any discussions with that committee. But at the moment I do not read the -- I have not looked them in great detail -- you can take me to them -- but I do not think the regulations require, do they, that a councillor who has no part in the decision-making process is prevented from being at the meeting and from making observations, if he wishes to do so.
37. I do not think there is anything wrong with the regulations. It seems to me at the moment that what was wrong, or arguably wrong, was the county council's construction of the regulations, or the rather the authority's construction of the regulations.
38. MR McCRACKEN: But for the purposes of a permission hearing, of course, it does not matter really which is the defect in the decision-making process.
39. MR JUSTICE COLLINS: It does because if the defect is not arguably in the regulations, out go the Secretary of State.
40. MR McCRACKEN: Well, we are naturally not unduly troubled if we only have to face two sets of opponents at the substantive hearing. I think --
41. MR JUSTICE COLLINS: It also may have an effect as to costs.
42. MR McCRACKEN: Yes. We make two points, my Lord. We make both the point that the model standing orders are wrong, and we also make the point that the county council misconstrued them. I think in terms of --
43. MR JUSTICE COLLINS: But you cannot have both, can you? Either they are all right or the county council misconstrued them.
44. MR McCRACKEN: Well, your Lordship is, of course, right but we put them in the alternative. We say they construed them wrong but in any event, if they are construed correctly, then they would be unlawful. But if I can take your Lordship in a moment to the model standing orders, because I wanted right at the outset to indicate what I would submit are the three ball points of the case, so that your Lordship would --
45. MR JUSTICE COLLINS: Yes. Okay, well, that is the first thing.
46. MR McCRACKEN: That is the first point. The second point is one that it is best to introduce by taking your Lordship to two key documents.
47. MR JUSTICE COLLINS: Yes. Mr McCracken, incidentally I should tell you that I have not had an opportunity -- no, correction: I see you have not -- have you produced a skeleton argument?
48. MR McCRACKEN: My Lord, no. We --
49. MR JUSTICE COLLINS: I am not complaining. I just want to make sure what I have. Yes, I suddenly see that Mr Maurici's is the one that has just landed on my desk. For some reason it did not reach me and I have not had an opportunity of reading it. Sorry.
50. MR McCRACKEN: My Lord, if I can just take you to page 50 of the bundle first of all.
51. MR JUSTICE COLLINS: Yes.
52. MR McCRACKEN: And it is the notice from North Yorkshire County Council and it is the grant of permission, and your Lordship will see below the addressees:
"The above-named Council ... have granted permission for the proposed development subject to the following conditions."
53. And intriguingly you will see that they make a statement pursuant to Article 22.2 of the General Development Procedure Order, saying that they have taken into account the accompanying environmental information. Intriguingly, they make no reference to Regulation 3(2) of the EIA Regulations. But that is the grant in August 2002. Can I take your Lordship to the next document your Lordship needs to look at here. It is the minutes of the decision, which are at page 149.
54. MR JUSTICE COLLINS: Yes.
55. MR McCRACKEN: Now, the minutes of decision at page 149 refer to the procedural matters and then there is a resolution that District Councillor Galloway could address the meeting and then there is a statement:
The report of the Director of Environmental Services ... [and heard District Councillor Galloway and various other people, including the developer],"
and then the resolution to grant permission subject to a scheme of survey and so on. Now, the significance of these minutes at this stage is this, my Lord: there is no reference in the minutes of the deliberations to consideration of the environmental statement -- that is the first point -- and that is a breach of Regulation 3(2) and it is a jurisdictional breach because Regulation 30 makes breaches of Regulation 3(3) jurisdictional breaches. The second point, my Lord: there is no statement of the main reasons for the decision as required by Regulation 21(1)(c)(ii). Now, the failure to state in their resolution that they had considered the environmental statement means that they failed to do something which the English regulations require decision-makers to do to demonstrate that they have complied with their requirements under the Directive and because we in this country pride ourselves on meticulous obedience to law, even that law which emanates from Europe, we have established a system which ensures that those who are advised by wily counsellors are not able to, as it were, flout the spirit and intent of the Directive and have to have their attention directed to this at the moment they make their decision the. So that is an egregious error, which has, by statutory (inaudible) been declared to be a jurisdictional error. So there is no getting away from that point. The Regulation 21(1)(c)(ii) point that the main reasons must be set out -- there is nothing either here or anywhere else to suggest that they have ever declared the basis upon which they decided to grant permission.
56. MR JUSTICE COLLINS: I have in the back of my mind that there is some authority somewhere that says that you are entitled to take account of the officer's report in ascertaining what the reasons were, but maybe I am wrong about that.
57. MR McCRACKEN: No. What you can do, my Lord -- and this is perfectly straightforward and would have been a proper course of action -- is to resolve that for the reasons set out in a recommendation, but they signally failed to do that. The extraordinary picture of this case is that, while the officers put forward various reasons upon which one might grant permission and which formed the basis of their recommendation, these councillors never endorsed their reasoning or (inaudible), so you just do not know. Was it the jobs or was it the restoration scheme? It could have been either or it could have been both and we just do not know --
58. MR JUSTICE COLLINS: (Inaudible), I suspect.
59. MR McCRACKEN: Well, with a 5:4 vote one -- it could be all sorts of reasons why (inaudible). The point is the regulations require those who do not like the decision to know what the reason was. Your Lordship has --
60. MR JUSTICE COLLINS: Perhaps it is in another context. You know the criminal case of Brown? There can be various reasons leading to a conviction but if you do not know that the jury were satisfied unanimously of a particular one, then the conviction may not be able to stand. So here maybe they were not able to reach, or they were not able to say, that there were five who had the same reasons. But I do not think it matters, does it, because as long as the majority each had a good reason for reaching the conclusion they did, it is a perfectly lawful decision, is it not?
61. MR McCRACKEN: I think that would be right but they have to state --
62. MR JUSTICE COLLINS: Did you say they have to say that?
63. MR McCRACKEN: That is right, my Lord. There are interesting points that one can, as it were, muse over in moments of reflection but here there is a clear, straightforward, unanswerable point.
64. The next point my Lord, is this -- this is the third of what I have called the points that --
65. MR JUSTICE COLLINS: Your good points?
66. MR McCRACKEN: No, the unanswerable points, my Lord, the simple points to, as it were, save everybody grief -- is the deferment point, and here, if your Lordship browsed through the papers, your Lordship might have been in the same impression as I was until my learned junior put me right on the point. Your Lordship might have been thinking that there was really rather an impressive report on things like otters and so on and --
67. MR JUSTICE COLLINS: But they omitted bats.
68. MR McCRACKEN: Well, it was not -- my Lord, surely it was only when Mr Jones said to me, "Look at the date of the document you are looking at." The impressive documents post-date the decision, and the extraordinary thing, my Lord, is this, that if we look --
69. MR JUSTICE COLLINS: I confess, like you I had not spotted that. Where have you found that?
70. MR McCRACKEN: If your Lordship looks at page 76, there is document headed "Restoration Management."
71. MR JUSTICE COLLINS: The date of the decision was?
72. MR McCRACKEN: June, my Lord.
73. MR JUSTICE COLLINS: Yes. The what of June?
74. MR McCRACKEN: I think it was for 11th June. I think the meeting was 11th June. Yes, it was 11th June, my Lord, so (inaudible).
75. MR JUSTICE COLLINS: Yes. Sorry, page 76.
76. MR McCRACKEN: Well, if you look at page 76, more than a month after the actual decision had been made they got the very impressive restoration management plan.
77. MR JUSTICE COLLINS: July 2002?
78. MR McCRACKEN: Yes. Now, the otter report, my Lord, is to be found at page 119 and it is dated 4th July. So again it is after the decision.
79. MR JUSTICE COLLINS: Does that mean that there was not -- where is the environmental assessment?
80. MR McCRACKEN: Right, the one, as it were, that they had. Well, that is page 214, dated February 2002.
81. MR JUSTICE COLLINS: Yes.
82. MR McCRACKEN: Now, that one fell into what one might characterise as the ex parte Hardy error. That is where the decision maker recognises that he has inadequate information and says, "Well, we grant you planning permission but you had better carry out some surveys and see where you have some bats down the mineshaft and so on." And if your Lordship looks at page 240, for example, you will see there paragraph 3.4:
"This survey represents an ecological picture of the site at that time ..."
83. That is September, when it was undertaken:
"... and therefore, the species identified now, may subsequently fluctuate in composition and numbers, on both a diurnal and seasonal basis. Other species, which may have appeared in spring or early summer or indeed those which will develop later in the year, may not therefore have been observed, and thus remain unrecorded."
84. Now, it is particularly important in fact that this took place in September before the die-back of vegetation because one of the problems that you see in the Goode report on otters is that they recognise that, because of the vegetation, they were not able to get to see the holes, but they came to this conclusion, which is very important: in the Goode Survey they came to the conclusion that almost certainly there were otter resting places or holts within the area that was potentially to be affected by the development and therefore, when the Goode Survey was carried out, they identified an annex 4A species resting place subject to the strict protection of the Habitats Directive.
85. MR JUSTICE COLLINS: Yes, but --
86. MR McCRACKEN: And then they acknowledge on page 241 that September, which is the time that the survey was undertaken, was not an optimum time for surveying auvernal(?) species.
87. MR JUSTICE COLLINS: That is fairly obvious, is it not?
88. MR McCRACKEN: That is right. If you look to page 244, my Lord, paragraph 5.3.2 -- and in a sense an exercise that I think it is necessary for my learned friends to undertake is to take your Lordship to paragraph 5.3.2 on page 244, which says:
"Otters have been seen on the existing actively worked area of the extraction site. A female otter and at least one kit were viewed by several workers on the site. She visited the fishing pond located north of the active working in order to forage. The holt site has not been identified to date, but it is to believed to be on the opposite bank of the River Ure. They have not been observed on any other part of the site,"
and to compare that, which is all that was in the environmental statement and based on which the committee said, "We need further surveys," with what happened before a spade had been lifted in the development process, the survey that was carried out in June and July after the grant of planning permission --
89. MR JUSTICE COLLINS: Yes, and what does that say? Remind me.
90. MR McCRACKEN: And that is the one that says, my Lord, if you turn to that -- and we pick it, I think, at page 120. If your Lordship turns to page 120, the second paragraph:
"The site was visited on 27th June 2002."
91. I draw your Lordship's attention to that because it dates the document. This document does not have the giveaway date at the foot of it that would enable one to realise it is after the grant the permission. Then in the penultimate paragraph before section 2 it says:
"Recommendations are made for preserving the riparian habitat during proposed gravel extraction works as well as enhancement measures as part of aftercare."
92. I would remind your Lordship, of course, that mitigation measures are amongst the matters that the developer has to identify before planning permission is granted, so that people can comment on them, and we are going to look at the mitigation measures identified in this document because they are specific and ones that may be good or may need public comment.
93. Page 124 my Lord:
... A large number of prints were present here, indicating intense activity over a period of time or a number of different animals."
94. This is on the edge of the river. Then 5.2, the anti-prepenultimate line begins --
95. MR JUSTICE COLLINS: But it does not indicate, does it, which side of the river?
96. MR McCRACKEN: No, they are on our side, my Lord.
97. MR JUSTICE COLLINS: Are they?
98. MR McCRACKEN: Yes, because we can see them on a plan at page 131. Site OH6 is connected by an arrow to the west bank of the river, which is our bank of the river. But your Lordship has picked up very astutely a matter that may have confused the committee because the environmental statement that committee had implied that the otters were (inaudible) on the other side and so the true position is rather different from the one that the committee were aware of.
99. MR JUSTICE COLLINS: The fact that there may be otters, otter activity, on your side, if I can put it that way, and even holts is not fatal to the grant of permission, is it, provided the effect is not likely to be, overall, damaging to the existence of otters, but it is something, you say, that would have had to have been considered in rather greater depth?
100. MR McCRACKEN: Yes. I think there are two problems with this. First of all, the committee would have had to consider it to come to a view on it, and they did not have a chance to do that, and, secondly, perhaps most importantly, the interested conservationist community should have had an opportunity to say, "25 metres is an appropriate stand-off," or, "No, you need a 50-metre stand-off."
101. MR JUSTICE COLLINS: The fact is that none of the English Nature or others who were concerned, or should have been concerned, raised any objections, did they?
102. MR McCRACKEN: Yes, but the most relevant body was in the pay of the developer, or later accepted the money of the developer.
103. MR JUSTICE COLLINS: What body was that?
104. MR McCRACKEN: Well, this is the body who produced the otter survey.
105. MR JUSTICE COLLINS: Oh, I see.
106. MR McCRACKEN: I should emphasise, I am not suggesting --
107. MR JUSTICE COLLINS: I do not actually think you have much evidence that there would be any real damage to wildlife, whether otters or bats or whatever. This is frankly a makeweight point.
108. MR McCRACKEN: Well, my Lord, I want to emphasise one thing: I am not suggesting that the people who have prepared this report were influenced by money. I am not suggesting that for a moment --
109. MR JUSTICE COLLINS: Why did you say it then?
110. MR McCRACKEN: But the important point that needs to be made is that, as the House of Lords emphasised in Berkeley, courts should not assume that interested people will have nothing relevant to say, and I do submit that interested conservationists, other than the people who prepared this report, could well have a view which is relevant as to the appropriate stand-off --
111. MR JUSTICE COLLINS: But they have not yet. They have had every possible opportunity to raise things. I really think this is clutching at straws, this point.
112. MR McCRACKEN: My Lord, they had no opportunity to raise views.
113. MR JUSTICE COLLINS: They did.
114. MR McCRACKEN: Permission had been granted on the basis of a report and environmental statement that did not say what the stand-off distance was going to be.
115. MR JUSTICE COLLINS: Well, then they should have said: "We cannot accept this because we are worried that the stand-off distance has not been assessed, there has not been enough investigation in our view of the existence of otters on this side of the river or holts and it does not refer to bats or (inaudible)." But they did not. They had the report and they did not see fit to raise any point on it. I really do not think there is anything on this point.
116. MR McCRACKEN: Well, with respect, my Lord, I shall explain the point further to your Lordship because, while your Lordship may at the end of the day be against me, it is in my submission an unanswerable point and therefore I would not wish my clients or the Court of Appeal to, as it were, feel that this point had not been adequately explored before your Lordship.
117. In the anti-prepenultimate line on page 124 this statement is made:
"Of particular note is the dense section of willow carr which extends down to the bend in the river. This forms an impenetrable area of dense habitat, which will almost certainly have various lie-up or holt sites within it --
118. MR JUSTICE COLLINS: Was that going to be removed or was that going to remain?
119. MR McCRACKEN:
" ... and is the best section of otter habitat along this stretch of the river."
120. Well, when planning permission was granted, nobody would know whether it would stay or go because the planning permission did not deal with this point. Now, your Lordship is perhaps not familiar with the Habitats Directive but, for the purposes of this submission, I am sure your Lordship will accept from me that the Habitats Directive states clearly and unequivocally that there must be no disturbance of the breeding sites or resting places of Annex 4A strictly protected species; they must be strictly protected. That has been transposed into our law by the Conservation Regulations, which must be construed, in accordance with the Marwheatingdock(?) canon of convergent construction, to be consistent with the Directive. Therefore, it would be unlawful as a matter both of domestic English and European Community law to disturb these resting places or these holts.
121. MR JUSTICE COLLINS: So you cannot do anything to land if there is a resting place on it? That simply is not the law, is it?
122. MR McCRACKEN: Well, my Lord, with respect, it is the law.
123. MR JUSTICE COLLINS: So no development anywhere, if there is a resting place of an otter which affects it? Well, you can provide alternative sites. You can establish that, if there is to be a disturbance, it is not going to have any lasting effect and so on. It is not as absolute as that, Mr McCracken, is it?
124. MR McCRACKEN: No, there are exceptions, my Lord, and the exceptions do not apply here. The exceptions would be there is an overriding need of -- an imperative reason of social or economic importance. That would be an exception. For example, that is relevant --
125. MR JUSTICE COLLINS: What you are really saying is they have not gone through the hoop --
126. MR McCRACKEN: My Lord, yes.
127. MR JUSTICE COLLINS: -- and they should have done?
128. MR McCRACKEN: Yes. They have not considered it. That is the first point. The second point is that, while in July the standoff was specified at 25 metres, at the time the committee made a decision nobody knew what the standoff was going to be, so there was not an opportunity for people to say, "25 metres good, but not as good as 50 metres," or something like that. But they certainly never went through the hoops. Then, if one looks on further here, page 126 --
129. MR JUSTICE COLLINS: But this surely would not have meant that planning permission for the development could not be granted; it merely would have meant that a condition should be applied to ensure that the standoff was sufficient. So it cannot affect the substance of the grant of permission. It is peripheral, in the sense that it goes to the conditions surely which should be applicable to it?
130. MR McCRACKEN: No, my Lord. With respect, it would have meant that planning permission could not be granted until they had considered what the mitigation measures proposed were. The Directive is very clear: that the developer must state what mitigation measures he proposes. Here, the developer is stating that he is proposing a 25-metre standoff; the public are entitled to express their views on that, as I think it was Lord Bingham said in Berkeley, "However misguided their views may be," and the public had no opportunity to express a view on the standoff that the developer was proposing. It goes further than that because in the pre-penultimate paragraph on page 126 even the post-decision survey acknowledged that the wrong time of year had been taken:
"It will be much easier to carry out an otter survey during the winter when much of the vegetation has died down."
131. MR JUSTICE COLLINS: Has someone done that?
132. MR McCRACKEN: We are not the right people to whom that question should be addressed.
133. MR JUSTICE COLLINS: I was asking whether anyone had done that. You say, as far as you are aware, no?
134. MR McCRACKEN: I am sure my learned friend will rise if any of their clients have done it. It is Mr Hill, I suppose, who would probably know the answer to that.
135. MR HILL: No, none to the best of our knowledge.
136. MR McCRACKEN: None to the best of our knowledge. Now, one must also remember that that acknowledgement that it was, as it were, quite simply the wrong time of year is quite properly made in that statement, but not made in the original statement, which simply accepts that September was not the optimum time for doing it.
137. My Lord, evidently at this stage it is not my purpose to persuade your Lordship to quash the permission; it is merely my purpose --
138. MR JUSTICE COLLINS: No, no, arguability.
139. MR McCRACKEN: We have arguability. Can I just take you, just to, as it were, make the point very clear, to page 127, paragraph 7.2. This otter report says that:
"During works a buffer strip (or 'appropriate standoff zone') of at least 25 metres would be left between workings and the landward edge ... "
140. That is my point about the mitigation measures not being available for public discussion and for consideration by the council at the stage that they made their decision.
141. My Lord, I have tried to make the three points which in my submission on permission are unanswerable as briefly as I can, and perhaps it is appropriate for me at this stage to allow my learned friends to explain to your Lordship why these do not justify the grant of permission, albeit, of course, they reserve their rights to argue in due course in any event that that permission, once granted, should be of no avail to my clients because they ought to lose.
142. MR JUSTICE COLLINS: Yes. Yes, Mr Straker?
143. MR STRAKER: My Lord, can I take the points in reverse order? As far as the third is concerned, it should be observed first that the reality of this matter can be shortly put, and it is this: that the site in question is arable land which has either very little or no beneficial features for the species with which we are concerned. That was a feature which was well-known to the committee and had been identified. But, by a curiosity, the activities to be undertaken, if the permission is fulfilled, by my learned friend Mr Hill's clients, will produce a situation which in fact is more beneficial for the wildlife --
144. MR JUSTICE COLLINS: You mean in due course?
145. MR STRAKER: In due course. And so the measures which are to be taken pursuant to the section 106 agreement can more properly be described as enhancement than mitigation.
146. MR JUSTICE COLLINS: His point, as I understand it, is that, since there was nothing before the committee when the decision was reached as to protection measures, if I can put it that way -- this is the 25-metre point -- no one has had an opportunity to comment on it. I think that is essentially the point, if I have correctly understood it.
147. MR STRAKER: My Lord, yes, and that, of course, assumes the very point which would have to be decided, namely whether there was here an identifiable likely main effect or significant effect within the regulations because, as your Lordship will appreciate, not merely does one not have to cite, so to speak, in an environmental statement that which is not there for the purpose of revealing that one has thought about it, but one only has to descend to deal with the matters which are main effects or likely significant effects, and so here, as your Lordship may have observed, at page 264 in the report which went to the committee it is recorded about half way down the page against the paragraph reference 7.6 that the site was:
" ... currently in arable production offering little ecological value."
148. And then, if one goes back to a document which begins at page 214 and represents the environmental impact assessment, which predates, of course, the committee meeting --
149. MR JUSTICE COLLINS: Yes, this is the February one?
150. MR STRAKER: That is so.
151. MR JUSTICE COLLINS: (Inaudible: overtalking)
152. MR STRAKER: It is made available to the public pursuant to the regime, and if your Lordship goes in that to page 39, internal numbering, page 236 in the bundle provided for the court --
153. MR JUSTICE COLLINS: It is in the ecology?
154. MR STRAKER: That is so, and your Lordship will see at page 238 that:
"This assessment was conducted with the consideration of an extension of 18ha."
155. I mention that particularly because some of the reports and some of the subsequent reports deal with a somewhat larger site. Your Lordship may appreciate that particularly with regard to the bats. 1.3:
"It encompasses an account of the habitats on the site detailing any areas or particular species of interest."
156. The nature of the surveys are recorded, page 240, the survey methods given, 241, and the results are spoken to, page 242 and following.
157. MR JUSTICE COLLINS: Yes, I see the Yorkshire Wildlife Trust, the otter officer and English Nature were contacted.
158. MR STRAKER: My Lord, yes, and, as your Lordship has seen, none of the bodies which concern themselves with such matters opposed this development. Then at 5.3, page 244, your Lordship will see, 5.3.2:
"otters have been seen on the existing actively worked area of the extraction site. A female otter and at least one kit were viewed by several workers on the site. She visited the fishing pond located north of the active working in order to forage. The holt site has not been identified to date, but it is believed to be on the opposite side of the River Ure. They have not been observed on any other part of the site."
159. Then there is a reference to some other animals.
160. MR JUSTICE COLLINS: Birds.
161. MR STRAKER: Birds, and, my Lord, I do not go further in that detail, but I do draw attention, if I may, to 2.5.1 at paragraph 8.1:
"The habitats found on the site were not assessed to be of conservation value on a national or regional context. No species of conservation importance was found on the site, however, otters are known to be inhabiting locally on the River Ure and use areas immediately adjacent to active workings on the site from time to time to forage for fish."
162. And if one then goes back, at page 249 at paragraph 7.6 one sees that there is a reference to:
" ... restoration proposals for the site ... intended to progressively develop and manage a significant area of wet habitats ... "
163. Et cetera. And there is a reference to some advanced planting having occurred:
"The final habitat design is to incorporate features of key importance ... "
164. And that all follows on a paragraph which speaks of the level of mitigation being generally:
" ... directly related to the sensitivity of the habitats and species likely to be affected by the proposals and the severity of the effect ... The area proposed ... of little ecological significance being cultivated land."
165. Then there is a reference to the proposed mitigation and restoration measures and then there is part of the restoration proposals. Hence my language: why it is enhancement, in fact, rather than mitigation.
166. MR JUSTICE COLLINS: The presence of mink is more of a danger, I would have thought, than anything else.
167. MR STRAKER: Well, my Lord, maybe so. So that is why these matters then are sensibly to be dealt with by way of a section 106 agreement because it is plainly desirable to put them in such, and that is dealt with in the report at page 266, paragraph 8.1:
" ... recommended that, subject to the completion of a Section 106 Agreement requiring an extended aftercare period, a management plan ... "
and so forth:
" ... and a scheme of ... "
because you want to know how you are getting on with that which you are seeking to do. So, my Lord, I do not say anything more on my learned friend's third point than that. The reality was that this was going to improve matters for the species in question and consequently was not within the scope of the Regulations in terms of main effect or significant adverse effect and your Lordship will appreciate that they have to be such if they are to be brought within that.
168. My Lord, the second point mentioned by my learned friend was, "Well, we have not, it is said, given our reasons for this.
169. MR JUSTICE COLLINS: There are two subpoints really: one, you have not given reasons; two, you have not referred specifically to the Regulations.
170. MR STRAKER: My Lord, yes. My Lord, as far as that is concerned, there are two relevant documents: page 149 but, more particularly, page 50. 149 predates 50, of course, because it is the resolution.
171. MR JUSTICE COLLINS: Yes.
172. MR STRAKER: Page 50 records in the note that:
"In accordance with ... "
173. Then the Article is given:
" ... the county council in determining the above application has taken into consideration the accompanying environmental information. Furthermore [we have taken into account] the policies ... and all other material considerations as set out in the report to the Planning and Regulatory Functions Committee on 11 June 2002."
174. So, my Lord, that takes us back to a further public document, of course, which your Lordship has seen and which begins at page 255, contains conclusions, and contains a recommendation, and of course one also has that leading to the resolution, the resolution on page 149, following the terms of the report: subject to the completion of the 106 requiring extended aftercare:
" ... planning permission be granted subject to the conditions as recommended ..."
175. MR JUSTICE COLLINS: But is there a prima facie breach of regulation 3(2)?
176. MR STRAKER: My Lord, I would respectfully say not.
177. MR JUSTICE COLLINS: Can you just direct my attention to the relevant regulations? It is the --
178. MR STRAKER: My Lord, perhaps it is best --
179. MR JUSTICE COLLINS: It is the Environmental Impact Assessment Regulations.
180. MR STRAKER: My Lord, it is. My Lord, would it be helpful if I passed to your Lordship -- we have just extracted on to some pages the relevant regulations.
181. MR McCRACKEN: It is in the encyclopaedias to your Lordship's right.
182. MR JUSTICE COLLINS: Is it?
183. MR McCRACKEN: And it is --
184. MR JUSTICE COLLINS: Volume 4.
185. MR McCRACKEN: Volume 4, page -- 36,286/1 is where they start. 36,289 is the relevant page for --
186. MR JUSTICE COLLINS: 36,289. Thank you.
187. MR McCRACKEN: And the other one is page 36,301, my Lord.
188. MR JUSTICE COLLINS: Yes:
"Regulation 3(2). The ...(Reading to the words)... shall not grant planning permission unless they have first taken ...(Reading to the words)... and they shall state in the decision that they have done so."
189. MR STRAKER: So, my Lord, as far as that is concerned, we have not fallen foul of the prohibition:
"Do not grant unless you have taken into consideration ... "
because we have, and we stated in our decision that we have done so. See page 50 in the note.
190. MR JUSTICE COLLINS: You say you have taken into account the environmental information?
191. MR STRAKER: My Lord, yes. The environmental information is defined in these Regulations.
192. MR JUSTICE COLLINS: By regulation 2(1)?
193. MR STRAKER: That is so, and it is a body of material, because it consists of the environmental statement, which is that February document --
194. MR JUSTICE COLLINS: Yes. So, you say that anyone reading that should appreciate that environmental information is simply taking a technical term from the Regulations, do you?
195. MR STRAKER: Well, my Lord, I would say that. It certainly embraces the environmental information within the meaning of the Regulations and it uses, of course, the word "accompanying", before referring to the environmental information, to describe that particular step.
196. MR JUSTICE COLLINS: It seems a little odd that you did not, if you wanted to do that, simply say, "the environmental information as defined in Article 2 of the 1999 Regulations," or something.
197. MR STRAKER: Well, my Lord, no doubt that could, in an ideal world, have been written in by the director of environmental services but in my respectful submission one is straining somewhat to find a point against the County Council if one is saying against them:
"Well, you have told the world via page 50 that you have taken into account environmental information which accompanied an application. You failed, however, to set out the full name of the statutory instrument dealing with environmental impacts and environmental information and therefore you are to be condemned."
198. MR JUSTICE COLLINS: I agree. It does seem a bit technical if you have -- or if the information which was the public information is clearly identified.
199. MR STRAKER: My Lord, yes.
200. MR JUSTICE COLLINS: But whether that means there is a breach, I do not know.
201. MR McCRACKEN: My Lord, might it be helpful if I indicate that this particular point we are not taking. The point that we take is that the minutes made no reference to the environmental statement or the key parts of the --
202. MR JUSTICE COLLINS: Oh, so you are not relying on 50? It is 149?
203. MR McCRACKEN: No, I directed your Lordship's attention to 50 simply because it is rather interesting that they have not referred to the relevant regulations, and that is a warning signal that they probably were not aware of them. So I was really doing it in a sense forensically. It alerts us to the fact they do not appear to be very clued up about the Directive. The point that we rely on in relation to Regulation 3(2) is that the minutes of their decision, which are, of course, the official record of what they said and thought, do not suggest that they considered the environmental statement and indeed, interestingly -- so that my learned friend is aware of this point -- the report to the committee did not refer to the environmental statement. In the list of background papers there was discussion of it but there was no reference to the environmental statement. So, quite apart from the point that they simply failed to refer to it in --
204. MR JUSTICE COLLINS: I see.
205. MR McCRACKEN: -- there is also a question of can you actually vicariously deal with an environment statement.
206. MR JUSTICE COLLINS: They have not mentioned it in their -- yes.
207. MR McCRACKEN: That is the point, my Lord. I hope it is helpful just to indicate that the very dry and arid point is one that we were not taking. Perhaps we should have done, but we are not taking it.
208. MR JUSTICE COLLINS: Well, I see the point, yes. 149 is a little sparse, is it not?
209. MR STRAKER: Well, my Lord, 149 reveals in the sort of language which these documents habitually repeat what has actually occurred, namely that this committee have considered something, which is then set out, and, as my learned friend records, that which they have considered by way of the report identifies the planning application, which, of course, has to go with the environmental statement and, as my learned friend records, has to be accompanied by the background papers, which include the environmental statement.
210. MR McCRACKEN: Have a look at it. It does not.
211. MR JUSTICE COLLINS: Well, Mr McCracken, you can come back in due course.
212. MR STRAKER: So, my Lord, the position therefore is that, whilst it can be said, "Well, this document no doubt could be written so as to be fuller," it embraces what it --
213. MR JUSTICE COLLINS: Well, it does not actually refer at all to the Environmental Impact Regulations, does it?
214. MR STRAKER: My Lord, no, but one can take two positions, I suppose, in connection with that. One can say on the one hand, "Well, everybody is assumed to know the law and therefore would recognise that, in connection with a matter such as this, there would be such treatment," or one can say, "Well, one does not suppose that to be the position," and one can then recognise that people are dealing with a bundle of documents, which bundle will be concluded by or prefaced by, if it comes after the event, the resolution at page 149, and that bundle, given to someone who is curious -- "and can I see the planning file, please" -- embraces the environmental statement. So, my Lord, I do not --
215. MR JUSTICE COLLINS: That one existed and was before the committee --
216. MR STRAKER: My Lord, yes. So one is always in the world of looking at these documents and saying, "Well, I could have written it differently," and, "Had I been writing it, I would have written in X and Y," and then, because you have left out X and Y, "I am going to condemn you," in circumstances where X and Y were before the committee and before the public, having been advertised as such. My Lord, I do not say, therefore, anything more about that second point.
217. As far as the first point --
218. MR JUSTICE COLLINS: Had you not better deal with the 21(1)(c) point?
219. MR STRAKER: Oh, I beg your pardon. I should do. I tucked that under there, "Duties to inform the public."
220. MR JUSTICE COLLINS: Yes.
221. MR STRAKER: And here we are obliged to:
" ... inform the public of the decision and make available for public inspection a statement containing the content of the decision and any conditions attached thereto, the main reasons and considerations on which the decision is based."
222. MR JUSTICE COLLINS: Well, you do not seem to have given any reasons, do you?
223. MR STRAKER: Well, my Lord, there is one matter here which I ought to just touch upon because the way in which the case has been put is somewhat different from the formulation in the grounds.
224. MR JUSTICE COLLINS: Before permission is granted, one can refine --
225. MR STRAKER: Oh, my Lord, I am not making any objection to that. I am simply expressing that observation because of the anxiety on my part as to my possibly underselling my clients because, not necessarily approaching this regulation 21(1)(c)(ii) head on, I am not able to tell your Lordship whether or not, for example, there is kept somewhere a document other than 149 and 50. I am simply making that, so to speak, precautionary point that I might be underselling my client.
226. MR JUSTICE COLLINS: I very much doubt it. We would, I am sure, have seen that.
227. MR STRAKER: My Lord, that may very well be right but I simply wanted to alert the court to that possibility.
228. MR JUSTICE COLLINS: Well, Mr Straker, dealing with arguability at the moment, there does appear, does there not, on the face of it to have been a failure to comply with 21(1)(c)(ii) because I can find no reasons anywhere stated for the grant of planning permission.
229. MR STRAKER: Well, my Lord, I would say that there has not been because I would suggest that one can properly take, via the note at page 50 ...
230. MR JUSTICE COLLINS: Well, that is not reasons. That simply says that they have taken various things into consideration.
231. MR STRAKER: And we have proceeded on that basis to grant planning permission is how I would respond to that.
232. MR JUSTICE COLLINS: Yes, but that is not reasons, with respect.
233. MR STRAKER: Well, my Lord, if one then has in mind the officer's report ...
234. MR JUSTICE COLLINS: Yes, but there are a number of differences, possible reasons there, as Mr McCracken points out.
235. MR STRAKER: Well, my Lord, I readily accept that and it may well be -- who knows -- that one particular councillor was particularly fond of the fact that this was going to produce, as a beneficial side effect, the desirable offshoots for the creatures in question. One might have been particularly influenced, as your Lordship observed, by the jobs.
236. MR JUSTICE COLLINS: It is possible but, equally, they might, all of them, have been unimpressed with the jobs point but had thought the balance was tipped by the environmental points, let us say. The purpose behind the giving of reasons, surely, is to enable a challenge to be brought if the reasons are thought to be defective and, if you do not know what the true reasons were, you do not know whether there is any challenge that can be brought.
237. MR STRAKER: Well, my Lord, I would suggest, if I may, that the principal purpose of 21(1)(c) is so as to see, so to speak collectively, the main reasons and considerations on which the decision is based.
238. MR JUSTICE COLLINS: Yes.
239. MR STRAKER: And that phrase then enables me to be able to say, "Well, when one is saying, I am proceeding upon the back of the report which has been presented to me as the main reasons and considerations embracing the environmental information on which the decision is based." I would answer it in that way. But, my Lord, I would also, if I may, respectfully short-circuit this, if I can, because the point, I would respectfully suggest, is one which is not and should not be a foundation for a prospective judicial review. If your Lordship was of the mind that we arguably have not said sufficient within 21(1)(c)(ii) and that was the only matter that was troubling your Lordship -- suppose that were the position -- my Lord, it would, with the greatest of respect, seem unfortunate to put on the back of that the judicial review proceedings which may delay Mr Hill's prospective development and may cause considerable expense.
240. MR JUSTICE COLLINS: Well, I see the force of that, of course.
241. MR STRAKER: And can be dealt with, of course -- because this Regulation does not say that you must do your 21 duty contemporaneously with June or when you come to grant your planning permission in accordance with the formal document. So, the circumstance could be dealt with -- as I say, if that was the only point troubling your Lordship -- simply by your Lordship indicating and my accepting on behalf of North Yorkshire, which I trust I am able to do, that we can say something further and better by way of particulars to embrace the point.
242. MR JUSTICE COLLINS: Yes. Well, I take that point, but that is not entirely satisfactory because after all the purpose, as I say, behind 21(1)(c) is surely that, if planning permission is refused, the applicant knows why it is refused.
243. MR STRAKER: He is bound to have reasons because we have to give them reasons under the General Development Order, yes.
244. MR JUSTICE COLLINS: Reasons have to be given there. But, even if it is granted, our system does not at the moment give any general right of appeal to someone affected by a planning permission which is granted, although I know there are moves afoot and consideration is being given. But there is a judicial review procedure, which has not been helped by (Inaudible), but nonetheless is there. But, surely, the purpose behind this is to enable anyone who wants, or is minded, to issue a challenge to know what reasons or what considerations moved the committee at the time. I accept that they -- I suppose you could plug the gap possibly, but this court is not very happy with that. You get this in general reasons challenges, where someone comes along and says, "Well, actually, I did have good reasons and these are what they are," but there is always a slight concern that the reasons are then dictated by the knowledge of what the challenge is and may not necessarily reflect what the reasons were at the time, and I think I am entitled, am I not, to take account of the fact that this was a pretty narrow decision: 5:4.
245. MR STRAKER: Well, my Lord, I do not think I could at this stage argue against your Lordship's entitlement to take account of the 5:4 result and I recognise the concern that the court may feel about the circumstances when one has a reasoning in some particular aspect being spoken to after the event. But the circumstances which obtain here, where there is the clear, as the accountants say, audit trail of papers leading through to a decision with the report of the officers and then the committee consideration and then the notice --
246. MR JUSTICE COLLINS: Why did you not comply with 21(1)(c)? Why did you not give reasons?
247. MR STRAKER: Well, my Lord, I have answered that question on the basis that we have. Your Lordship is asking me the second question assuming that I am wrong about the first answer I give to your Lordship.
248. MR JUSTICE COLLINS: Well, there are not any in any document. You have to, as you say, follow the audit trail, as you put it. Fine, but that is not normally a way in which you comply with a duty to give reasons, is it?
249. MR STRAKER: Well, my Lord, I suspect -- and, as I say, I do not want to be thought it may be I am doing my clients a misservice and underselling them in this respect. I suspect that the position is that they, like other authorities, went through a process of thinking to themselves, "Well, we have to give a notice in connection with this and this is how we will deal with that."
250. MR JUSTICE COLLINS: Well, check. If you would like, take instructions. Is there another document?
251. MR STRAKER: I am not sure I am in a position immediately to do that.
252. MR JUSTICE COLLINS: I see, you do not have anyone here --
253. MR STRAKER: My Lord, I do not think I can immediately help your Lordship on that. (Conferring between counsel)
254. MR JUSTICE COLLINS: Is this a good or a bad junior's point?
255. MR STRAKER: Well, my Lord, I do not think it is a point which I should press on your Lordship.
256. MR JUSTICE COLLINS: A bad junior's point.
257. MR STRAKER: I did not say that, my Lord. I left it to your Lordship.
258. MR JUSTICE COLLINS: I have been in your position before, Mr Straker. I think you have been my junior --
259. MR STRAKER: My Lord, I remember your Lordship not taking points which I offered to your Lordship.
260. My Lord, I cannot offer any further reason as to why it is that that was the extent of the activity.
261. MR JUSTICE COLLINS: You say, effectively, it is an arid point?
262. MR STRAKER: My Lord, yes, I do respectfully urge that and I do also urge upon your Lordship the point which was apparent in the discussion between your Lordship and my learned friend as to, well, you cannot readily transfer the point which your Lordship made about the jury trial and needing the reason fundamental to the decision having to be supported by the 12. You cannot readily transfer that to a five decision where, as we all know, individuals proceed on these positions for different reasons.
263. MR JUSTICE COLLINS: But then you would put in all of them, would you not?
264. MR STRAKER: My Lord, yes, but then you would have a further administrative factor, of course, in tracking back to the five and seeking to distil from that. But, my Lord, I cannot say anything more as far as that is concerned.
265. It takes me to the first point, the first point referring to the prejudicial interest of --
266. MR JUSTICE COLLINS: Councillor Richardson.
267. MR STRAKER: My Lord, yes, and, as far as that is concerned, your Lordship has in our first defendant's summary of grounds the code of conduct.
268. MR JUSTICE COLLINS: This is in the acknowledgement, is it?
269. MR STRAKER: My Lord, yes, and also, in page 170 of the bundle, your Lordship has the --
270. MR JUSTICE COLLINS: Yes, this is what we want.
271. MR STRAKER: -- the Model Code of Conduct, which has been adopted by North Yorkshire, and at page 169, 170 one sees on the first of those pages, 169, what is referred to as personal interests, and page 169, paragraph 10, what a prejudicial interest is.
272. MR JUSTICE COLLINS: Well, this was clearly a prejudicial interest.
273. MR STRAKER: My Lord, yes.
274. MR JUSTICE COLLINS: There is no argument, as I understand it, about that. It clearly was.
275. MR STRAKER: Then, to take your Lordship on to Regulation 12 -- or paragraph 12 -- page 170:
" ... a member with a prejudicial interest in any matter must ... "
276. And this bears on your Lordship's observations about our construction of the Code of Conduct:
"(a) withdraw from the room or chamber where a meeting is being held whenever it becomes apparent that the matter is being considered at that meeting --
277. MR JUSTICE COLLINS: But that is on the assumption, surely, that he is a member of the committee or the council, if the council is dealing with it in general session, and thus will have some role in the decision-making process. Any councillor representing his constituents is entitled to -- and indeed they do, do they not -- come before a planning committee where a planning application is being considered which is perhaps opposed or indeed supported -- it can go either way -- in the area which he represents and can address the committee on it. Now, the committee may or may not take notice of it and indeed, as a matter of fact, I would have thought on one view the fact that Councillor Richardson clearly had a prejudicial interest and a personal interest in objecting might well weaken the force of his objection on behalf of his constituents, but that is a matter for the committee, and to suggest that, because he has a prejudicial interest, he is not entitled to address the committee, when he has no part, and no conceivable part, in the decision-making process, seems to me to be absurd, frankly.
278. MR STRAKER: Well, my Lord, two views first of all could be expressed over that particular observation because, of course, the opposing view might be that a member has a certain office, the office of councillor, and, speaking as such, his views may carry particular weight. That view appears to have prevailed because, if one looks back --
279. MR JUSTICE COLLINS: That does not say much for the view of the councillors who have to make the decision, does it?
280. MR STRAKER: Well, my Lord, that may well be so, but, my Lord, that such a view has apparently prevailed appears to be --
281. MR JUSTICE COLLINS: Prevailed in North Yorkshire. It does not appear to have prevailed elsewhere.
282. MR STRAKER: Well, my Lord, prevailed in the Code of Conduct.
283. MR JUSTICE COLLINS: Well, no. It is a question of construction --
284. MR STRAKER: Well, my Lord, if your Lordship goes back to page 167:
"A member must observe the authority's code of conduct whenever he--
(b) conducts the business of the office to which he has been elected or appointed."
285. MR JUSTICE COLLINS: Yes.
286. Then one goes back to 12 and the participation in relation to --
287. MR JUSTICE COLLINS: Yes, but Mr Straker, this code of conduct contains general things, such as 2. Of course, a council must not discriminate unlawfully against people, must treat people with respect and so on, and must act impartially, but that is general. Of course one accepts that. 12 is a particular, which is not to misuse his position, effectively, in any decision-making process --
288. MR STRAKER: My Lord, precisely so.
289. MR JUSTICE COLLINS: -- in which he is involved.
290. MR STRAKER: But it does not distinguish, my Lord --
291. MR JUSTICE COLLINS: Well, a sensible construction, I would have thought, would distinguish, would it not?
292. MR STRAKER: Well, I would respectfully say --
293. MR JUSTICE COLLINS: Look at Councillor Thomas. You get utter absurdity, do you not? Just because he has spoken to Councillor Richardson on the issue and might have been influenced by him --
294. MR STRAKER: Well, then, he made the decision to step back.
295. MR JUSTICE COLLINS: Yes, because of the construction that has apparently been placed on the --
296. MR STRAKER: Well, my Lord, that construction --
297. MR JUSTICE COLLINS: With the greatest of respect, it is ridiculous.
298. MR STRAKER: It may be, so to be categorised, but I would respectfully say it is nonetheless plainly right because --
299. MR JUSTICE COLLINS: I would say it is plainly wrong, but you say why it is plainly right.
300. MR STRAKER: I say it is plainly right, my Lord, because it refers to a member having a prejudicial interest, without seeking in any sense at all to identify that beyond the label of being a member of the council, so that, if one looks, for example, at 11, when the draftsman has sought to identify if a member is particularly involved in something, he has indicated as such:
" ... a member must, if he is involved in the consideration of a matter at a meeting of an overview and scrutiny committee of the authority ..."
301. MR JUSTICE COLLINS: Well, that is like saying a judge must not sit on a Court of Appeal against his own decision, which used to happen actually.
302. MR STRAKER: It certainly used to happen, my Lord, and no longer does, and not for a few years, but the position is one whereby --
303. MR JUSTICE COLLINS: Yes. The last time I can think of is some time ago, but Lord Reading overturned his Court of Appeal decision in the House of Lords.
304. MR STRAKER: My Lord, yes. I believe the same Lord Chief Justice also sat when he was considering a case of someone he previously represented.
305. MR JUSTICE COLLINS: Well, that is right.
306. MR STRAKER: Anyway, he --
307. MR JUSTICE COLLINS: Times have changed. We have --
308. MR STRAKER: My Lord, these regulations 12: it simply says "a member with a prejudicial interest" and does not qualify it at all.
309. MR JUSTICE COLLINS: Let us try and adopt a sensible construction, shall we? Mr Straker, this is arguability after all. Do not get me wrong, you may be right, but at the moment it seems to me a ridiculous construction that a councillor who wants to make observations, provided he discloses -- if Mr Richardson had not disclosed that he had this prejudicial interest, of course, because then he would appear to be addressing simply as a representative of the relevant constituents, but he has: he has explained why he has a personal interest and he is also making points which he thinks are good points, he says, on behalf of his constituents. Why can he not do that?
310. MR STRAKER: If it were merely a personal interest, then, of course, 12 does not bite and the position would be as your Lordship has indicated. So if, for example, I am a councillor, say, and I have a personal interest because I am an active member of some local pressure group and that is taken as such, nonetheless, whether I am a member of the committee or not, I can say to that committee, "This is the view of me as councillor and, by the way, also of me as member of the Save the Bus Station Group."
311. MR JUSTICE COLLINS: Well, yes, but you would not be allowed to be there if you --
312. MR STRAKER: No, my Lord, I would be because, my Lord, 12:
" ... a member with a prejudicial interest in any matter must--
(a) withdraw from the room or chamber ... "
313. MR JUSTICE COLLINS: Well, you do have a prejudicial interest have you not, if you are an active member of the Save Our Bus --
314. MR STRAKER: Well, my Lord, that would depend upon --
315. MR JUSTICE COLLINS: The extent to which the issue was concerned.
316. MR STRAKER: To the extent to which one classifies membership of a local action group as constituting a prejudicial interest in such --
317. MR JUSTICE COLLINS: I would have thought it clearly does.
318. MR STRAKER: Well, there has been debate about that, my Lord, but if I have a personal interest -- I am just interested in it and it is not a matter -- I am not a member of a group that is going to disqualify me, if I am acutely interested in this matter because I happen to like buses or bus stations, if I have not embraced by the phrase prejudicial interest, personal interest, then the position is one where I am not touched by 12 because I do not have a prejudicial interest.
319. MR JUSTICE COLLINS: If one adopts a sensible approach to this, you do not need to go into those details. You simply say that any councillor who has an interest which may be a prejudicial interest should not be party to the decision, end of problem.
320. MR STRAKER: But, my Lord, it has not said that. That is the problem, I --
321. MR JUSTICE COLLINS: I think it has. I think that is the only sensible construction of the regulation. Otherwise, you do reach absurdities, and this case has thrown them up. It cannot be right, can it, for a councillor in Councillor Richardson's position to be prohibited from even attending the meeting, when he has no part to play in the decision-making process at all and he has a real interest, because he happens to live nearby, in objecting to the application simply because he is a councillor, and the suggestion that he should resign from being a councillor is frankly as ridiculous a suggestion as I have ever heard.
322. MR STRAKER: Well, My Lord, he can do a variety of things to enable the point of view to be pressed.
323. MR JUSTICE COLLINS: Well, maybe.
324. MR STRAKER: And it can be done by the substitution or however it is to be done --
325. MR JUSTICE COLLINS: Well, if you had said to him, "Look, we take this view of the construction of the regulations, but of course we realise the problem and so you can send someone who is not a councillor along."
326. MR STRAKER: (Inaudible).
327. MR JUSTICE COLLINS: He could have then chosen someone, but he did not do that.
328. MR STRAKER: But, my Lord, page 26 of the bundle records that four working days before the meeting the first claimant was informed that, because he had the prejudicial interest --
329. MR JUSTICE COLLINS: He would not be allowed.
330. MR STRAKER: -- he would not be allowed to speak at or attend, and page --
331. MR JUSTICE COLLINS: But then you (inaudible) you said that the district councillor was not going to be able to either until the last minute.
332. MR STRAKER: Well, my Lord --
333. MR JUSTICE COLLINS: Sorry, what other page?
334. MR STRAKER: I was going to go to page 134 as well. This is the email which was sent, or a copy of the email that was sent.
335. MR JUSTICE COLLINS: Yes. This is dated?
336. MR STRAKER: This is the 6th. This is some five days or so before the meeting, and your Lordship will see -- there is a paragraph just below the second holepunch:
"Like you ... "
337. MR JUSTICE COLLINS: Like arrangements made with Chairman (inaudible).
338. MR STRAKER: Yes.
339. MR JUSTICE COLLINS: He was not able to -- well, it was five days before.
340. MR STRAKER: Yes:
"Beyond this I am sure the Committee would also be happy to hear the views of another elected representative such as ... in order to ensure that the democratic voice of local people is heard by the Committee."
341. MR JUSTICE COLLINS: Yes. Well, why can it not be heard through their councillors? He is the obvious person to give the views anyway.
342. MR STRAKER: Well, my Lord, that takes us back to the discussion that -- I hesitate to say argument --
343. MR JUSTICE COLLINS: Well, you have your views on this, Mr Straker.
344. MR STRAKER: My Lord, yes, and I acknowledge that difficulties can be caused in the exercise of this code of conduct and I acknowledge that, as a matter of one's own practice, one has encountered difficulties. I simply say that the language is plain, when one looks at that and works it through and then --
345. MR JUSTICE COLLINS: This happens in a general council meeting, does it not, where something comes up in which a member has a prejudicial interest? He withdraws while that matter is discussed and, when that matter is voted on, because he takes no part in that vote, he then comes back for the next item. That is the way it works, does it not?
346. MR STRAKER: My Lord yes.
347. MR JUSTICE COLLINS: The same here.
348. MR STRAKER: A committee -- it can, of course, be the case, and sometimes more often than one might suppose is the case, that a planning decision is made by the whole council.
349. MR JUSTICE COLLINS: In that case Councillor Richardson would have to withdraw while the matter was being dealt with in general --
350. MR STRAKER: But, my Lord, here --
351. MR JUSTICE COLLINS: -- it is true.
352. MR STRAKER: -- the language of your Lordship's construction, of course, has to be that, in any matter -- is to be --
353. MR JUSTICE COLLINS: Yes, I think it may be 12 could be redrafted to make it clear that it is only in respect of meetings in which he has a part, in the sense that he has a part to play in voting or in reaching the decision. I agree, it would have been better perhaps if 12 had been limited in that way, but I think the limitation is in my view implicit.
354. MR STRAKER: Well, my Lord, your Lordship's observation would take me back, so to speak, in argument to number 11, where that has been done, but, my Lord, I can see that -- if I can put it this way -- there is a difference between bench and bar, at least as to the arguability of that point. So I step back from that, if I may, to indicate this: that your Lordship would still have to proceed upon the footing that this was something worth arguing about in the context of this particular case, and, as far as that is concerned, in my respectful submission, whilst noting, if I can, my learned friend's observations about the differences between different classes of advocate, here the position was certain points were desired to be made, they were capable of being made in a variety of ways, no doubt capable of being made powerfully --
355. MR JUSTICE COLLINS: But there will, I suspect, constituents of Mr Richardson who will feel they have been hard done by because they have not had the opportunity of their elected councillor making the points on their behalf. Now, whether they are right to put such faith in Councillor Richardson's powers of persuasion is another matter, but the whole point of the democratic process is that you do have that representatives.
356. MR STRAKER: My Lord, I readily appreciate that point, but it takes one back to the particular difficulty, I would respectfully contend, with your Lordship's construction, because your Lordship then relies upon him, the councillor, as part of his office doing this, attaching weight to his office, where he is told, "You have a prejudicial interest." So, my Lord --
357. MR JUSTICE COLLINS: Yes, provided the decision-makers know that he has a prejudicial interest. As I said earlier, that may on one view -- and this is a matter of judgment now -- weaken the force of his submissions, if it is felt that actually he is only doing this because of a NIMBY approach, rather than because of a genuine concern for the interests of his constituents.
358. MR STRAKER: Well, my Lord, as far as that is concerned, your Lordship has in effect to reach the view that here there is a prospect that the person who could have come forward, or the persons who could have come forward, would have put it over so differently and inadequately as to make the difference between yes or no.
359. MR JUSTICE COLLINS: Mr Straker, you know that the approach of this court is, and has always been, rightly or wrongly, that if it might have made a difference, not if it would. It is a very low threshold.
360. MR STRAKER: Well, my Lord, the whole exercise is a quite a low threshold. That is why sometimes one has, with respect, to be careful about allowing too much through. But, as far as that is concerned, your Lordship nonetheless has to take that particular view that this might have made a difference.
361. My Lord, so I cannot say anything more, beyond getting back into the repetition on the construction, as far as that other point is concerned, the first point. Therefore, I say first construction, second, would not have made any difference.
362. MR JUSTICE COLLINS: Yes.
363. MR STRAKER: My Lord, that then brings me to the end of the third point, and the other matters which were not spoken to have been dealt with by the paper submission.
364. My Lord, that is all, unless I am reminded of anything from the right, I should say.
365. MR JUSTICE COLLINS: Mr Maurici?
366. MR MAURICI: My Lord, is it acceptable to begin, if I invite your Lordship just to read --
367. MR JUSTICE COLLINS: Shall I have a read through?
368. MR MAURICI: Yes. My Lord, your Lordship can concentrate starting at paragraph 5 and going through to paragraph 19. The rest we can leave for now. (Pause)
369. MR JUSTICE COLLINS: Yes. Well, I take a view, which may or may not be right, as to the true construction of this particular part of the code.
370. MR MAURICI: Yes, my Lord.
371. MR JUSTICE COLLINS: You do not deal with that but --
372. MR MORSHEAD: My Lord, I have to say the Secretary of State's position, my Lord, is that paragraph 12, which your Lordship has looked at, is not limited, my Lord, on its face to situations where a councillor is particularly involved in the decision-making of the council.
373. MR JUSTICE COLLINS: It should be, should it not?
374. MR MAURICI: Well, my Lord, can I just ask your Lordship to turn -- my Lord, you will realise there is a document attached to my skeleton argument, which is the consultation paper that led to the code of conduct. My Lord, paragraph 4.17 of that -- my Lord, could I ask you to read 4.17 and 4.18?
375. MR JUSTICE COLLINS: Yes. But look at 4.17:
"In relation to non-financial interests, the LGA propose ...(Reading to the words)... declare such interests but unless ...(Reading to the words)... related to planning, licensing or grant should then be able to speak and vote."
376. It is the "and vote" which is important, is it not?
377. MR MAURICI: (Inaudible)
"And where a member has a non-financial interest in relation to a planning, licensing or grant application --
378. MR JUSTICE COLLINS: A member should be able to speak.
379. MR MAURICI: But not vote.
380. MR JUSTICE COLLINS: Well, there you are.
381. MR MAURICI: But, my Lord, the Secretary of State rejects that (inaudible) in the next paragraph and says a more restrictive view is justified, and, my Lord --
382. MR JUSTICE COLLINS: But the more restrictive view relates or could relate simply to "should then be able to speak and vote". There is nothing in this consultation paper which in any way suggests that the construction which I regard at the moment as the sensible construction should not prevail. What is the point of excluding a councillor, when he has no voting power and takes no part in the decision, from a committee meeting where a matter in which he has an interest -- because it may be that he does not want to take a different case where the councillor is not going to put forward any objections on behalf of his constituents. Perhaps the general feeling is that they want this particular development but the councillor happens to have a personal objection because of where he lives or whatever. Is he to be precluded from making his own personal point simply because he happens to be a councillor?
383. MR MAURICI: Well, my Lord, it is important that you are required to have both a personal and a prejudicial interest.
384. MR JUSTICE COLLINS: Assume it is a prejudicial interest, which it clearly would be --
385. MR MAURICI: But that would mean the council -- for example, in this in case the councillor's own property would have to potentially be affected by the proposed development.
386. MR JUSTICE COLLINS: Assume that.
387. MR MAURICI: Yes, my Lord.
388. MR JUSTICE COLLINS: Assume that in a given case -- not this case, a given case -- and the councillor wants to make an objection purely based on personal -- which would amount to prejudicial because his land, as you say, would be affected. Nothing to do with his constituents. Are you saying that this model code would prohibit him from making those observations simply because he was a councillor?
389. MR MAURICI: On the face of it they do apply to that situation.
390. MR JUSTICE COLLINS: Well, that is ridiculous, is it not?
391. MR MAURICI: My Lord, I say it is not ridiculous, my Lord, because one of the things that the code is seeking to do is to prevent those councillors with personal or prejudicial interests having any influence on decisions related to their personal and prejudicial interests.
392. MR JUSTICE COLLINS: So there is so little trust based on local councillors that it is assumed that they are going to be wrongly influenced simply because another councillor has personal objections. I find that ridiculous.
393. MR MAURICI: Well, my Lord, can I say, in relation to how it affects this case, my Lord. The point your Lordship has alighted upon is really the claimant's ground 5 --
394. MR JUSTICE COLLINS: Yes.
395. MR MAURICI: -- which is effectively -- it is put in a way that there has been a misconstruction of the code.
396. MR JUSTICE COLLINS: Yes.
397. MR MAURICI: My Lord, it may be that that is not correctly made, the code is correct, in which case a different point arises, but, my Lord --
398. MR JUSTICE COLLINS: Well, do you want to attend and argue in favour of the code on this point, because if you do, fine, I will give you leave to -- you can come as a third party.
399. MR MAURICI: Well, my Lord, the Secretary of State, as you can see, reserves his position to come along and make submissions in relation to what the code means. My Lord, ground 7, which I dealt with in my skeleton argument, proceeds on the basis that effectively --
400. MR JUSTICE COLLINS: I am with you on that because there is nothing in that point in (inaudible).
401. MR MAURICI: Well, my Lord, in those circumstances I would invite you not to grant permission on ground 7.
402. MR JUSTICE COLLINS: Yes.
403. MR MAURICI: But, my Lord, to allow us to come along to --
404. MR JUSTICE COLLINS: (Inaudible) Mr McCracken raise that, if he wants to, because he has not argued that, but I do not think anything to that point.
405. MR MAURICI: My Lord, can I just take some instructions for a moment. (Pause)
406. My Lord, obviously you have to hear from Mr McCracken about ground 7 but, my Lord, if your Lordship is minded to refuse permission on ground 7 and, my Lord, if you are otherwise minded to grant permission on the other grounds, then we would seek the right to come along to make representations on those other grounds.
407. MR JUSTICE COLLINS: Well, if you are going to be there anyway, it does not really make a lot of difference. All right. Mr Hill, I sympathise with your clients enormously, but I am troubled, I am afraid, by the first and the 21(1) point coupled together.
408. MR HILL: I understand that. I have tried to take note of the way (inaudible). I appreciate that I may have something of an uphill struggle to turn your Lordship round at this stage in the morning. My Lord, perhaps I could be greatly assisted if your Lordship could give some indication as to whether your Lordship is attracted by the third of the three points.
409. MR JUSTICE COLLINS: No, I am not.
410. MR HILL: I am very grateful, my Lord, because that relates, as I see it, if one looks to the claim form, to ground 1 -- page 5, my Lord, of the bundle -- that the allegation was a failure to take into account or take into consideration the environmental information and that was irrational. I think that is at least a major part of the point that Mr McCracken --
411. MR JUSTICE COLLINS: I think nothing of that point at all.
412. MR HILL: I am very grateful, my Lord. Then, my Lord, ground 2, the cumulative effect, which has not been developed. I think that probably would fall in the same way.
413. MR JUSTICE COLLINS: Indeed.
414. MR HILL: My Lord, I think ground 3 is Mr McCracken's main point 2, as I understand it, although, as my learned friend Mr Straker explained, that has been significantly elaborated to take account of regulation 21, which does not appear, to my reading, anywhere papers before your Lordship.
415. MR JUSTICE COLLINS: No. Prima facie it is an arguable point because there has been a failure to give reasons on the face of it.
416. MR HILL: My Lord, can I just deal then very briefly with that point, if I may -- and I am extremely grateful to your Lordship for those indications on grounds 1, 2 -- and I believe 4 has not been developed either.
417. My Lord, in respect of the ground pleaded as ground 3, the regulation 3(2) point, which has been elaborated to incorporate regulation 21 as well, my Lord, we have focused our attentions on pages 49 and 150 of the bundle.
418. MR JUSTICE COLLINS: The other way round.
419. MR HILL: I am so sorry, 50 and 149, 50 being the first page of the notice of decision, which is the place where one finds the phrase:
"The council, in determining the above application, has taken into consideration the accompanying environmental information."
420. My Lord, it has been argued by my learned friend Mr Straker that that term must there be taken to refer to regulation 3(2). As I understand it, I do not believe that point is being pursued by my learned friend.
421. MR JUSTICE COLLINS: Not in that bald form, I think.
422. MR HILL: So, my Lord, one comes to what the committee considered and what one can infer properly by reference to the audit trail from the reference to the report of the Director of Environmental Services. My Lord, I do wish, lest there be any doubt in your Lordship's mind, just to look back to that report to committee, which occurs towards the end of the bundle, because I think it was being suggested that the committee did not have the environmental statement or environmental information drawn to their attention in a specific way.
423. MR McCRACKEN: Is it not a background paper?
424. MR HILL: My Lord, it may not have been expressly identified as a background paper but, if your Lordship looks at the report, then it is very plain.
425. MR JUSTICE COLLINS: I do not think there is any doubt that the committee had before it the (inaudible).
426. MR McCRACKEN: My Lord, so that there can be absolutely no doubt about it, I intended to say in oral submission in opening that the officers referred in their report to the environmental statement but that the criticism that I made of this in the context of the regulation 3(2) point was that the background papers did not refer to the environmental statement. I accept, of course, that probably the accompanying documentation to the application would have included the environmental statement.
427. MR JUSTICE COLLINS: Well, I do not think there is any doubt about that. It is very detailed.
428. MR HILL: The point that I was making was part of the point that related to the way in which they phrased the notice of decision.
429. MR JUSTICE COLLINS: Yes, it is the reasons in the 3(2) --
430. MR HILL: They were not clued up on the environmental information regulations. That is the, as it were, inference that I --
431. MR JUSTICE COLLINS: But they clearly had the document, is the best point, I think --
432. MR HILL: I am keen that there be no misunderstanding on this point, and that it is clear that the report to committee refers on innumerable occasions to the environmental impact assessment, for example, my Lord, at page 257, paragraph 2.4. The application is expressly referred to as falling within Schedule 1 and as such the applicant was required to submit an environmental statement with their application. So anyone reading this report would immediately be put on notice that such a document existed and, as one proceeds through the report, again it is clear -- one turns to page 262 -- that, in the context of ecology, the environmental statements -- this is paragraph 6.3.5 on page 262. Again, the environmental statement is expressly referred to as having addressed the ecological issues.
433. MR JUSTICE COLLINS: Yes.
434. MR HILL: And again in the --
435. MR JUSTICE COLLINS: Well, at 6.3.5?
436. MR HILL: 6.3.5, my Lord, yes, and page 266 within the conclusion, again there is --
437. MR JUSTICE COLLINS: Well, 6.3.5 makes the point quite clearly.
438. MR HILL: Indeed, sir. So, there we have the reference in the committee report, which all the committee members read and considered, to the environmental statement.
439. MR JUSTICE COLLINS: Which they had.
440. MR HILL: They certainly had, my Lord. But I think it is unrealistic to assume --
441. MR JUSTICE COLLINS: I do not assume anything --
442. MR HILL: -- that each (inaudible) is going to read all of the environmental statement, and indeed the normal course in these circumstances would be for the committee to rely upon its officers to provide a reasonable synopsis of the main points --
443. MR JUSTICE COLLINS: It depends how long in advance they have the documentation sometimes.
444. MR HILL: Indeed so.
445. MR JUSTICE COLLINS: It depends on the bulk of it. It depends on the time that they have. Sometimes a judge will come into court having read the skeleton arguments and the grounds and not necessarily having read all the papers.
446. MR HILL: Indeed so, my Lord. I would not wish to comment on that, of course, but I note what your Lordship says. What I say, my Lord, is that one can reasonably infer from the resolution on page 149 that, having considered the report of the Director of Environmental Services, the committee members also considered properly the environmental information that was referred to.
447. MR JUSTICE COLLINS: I certainly would not be in the business of assuming, and nor would any judge assume that they not, unless, of course, there was positive evidence to that effect, but there is not.
448. MR HILL: Indeed so, my Lord, there is not such evidence here. My Lord, so far as the regulation 21 point is concerned, I think, my Lord, it is necessary to pause and reflect on the realism of any suggestion that the individual committee members should be obliged to identify the reasons for taking a positive --
449. MR JUSTICE COLLINS: No, I am not suggesting that. What I am saying is that the regulation requires that reasons and considerations be given, and it has not been done for some reason.
450. MR HILL: My Lord, it would be my submission that in a case such as this, and indeed in almost any case one could imagine, the public would be invited to assume that the committee members had taken a decision for the reasons set out in the committee report. If you think back to, my Lord, to the countless occasions when your Lordship has been asked to consider occasions when a planning permission has been granted, the vast majority of the court's time will always be taken in considering that committee report. That is the basis for the decision --
451. MR JUSTICE COLLINS: Of course.
452. MR HILL: -- unless there is a very clear public indication otherwise.
453. MR JUSTICE COLLINS: You are quite right, Mr Hill, but that is because -- I think I am right in saying -- absent something like the Environmental Impact Assessment Regulations, there is not a duty to give reasons when granting permission. There is a duty to give reasons when refusing, but not when granting generally. That is right, is it not?
454. MR HILL: Well, my Lord, that is absolutely right. There is no general duty to give reasons for granting planning permission.
455. MR JUSTICE COLLINS: Thus, when one has a challenge to the ground, one inevitably has to look at the officer's report because normally that can be taken as being at least influential on the decision, but here there is a specific requirement to give the reasons and considerations and there is presumably some purpose behind that.
456. MR HILL: My Lord, I would not wish to probe into what that might be but, just looking at the practicalities and realities of decision, those who represent the claimant -- certainly, as I understand it, the second claimant -- were in attendance at the meeting and were in a position to identify whether there were other matters that were discussed at length that are not referred in the officer's report. There is no suggestion that there were such other matters that bore upon the decision.
457. MR JUSTICE COLLINS: But, as I say, the whole purpose surely of requiring is so one can see, or the third party can see, what actually moved the committee and if they take the view that they were insubstantial or erroneous, then there is a ground of challenge. I am not suggesting that they would have been in this case but for some reason it appears from the information that I have at the moment that there was a prima facie breach of 21(1)(c)(ii).
458. MR HILL: My Lord, the only reason I press this argument at this stage is just that the way I see the position on the evidence, there is nothing before the court to suggest that there were any other reasons or improper matters that were likely to have influenced the committee, other than what is in the committee report, which is a very extensive and comprehensive analysis of all the relevant matters.
459. MR JUSTICE COLLINS: You are probably right and I think that if that stood on its own, I would have a lot of sympathy with Mr Straker's submissions that it was an arid point, but unfortunately it does not stand on its own because it is coupled with the first point.
460. MR HILL: My Lord, I am very heartened by the way in which you express yourself, insofar as that ground is concerned. My Lord, that leaves me only with, I think, the first point and I do not intend to enter into the debate that has already taken place about the correct construction of the code of conduct. We have not, as you see from the documentation placed before the court, sought to intrude upon that debate. As we have seen, it is essentially --
461. MR JUSTICE COLLINS: No, you are sort of lumbered by it.
462. MR HILL: We are, my Lord, and that, I think, my Lord, is a very fair way of putting it. We are caught up in a situation where there is, on your Lordship's view, plainly an arguable point about the correct construction of the code of conduct. What I would ask your Lordship to consider very carefully before taking a view about whether or not leave should be granted is whether there is actually any material at all before the court which suggests there were other matters of substance which Mr Richardson could have placed.
463. MR JUSTICE COLLINS: Is there any reason, Mr Hill, why a fresh application should not be made and the matter reconsidered?
464. MR HILL: My Lord, there is obviously -- we have implemented this permission and we are five months --
465. MR JUSTICE COLLINS: (Inaudible)
466. MR HILL: Well, we are --
467. MR JUSTICE COLLINS: That does not mean that you cannot make a fresh application, does it?
468. MR HILL: No, we could in theory make a fresh application but we are in a position where we are already under way with the application and we do feel that our position is placed in great uncertainty.
469. MR JUSTICE COLLINS: No, I take your point. I had not appreciated that you had already started.
470. MR HILL: Well, my Lord, we have literally come to the end of the previous area of working. We implemented, I believe, in September, my Lord, but I will take instructions.
471. MR JUSTICE COLLINS: Presumably, the implementation is, as it were, at the higher end, away from the river.
472. MR HILL: It is closest to the area of previous workings, as I understand --
473. MR JUSTICE COLLINS: I would have assumed that.
474. MR HILL: My Lord, we are five months into the working of this site. My Lord, as I say, I do ask your Lordship to give very careful consideration to whether there are any matters of substance -- there is no witness statement from Councillor Richardson saying, "I would have wished to place matters x, y and z before the council. I was denied that."
475. MR JUSTICE COLLINS: I imagine it is certainly (inaudible).
476. MR HILL: My Lord, it turns solely on Councillor Richardson as a conduit -- the identity of Councillor Richardson as a conduit placing these matters before the council. It seems to me, my Lord, there must be some very considerable doubt about whether it would be appropriate in all the circumstances to grant the leave sought.
477. My Lord, can I assist you on any other matter?
478. MR JUSTICE COLLINS: No, I am grateful, Mr Hill. Thank you.
479. Well, Mr McCracken, I think I have made my views fairly clear in the course of the argument. I am with you on ground 1, in the sense that I think it is -- I have called it ground 1.
480. MR McCRACKEN: Yes, I understand, my Lord.
481. MR JUSTICE COLLINS: I think that the construction of the regulations is clearly arguable. I think nothing of your attack on the model code itself. I think that it is the construction of it that is --
482. MR McCRACKEN: Yes. My Lord, because the democracy point is the greatest point of substance that is of most general interest, can I just spend a moment on that?
483. MR JUSTICE COLLINS: Well, I am going to grant you permission on it.
484. MR McCRACKEN: I am obliged, my Lord, but I am anxious that we should be able to argue -- suppose that at the substantive hearing the court comes to the conclusion that Mr Straker's construction of the model standing orders is the correct one, then the issue would be whether or not the model standing orders were themselves rationally and proportionately promulgated by the Secretary of State, and we would wish to be in a position to argue, particularly in the light of the fact that your Lordship suggested that Mr Straker's destruction was absurd, ridiculous and plainly wrong.
485. MR JUSTICE COLLINS: Well --
486. MR McCRACKEN: No, my Lord. No, this is a serious point, that where a judge thinks that the construction of a particular piece of legislation would be plainly wrong or ridiculous, then, if it transpires that that is the correct construction, it must be arguable that the promulgation of that regulation was unlawful and disproportionate. Now, time was when we could not have argued that disproportionality point because, before Lord Slynn in Auchenbury said that proportionality was a separate head in England and before Lord Steyn had made it clear in Daly that it means something different from Wednesbury unreasonableness, it actually involves the court exercising a balancing --
487. MR JUSTICE COLLINS: You see, if it is disproportionate, the answer is in the construction. So, the two really go together because what you are saying is that it would be disproportionate for it to have this effect. The answer to that is a simple one: therefore, it does not have that effect, and it seems to me that there is no problem in construing the regulation so that it does not have that effect.
488. MR McCRACKEN: My Lord, we are very heartened by your Lordship so saying but, of course --
489. MR JUSTICE COLLINS: If that is right. Another judge may take a different view.
490. MR McCRACKEN: But of course, from a domestic legal point of view, absent section 3 of the Human Rights Act and absent Marr Leasing(?) in a European Community context, it is open to a decision maker to reach a decision which is rational and satisfies the Wednesbury test, but disproportionate and would fail the court's application of the proportionality test. So I wonder if I could simply invite your Lordship to give us general leave in relation to that point, albeit, of course, we are conscious that your Lordship has expressed views which ought to guide both ourselves and the Secretary of State in any submissions that they make.
491. MR JUSTICE COLLINS: I do not see why the Secretary of State should be a defendant. I think he will be interested enough to attend anyway from what I have heard because clearly the question is going to be raised as to what is the true construction of the model code and he may well want to be heard on that issue, I am sure.
492. MR McCRACKEN: It sounds at the moment as though he is going to be supporting Mr Straker on that point and therefore --
493. MR JUSTICE COLLINS: He may think about it again, yes.
494. MR McCRACKEN: Well, it is to be hoped that the Secretary of State will think about it again in the light of the very helpful observation that your Lordship has made. But, bearing that in mind, I think it is important, my Lord, that we do have the ability an any rate to argue that point, if we need to.
495. MR JUSTICE COLLINS: You are simply arguing that the construction of the code is as you submit, and then there is no problem. It is not disproportionate. If the judge says, "No, the construction is the other," then the judge has to consider whether that is proportionate, surely.
496. MR McCRACKEN: Well, that is right, my Lord, but we have to be able to argue that point, I think, because this is not necessarily a Human Rights Act point --
497. MR JUSTICE COLLINS: (Inaudible) Euro point.
498. MR McCRACKEN: Well, no.
499. MR JUSTICE COLLINS: Silly Euro point.
500. MR McCRACKEN: It is, my Lord, a common law point because one of the great glories of the common law is that it evolves; it responds to the way in which the intellectual world of lawyers is developing and so one of the beauties of common law is that, sensing the way in which, within greater Europe and the European Community, our brother lawyers have been using concepts such as proportionality, the common law has come to embrace that within the common law, but it is important that --
501. MR JUSTICE COLLINS: Tell that to the banana field, yes.
502. MR McCRACKEN: But, can I simply invite your Lordship to give us leave to argue that point as well, so that we can cover that point as fully as possible.
503. MR JUSTICE COLLINS: Well, I think it is a bad point, for the reasons really set out by Mr Maurici in his -- I do not think that an attack on the regulations will get you anywhere. I do not think the regulations and the code itself -- I think we will call it "the regulations" -- there is anything wrong with it.
504. MR McCRACKEN: But that is because your Lordship thinks that the regulations would not have excluded our client but, suppose the judge were to take a different view and suppose he were to take the view that the regulations had been construed correctly, we would want to argue --
505. MR JUSTICE COLLINS: I come back to this. How can he decide that they have been construed correctly if their effect on that construction is disproportionate. If he decides that the correction construction is, as Mr Straker and apparently Mr Maurici suggest, then he will have to decide that that is proportionate because, if it is not proportionate, then it cannot be a construction which is applicable.
506. MR McCRACKEN: Can I take an example, my Lord? A new Secretary of State announces that, because of the prevalence of bicycle theft and the desirability of eliminating this scourge on society, the penalty for bicycle theft will be the compulsory acquisition without compensation of the thief's home. Now, that would be rational but it would be plainly disproportionate. That is something -- it could be that regulations --
507. MR JUSTICE COLLINS: I would not have thought it would even achieve rationality, that example, but still ...
508. MR McCRACKEN: Well, your Lordship will get the point, that you can have regulations which are framed clearly and unequivocally in such a way that they achieve a result that is disproportionate.
509. MR JUSTICE COLLINS: Yes, but these ones are not framed clearly and unequivocally so they reach that conclusion, and therefore you are in the position of saying, "Look, this code means this or it means that. If it means this, then it is disproportionate. Therefore, it cannot mean this."
510. MR McCRACKEN: My Lord, I am not going to argue with your Lordship any further because your Lordship has told us that we are bound to win on the first point.
511. MR JUSTICE COLLINS: I am not telling you that at all. I am telling you that it is arguable. I have formed my own views about it at the moment but I have not heard full argument and I am just dealing with arguability.
512. MR McCRACKEN: My Lord, it would be quite wrong of me --
513. MR JUSTICE COLLINS: If you start telling another judge that I have formed a clear view, you would not be right.
514. MR McCRACKEN: No. My Lord, I do not want to prolong this unnecessarily because we have permission on the first point and that is --
515. MR JUSTICE COLLINS: You have permission on the first point. You have permission on the 21(1)(c) point. I am not so impressed, I am bound to say, with the 3(2), but they --
516. MR McCRACKEN: They run together --
517. MR JUSTICE COLLINS: -- that he runs together, so you can have leave on that. I am not minded to grant you leave on your --
518. MR McCRACKEN: Survey point.
519. MR JUSTICE COLLINS: Yes. I think that is a barren point.
520. MR McCRACKEN: Yes. Well, my Lord, I think it is important for (inaudible) to tell me when to stop.
521. MR JUSTICE COLLINS: But, as I understand the situation, you are, are you not -- correct me if I am wrong. I may be out of date, because I have not done this for some time, as you know. But I think you are entitled, are you not, if you want to raise a point on which permission has not been granted, to give notice that you want to do that and try and persuade the trial judge, but I would not recommend it because it has costs implications.
522. MR McCRACKEN: Well, my Lord, Mr Buxton, who has enormous experience in these matters, suggested that I should ask your Lordship to grant permission generally, with an acknowledgement on our part that we recognise that, if we seek to raise points that your Lordship has said he is not persuaded by, does not think are arguable, then the costs implications will be --
523. MR JUSTICE COLLINS: Well, frankly, I am against you on the -- for the reasons, I think, that have been fairly clearly indicated while we were discussing it on what you describe as your third ground. Essentially, as it seems to me on that point, the bodies responsible were well aware -- that is English Nature and the otter people in Yorkshire, who were the main ones concerned on this aspect -- of what the statement said, knew about the existence of the otters generally, were not concerned that this development would have any material effect upon the holts or indeed upon the wildlife, but recognised that that could be put beyond any per adventure by a condition which gave a sufficient buffer because the development was going to take place, as I understand it, on the arable land only, and in those circumstances it really is not arguable to suggest that anyone could have put forward any meaningful submissions in relation to that matter, and I do not think this could have affected the grant of permission in principle. The only effect it could have had, and did have, was on the precise measures that were needed to produce the necessary -- or to ensure that the necessary protection was made available. That is really why I do not think there is anything in that point.
524. MR McCRACKEN: Can I in two sentences, my Lord, before, I hope, gracefully withdrawing on the point, seek to persuade your Lordship to give us permission, albeit with a strong warning as to the probably imprudence of pursuing the point.
525. The first point that I make -- and it is the first sentence -- is this: at the heart of the Berkeley decision of the House of Lords was the proposition that the fact that the court thinks the result would have been the same does not make any difference to the validity of the decision.
526. MR JUSTICE COLLINS: That is why I have given you permission on grounds 1 and 2 really.
527. MR McCRACKEN: The second point is this, that mitigation measures are very much part of what you have to supply as developer as part of your environmental statement and therefore telling people that it will be 25 metres is very much part of what you should do in the process of submitting your environmental statement, so that people have an opportunity, however misguided -- to use, I think, the words that were used by Lord Bingham.
528. MR JUSTICE COLLINS: Yes, I see.
529. MR McCRACKEN: I want to make the point shortly and then I shall say no more, my Lord, on the --
530. MR JUSTICE COLLINS: I understand the point. No, Mr McCracken, for the reasons I have sought to give, I am against you on that one and I think that, as far as I am concerned, leave -- permission, as we must now say -- is limited to the first two points that you raised before me.
531. MR McCRACKEN: My Lord, I am very much obliged to your Lordship for that, but can I just raise one further point, and it stems in a sense very naturally from what your Lordship said about the position of the Secretary of State on our first point. He is going to be there from the sound of things.
532. MR JUSTICE COLLINS: Well, that may be, but --
533. MR McCRACKEN: But my clients, obviously, are rather concerned about the cost pig in a poke in a sense, that they are inevitably --
534. MR JUSTICE COLLINS: You are much better off if he comes along of his own volition than if he is here as a defendant because, if you lose against him, if he is here of his own volition, he will not get any costs.
535. MR McCRACKEN: Well, my Lord, that was the point. I simply invite your Lordship to rule that, unless something unexpected occurs, the Secretary of State should not be in a position to recover costs from my clients.
536. MR JUSTICE COLLINS: No. The normal rule is that, if someone such as the Secretary of State decides to come along because he has an interest, he will usually -- not always, it depends on the circumstances -- do so of his own risk as to costs. He knows that. And, equally, of course, you have the point that, even if he did perhaps merit costs, the court is reluctant to give a number of costs orders in a case where there are various defendants. Again, it depends on the circumstances.
537. MR McCRACKEN: The difficulty, if I can put it this way, my Lord, that Lord Steyn highlighted in Burkitt, is that the litigant risks perhaps his or her home in bringing proceedings. I do not know and I have taken instructions as to the circumstances, but --
538. MR JUSTICE COLLINS: I am not encouraging your clients. Let me make it clear: whatever views I may hold about the construction of the code, the judge might well take the view that the reality is that this could have made no difference at all. But that is a matter for the future. I am not necessarily indicating that I think there is a great deal of strength in this at the end of the day, but it is certainly arguable.
539. MR McCRACKEN: But, my Lord, is there not this thought, that North Yorkshire are taking a view as to the construction of the model code, advised by leading counsel who is perhaps the most distinguished leading counsel in the field at the moment, that the regulations have one meaning. Probably other authorities are taking the same view. It must be in the public interest that a construction which your Lordship has characterised as "frankly absurd, ridiculous and plainly wrong" should be subject to judicial --
540. MR JUSTICE COLLINS: Perhaps I should not have said that.
541. MR McCRACKEN: So again, I do not want to outstay my welcome and it may be that I am in danger of doing so, but I wonder, therefore, if I could invite your Lordship to pause for 15 seconds --
542. MR JUSTICE COLLINS: I do see the point. Let me ask Mr Maurici. Mr Maurici, I do see the force of what he is saying. I think this does have a effect beyond this case, potentially, does it not, as to what is the true construction of the code of conduct, quite clearly, and it seems to me that the Secretary of State would undoubtedly have a real interest in arguing that point. So you ought to be here. The only question is the basis upon which you are here.
543. MR MAURICI: My Lord, currently we are second defendant and I think your Lordship is minded to turn us into an interested party.
544. MR JUSTICE COLLINS: I was minded to do that, I am bound to say, but I think there is some force in Mr McCracken's point that the proportionality of the code of conduct may possibly require consideration as to whether the code itself falls, if its only possible construction is the one that you suggest.
545. MR MAURICI: Well, my Lord, what I say on that is that I have dealt with ground 7 --
546. MR JUSTICE COLLINS: I do not think anything of ground 7 but I am influenced by the fact, as it seems to me, that the code is capable of being construed in a way which is not disproportionate, assuming it would be disproportionate to construe it in the way that you and Mr Straker think it ought to be construed. Where does that leave us? I think the two issues really come together in that respect, do they not?
547. MR MAURICI: Well, my Lord, I say the answer I have given in my skeleton argument deals with that proportionality point, however it arises, my Lord, and I say nothing --
548. MR JUSTICE COLLINS: But it may be that a judge will decide that I am totally wrong, that my views are ridiculous in themselves. Perfectly possible. But he may equally think that I am right and, if so, the answer must be construction of the code, must it not, because, if it would be disproportionate for it to have the affect that it apparently has -- and I am particularly moved, for example, by the suggestion that a councillor, simply because he is a councillor cannot put forward his own objections, that affect him directly, quite independently of his status as a councillor. If that is all right, then it may be that it should be argued that, if that is the only possible construction, it is disproportionate.
549. But I think the answer will be, will it not, "Well, if it is disproportionate, then you can construe it in a way that is not disproportionate."
550. MR MAURICI: Well, my Lord, (inaudible). That is often the way it goes in relation to submissions --
551. MR JUSTICE COLLINS: I am not inclined to give permission against you on the basis of ground 7. I do not think ground 7 is argue, but I do not think it is arguable because it is not the true construction of the regulations, or partly. But I think you ought to be here or someone ought to be here.
552. MR MAURICI: Well, my Lord, I think it will be our intention to be here. My Lord, can I explain one other point --
553. MR JUSTICE COLLINS: If you prefer to be here as an interested party, so be it.
554. MR MAURICI: My Lord, we have no strong preference whether we are second defendant or interested party. My Lord, for convenience's sake, we are already second defendant. It may be easier just to leave us.
555. MR JUSTICE COLLINS: Well, shall we leave you as a second defendant and then the whole argument in relation to the code of conduct can be put forward.
556. MR MAURICI: Yes, my Lord.
557. MR JUSTICE COLLINS: Well, you to have that, Mr --
558. MR MAURICI: But, my Lord, your Lordship said that ground 7 is not one on which permission has been granted.
559. MR JUSTICE COLLINS: Well, I think if you are here as -- it is the only basis upon which you could be here as a defendant. I think the sensible thing is to leave the whole thing open. Mr McCracken has heard my views. He may or may not agree with them, but he knows that I think nothing of the point he is trying to make under the Human Rights Convention. I think those are all bad points.
560. MR McCRACKEN: My Lord, that is right and I think it then remains for Mr Maurici to indicate the Secretary of State's position in relation to our application. Because this is a matter of broad public interest, the Secretary of State --
561. MR JUSTICE COLLINS: I think I will leave you as a defendant. I will grant permission -- I will nominally grant permission on ground 7, but I have granted it only subject to the comments that I have made, which you can then put before the court, that may or may not agree with them.
562. MR MAURICI: My Lord, can I raise one other matter? My Lord, there is another body which may be interested in this matter, which is the Standards Board for England and Wales, which, as your Lordship will be aware, is responsible for administering the code.
563. MR JUSTICE COLLINS: Yes.
564. MR MAURICI: My Lord, currently they are not an interested party or a defendant. My Lord, I am not asking for an order that the claimants serve them as interested party, but my Lord, (inaudible) about it, can we serve them, my Lord?
565. MR JUSTICE COLLINS: You certainly contact them and, if they want to be involved, they can, although I would have thought the sensible thing would probably be to put something in writing, if they want to, and let you make the arguments, because I am not anxious that there should be a proliferation of parties.
566. Right. Well, Mr McCracken, you seem to have succeeded.
567. MR McCRACKEN: I am very much obliged, my Lord. There just remains the one question on that as to whether there is, as it were, a protective order that protects us against having to pay more than one set of costs. Unless there --
568. MR JUSTICE COLLINS: That is not a matter for me. That will be a matter for the judge at the trial.
569. MR McCRACKEN: So be it, my Lord.
570. MR JUSTICE COLLINS: It would be quite wrong for me to make any sort of pre-emptive order on costs. I do not think any one would agree with that.
571. All right. Well, then, on the basis I have indicated, you can have the permissions that I have indicated.
572. MR STRAKER: My Lord, I was simply rising to identify, so that we have them and we are clear -- it is grounds 3 -- page 8 -- 5, 6 and 7 which I have taken your Lordship to grant leave upon.
573. MR JUSTICE COLLINS: Hang on. 3 is the failure to -- I think Mr McCracken, you have rather refined ground 3.
574. MR McCRACKEN: We have, my Lord.
575. MR JUSTICE COLLINS: Would it be sensible or convenient for you to just put it in writing, following what I have indicated, so that the judge knows precisely what the issues are?
576. MR McCRACKEN: I think it would be sensible if we did that, my Lord. Probably the most helpful way, in my experience in these matters, is just to produce a short, as it were, replacement claim because that leaves everybody knowing exactly where they stand. Otherwise, one has that awful complexity of "ground 3 as amended" and so on and so forth and that is very difficult for everybody.
577. MR JUSTICE COLLINS: I agree. I think it is much easier to do a substitution. If you would do that, when you serve that, that will be, as it were, the document that they will have to plead to.
578. MR STRAKER: Much obliged, my Lord.
579. MR HILL: My Lord, can I just raise the question of whether this matter ought to be dealt with (inaudible) expedition. It is a concern to us. We have been --
580. MR JUSTICE COLLINS: No, I can well understand that. I am grateful to you, Mr Hill. It clearly should be dealt with expeditiously. How long do you need between you to put in your defence?
581. MR STRAKER: I think we are now allowed 21 days -- 35 days -- to take account of the 35 we have already had, and I suspect it is appropriate for us to have those days.
582. MR JUSTICE COLLINS: Well, it is up to you. If you need them, then you shall have them, but you want 21?
583. MR STRAKER: 21 will be sufficient.
584. MR JUSTICE COLLINS: That should be enough, I should have thought, for everyone to put in --
585. MR McCRACKEN: I am going to suggest that it should be seven days for us and 14 days for everybody else. That is really simply on the basis that Mr Hill has a point and it is a sound principle --
586. MR JUSTICE COLLINS: I have forgotten what the -- no, there is not now any notice or anything to be served?
587. MR McCRACKEN: No.
588. THE CLERK OF THE COURT: They simply have to pay a fee.
589. MR McCRACKEN: But we need to put in, as it were --
590. MR JUSTICE COLLINS: Put in your document within seven days. They know what they are looking for. So I think it is reasonable to say that you have 14 days thereafter to put in whatever --
591. MR STRAKER: My Lord yes, it is the same because we --
592. MR JUSTICE COLLINS: Because you know what is coming. And then time estimate? A day? Or more?
593. MR McCRACKEN: Including judgment, a day and a half at least.
594. MR JUSTICE COLLINS: I think probably a day and a half.
595. MR MAURICI: And I think, because of Mr Hill's concern that the matter should be resolved promptly, it may be, I was going to say, prudent to allow two days because --
596. MR JUSTICE COLLINS: You are more likely to get an earlier date the shorter you say.
597. MR McCRACKEN: Let us say a day and a half then, my Lord.
598. MR JUSTICE COLLINS: All right. Well, you have to have, I think, seven days to reply, to anything that comes in. You have to have the right to reply.
599. MR McCRACKEN: That must be right, my Lord, yes.
600. MR JUSTICE COLLINS: I will give you seven days to reply to anything that you feel you need to reply to and then get a date. I shall simply say expedition and the date should be as early as it possibly can be.
601. MR McCRACKEN: Thank you very much, my Lord.
602. MR JUSTICE COLLINS: I do not think there is much point in my saying anything more than that.
603. Yes. Well, you know what the obligations are and the practice for the first skeleton arguments. I say nothing about that. I have never liked practice directions and skeleton arguments anyway. No, you do need them, obviously, but, as long as you do not leave them until the last minute.