Case No: CO/4205/2002
Neutral Citation No:  EWHC 764 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
London, WC2A 2LL
Tuesday 15 April 2003
THE HONOURABLE MR JUSTICE RICHARDS
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The Queen (on the application of Paul Richardson
and Another) Claimants
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North Yorkshire County Council
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First Secretary of State
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Brown and Potter Limited First Defendant
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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Robert McCracken and Mr Gregory Jones (instructed by Richard Buxton) for the Claimant
Mr Timothy Straker QC and Mr Paul Greatorex (instructed by North Yorkshire County Council Legal Department) for the First Defendant
Mr Philip Sales and Mr James Maurici (instructed by The Treasury Solicitor) for the Second Defendant
Mr Thomas Hill (instructed by Walker Morris) for the Interested Party
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As Approved by the Court
Crown Copyright ©
Mr Justice Richards:
1. This case concerns the grant of planning permission by North Yorkshire County Council ("the Council") to Brown and Potter Ltd, which appears as interested party, for the extension of quarrying of sand and gravel at Ripon City Quarry. The site falls within the boundaries of three parishes, including the parish of Littlethorpe, and is close to the settlement of Littlethorpe.
2. The first claimant, Paul Richardson, is a member of the Council, representing the electoral division which includes the parish of Littlethorpe. He also lives in Littlethorpe, his house being approximately 250 metres from the nearest point of the proposed extraction. He objected to the proposed development both in his capacity as the elected representative of the inhabitants of Littlethorpe and in his personal capacity. Although a member of the Council, he is not and was not a member of the Planning and Regulatory Functions Committee.
3. The second claimant, Wendy Orme, likewise lives in Littlethorpe. She objected to the proposed development as a member of Littlethorpe Parish Council.
4. At a meeting on 11 June 2002 the Council's Planning and Regulatory Functions Committee, by a majority of 5 to 4, resolved that, subject to the completion of a satisfactory s.106 agreement, planning permission be granted subject to conditions. The s.106 agreement was signed on 6 August 2002 and a notice of decision in respect of the grant of planning permission was issued on the same date.
5. The claimants contend that Mr Richardson was unlawfully excluded from the meeting at which the resolution was adopted, on the ground that he had a "prejudicial interest" within the meaning of paragraph 12(1) of the Council's Code of Conduct. They challenge what is described as the decision to preclude him from attending and speaking at the meeting, together with the decision to grant planning permission. The Council is the first defendant. The Council's Code of Conduct gives effect to a Model Code promulgated by the Secretary of State, which the Council was required to adopt pursuant to the Local Government Act 2000. Since the claim raises issues concerning the construction and lawfulness of the Model Code, the Secretary of State appears as second defendant.
6. In addition, the claimants challenge the decision to grant planning permission on the ground of alleged failure to comply with regs. 3(2) and 21(1) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the EIA Regulations"). The Secretary of State is not involved in that part of the case.
7. Those are the two broad grounds on which permission to apply for judicial review was granted by Collins J at an oral hearing on 20 January 2003. Permission to pursue other matters was refused. Pursuant to the judge's directions the claimants have served a substitute statement of grounds setting out their specific grounds of challenge in relation to the remaining issues.
8. The two grounds of challenge are entirely separate. It is convenient to deal first with the EIA issues.
The EIA issues: legal framework
9. The EIA Regulations implement Council Directive 85/337/EEC, as amended by Council Directive 97/11/EC. The general principle of the directive, as set out in the recital quoted in Berkeley v. Secretary of State for the Environment  2 AC 603, 609D, is:
"Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out; whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question ...."
10. The primary obligation imposed on Member States, by article 2(1) of the directive, is "to adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment ... are made subject to a requirement for development consent and an assessment with regard to their effects". Article 2(2) provides that the environmental impact assessment may be integrated into the existing planning procedures in the Member States.
11. Article 9(1) provides:
"When a decision to grant or refuse development consent has been taken, the competent authority or authorities shall inform the public thereof in accordance with the appropriate procedures and shall make available to the public the following information:
- the content of the decision and any conditions attached thereto,
- the main reasons and considerations on which the decision is based,
- a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects."
12. As regards the implementing EIA Regulations, reference should be made first to reg. 3(2), which provides:
"The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so" (emphasis added).
13. The "environmental information" is defined in reg. 2(1) as "the environmental statement, including any further information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development". The "environmental statement" is defined as a statement that includes the information specified in Parts I and II of Schedule 4.
14. Reg. 21(1) provides:
"Where an EIA application is determined by a local planning authority, the authority shall -
(c) make available for public inspection at the place where the appropriate register (or relevant section of that register) is kept a statement containing -
(i) the content of the decision and any conditions attached thereto;
(ii) the main reasons and considerations on which the decision is based; and
(iii) a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development" (emphasis added).
15. It is also material to note reg. 30, which provides in effect that the grant of planning permission by the Secretary of State (it is silent about the position of a local planning authority) in contravention of reg. 3 is to be regarded as ultra vires for the purposes of a statutory challenge under the Town and Country Planning Act 1990:
"For the purposes of Part XII of the Act (validity of certain decisions), the reference in section 288 to action of the Secretary of State which is not within the powers of the Act shall be taken to extend to a grant of planning permission by the Secretary of State in contravention of regulations 3 or 25(1)."
16. It is common ground that the application for the proposed development in this case was an "EIA application" and that regs. 3(2) and 21(1) both applied to it. An environmental statement was submitted with the application. Permission was refused for a challenge on the ground that the environmental information was inadequate. Permission was likewise refused for a challenge on the ground that the Council failed to take the environmental information into consideration or reached an irrational conclusion on the information before it. At the hearing before me, I did not understand any of those matters still to be issue.
17. The remaining areas of dispute concern the application of those parts of regs. 3(2) and 21(1) that I have italicised, namely the duty on the Council to state in its decision that it had taken the environmental information into consideration and the duty on it to make available for public inspection a statement containing the main reasons and considerations on which the decision was based.
The facts relevant to the EIA issues
18. Previously to the meeting of 11 June 2002 the members of the Planning and Regulatory Functions Committee had received an officers' preliminary report and had made a site visit, at which they also received briefing material. At the meeting on 11 June they had before them a full report by the Council's Director of Environmental Services in which he summarised the proposal, the background to it and the results of consultation, identified relevant policies and discussed the main planning considerations. He reached a conclusion favourable to the proposal and recommended the grant of planning permission subject to conditions and to the completion of a s.106 agreement.
19. Of particular importance are the sections of the Director's report in which the main issues were discussed (section 6) and his conclusions were set out (section 7). In summary, the consideration of the main issues started by examining the North Yorkshire Minerals Local Plan. It was explained that the proposals did not fall within relevant policies of the plan but "do broadly accord with the aims of the plan e.g. sustaining the contribution of mineral related employment to the local economy, preventing the unnecessary sterilisation of mineral resources and encouraging the longer term enhancement of the environment and local amenity". The report then examined landscape impact, restoration and ecology, referring inter alia to representations from residents and others about the effect on the landscape; noting that the site offered little ecological value, whereas restoration and aftercare could lead to the establishment of a number of priority habitats and could be formalised in a s.106 agreement; and noting that the environmental statement acknowledged the presence of protected species and that, whilst it was felt that they would not be disturbed by the proposed working, it was recommended that a scheme of survey, monitoring and mitigation be required through a s.106 agreement. The next issue considered was flooding, where the proposal was thought to have a net benefit. The report turned to the issue of need, concluding that it was not considered that there was a need to grant further permissions in the interest of maintaining the landbank, but noting that the decision must nevertheless rest on the balance of material considerations. It then examined the issue of employment, including a dispute about the figures. Finally it considered amenity, in particular the impact on local residents in terms of noise and views.
20. At the start of the section on conclusions, reference was made to the differing views put forward by Littlethorpe Parish Council (which had strongly objected to the proposal), Ripon City Council (which had supported the proposal), Skelton Combined Parish Council (which had not raised any objection) and Harrogate Borough Council (which had formally objected). The effect of s.54A of the Town and Country Planning Act 1990 was then set out. The report continued:
"7.4 As has been stated already this proposal does not fully accord with a number of policies within the North Yorkshire Mineral Local Plan, specifically those relating to preferred areas, areas of search and small scale extensions (Policies 3/2, 3/3 and 3/4 respectively). However the text of the Plan states that any proposal which does not fall within a Preferred Area would need to be justified by other material considerations such as the creation of environmental or economic benefit and that such circumstances would be rare. This is the first case since the adoption of the Mineral Local Plan in 1997 that this circumstance has arisen.
7.5 The Head of Legal Services has advised that in this case there are material considerations that could justify the granting of planning consent against the policies set out in the Minerals Local Plan. It is felt that the longer term environmental benefits to be accrued through the restoration of this site and the significant continued contribution of the site to local employment and the local economy are all material considerations which justify the granting of planning permission on this occasion. It is felt that the granting of planning permission in these circumstances does not set a precedent for development elsewhere and furthermore would avoid the sterilisation of the mineral reserve.
7.6 The restoration scheme would significantly enhance the conservation value of the application site which is currently in arable production offering little ecological value. The restoration proposals are supported by English Nature and Yorkshire Wildlife Trust and would significantly progress the aims and objectives of the Swale and Ure Washlands Project. Establishment of reedbed and wet woodland accords with the priorities set out in the Biodiversity Action Plan. The completion of mineral extraction would create an additional 94,000 cubic metres of flood storage capacity. The provision of a riverside path would be consistent with Local Plan policies on recreation development. Nevertheless, this enhanced conserv-ation value and increased flood storage capacity will follow a period of disturbance during phased extraction of sand and gravel.
7.7 The impact on employment is a material consideration. The applicants state clearly that the refusal of planning permission would lead to the closure of the quarry and loss of employment to those 25 individuals listed by the company. The Parish Council in their submission query the extent of the job losses which would be caused by the refusal of planning permission. It is inevitable that restructuring of the company would have to take place if planning permission is refused and this has to be weighed in the balance by Members in making their decision. The applicants also emphasise the significant financial input of £1.5 million per annum, contributing to Ripon's economic regeneration.
7.8 In terms of impact, Members will be aware from the recent site visit of the location and situation of the application site which is set in an attractive rural landscape. However the Environmental Impact Assessment identifies a number of significant mitigation measures. The County Council's landscape architect considers that in view of the location of the application area in the valley floor, the nature of the working operation, the limited visual envelope and the proposed phased working and restoration scheme, he does not consider there are sufficient grounds to object to the proposal on landscape grounds. The proposed working area is at some distance from the village settlement of Littlethorpe. It is considered that the further restriction of the limit of extraction at the southern margin of the site and other mitigation measures will minimise the impact on the small number of neighbouring properties.
7.9 It is acknowledge that the proposals do not accord with policies 3/2, 3/3 and 3/4 of the adopted North Yorkshire Mineral Local Plan. However it is the opinion of your Officers that the impact of the development is not such as would warrant the refusal of planning permission and that the longer term environmental benefits to be accrued through the restoration of this site and the significant contribution to local employment and the local economy are material considerations which justify the grant of planning permission."
21. There followed a recommendation in substantially the terms of the resolution adopted by the members (see below).
22. The members considered the Director's report and a number of oral presentations (to which I will refer further when examining the second main ground of challenge). They then adopted a resolution which was minuted as follows:
"That, subject to the completion of a Section 106 Agreement requiring an extended aftercare period, a Management Plan, the establishment of a Management/Steering Group to oversee restoration and aftercare and a scheme of survey, monitoring and migration of [sic - i.e. mitigation for] species protected under the Conservation (Natural Habitats etc) Regulations 1994, planning permission be granted subject to the conditions as recommended and to the addition of a further condition requiring the phased working and restoration of the site."
23. On 6 August 2002, after completion of the s.106 agreement, the council issued a "notice of decision" under the signature of the Director of Environmental Services and addressed to the developer, stating:
"The above-named Council being the Planning Authority for the purposes of your application dated 11 February 2002, in respect of proposed development for the purposes of the extraction of sand and gravel at Ripon City Quarry have considered your said application and have granted permission for the proposed development subject to the following conditions: -
(See attached sheets)
In accordance with Article 22(2) of the Town and Country Planning (General Development Procedure) Order 1995 notice is hereby given that the County Council in determining the above application has taken into consideration the accompanying environmental information. Furthermore the County Council in determining the application has taken into consideration the policies of the North Yorkshire Mineral Local Plan adopted 1997 and all other material considerations as set out in the report to the Planning and Regulatory Functions Committee on 11 June 2002."
24. The "attached sheets" included the conditions, the signed s.106 agreement and various documents annexed to the s.106 agreement (including a restoration management plan and documents relating to survey, monitoring and mitigation measures in respect of protected species).
25. The notice of decision and the attached documents were entered on the register maintained by the Council pursuant to article 25 of the Town and Country Planning (General Development Procedure) Order 1985 ("the GDPO 1995").
26. In evidence filed in the course of the present proceedings the council's Head of Minerals and Waste Planning states that the Council intends, subject to the proceedings, to place on the register a further document in substitution for the notice dated 6 August 2002, which is intended to include a statement of the main reasons for the decision. What is proposed reads as follows:
"The above named Council, being the Planning Authority for the purposes of your application dated 11 February 2002, in respect of proposed development for the purposes of the extraction of sand and gravel at Ripon City Quarry have considered your said application and, for the reasons set out in the attached sheets, have granted permission for the proposed development subject to the following conditions:-
(see attached sheets)
In accordance with Article 22(2) of the Town and Country Planning (General Development Procedure) Order 1995 and Article 3(2) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("EIA Regulations") notice is hereby given that the County Council in determining the above application has taken into consideration the environmental statement and environmental information (as defined by the EIA Regulations).
The main considerations on which the decision was based were the policies of the North Yorkshire Mineral Local Plan adopted in 1997 and all other material considerations as set out in the report to the Planning and Regulatory Functions Committee on 11 June 2002 (attached hereto).
The main reasons for the decision were as follows:
(1) agreement with the report to the Planning and Regulatory Functions Committee on 11 June 2002 (attached hereto) and the conclusion at paragraph 7.9 thereof;
(2) the development constituted an acceptable extension to existing working which would satisfy a local market for aggregates;
(3) the development would allow for the continuation of working at a well-run and well-maintained site where a good standard of restoration has been achieved;
(4) there would be no permanent scar to the landscape, a good standard of restoration has been proposed is proposed [sic] and the development would bring significant benefits in terms of site restoration for nature conservation purposes;
(5) the development site is at an acceptable distance from the nearest residential properties and would not cause undue disturbance to the amenity of local residents;
(6) minerals can only be worked where they exist in the ground;
(7) existing jobs in this local business would be protected;
(8) the requisite monitoring of conditions could be carried out;
(9) there is a need for sand and gravel in the locality which would not be met by the local market if this permission were not granted."
27. The "main reasons" set out in that notice are a composite based on information provided by the individual members who voted in favour of the resolution. According to the evidence, they were all "motivated by factors referred to in the [Director's] report or in public session" and each of them has also given his "particular reasons" for voting for the resolution. The particular reasons given are consistent with those in the proposed substitute notice, but no individual member refers to all the reasons set out in the notice. For example, the particular reasons given by one member correspond to (2), part of (4) and part of (5); those given by another correspond to part of (3) and to (5) and (6); whilst those given by a third correspond to part of (4), part of (5) and to (7), (8) and (9). None of the particular reasons given by members refers in terms to (1), i.e. agreement with the Director's report.
The reg. 3(2) issue
28. Mr McCracken's first main submission is that there was a failure to comply with reg. 3(2). That provision imposes two separate requirements on a planning authority: (i) not to grant permission unless it has first taken the environmental information into consideration, and (ii) to state in its decision that it has done so. The focus here is on (ii), in that the Council failed to state in its decision that it had taken the environmental information into consideration. The "decision" for this purpose is said to be the resolution of 11 June 2002, the minute of which contains no statement that the environmental information was considered. If, in the alternative, the notice of 6 August 2002 is to be treated as the relevant decision, then that too fails to fulfil the requirement. The failure to comply with reg. 3(2) renders the decision ultra vires, in the same way as reg. 30 provides that the grant of planning permission by the Secretary of State in contravention of reg. 3 is to be taken as not being within the powers of the 1990 Act.
29. In resisting any exercise of discretion not to quash the grant of planning permission, Mr McCracken draws particular attention to Berkeley (above), in which Lord Hoffmann said in relation to the requirement of an EIA:
"Although section 288(5)(b) [of the 1990 Act], in providing that the court 'may' quash an ultra vires planning decision, clearly confers a discretion upon the court, I doubt whether, consistently with its obligations under European law, the court may exercise that discretion to uphold a planning permission which has been granted contrary to the provisions of the Directive. To do so would seem to conflict with the duty of the court under article 10 (ex article 5) of the EC Treaty to ensure fulfilment of the United Kingdom's obligations under the Treaty. In classifying a failure to conduct a requisite EIA for the purposes of section 288 as not merely non-compliance with a relevant requirement but as rendering the grant of permission ultra vires, the legislature was intending to confine any discretion within the narrowest possible bounds ....
... In the present case the Directive has been transposed into domestic legislation and there was a failure to comply with the terms of that legislation. In my view, a court should not ordinarily be willing to validate such an act on the ground that a different form of transposing legislation ... might possibly have also satisfied the terms of the Directive. I would accept that if there was a failure to observe some procedural step which was clearly superfluous to the requirements of the Directive, it would be possible to exercise the discretion not to quash the permission without any infringement of our obligations under European law. But that is not the case here ..." (616D-F and 617G-H).
30. The case for the claimants is resisted by Mr Straker QC for the Council, supported by Mr Hill for the developer. In brief, they distinguish between the substantive obligation in reg. 3(2) to take the environmental information into account, which relates to the decision-making process, and the separate obligation to state that that has been done, which arises once the decision has been made. The first obligation was met by taking the environmental information into consideration. The second was met by stating in the notice of decision dated 6 August 2002 that the accompanying environmental information had been taken into consideration.
31. In my judgment the relevant "decision" for the purposes of reg. 3(2) was not the resolution dated 11 June 2002 but the notice of decision dated 6 August 2002, which constituted the actual grant of planning permission:
i) As a matter of domestic law, a resolution to grant planning permission has no immediate legal effect. A local planning authority is required to give an applicant written notice of its decision within the time laid down by article 20 of the GDPO 1995 and containing the details specified in article 22 of the same Order. The grant of planning permission is made only when the written notice is issued by a duly authorised officer of the authority. There is no effective planning permission unless and until the written notice is issued to the applicant: see R v. Yeovil Borough Council, ex parte Trustees of Elim Pentecostal Church, Yeovil (1971) 23 P&CR 39, 44-45.
ii) The same point lies at the heart of the decision of the House of Lords in R v. LB Hammersmith and Fulham, ex parte Burkett  UKHL 23,  3 All ER 97, in which it was held that time for bringing an application for judicial review runs from the grant of planning permission, not from the date of the resolution to grant it. An important part of the reasoning was that until the actual grant of planning permission the resolution has no legal effect and the authority has a discretion to revoke it (see e.g. per Lord Steyn at para 39).
iii) The general principle of the directive is that "development consent" should be granted only after prior assessment of the likely environmental effects. One would expect the "development consent" for present purposes to be the actual grant of planning permission which authorises the relevant development, rather than a resolution which in itself has no legal effect.
iv) The EIA Regulations tie the assessment requirements into existing planning procedures, as permitted by article 2(2) of the directive. The GDPO 1995 forms part of those planning procedures. Reg. 3(1), which provides that the regulation applies to EIA applications received on or after a certain date, refers expressly to the GDPO 1995, stating that the date of receipt of an application is to be determined in accordance with article 20(3) of the Order.
v) Against that background the natural and in my view correct interpretation of reg. 3(2) is that it is concerned with the issue of the written notice of decision referred to in articles 20 and 22 of the GDPO 1995. That constitutes the "grant" of planning permission which must not be made unless the authority has first taken the environmental information into consideration; and that is the "decision" in which the relevant statement must be made.
32. The next question is whether the notice of decision issued on 6 August 2002 complied with the requirement to state that the Council had taken the environmental information into consideration. In my judgment it did, for these reasons:
i) The notice included a "Note", which formed part of the notice, stating that "in accordance with Article 22(2) of [the GDPO 1995] notice is hereby given" that the Council had taken into consideration "the accompanying environmental information".
ii) Article 22(2) of the GDPO 1995 provides:
(a) the applicant for planning permission has submitted an environmental statement; and
(b) the local planning authority have decided (having taken environmental information into consideration) to grant permission (whether unconditionally or subject to conditions),
the notice given to the applicant in accordance with article 20(1) shall include a statement that environmental information has been taken into consideration by the authority."
iii) Article 1(2) of the same Order defines "environmental information" as having the same meaning as in reg. 2 of the 1988 predecessor to the EIA Regulations, which is materially identical to the definition in reg. 2(1) of the EIA Regulations themselves.
iv) It seems to me that article 22(2) of the GDPO 1995 is aimed at achieving the same result as is required by the relevant part of reg. 3(2) of the EIA Regulations, i.e. a statement in the notice of decision that the environmental information has been taken into account. Counsel did not provide me with any details of the legislative history, but it appears that the requirement to include such a statement in the decision was introduced into the EIA regime in 1994, by para. 3 of the schedule to the Town and Country Planning (Assessment of Environmental Effects) (Amendment) Regulations 1994. Given the integration of EIA procedures into the general planning regime, article 22(2) of the GDPO 1995 should in my view be read as consonant with that requirement. There is no material difference between the reference to "environmental information" in article 22(2) of the GDPO 1995 and the reference to "the environmental information" in reg. 3(2) of the EIA Regulations.
v) The relevant part of the Note in the notice of decision was evidently directed towards compliance with the requirement to state in the decision that the environmental information had been taken into account. It refers to the "accompanying" environmental information rather than simply to environmental information. That was plainly apt to include the environmental statement submitted with the planning application, but if narrowly construed might not cover representations made by other persons about the environmental effects of the proposed development. In my view, however, a narrow construction is inappropriate. Taking into account the statutory and factual context, I would construe the Note as referring to the environmental information as defined in the GDPO 1995 and (by cross-reference) in the EIA Regulations.
vi) On that basis I conclude that the Council did comply with the requirement in reg. 3(2) to state in the decision that it had taken the environmental information into consideration. It would certainly have been better to express it along the lines of the proposed substitute notice of decision ("the County Council in determining the application has taken into consideration the environmental statement and environmental information (as defined by the EIA Regulations)"), but the actual wording was good enough for the purpose.
33. If, contrary to my view, there was a failure to comply with the relevant requirement in reg. 3(2), I would not regard it as a sufficient reason to quash the grant of planning permission in the exercise of my discretion:
i) I have very much in mind the observations of Lord Hoffmann in Berkeley, quoted above, as to the very limited circumstances in which it would be permissible for a court to exercise its discretion not to quash a decision where there has been a contravention of the EIA Regulations.
ii) The fundamental requirement in reg. 3(2) is not to grant planning permission unless the environmental information has been taken into consideration. That reflects the primary obligation imposed by the directive, in article 2(1). For the reasons given in Berkeley, a grant of planning permission made in contravention of that requirement would have to be quashed. As I have said, at the hearing before me I did not understand it to be in dispute that that fundamental requirement was complied with in this case. In commenting on the draft of this judgment prior to hand-down, counsel for the claimants has submitted that the claimants' position was and is that in the absence of a statement pursuant to reg. 3(2) one could not know whether the environmental information was taken into consideration. If the claimants really do seek to dispute that the environmental information was taken into consideration, then in my view (i) it is not open to them to do so, permission having been refused for that ground of challenge, and (ii) in any event, on the evidence before the court, they are plainly wrong. I proceed on the basis that the fundamental requirement to take the environmental information into consideration was complied with.
iii) On the other hand, the requirement to state in the decision that the environmental consideration has been taken into consideration is not of the same fundamental character. I do not doubt its importance, both as a discipline upon the decision-maker and as a means of informing the public that the substantive requirement to take the environmental information into consideration has been met, but it is essentially secondary and procedural. It does not appear to reflect in terms any express provision of the directive, though it is in accordance with the general purpose of the directive. It was not included in the original 1988 Regulations but, so far as I can see, was added by amendment in 1994. When it was added, the amended reg. 4(2) of the 1988 Regulations prohibited the grant of planning permission "unless they have first taken the environmental information into consideration and state in their decision that they have done so" (emphasis added). Reg. 3(2) of the present EIA Regulations, by contrast, removes the requirement as to a statement from the scope of the "unless" clause and imposes it as a clear separate requirement, "and they shall state ...". In my view that serves to emphasise the secondary character of the requirement.
iv) Reg. 30 applies in terms to the grant of planning permission by the Secretary of State and to the position under s.288 of the 1990 Act, rather than to a judicial review challenge to a decision of a local planning authority. I therefore do not need to consider potential questions about its application to this element of reg. 3(2). Whatever the position under reg. 30, it is far from clear to me that the grant of planning permission by a local planning authority would be ultra vires by reason of a breach of the procedural requirement in reg. 3(2) to state in the decision that the environmental information had been taken into consideration.
v) If there was in this case a breach of the relevant requirement in reg. 3(2), it arose only out of the inadequacy of the wording used in the notice of decision, in particular the reference to "the accompanying environmental information", rather than from a wholesale disregard of the requirement.
vi) Lord Hoffmann in Berkeley accepted that "if there was a failure to observe some procedural step which was clearly superfluous to the requirements of the Directive, it would be possible to exercise the discretion not to quash the permission without any infringement of our obligations under European law" (617H). Even if the situation in this case did not fall precisely within the scope of that observation, it would not in my view be a breach of the court's obligations under European law to exercise a discretion not to quash in a case where the decision-making process itself complied with all the requirements of the directive, including the primary obligation to take the environmental information into consideration, and the only error lay in the wording of the statement that it had been taken into consideration.
34. My actual decision is based, however, on a finding that the Council complied with reg. 3(2) rather than on the exercise of a discretion not to quash in circumstances of non-compliance.
The reg. 21(1) issue
35. Mr McCracken's second main submission is that there was a failure to comply with the requirement in reg. 21(1)(c)(ii) to make available for public inspection a statement containing the main reasons on which the decision was based. The regulation requires the statement of reasons to be put on the register at the same time as the decision; alternatively, pursuant to article 25(9) of the GDPO 1995, it must be put on the register within 14 days of the decision. In either case there was a clear failure to comply. The council's attempt at retrospective validation is too late and should in any event be rejected. There is no support in the minutes for the process of reasoning set out in the proposed substitute notice of decision and the whole process is rendered unreliable by the ongoing process of litigation. Moreover there was in this case a departure from the development plan and none of the councillors has put forward reasons which would justify such a departure. Again, the failure to comply renders the decision ultra vires and/or, on the basis of Berkeley, once a breach of the regulations is established the court must quash the decision and has no discretion to withhold relief.
36. In support of those submissions Mr McCracken cites a number of authorities in addition to Berkeley. He refers first to R (Carlton-Conway) v. Harrow LBC  EWCA Civ 927, in which the Court of Appeal held that a planning officer had acted beyond his delegated powers in deciding to grant planning permission. Although the planning committee had subsequently, by a majority, stated that they approved the conduct of the planning officer and that they would have granted permission had the matter been submitted to them, the court declined to exercise its discretion not to quash the decision:
"... In my judgment, the appellant is entitled to a fresh consideration of the application by the planning committee. There is a real risk that in taking the decisions they did ... there was a potential motivation, as would be perceived by a fair-minded member of the public, that a wish to support their chief planning officer and to avoid the possibility of judicial review were factors which led to the relevant decisions ..." (per Pill LJ at para 27).
37. In R (Goodman) v. LB Lewisham  EWCA Civ 140 the council had reached an irrational decision that a proposed development did not fall within the scope of the EIA Regulations and had granted planning permission without an environmental assessment. The council had apparently reconsidered the grant of permission after the bringing of a judicial review challenge and had reached the same conclusion. Again, however, the court declined to exercise its discretion in the council's favour:
"... Nor can the decision be saved by an exercise of this court's discretion based on the reconsideration of the decision undertaken by Lewisham after these proceedings were launched. A strong note of caution in respect of such reconsiderations was sounded by this court in R (Carlton-Conway) v. Harrow LBC ... and there is nothing about the present case that compels or permits us to depart from that general guidance. The whole aim and object of the system introduced by Directive 85/337 is that there should be sequential and transparent consideration of the environmental implications of a project; and that decisions whether or not to grant planning permission should be taken by planning authorities in the light either of the information contained in an environmental statement or of the reasons why such a statement is not required ....
... It is to be hoped that this case will at least serve to bring home to local authorities generally the importance of the processes of formal and transparent consideration of environmental issues that are required by Directive 85/337" (per Buxton LJ at paras 14 and 18).
38. Flannery v. Halifax Estate Agencies Ltd  1 WLR 377 concerned a deficiency of reasons by a trial judge. The Court of Appeal observed (at page 381G-H):
"We make the following general comments on the duty to give reasons.
(1) The duty is a function of due process and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost .... The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.
(2) The first of these aspects implies that want of reasons may be a good self-standing ground of appeal ...."
39. In R v. Westminster City Council, ex parte Ermakov  2 All ER 302 the relevant statutory provision, s.64(4) of the Housing Act 1985, required the council, if notifying an applicant that of a decision that he was intentionally homeless, "at the same time [to] notify him of their reasons". The Court of Appeal held that the decision should be quashed for a deficiency of reasons. In expressing his conclusions on the main issue, Hutchison LJ stated (at page 315g-j):
"(1) It is unrealistic to seek to draw any significant distinction, in the context of s.64, between the decision and the communication of the decision with reasons, or to treat the giving of reasons as purely procedural. In reaching this conclusion I am influenced by the fact that the section in terms requires reasons to be given at the same time as the decision is communicated ....
(2) The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should ... be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction ...."
40. Later in his submissions Mr McCracken cited R v. Royal Borough of Kensington and Chelsea, ex parte Kassam (1993) 26 HLR 455, 462, in which the deputy judge stated that giving reasons involves more than merely reciting the provisions of the section referring to the circumstances to which regard has to be paid; R v. LB Islington, ex parte Hinds (1994) 27 HLR 65, 76, where the giving of reasons was described as a self-disciplining exercise; and the classic exposition by Lord Bridge in Save Britain's Heritage v. Number 1 Poultry Ltd  1 WLR 153, 167.
41. In the course of his reply, he drew my attention to a number of additional authorities. In Oxfordshire County Council v. GB and Others  EWCA Civ 1358, a special educational needs tribunal had taken account of a calculation of costs for which it gave no reasons in its written decision. In a witness statement the Chair had purported to amplify the written reasons. The Court of Appeal considered that no attention should be paid to those ex post reasons. In R v. Caerphilly County Borough Council, ex parte Jones (1999) 32 HLR 82, a housing benefit review board, which was under a duty to include a statement of reasons in the record of its decision, had not furnished reasons until more than three months after the decision and had failed to offer an explanation for the delay. In the particular circumstances the decision was quashed. In Re C and P  COD 29, a schools admission case, it was held that affidavit evidence was not admissible to show that the appeal committee meant something different from what they said unambiguously in their reasoned decision letter. The court gave examples of cases where no evidence whatever may be adduced to expand on reasons given for a decision, and of other cases where supplementary reasons can be adduced (in particular where there is no statutory obligation to provide reasons in the first place).
42. For the Council, Mr Straker submits that in the present case reasons have been given in the notice of decision dated 6 August 2002 and duly placed on the register. If not, then the breach of reg. 21(1) will be remedied by the substitute notice that it is proposed to place on the register and that the court can if necessary order to be placed on the register. Any breach of reg. 21(1) to date does not invalidate the grant of planning permission, which was properly made after taking the environmental information into consideration. The requirement of reg. 21(1) is to make available a statement after the decision has been taken. Vindication of the directive requires only that reasons should be given; and although there has been a delay (arising in part out of the fact that this point was taken by the claimants only at a late stage, at the hearing before Collins J), that is not a problem provided that, as is the case, the reasons why members reached the decision can still fairly be stated.
43. Mr Straker submits that that approach is supported by the language of the EIA Regulations and the directive, by the authorities and by practice in other fields (e.g. appeals by way of case stated from magistrates, where magistrates have had to give reasons for a previous decision even though until recently there has been no requirement to state reasons at the time of the decision), and that it is common sense to require reasons to be given now rather than to set aside the grant of planning permission for a failure to state them earlier.
44. As to the authorities, he draws particular attention to Brayhead (Ascot) Ltd v. Berkshire County Council  2 QB 303, 313-314, where it was held that the duty to give reasons for the imposition of a condition was mandatory and that compliance could be enforced by mandamus, but that a failure to state reasons did not render the condition void since that result was not required by the purposes of the statute. He points to other cases in which it has been held that a failure to comply with a statutory duty to give reasons does not of itself give rise to a right to have a decision quashed on an appeal on a point of law: Mountview Court Properties Ltd v. Devlin (1970) 21 P&CR 689, Crake v. Supplementary Benefits Commission  1 All ER 498 and R v. Legal Aid Area No.8 (Northern) Appeal Committee, ex parte Angell  COD 355. Thus, although he accepts that there are many contexts where a failure to give reasons does vitiate the decision, he submits that that is not always so. He also refers to the analysis by Sedley J in R v. Higher Education Funding Council, ex parte Institute of Dental Surgery  1 WLR 242, in particular at 257-258 and 263, where it seems to be contemplated that breach of a duty to give reasons may in some circumstances justify relief in the form of mandamus though in others it will lead to the quashing of the decision.
45. Mr Hill, for the developer, adopts Mr Straker's submissions and adds an alternative submission that, if the grant of planning permission was rendered unlawful by non-compliance with reg. 21(2), the court should nonetheless exercise its discretion not to quash the planning permission. The failure to give reasons has not prejudiced the claimants (who did not ask for reasons and who took the point only at the permission hearing), whereas the developer would suffer serious prejudice if the planning permission were now quashed.
46. In my judgment there has been a clear failure to comply with the requirement of reg. 21(1) to make available for public inspection, at the place where the appropriate register is kept, a statement containing the main reasons on which the decision was based (I refer only to "main reasons" and not also to the "main ... considerations" on which the decision was based, since the argument has been presented by Mr McCracken only in terms of a failure to state the main reasons and it is therefore unnecessary to examine any separate question that might otherwise arise in relation to "considerations"):
i) The register referred to must be the register that a local planning authority is required to keep pursuant to article 25 of the GDPO 1995. The matters to be put on the register include the planning application and, under article 25(4), the decision of the authority in respect of the application, including details of any conditions subject to which permission was granted, and a copy of any planning obligation entered into in connection with the decision. By article 25(9), the entry must be made within 14 days of the relevant decision.
ii) To the extent that the requirements of reg. 21(1) are not met simply by placing documents on the register in accordance with article 25 of the GDPO 1995, reg. 21(1) imposes the additional requirement to make a statement available for public inspection. It does not lay down any specific time within which the statement must be made available when the authority itself has taken the decision, by contrast with the obligation in reg. 21(3) to comply "as soon as reasonably practicable" after receipt of a decision by the Secretary of State. The time-limit laid down in article 25(9) of the GDPO 1995 does not apply to. It seems to me, however, that there must be an implied obligation to make the statement available either as soon as reasonably practicable or at least within a reasonable time.
iii) In my view the "decision" referred to in reg. 21(1) is not the resolution to grant planning permission but the written notice of decision referred to in the GDPO 1995. I adopt for this purpose the reasoning that I have already applied to reg. 3(2), which is reinforced here by the consideration that reg. 21(1) is plainly referring across to the register kept pursuant to article 25 of the GDPO 1995 and that the documents to be registered under article 25(4) are plainly intended to include the notice of decision rather than the resolution.
iv) There is no requirement that the statement referred to in reg. 21(1) should take any particular form. It may be contained in the notice of decision or in a separate document.
v) The notice of decision dated 6 August 2002 did not contain a statement of the main reasons on which the decision was based. It set out the terms of the decision and attached the conditions to which the permission was subject, together with the s.106 agreement and its annexes relating to mitigation measures and the like. By the oblique reference, in the Note, to the report of the Director of Environmental Services which the members of the planning committee had before them, it referred to the considerations taken into account. But it did not contain a sufficiently specific statement of the main reasons for the decision to achieve compliance with reg. 21(1)(c)(ii). Nor was there any separate statement of reasons.
vi) Nothing material has been added subsequently to the register or made available for inspection with the documents on the register. It follows that there is a continuing breach of the relevant requirement.
47. The consequences of a failure to comply with a requirement to give reasons depend very much on statutory context and the particular circumstances of the case. The authorities cited by counsel cover a range of different situations. In evaluating them it is also important to bear in mind that there has been, as it seems to me, a tendency in recent years to adopt a stricter approach to the requirement to give reasons and to be readier to quash a decision for failure to give reasons and less ready to allow a deficiency of reasons to be cured by the provision of reasons or supplemental reasons at a later stage.
48. The closest decision in point of subject-matter, though furthest away in point of time (and divorced from the context of an EC directive), is Brayhead (Ascot) Ltd v. Berkshire County Council, where it was held that a failure to comply with the duty to give reasons for the imposition of a planning condition did not invalidate the condition (let alone the planning permission) and the duty could be enforced by mandamus. At the other end of the spectrum, R v. Westminster City Council, ex parte Ermakov provides an example of a case, more recent and in a different statutory context, in which a decision was quashed for a failure to comply with the duty to give adequate reasons at the same time as the decision, and the court adopted a restrictive approach to the admissibility of later reasons. Flannery v. Halifax Estate Agencies was concerned with a different context again, namely the duty of a trial judge to give reasons for his decision. In that area a more up to date and detailed analysis is to be found in English v. Emery Reimbold & Strick Ltd  EWCA Civ 605,  3 All ER 385, which was not cited by counsel but which makes it clear that it may be appropriate in certain circumstances to remit the case to the trial judge for the provision of additional reasons (paras 22-25). Although these and the other cases to which I have been referred provide general guidance, they do not lay down a principle that is determinative of the present case. There is no substitute for a careful examination of the particular statutory context and the precise nature of the requirement to state reasons in each case.
49. As to that, the first and most important point in the present case is that reg. 21(1) looks to the position after the grant of planning permission. It is concerned with making information available to the public as to what has been decided and why it has been decided, rather than laying down requirements for the decision-making process itself. It implements the obligation in article 9(1) of the directive to make information available to the public "when a decision to grant ... development consent has been taken" (emphasis added). That is to be contrasted with article 2(1) of the directive, which lays down requirements as to what must be done before the grant of planning permission (which may be granted only after a prior assessment of significant environmental effects).
50. The fact that the requirement focuses on the availability of information for public inspection after the decision has been made, rather than on the decision-making process, leads me to the view that a breach of reg. 21(1) ought not to lead necessarily to the quashing of the decision itself. A breach should be capable in principle of being remedied, and the legislative purpose achieved, by a mandatory order requiring the authority to make available a statement at the place, and containing the information, specified in the regulation.
51. Thus, to take a straightforward example, if the members of the committee had agreed in terms at their meeting on a specific statement of the main reasons for the grant of planning permission but the officers had failed to include that statement on the register, a mandatory order requiring the statement to be placed on the register (or, perhaps more accurately, requiring it to be made available for public inspection at the place where the register is kept) would plainly be the appropriate remedy.
52. The difficulties in this case arise out of the fact that there was no such agreement. The need to make a statement of main reasons available for public inspection appears to have been overlooked by the officers, so that members were not advised about it. That was a most unfortunate oversight. It meant that members did not have imposed upon them the same disciplined and structured approach as might have been thought appropriate had they been aware of the duty to make a statement of main reasons available. It also meant that they missed the opportunity to agree in terms on a specific set of reasons. The most obvious way in which that might have been done was by expressing agreement with the reasoning in the Director's report, subject to any agreed departures from or additions to that reasoning.
53. The resulting situation is very unsatisfactory. I have reached the conclusion, however, that it is still capable of being remedied by a mandatory order and that what has happened does not justify the quashing of the grant of planning permission. My reasons are as follows:
i) Although it is necessary to view with caution any subsequent statement of reasons for a decision, especially where the reasons have not been articulated until many months after the decision, I do not think that the exercise of obtaining reasons ex post from the individual members who voted for the resolution is inherently flawed or of such doubtful reliability that the evidence should be rejected. All that the individual members have been asked to do is to cast their minds back to the reasons that actually motivated them to vote for the grant of planning permission. There is no suggestion that they have had any difficulties of recollection. In my view there is nothing in the nature of the exercise or in the evidence obtained to cause concern that the answers might have been distorted by the existence of these proceedings or other extraneous considerations. The process does not involve changing a decision or reconsidering it or anything of that kind. This is a very different exercise from that found unacceptable in R (Carlton-Conway) v. Harrow LBC or in R (Goodman) v. LB Lewisham. In both those cases the councils had engaged in a later decision-making process and there was an understandable concern that that might be vitiated by a wish to sustain a former invalid decision. In this case it is simply a matter of being satisfied that the reasons now put forward were the actual reasons that motivated the decision-makers at the time.
ii) On the face of it, a greater difficulty is created by the fact that, although all the members were "motivated by factors referred to in the report or in public session", each of them has given a different set of "particular reasons" for voting for the resolution and those "particular reasons" do not of themselves provide a sufficiently reasoned basis for a departure from the development plan and the grant of planning permission.
iii) It requires only a limited degree of beneficence, however, to read the evidence as meaning that all the members accepted the reasoning and conclusion in the Director's report but each attached particular significance to the "particular reasons" that they have identified. If the evidence is read in that way, everything seems to me to fall into place and a reasoned basis for the decision is immediately provided. That is evidently how the author of the proposed substitute notice understood the information being provided by the individual members, since the first reason expressed in that notice, though not mentioned as a "particular reason" by any of the members, is "agreement with the [Director's] report ... and the conclusion at paragraph 7.9 thereof". All of the "particular reasons" are consistent with the reasoning in the Director's report. All but one (namely (9), the need for sand and gravel in the locality) are clearly reflected in that reasoning. The tenor of the resolution and original notice of decision also support the view that the Director's report was accepted, though I recognise that they do not say so in terms. Taking all those matters into account, I have reached the view that the evidence should be read in the way I have indicated.
iv) On that basis the substitute notice of decision and its attached documents (including the Director's report) would contain an entirely satisfactory statement of the main reasons for the decision, and the placing of that material on the register would remedy the breach of reg. 21(1). There would be no problem with the decision to grant planning permission: I have already covered the point that the members took the environmental information into consideration and reached a rational conclusion on the information before them, and the statement of reasons would give rise to no separate cause for concern about the lawfulness of the decision reached.
v) It might be possible to refrain from making any order at all, on the basis that the Council has informed the court of its intention to place the substitute notice of decision on the register. In my view, however, the right course is to grant a mandatory order requiring the Council to follow that course. That will ensure compliance with reg. 21(1) and will thereby also ensure compliance with the obligation imposed by article 9(1) of the directive. No question of the discretionary withholding of relief arises.
54. Accordingly the claimants succeed on this part of the case to the limited extent of obtaining a mandatory order as to the making of a statement of reasons available for public inspection. They fail in their real objective of having the planning permission quashed.
Code of Conduct issues
55. I move to the second broad ground of challenge, concerning the Council's Code of Conduct and the Model Code to which it gives effect. Mr McCracken raises a number of issues, which do not correspond precisely with the substituted grounds but may be summarised as follows: (1) Mr Richardson was entitled to make up his own mind whether to withdraw from the meeting on 11 June 2002 and the Council acted unlawfully in telling him to withdraw; (2) he did not have a "prejudicial interest" within the meaning of the Code; (3) on the proper construction of the Code, he was not bound to withdraw even if he had a prejudicial interest, since (a) he was not a member of the decision-making committee and/or (b) he was entitled to attend in his personal capacity to make representations; and (4) if on the proper construction of the Code he was bound to withdraw, then the Code is unlawful and in breach of his Convention rights. Given the way in which submissions were developed, the issues under (3) and (4) can be considered together.
56. Before examining the issues, it is necessary to set out the legislative framework and a number of relevant facts.
Code of Conduct: legislative framework
57. The background to some of the issues arising in this case can be found in a 1986 report, The Conduct of Local Authority Business, by a committee chaired by Mr David Widdicombe QC ("the Widdicombe report") and in a 1997 report, Standards of Conduct in Local Government in England, Scotland and Wales, by the Committee on Standards in Public Life chaired by Lord Nolan ("the Nolan report"). I do not think it necessary to examine those reports in detail. I shall refer to certain passages in them when considering the specific issues.
58. Part III of the Local Government Act 2000 provided a new statutory framework for governing the conduct of members and employees of local authorities. Section 49(1) provides that the Secretary of State "may by order specify the principles which are to govern the conduct of members ... of relevant authorities in England ...." Section 50(1) empowers him to by order to "issue a model code as regards the conduct which is expected of members ... of relevant authorities in England ...." By section 50(4), a model code must be consistent with the principles specified in an order under section 49(1) and may include provisions which are mandatory and provisions which are optional.
59. In July 2000 the Secretary of State invited the Local Government Association to draw up proposals for a model code. Following an extensive consultation exercise, the Association submitted a proposal in October 2000.
60. On 8 February 2001 the Department for Transport, Local Government and the Regions issued a consultation paper, "A Model Code of Conduct for Members", seeking views on the Government's proposals on members' conduct that might be reflected in the model code. Copies of the consultation paper were sent to a wide range of local government bodies and others.
61. Having considered the consultation responses, the Secretary of State, in the exercise of powers under the 2000 Act, made the Local Authorities (Model Code of Conduct) (England) Order 2001, which came into force on 27 November. The Order contained two versions of the model code for local authorities. The relevant one for present purposes is the model code for authorities operating executive arrangements, which is contained in Schedule 1 to the Order ("the Model Code"). Article 2(2) of the Order provided that all the provisions of the Model Code were mandatory.
62. In those circumstances the effect of section 51 of the 2000 Act was to impose a duty on the Council to adopt a code of conduct incorporating the provisions of the Model Code. The Council incorporated the Model Code into Part 5 of its constitution as its Code of Conduct.
63. Article 2.04 of the Council's constitution provides that "Councillors will at all times observe the Members' Code of Conduct ... set out in Part 5". Pursuant to section 52(1) of the 2000 Act, councillors also had to give a written undertaking to comply with it.
64. Section 53(1) of the 2000 Act required relevant authorities to establish a standards committee. The functions of such committees are set out in section 54(1) and are (i) to promote and maintain high standards of conduct by members of the authority and (ii) to assist members of the authority to observe the code. Article 13.09 of the Council's constitution set up a standards committee in those terms. The Relevant Authorities (Standards Committee) (Dispensations) Regulations 2002, also made by the Secretary of State in the exercise of powers under the 2000 Act, prescribe the circumstances in which a standards committee may grant dispensations to members of relevant authorities. By section 81(4), the effect of a dispensation is to allow the participation by a member of the relevant authority in any business where it would otherwise amount to a breach of the code. Although the existence of the dispensation procedure is relevant by way of background (especially since the possibility of dispensation is referred to in paragraph 12(1) of the Model Code), it is not suggested that any power of dispensation could have been exercised in the circumstances that arose in this case.
65. The relevant provisions of the Model Code and therefore, as explained above, of the Council's own Code of Conduct, are as follows:
"PART 1 - GENERAL PROVISIONS
1.(1) A member must observe the authority's code of conduct whenever he-
(a) conducts the business of the authority;
(b) conducts the business of the office to which he has been elected or appointed; or
(c) acts as a representative of the authority,
and references to a member's official capacity shall be construed accordingly.
(2) An authority's code of conduct shall not, apart from paragraphs 4 and 5(a) below, have effect in relation to the activities of a member undertaken other than in an official capacity ....
4. A member must not in his official capacity, or any other circumstance, conduct himself in a manner which could reasonably be regarded as bringing his office or authority into disrepute.
5. A member-
(a) must not in his official capacity, or any other circumstance, use his position as a member improperly to confer on or secure for himself or any other person, an advantage or disadvantage ....
PART 2 - INTERESTS
8.(1) A member must regard himself as having a personal interest in any matter if the matter relates to an interest in respect of which notification must be given under paragraphs 14 and 15 below, or if a decision upon it might reasonably be regarded as affecting to a greater extent than other council tax payers, ratepayers, or inhabitants of the authority's area, the well-being or financial position of himself, a relative or a friend ....
Disclosure of Personal Interests
9.(1) A member with a personal interest in a matter who attends a meeting of the authority at which the matter is considered must disclose to that meeting the existence and nature of that interest at the commencement of that consideration, or when the interest becomes apparent ....
10.(1) Subject to sub-paragraph (2) below, a member with a personal interest in a matter also has a prejudicial interest in that matter if the interest is one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice the member's judgement of the public interest ....
Overview and Scrutiny Committees
11.(1) For the purposes of this Part, 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 or a sub-committee of such a committee, regard himself as having a personal and a prejudicial interest if that consideration relates to a decision made, or action taken, by another of the authority's -
(a) committees or sub-committees; or
(b) joint committees or joint sub-committees,
of which he may also be a member.
(2) But sub-paragraph (1) above shall not apply if that member attends that meeting for the purpose of answering questions or otherwise giving evidence relating to that decision or action.
Participation in Relation to Disclosed Interests
12.(1) Subject to sub-paragraph (2) below, a member with a prejudicial interest in any matter must -
(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, unless he has obtained a dispensation from the authority's standards committee;
(b) not exercise executive functions in relation to that matter; and
(c) not seek improperly to influence a decision about that matter.
(2) A member with a prejudicial interest may, unless that interest is of a financial nature, and unless it is an interest of the type described in paragraph 11 above, participate in a meeting of the authority's -
(a) overview and scrutiny committees; and
(b) joint or area committees,
to the extent that such committees are not exercising functions of the authority or its executive.
13. For the purposes of this Part, "meeting" means any meeting of -
(a) the authority;
(b) the executive of the authority; or
(c) any of the authority's or its executive's committees, sub-committees, joint committees, joint sub-committees, or area committees.
PART 3 - THE REGISTER OF MEMBERS' INTERESTS
Registration of Financial and Other Interests.
14. Within 28 days of the provisions of an authority's code of conduct being adopted or applied to that authority or within 28 days of his election or appointment to office (if that is later), a member must register his financial interests in the authority's register maintained under s.81(1) of the Local Government Act 2000 by providing written notification to the authority's monitoring officer of -
(f) the address or other description (sufficient to identify the location) of any land in which he has a beneficial interest and which is in the area of the authority ...."
66. In what follows I shall refer generally to "the Code". Strictly speaking, however, in relation to what happened in practice it is the Council's own Code of Conduct which is material; in relation to questions of construction, the identical issues arise both under the Council's own Code of Conduct and under the Model Code; and in relation to questions of lawfulness, the focus of attention is the Model Code, since the Council was required by statute to adopt the Model Code and the real question is whether the Secretary of State acted lawfully in promulgating the Model Code as part of the Order made by him under his statutory powers.
The facts relevant to the Code issues
67. According to the claimants' statement of facts, Mr Richardson was informed on 5 June 2002 by the Council's Head of Committee Services and later by representatives of the Legal Department that, because he had a prejudicial interest as defined in the Code, he would not be allowed to speak at, or attend, the meeting on 11 June. Mr Richardson says in a witness statement that he did not want to withdraw from the meeting and he did so under protest: he regarded himself as being instructed to leave the meeting. On the other hand Mr Sharpe, who is Principal Solicitor (Environment) with the Council and acted as legal adviser to the committee, says in a late witness statement that he advised Mr Richardson about his personal and prejudicial interest in relation to this matter. According to Mr Sharpe, at no time was Mr Richardson "barred" from the meeting: he was given advice and it was for him to decide whether to accept and act upon it. Mr McCracken did not object to the late admission of that evidence, though he made a number of comments upon it, including the point that the principal people putting the views of officers to Mr Richardson at the time were not Mr Sharpe but Mr Daly (the former Head of Legal Services) and Mr Knight (the Chair of the committee).
68. In view of that factual dispute I think it necessary to set out the terms of the main contemporaneous documents as well as dealing with a number of other relevant aspects of the factual background.
69. In a letter dated 6 June 2002 from Mr Richardson to Mr Jeremy Walker, the Council's Chief Executive, Mr Richardson registered his concerns in these terms:
"As you are aware I am not a member of the Planning Committee, I cannot vote or exert influence within that Committee. Quite properly, had I been a member of the Committee, and I had a conflicting interest then it would be declared, I would retire from the Chamber and not vote.
However, I have been asked by the community of Littlethorpe, as their County Councillor, to represent their 100% opposition to a quarry application. As a result have declared at every opportunity that I myself am a resident of Littlethorpe, and, as such, will be affected should any application for quarrying be granted.
Nevertheless, it was felt necessary suddenly for Mr Knight, supported by the Legal department, not only to disallow me from putting Littlethorpe's views across to the Planning Committee, but to ban me from the room ...."
70. An e-mail response, apparently on the same day, acknowledged the letter and went on:
"I understand that you have also spoken to colleagues in Committee Services and Legal Services on this issue and accept that under the Council's Constitution it will not be possible or appropriate for you to attend the Planning Committee when this item is discussed ...."
71. At the meeting on 11 June, Mr Richardson attended at the outset and read from a typed statement before leaving the room. His statement was as follows:
"The application before you, concerning Ripon City Quarry, lies partly within my Division. I also live within and represent Littlethorpe Community, and as such will be affected by the Quarry, should the application be approved.
I have been advised by the officers of the County Council that, as such, I can neither speak nor be present in my capacity as Councillor or as a citizen, despite the fact that I have no decision making role on the Planning Committee.
The Rights of Representation, by their chosen elected Member, has been denied to the Littlethorpe Community by Government legislation, and my basic Human Right of Freedom of Speech, as a citizen has also been denied.
I will leave the room as instructed, but give formal notice that I will further fight for the rights of the individual and unrepresented Communities."
72. A note of the meeting prepared by an objector describes Mr Richardson as indicating that "the decision to 'bar' him from speaking ... on behalf of local residents, and the Council's failure to allocate a deputy, was a travesty of justice and an infringement of our Human Rights". The second claimant, Mrs Orme, made a statement in which she referred to Mr Richardson being "banned at the eleventh hour, by your officers - from speaking on behalf of the Littlethorpe Parish". The Council's own minutes of the meeting record matters in this way:
"County Councillor Paul Richardson informed the meeting that he owned property in the vicinity of the application site and that in accordance with the County Council's Code of Conduct he had a personal interest in this matter and that it was also a prejudicial interest as set out in the Code. As the local Member he considered that local residents were being denied the opportunity of being represented by their local County Councillor.
County Councillor Paul Richardson then left the meeting room."
73. In my view Mr Richardson's typed note provides the best evidence of the precise words he used before withdrawing from the meeting.
74. Following Mr Richardson's withdrawal, the Director's report was presented by Mr Shaw, the Council's Head of Minerals and Waste Planning. The members were then addressed by District Councillor Galloway, Mr Roly Curtis (the chairman of Littlethorpe Parish Council), Mrs Orme and a representative of the developer. Those making representations were allowed three minutes each.
75. According to the Council's minute of the meeting, a specific resolution was passed to extend a right of audience to Mr Galloway to address the meeting "to represent the views of those affected by the development" in view of the fact that Mr Richardson was unable to represent the views of his constituents. Mr Richardson complains in his witness statement that Mr Galloway was given short notice (though the evidence on this point is not clear) and was unable properly to reflect the interests of the parish, let alone bring to bear Mr Richardson's wider perspective as a county councillor.
76. On 19 June Mr Richardson wrote a letter to Mr Walker in which he said:
"As you are now well aware I was forbidden to speak at the North Yorkshire Council's Planning Committee on Tuesday, 11 June.
Had I been allowed my freedom of speech I had intended to give emphasis on two points. One was the impact on the environment and the lack of a cohesive overall plan of restoration for the whole valley. The second was the impact of the probable increase in flooding; on the flood plain; the villages and towns along the River Ure Corridor and the safety of the workforce ...."
77. A file note, prepared by Mr Daly, of a meeting on the same day between himself, Mr Walker and Mr Richardson records that Mr Richardson "opened the meeting by saying that he was very pleased with the advice he had received from Glenn Sharpe: he felt that the advice had been technically correct, and given very sensitively." That file note was supplied as an exhibit to Mr Sharpe's late witness statement, and Mr McCracken submits that it should not be relied on as against the evidence of Mr Richardson, who was not previously shown the file note or given an opportunity to comment on it.
78. In a statement dated 2 July 2002, the precise purpose of which is not clear to me, Mr Richardson recorded:
"The Planning Committee were diaried to meet on 11 June. On 5 June I was told by the Head of Committee Services and later by representatives of the Legal Department, that I would not be allowed to speak, but also I was not allowed to be in the meeting room. I asked for written 'chapter and verse' (see letter 6.6.02 and undated email reply)."
Did the Council advise or instruct Mr Richardson to withdraw?
79. The first issue is a very short one. Mr McCracken submits that Mr Richardson was entitled to make up his own mind whether he had a prejudicial interest and should withdraw from the meeting and that the Council's officers acted unlawfully in telling or instructing him to withdraw. It is not in issue that the Council's role was to advise, not to instruct, but Mr Straker submits that what happened went no further than advice, even if Mr Richardson felt under constraint in consequence of the advice.
80. I am not persuaded that Mr Richardson was instructed to withdraw. There is no sufficient basis for rejecting the evidence in Mr Sharpe's witness statement that Mr Richardson was given advice rather than being barred from the meeting, though I have borne in mind that he dealt with other, more senior officers as well as with Mr Sharpe. The contemporaneous documents do not provide a clear answer, as is illustrated by the fact that in his own statement to the members of the committee before withdrawing from the meeting, Mr Richardson said both that he had been "advised by the officers" that he could not speak or be present and that he was leaving the room "as instructed". On the evidence as a whole I take the view that Mr Richardson was given firm advice and reluctantly accepted that advice, although voicing strong objection about the resulting position. A further consideration is that everyone concerned must have understood that compliance with the Code was the personal responsibility of individual councillors, each of whom had given an undertaking to observe its terms.
81. I do not attach much significance to this point in any event. In my view the crucial question is whether the Code, properly interpreted, required Mr Richardson to withdraw from the meeting. If it did, then it makes no practical difference whether he was advised to leave or was instructed to leave. If it did not, then the Council acted in error, whether by way of advice or instruction.
Did Mr Richardson have a "prejudicial interest"?
82. Mr McCracken submits that Mr Richardson did not have a "prejudicial interest" within the meaning of paragraph 10(2) of the Code and was therefore not required by paragraph 12(1) to withdraw even if it would otherwise have applied to the situation. He also submits that it was for Mr Richardson to decide whether he had such an interest.
83. The Council clearly understood Mr Richardson to accept that he had a prejudicial interest. He does not appear to have taken issue with the point at the time. In those circumstances, and having regard to my finding that the Council advised rather than instructed him in the matter, I do not think that it is open to him to adopt a different position now.
84. In any event I think it plain that he did have a prejudicial interest and that neither he nor the Council could reasonably have taken a different view:
i) I do not understand it to be in dispute, and I would certainly hold, that he had a "personal interest" within paragraph 8(1), in that the decision on the planning application (i) related to an interest of which he had to give notice under paragraph 14(f), namely his home in Littlethorpe, and/or (ii) might reasonably be regarded as affecting his well-being and/or financial position to a greater extent than other relevant persons.
ii) His personal interest was also a "prejudicial interest" within paragraph 10(2) if it was "one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice the member's judgement of the public interest".
iii) Mr Richardson's home, Ox Close House, was very close to the proposed extension of the quarry and was one of a handful of properties liable to be most affected by the development. As it was put in paragraph 6.7.1 of the Director's report:
"The properties potentially most affected by the development proposal are Ox Close House, The Bungalow, Ox Close Farm and Great Givendale. The closest properties are Ox Close House, The Bungalow and Ox Close Farm. These lie approximately 250 metres to the south west and west of the application area. Residents in these properties have expressed concern with regard to noise arising from the proposed workings .... Residents are also concerned about the impact on their views of the valley ...."
iv) Mr McCracken relies on the statement in paragraph 118 of the Nolan report that "[i]f one hundred households are affected by a council decision, then most people would agree that a councillor similarly affected has no special interest which might debar him or her from speaking or voting, providing the interest is declared". He submits that that was the case here and points to the fact there were some 400 signatories to a local petition opposing the development; Mr Richardson had the same interest as his constituents, albeit to a greater degree than many (and less than some). In my judgment, however, the next sentence of paragraph 118 of the Nolan report is more pertinent: "[i]f in a different decision ten households are affected, then in most circumstances a councillor might feel that taking part in a decision was inappropriate". The present case is stronger still, since Mr Richardson's home was one of three or four properties closest to the site and potentially most affected. The owners of those properties were not merely "similarly affected" as other residents of the parish, but had a greater and special interest in the outcome of the planning application.
v) Anyway, the test is not what was said in the Nolan report but what is laid down in paragraph 10(2) of the Code; and in my judgment a member of the public with knowledge of the relevant facts would reasonably have regarded Mr Richardson's personal interest as so significant that it was likely to prejudice his judgement of the public interest. I reject Mr McCracken's submission that a knowledgeable member of the public would reasonably have regarded him as simply putting forward the views of the people he represented, or making a contribution to the debate based on his perception of the public interest, rather than being influenced by the potential impact of the development on his own home. However conscientious a councillor might be in his representative role and his concern to protect the public interest, the personal interest was a highly material additional consideration.
vi) As a further way of examining the point, though this is not necessary for my decision, I have asked myself whether, if Mr Richardson had been a member of the committee and had participated in a decision to refuse planning permission, it would have been open to the developer to object to the decision on the ground that his participation gave rise to the appearance of bias. In my view it would have been, for the very reason that a fair-minded and informed observer would have concluded that, by reason of the personal interest, there was a real possibility that the committee was biased. The test in paragraph 10(2) of the Code is not in identical terms but similar considerations underlie it.
Did the Code require Mr Richardson to withdraw and, if so, was it lawful?
85. Mr McCracken submits that the Code had no application to the situation that arose in this case, so that it did not require Mr Richardson to withdraw from the meeting even if he did have a prejudicial interest. The scope of the Code is laid down in paragraph 1. Paragraph 1(1) requires a member to observe the Code in specified circumstances, which together are defined as his "official capacity", but does not apply to attendance by a councillor at a meeting of a committee of which he is not himself a member. Paragraph 1(2) provides that the Code shall not, apart from paragraphs 4 and 5(a), have effect in relation to the activities of a member undertaken other than in his official capacity. Thus paragraph 12 is not to construed as precluding Mr Richardson's attendance at the meeting on 11 June either in his representative capacity to voice the objections of his electorate or in his private capacity as an individual objector.
86. It is further submitted that there is a particular cause for concern if the sole councillor for an area is prevented from addressing a committee and even from remaining in the room when a proposal affecting the constituency he represents is discussed. Moreover the public are entitled to attend such meetings and it is very strange if Mr Richardson, because he is councillor, is denied the same opportunity to attend as a citizen. Had it been intended to produce such results, the points would have been addressed in the Department's consultation paper, e.g. by way of consideration of a dispensation; but the consultation paper contains nothing on them. Reference is also made to various passages in the Widdicombe report and the Nolan report which are said to be supportive of the claimants' case.
87. In the course of examining the authorities, Mr McCracken made clear that one of his contentions is that in interpreting the Code as a matter of domestic law, leaving aside the Convention, one should approach the matter in terms of proportionality. In that connection he refers to the observation by Lord Slynn in R (Alconbury Developments Ltd) v. Secretary of State for the Environment  UKHL 23,  2 WLR 1389 at 1406, para 51, that "even without reference to the Human Rights Act 1998 the time has come to recognise that this principle [of proportionality] is part of English administrative law".
88. Also cited is R v. Flintshire County Council, ex parte Armstrong-Braun  LGR 344, both for an observation on proportionality and as having a wider relevance. In that case a council had made a standing order preventing a councillor from putting a matter on the agenda for discussion at a council meeting without being seconded by another council member. The Court of Appeal quashed the standing order. Schiemann LJ, at paras 37-38, pointed out that councillors represent particular areas and that one of the ways in which they are intended to exercise their function is by raising matters in council. The standing order prevented them from doing that. Before such a standing order was made the matter should be given the most anxious consideration. The council had failed to consider "the full democratic implications" of the course it had adopted. Sedley LJ likewise held that the standing order had been made without proper consideration and laid stress on the fact that "a councillor is elected as the representative of a territorial unit" (para 53; see also paras 57-58). In relation to the question whether such a standing order could lawfully be adopted, he stated (para 60):
"Although it does not arise at the moment for decision, it may well be that this needs to be regarded in law as a question of proportionality: is the proposed measure, having regard to its restrictive effect on the functioning of individual elected representatives, one which is necessary in a democratic society to achieve the efficient functioning of the county council?"
89. So too here, submits Mr McCracken, one should ask whether paragraph 12(1) of the Code, if interpreted in the way for which the Council and the Secretary of State contend, imposes a restriction that is necessary for the avoidance of conflict of interests that would damage public confidence in the system?
90. The issue of proportionality arises again in the context of Mr McCracken's submissions on the Convention. He relies on the Convention both as requiring the construction of the Code for which he contends and, in the alternative, as a ground for seeking a declaration that the Code is unlawful if and in so far as it did require the exclusion of Mr Richardson from the meeting.
91. Although the substituted grounds make reference to articles 6, 8 and 14 of the Convention and to article 1 of the First Protocol, Mr McCracken's oral submissions identified articles 6 and 8 as the key provisions. The argument under article 8 is that the development affected Mr Richardson's home and that it was not consistent with his right to respect for his home under article 8(1) to deny him the same chance to be present and to speak at the meeting as others whose homes were affected. The issue under article 6(1) is one of lack of equality of arms between Mr Richardson and the developer, who again was allowed to be present and to speak at the meeting.
92. As to questions of justification under the Convention, Mr McCracken refers to the requirement of proportionality and submits that the task of balancing the competing interests has not been undertaken in "a structured and articulated way" (see South Bucks District Council v. Porter  EWCA Civ 1549,  1 All ER 425 at para 42). He also cites Ahmed v. United Kingdom (1998) 29 EHHR 1, in which the Strasbourg Court rejected a challenge to the restriction on the freedom of local government officers to engage in political activities.
93. Finally, and on a different tack, I should mention that Mr McCracken has sought to rely on observations made by Collins J at the permission hearing in the present case. Whilst it is true that in places Collins J expressed himself in robust terms in favour of the claimants' submissions, he also made clear that he was dealing only with arguability and had not heard full argument. I yielded to Mr McCracken's strenuous efforts to show me the transcript of that hearing, but I remain of the view that it was not appropriate to refer to it and that it cannot assist the claimants. I shall say no more about it.
94. Mr Straker submits that paragraph 12 of the Code imposed a clear requirement on Mr Richardson, as a member of the Council with a prejudicial interest, to withdraw from the meeting. The justification of the Code's provisions is a matter for the Secretary of State, since the Council was required by statute to adopt the Model Code promulgated by the Secretary of State and to follow it. The Council's position is nonetheless that paragraph 12 is a profoundly sensible requirement, given the problem of the impression that would be left with members of the public if a councillor with a prejudicial interest were to attend such a meeting.
95. For the Secretary of State, Mr Sales likewise submits that paragraph 12 plainly requires a member of the Council with a prejudicial interest to withdraw from such a meeting. Every interpretative indicator points to that conclusion: the language is clear and the legislative history and purpose support it. A provision with that effect is justified and lawful. It turns into a general rule what Sedley J in R v. Secretary of State for the Environment, ex parte Kirkstall Valley Campaign Ltd  3 All ER 304, 329f, described as "wise advice".
96. It is further submitted that, on the facts, Mr Richardson did not seek to attend the meeting solely in his private capacity. Had he done so, paragraph 12 would nonetheless have applied and have required him to withdraw. In that respect breach of paragraph 12 is to be seen as a specific instance of conduct falling within paragraph 4 (conduct, in any circumstance, which could reasonably be regarded as bringing a member's office or authority into disrepute) and/or paragraph 5(a) (a member's use of his position, in any circumstance, improperly to confer on or secure on himself an advantage). That too is justified and lawful.
97. As to the Convention, Mr Sales submits that there is no incompatibility between the ordinary meaning of the Code and Mr Richardson's Convention rights and there is therefore no reason to depart from the ordinary meaning.
98. No admission is made by the Secretary of State that article 6 of the Convention is engaged in these circumstances. Even if it is, however, its requirements are met. Mr Sales refers generally to Bryan v. United Kingdom (1995) 21 EHHR 342. He submits that there is no right to an oral hearing before the committee: R (Adlard) v. Secretary of State for the Environment, Transport and the Regions  1 WLR 2515. Nor was there any inequality of arms between Mr Richardson and the developer arising out of the fact that the former was precluded by the Code from attending the meeting whereas the latter was able to address the committee. The point can be tested by considering the application of article 14, albeit not pursued separately by the claimants. There is no breach of article 14, because (i) a councillor is not in the same position as a private landowner and (ii) any differential treatment can be justified as a proportionate response to a legitimate objective (as to which, see Ahmed v. United Kingdom, above).
99. If Mr Richardson's complaint fails by reference to the express procedural rights conferred by article 6, then Mr Sales submits that a fortiori it cannot succeed under article 8. In developing his submissions on this topic, he stresses the wide margin of discretion that should be accorded to the Secretary of State when balancing competing interests of the kind in play in this case. He also refers to para 27 of the judgment of Simon Brown LJ in South Bucks DC v. Porter (above), where it is said that the approach adopted in the in the Bryan v. United Kingdom line of cases "clearly supports the view that the recent House of Lords decision in R (Alconbury Developments Ltd) v. Secretary of State for the Environment ..., rejecting art 6 of the convention challenges to the legislative scheme for statutory appeals and applications in planning cases which affords the court only a limited review jurisdiction over inspectors' decisions, applied equally in art 8 cases ...".
100. For the developer, Mr Hill adds a submission that, if there was a failing in relation to the Code, the court should exercise its discretion against quashing the grant of planning permission. The committee had a detailed analysis of the issues in the Director's report and heard representations from Mrs Orme. The matters that Mr Richardson said that he wished to raise were set out in his letter of 19 June 2002, and he has not elaborated on them in evidence. One was a bad point about the EIA Regulations, the other was addressed fully in the Director's report. Thus there was nothing material that he would have added. In those circumstances, and having regard to the factors addressed in Mr Hill's other submissions, it would be wrong to deny the developer the benefit of the planning permission.
101. The various submissions of counsel cover a fair amount of ground. I propose to organise my conclusions on them as follows: (1) I shall deal first with the application of the Code to Mr Richardson in his capacity as a councillor, considering both its proper construction and its lawfulness as a matter of domestic law apart from the Convention. (2) I shall then consider its application to Mr Richardson in his private capacity, again considering relevant issues apart from the Convention. (3) Finally I shall examine the impact of the Convention.
102. As to the application of the Code to Mr Richardson in his capacity as a councillor, in my judgment paragraph 12 did apply to this situation and did require Mr Richardson to withdraw from the meeting. I reach that conclusion, first, because that is the effect of the Code on its ordinary and natural meaning:
i) I reject Mr McCracken's submission that attendance by a councillor at a meeting of a committee of which he is not a member falls outside the scope of the Code. It seems to me that such attendance falls clearly within paragraph 1(1). If a councillor attends a meeting of a committee of which he is a member, he is "conduct[ing] the business of the authority" within paragraph 1(1)(a). If he attends a meeting of a committee of which he is not a member, he is "conduct[ing] the business of the office to which he has been elected ..." within paragraph 1(1)(b). He is there as an elected councillor performing the functions of that office. That is well illustrated by the facts of this case. Mr Richardson's wish to attend the meeting as a councillor representing his electorate and giving the community a representative "voice" at the meeting was at the heart of his objection to withdrawing from the meeting (I deal later with the question of his attendance in a personal capacity as well). An additional consideration is that attendance by a councillor at any meeting of a committee of a council, whether or not he is a member of that committee, counts towards fulfilment of the minimum attendance requirement imposed on members by s.85 of the Local Government Act 1972.
ii) The ordinary and natural reading of paragraph 12 is that it applies to a member of the Council, not just to a member of the relevant committee. Throughout the Code, starting most obviously with paragraph 1(1), the expression "a member" denotes a member of the Council. Where a provision is limited to participation as a member of a particular committee, it is done so expressly, as in paragraph 11(1) (which opens by a general reference to "a member", i.e. a member of the Council, but then refers to decisions made or action taken by committees "of which he may also be a member"). There is no such limitation in paragraph 12. On its face it lays down a rule applicable to any member of the Council in relation to any meeting of the council or of any of its committees (see the wide definition of "meeting" in paragraph 13).
iii) Mr McCracken relied on the file note of the meeting on 19 June 2002, produced as an exhibit to Mr Sharpe's late witness statement, as evidencing at least an ambiguity in the Code. Paragraph 1 of that file note records the following response by Mr Walker and Mr Daly to Mr Richardson's complaint that an imbalance was created by the fact that councillors were bound by the Code but applicants for planning permission were not bound by it: "Jeremy and I pointed out that both the applicants and the objectors are not bound by the Code of Conduct, and that those who are bound by it are the persons who take the decision, or are party to the decision as statutory consultees". Mr McCracken relies on that as evidencing a belief by those officers that the Code applied to the members of the committee - those taking the decision - rather than to members of the Council who not members of the committee. In my view the overall history of events shows that the actual view of the Council's officers was that the Code applied to members of the Council whether or not they were members of the committee: otherwise the events that triggered this case would not have happened as they did. Anyway, the relevant question is the proper construction of the Code, not how it was viewed or described by particular individuals.
103. The background material provides some support for the view that the mischief at which the provision is aimed is the presence of a councillor in the room, whether or not he is a member of the relevant committee, though it is fair to say that the point does not seem to have been addressed in terms. Paragraphs 6.51-6.52 of the Widdicombe report deal as follows with the question of withdrawal from meetings, referring first to pecuniary interests and then to non-pecuniary interests:
"6.51 At present there is no statutory requirement for someone who has declared an interest at a meeting to withdraw from the room .... We believe that this is wrong. By staying in the room, even though he or she may not speak or vote, a councillor may still influence the decision or might gather information which would help in the furtherance of his or her interest .... We propose that there should be a statutory requirement for councillors in all such instances to withdraw. Withdrawal should be from the room, not just to the space set aside for the public. There should be no option to invite councillors to stay, which could place their colleagues in an invidious position.
6.52 The 1975 Code ... currently requires councillors to treat non-pecuniary interests precisely as if they were pecuniary ones: that is to say that the councillor should not only declare such interests but also abstain from voting and speaking (and, under our recommendation, withdraw from the room). We do not think that this is right. Non-pecuniary interests will sometimes be substantial and clearly justify such disabilities. In other cases they will be much more distant .... The councillor should ... only be required to abstain from voting and speaking and, under our recommendation, to withdraw from the room, if the interest is a clear and substantial one ...."
104. It is true that, as Mr McCracken says, that recommendation does not deal in terms with the issue of a single member constituency and the problem of representation to which withdrawal in such circumstances may give rise. But other passages of the report show that the authors were well aware of, and attached value to, single member constituencies (see e.g. paragraph 7.16); and in my view it is clear that they put forward their recommendation as one of general application.
105. The Nolan report deals extensively with general principles of conduct for local councillors, including a lengthy discussion of conflicts of interest. Paragraph 82 refers to the complexity of the issues and the balancing exercise required:
"The issues are particularly complex in local government. Local authorities are multi-purpose bodies, involved in many different activities within a restricted geographical area. They are run by councillors, elected on a ward basis, whose task is to represent the interests of local people. Councillors are themselves local people, who are likely to have been actively involved in the local community before election, both in commercial and non-commercial activities, and who may be even more involved after election. Potential conflicts of interest are likely to occur frequently, and the public interest requires that a sensible balance should be struck between avoiding impropriety, and enabling councillors to fulfil the role for which they were elected."
106. Paragraphs 112 ff. deal specifically with public and private interests and bias, drawing the distinction between a situation in which a councillor or his family is no more affected than the generality of the community and a situation in which he or his family is particularly affected. For example, I have referred already, in the context of "prejudicial interests", to the illustrative contrast drawn in paragraph 118 between a case where a councillor's home is one of a hundred households affected and a case where it is one of ten households affected. On the specific issue that I am now considering, however, I do not think that the Nolan report takes matters further.
107. The Department's consultation paper contained the following passage under the general heading "dealing with conflicts of interest":
"4.17 Under the proposals put forward by the LGA, members would be required to withdraw from consideration of any matter in which they had a financial interest. The Government agrees that this is the right approach to such interests. In relation to non-financial interests, the LGA proposed that members should be required to declare such interests but (unless that interest related to a planning, licensing or grant application) should then be able to speak and vote. Where a member had a non-financial interest in relation to a planning, licensing or grant application, members should be able to speak, but not vote.
4.18 Ministers believe that, in relation to non-financial interests, these proposals tilt the balance too far in favour of member participation, at the expense of public confidence. The range of potential non-financial interests is very large, and some of these may be of greater significance than some financial interests. Nor are significant non-financial interests restricted solely to planning, licensing and grant-related matters. They may arise in any area of council activity. So the Government believes that a more restrictive approach is needed in relation to such interests. The approach proposed below reflects that view" (original emphasis).
108. The draft of paragraph 12 required a member with a prejudicial interest in any matter to "withdraw from a meeting wherever it becomes apparent that the matter is being considered". The evidence before the court is that responses to the consultation paper and subsequent discussions suggested that "withdraw from the meeting" was too vague, since it would allow a member to withdraw to the public gallery and use his or her presence there to put pressure on those taking part in the debate; and that there was considerable anecdotal evidence that this could cause problems. The paragraph was therefore amended so that the final version required a member to "withdraw from the room or chamber where the meeting is being held".
109. The consultation paper, together with the evidence concerning the amendment to the draft of paragraph 12, shows the general mischief at which the provision is addressed and that a restrictive approach was intended. It does not show in terms that paragraph 12 was intended to apply to withdrawal by any member of the Council with a prejudicial interest, and not just by a member of the relevant committee. The general thrust of the material seems to me, however, to provide greater support for that view than for the contrary view. Again I take the point made by Mr McCracken that there was no express consideration of the effect on a single councillor constituency, but again it seems to me that the intention was to formulate a rule of general application.
110. Overall, I do not regard the background material as decisive, but there is nothing in it that could possibly justify my departing from what I have found to be the ordinary and natural meaning of the relevant provisions.
111. Leaving aside the Convention for the time being, I take the view that the Code, if construed in the way I have held it should be, was lawfully promulgated by the Secretary of State and therefore lawfully adopted by the Council:
i) In my judgment the question at this stage is one of rationality, not proportionality. Despite the observations of Lord Slynn in Alconbury and of Sedley LJ in R v. Flintshire CC, ex parte Armstrong-Braun (who, in the context of that case, may in any event have had the Convention in mind), proportionality has not yet displaced rationality as the relevant test in domestic law, though in practice the result will very often be the same.
ii) It was plainly rational for the Secretary of State to adopt a Code that has the effect of requiring a councillor with a prejudicial interest to withdraw from a meeting of a committee even if he is not a member of that committee. In my view the principle of proportionality, if applicable, would also be satisfied.
iii) The Code reflects the outcome of a complex balancing exercise after extensive consultation and deliberation. There has been a sufficiently structured and articulated approach (to the use the language from South Bucks DC v. Porter on which Mr McCracken relied). The Secretary of State has placed particular weight, as he was entitled to do, on the need to retain public trust and confidence in the operation of the system. This is expressed extremely clearly in the consultation paper:
"4.3 The retention of public confidence is not so much a desirable goal, as a fundamental necessity. Without the public's trust, an authority would quickly become discredited. So Ministers see the requirements of public probity as paramount. The system we design must, first and foremost, meet those requirements."
iv) Although the presence of a councillor with a prejudicial interest may give rise to lesser public concern when he is a non-member of the relevant committee than when he is a member of the committee, a non-member is still able to exert influence by reason of his position as a councillor, and the risk that public confidence in the decision-making will be impaired is a real one.
v) To require the highest standards of behaviour in public life is properly viewed as promoting rather than offending the principles of local representative democracy. Moreover, as Mr Sales submitted, the principles of democracy do not require that any particular councillor sit on a council committee or attend or speak at a committee meeting. It is in the nature of council committees that they conduct business on behalf of the council without full participation by every member of the council. Nor is attendance by a councillor at a meeting the only way in which the interests of his constituency can be taken into account. In the present case, for example, the committee heard from a district councillor, the chairman of the parish council and a member of the parish council (the second claimant), as well as receiving written representations.
112. I move to consider the arguments addressed to the issue of attendance by Mr Richardson in his personal capacity, as opposed to attendance in his capacity as a councillor.
113. In my judgment that issue simply does not arise on the facts. At no time did Mr Richardson say that, if he could not attend as a councillor, he nonetheless wanted to attend and address the committee in his personal capacity. The essence of the concerns expressed by him prior to the meeting was that he wanted to represent the community he served (see in particular his letter of 6 June). It is true that in his statement at the beginning of the meeting, before his withdrawal, he referred to advice that he could not speak or be present "in my capacity as a Councillor and as a citizen", and that the note of the meeting on 19 June refers both to a restriction on freedom of expression and to a restriction on his freedom to defend his own personal position in relation to his property. But at no time was there any suggestion that he wished to attend solely for the purpose of putting forward his private objections to the development based on its impact on his own home. It is also significant that in his witness statement in these proceedings he focuses on his wish to attend as a councillor, which he says would have given him as much time as he needed to speak rather than being constrained within three minutes as others were, and on the prejudice to his constituents arising out of his inability to speak on their behalf.
114. Where a councillor wishes to attend a meeting in a dual capacity, as councillor and as private citizen, paragraph 12 plainly applies to the situation for the reasons already given. It is enough that he is present in his capacity as a councillor even if he has a separate interest of his own to defend. Indeed, it is because he has a personal and prejudicial interest in the matter that the restriction is required. Thus it is only in relation to attendance solely as a private citizen, rather than in a representative capacity as councillor, that any separate considerations might arise. They do not arise in circumstances where no question was raised of attendance solely as a private citizen.
115. I reject a submission by Mr McCracken that the Council was in some way bound to allow Mr Richardson to attend solely as a private citizen even if he did not ask to do so. I have already held that Mr Richardson followed advice to withdraw from the meeting, rather than being instructed to do so. The advice given related to the course of action that he wished to pursue. The Council cannot sensibly be criticised for failing to advise him about a course of action that he did not express a wish to pursue.
116. In the circumstances it is unnecessary for me to decide on the application of the Code to a councillor who wishes to attend a meeting solely in his private capacity. I will, however, give the following indication of how I would have dealt with the issue had it arisen for decision:
i) On its face, paragraph 12 would seem to apply to such a situation, since a councillor is still "a member" of the Council even if acting only in his private capacity. It must, however, be read in the light of the limitations expressed in paragraph 1 on the scope of the Code.
ii) Paragraph 1(2) provides that the Code "shall not, apart from paragraphs 4 and 5(a) below, have effect in relation to the activities of a member undertaken other than in an official capacity". In my view a councillor would not be undertaking activities in an official capacity if he attended a meeting solely in his private capacity. In particular, he would not be "conduct[ing] the business of the office to which he has been elected", within the meaning of paragraph 1(1)(b).
iii) I would reject Mr Sales's submission that paragraph 12 is to be seen as an illustration of paragraph 4 and/or paragraph 5(a) of the Code. It is not so expressed; and if it had been intended to apply to activities undertaken otherwise than in an official capacity, I would have expected an express reference to it in paragraph 1(2) as a further exception to the general rule there laid down. There may of course be circumstances in which attendance at a meeting in a private capacity would be caught directly by paragraph 4 and/or paragraph 5(a), but that is a different matter and is not a reason for adopting a strained interpretation of paragraph 12 so as to apply it in all cases to attendance in a private capacity. Nor was any advice given, or suggestion made, by the Council's officers that attendance by Mr Richardson would be a breach of paragraph 4 or 5(a).
iv) The policy objections to attendance by a councillor at a meeting might reasonably be considered to apply even where attendance is on the express basis that the councillor is attending in a private capacity to defend his own personal interest, rather than in a representative capacity. They might, however, be thought to have less weight in that situation, on the basis that the risk of damage to public confidence would not be so great. In any event I do not regard the policy objections as so compelling that they ought to lead to a construction of the Code that would not be justified on its ordinary and natural meaning.
v) Accordingly, I would have held that the Code did not in principle preclude attendance by Mr Richardson solely in his private capacity to defend his own personal interest, though steps would have had to be taken to ensure that the limited basis of his attendance was abundantly clear to all.
vi) On that basis the arguments about the lawfulness of the Code in its application to a councillor wishing to attend a meeting in his capacity as a private citizen would fall away.
117. I move finally to consider whether the application of the Convention affects any of the matters considered above, though it seems to me that the Convention issues are in truth of only limited relevance, since (i) they concern the rights enjoyed by Mr Richardson personally, rather than his entitlement to attend the meeting in his capacity as councillor so as to provide a representative voice for his constituents, and (ii) I have held that attendance in his personal capacity does not arise as a separate issue on the facts.
118. As to article 6 of the Convention, I accept Mr Sales's submissions that, if it conferred relevant rights on Mr Richardson (which I do not need to decide), the application of the Code involved no breach of those rights. The material provisions of the Code are fully consistent with the aim of ensuring fairness and impartiality in the decision-making process - a process in which there are competing interests at stake, including those of the developer as well as those of objectors such as Mr Richardson. It was for the Secretary of State to balance those competing interests so as to achieve fairness overall; and the result is in my view well within the margin of discretionary judgment allowed to him. It was also open to the Secretary of State, and conducive to legal certainty, to adopt a general rule applicable across the broad range of decision-making processes of local authorities.
119. I do not think that R(Adlard) v. Secretary of State for the Environment, which held that there is no entitlement to an oral hearing at this stage of the procedure, provides in itself an answer to Mr McCracken's point that the developer had the opportunity to make oral representations (albeit for only three minutes) whereas Mr Richardson did not. For the reasons advanced by Mr Sales, however, the developer and Mr Richardson were not in the same position, the differential treatment was based on the legitimate aim of preserving public confidence in the system, and the restriction placed upon Mr Richardson was a proportionate measure. All that he was prevented from doing was attending the meeting in his capacity as a councillor. He was able to arrange for others to put forward any points he wished to make, and I have indicated that, had he wished to attend the meeting solely in his personal capacity, it would in my view have been open to him to do so.
120. As to article 8 of the Convention, essentially the same procedural issue is raised. The case put forward is that it was not consistent with Mr Richardson's right to respect for his home to deny him the same chance to be present and to speak at the meeting as others whose homes were affected. I accept Mr Sales's submission that that case must fail in the light of the conclusion I have reached on article 6. There is no article 8(1) right to a hearing. The issues concerning attendance at the meeting can come in only in the context of justification under article 8(2), most obviously as an aspect of proportionality. In that connection I refer back to the substance of the views I have expressed in relation to article 6. In my judgment any interference with article 8(1) rights arising out of the relevant provisions of the Code was plainly justified.
121. Since Mr McCracken effectively conceded that he could not succeed by reference to other provisions of the Convention if he did not succeed under article 6 or article 8, I do not propose to address them.
122. For the reasons I have given, there is in my judgment nothing in the Convention arguments to cause me to depart from what I have held to be the ordinary and natural meaning of the relevant provisions of the Code or to hold that the Code, if so interpreted, is unlawful.
123. I therefore conclude that the advice given to Mr Richardson about the application of the Code was correct and that the various grounds of challenge advanced in this part of the case all fail.
124. I understand the claimants' concerns and respect their reasons for bringing these proceedings. The issues are substantial and there are areas of difficulty. In the result, the claimants have achieved a limited success in respect of the EIA Regulations, in that I think it right to make a mandatory order (in a form to be discussed with counsel) as to the making of a statement of reasons available for public inspection in order to ensure compliance with reg. 21(1). I have found against them, however, on the balance of the EIA issues and in respect of the Code of Conduct. Save to the limited extent indicated, therefore, the claim will be dismissed.
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MR JUSTICE RICHARDS: Judgment in this case has been handed down. For the reasons given in that judgment there will be a mandatory order requiring the defendant Council to make available for public inspection the main reasons for its decision granting planning permission. Subject to that the claim is dismissed. The judgment takes account of comments that I have received from counsel.
MR JONES: There is one point on the front page. It should be 'another'. It is just two people rather than a group.
MR JUSTICE RICHARDS: I will ask the shorthand writer to correct it to 'another' rather than 'other'.
MR GREATOREX: I have prepared a draft order.
MR JUSTICE RICHARDS: As to (1), in substantially the form exhibited to the witness statement, not least because the typographical error can be corrected. Subject to that, I see no problem on that, otherwise dismissed. We deal with costs. Does everybody agree with the mandatory order in the form of this draft?
MR JONES: Yes, my Lord.
MR JUSTICE RICHARDS: In substantially this form. The reason I have said that is that I identified in my judgment a typographical error. There must be scope for tidying it up. The substance will be there. They need to ensure the substance is there to correspond with the judgment.
MR GREATOREX: There is an application for costs. I skip over the point of principle. The schedule has been prepared. I leave it to your Lordship whether you have summary assessment or detailed assessment. With regard to the principle of costs, it is an application for costs with one exception. The first defendant is prepared to accept that it should not recover its costs between 28th January and 13th March, the significance of those dates being the date of the service of the substituted statement of grounds.
MR JUSTICE RICHARDS: 2003.
MR GREATOREX: They were only solicitors' costs incurred on those dates in any event. Those costs related to the preparation of the witness statement which has been referred to in the draft order handed up.
MR JUSTICE RICHARDS: The 28th January. That is when that issue was first raised?
MR GREATOREX: It had been raised for the first time at the oral hearing before Collins J. My submission is that the defendants were right to wait and see what the substituted grounds said. Once that was received, the first defendant set in motion the grounds for (inaudible). It is a concession unlikely to be of much comfort because they are very, very small. If your Lordship would like me to pre-empt the opposition, otherwise I will respond. This is a case in which the defence have succeeded in every material respect. Your Lordship's judgment referred to the success achieved by the claimants as limited. It is a success that they did not seek at any time in their substituted statement of grounds, nor was any application made to amend to apply for a mandatory order. On the points that were put in issue before the court, my submission is that there is no reason to depart from the normal principle as to costs.
MR KEEN: I make an application for a second order as to costs. I do so on the basis of the principles set out in Bolton in this matter. The Secretary of State clearly had separate and distinct interests which required separate representation, and the Secretary of State did in fact deal with the separate issue that was not addressed by the Council. It was concerned with the claim insofar as it sought to quash the 2001 order. The Secretary of State has successfully resisted that claim, challenging the lawfulness of the Model Code. That was the real question, whether the Secretary of State acted lawfully in promulgating that Code. The Council left that decision to the Secretary of State. For that reason alone the Secretary of State's costs are justifiable. Clearly, the consequences of this challenge have wider implications than those within the ambit of the case itself. The challenge clearly raised issues of public importance. The claimant joined the Secretary of State as second defendant. You will recall from the claim form that the particulars sought costs against the Secretary of State in respect of the lawfulness of the Code if they were successful.
MR JUSTICE RICHARDS: You have made your position clear. I will hear from Mr Jones.
MR KEEN: May I hand your Lordship three letters? There was an exchange of correspondence between the parties. I would like you to have sight of that.
MR JUSTICE RICHARDS: Certainly.
MR KEEN: 23rd January. The Treasury Solicitor is putting the claimants on notice that they would be making this application in the event of succeeding. The first page of that letter, 28th January, is from Richard Buxton saying:
"We are concerned about what you say about a separate interest. We would be grateful if you would identify what that separate interest is."
The last page is the answer back from the Treasury Solicitor to that letter of 28th January. The first paragraph reads:
"I think the reasons why my client considers that he has a separate interest are obvious."
There is no detailed costs schedule on behalf of my client. In view of the fact that the hearing took one day and a half, that is not necessary.
MR JUSTICE RICHARDS: It took two full days.
MR AUBURN: I have an application as well. Did your Lordship receive a letter faxed through this morning? We have one letter which contains an application for costs. It is one paragraph. May I hand that up? It is an application in relation to one witness statement.
MR JUSTICE RICHARDS: Which was the third witness statement of Mr Brownhill. This is the third statement dated 3rd March 2003. That cost £1,000.
MR AUBURN: My Lord, yes. There were a numbers of facts that needed to be checked and instructions gathered. I accept that it is unusual for an interested party to apply for costs in these circumstances. It is only in relation to this witness statement. The application is on the basis of the cost of compiling the witness statement because of the evidence put in by the two claimants after the grant of permission. Given that evidence, that was put in. It had to be dealt with by us and could not be ignored. We think that we are entitled to recover that. The evidence that we say gave rise to this witness statement were the two witness statements of the claimants that were put in on 21st February 2003. If you wish to see them, they are in bundle volume 2, pages 490 and 496. There was with those statements a report from a mineral expert, Mr Lowry. You may recall that that report contained a number of facts that we say had to be dealt with. As you can see from the third witness statement, a number of matters needed to be corrected in Mr Lowry's statement. Paragraph 4. At that stage the claimants thought that the evidence they were putting in could be relevant to the result. That is why they were putting the evidence in. Faced with evidence such as this, which is inaccurate, we would run a considerable risk by not correcting the matter. In those circumstances, it is right that the parties should bear our costs of setting the matter right and putting a proper factual position before the court. In terms of principle, the matter is within your Lordship's discretion. The award of costs for this witness statement would be within the principles of Bolton. It was an issue that could not be covered by any of the other parties. The court needs to have a correct factual basis upon which to reach a decision.
MR JONES: I will take it in stages. I begin, before I address the individual claims by my friends, by distinguishing between the costs of the oral permission hearing and the costs of the substantive hearing. My learned friends seek their costs in respect of both. I will address your Lordship on why it is inappropriate for the Secretary of State or North Yorkshire to obtain costs in respect of the permission hearing before Collins J.
MR JUSTICE RICHARDS: Were costs reserved or was it the normal position that they became costs in the judicial review?
MR JONES: No application for costs was made by the respondent. No order for costs was made. I mean that literally. No order was made in respect of costs. The position therefore arises before you as to whether, in the exercise of your Lordship's discretion, costs should be ordered. The first point is a matter of principle, whether your Lordship should make the unusual order of costs in respect of respondents appearing, not at the direction of the court but voluntarily, at a leave hearing should be granted. The appropriate place for the respondents to seek their costs is before the judge who has heard the permission hearing. The judge is better placed to make an assessment as to whether there should be a departure from the normal position and that costs should be awarded. The position is, firstly, this. If we had been unsuccessful at the permission hearing, as your Lordship is aware, the general practice direction is that generally costs should not be awarded to the respondent. My first point is that it would be odd if, having been unsuccessful for the large part because the majority of the points we were successful on, the Secretary of State and North Yorkshire were in a better position insofar as those costs are concerned than if they had come along and been successful, if they had knocked us out at that stage.
Your Lordship has a bundle of authorities on the table. Your Lordship should have a copy of the Practice Direction at permission hearings, 8.5 and 8.6:
"Where the defendant or any party does attend a hearing, the court will not generally make an order for costs against the claimant."
That is not restricted to the situation where the claimant is successful or unsuccessful. That is the general proposition. It follows from the guidance that the Divisional Court gave in the challenge to the decision of the Ecclesiastical Committee -- that was the challenge to the ordination of women priests. We need not trouble with the detail of that decision. Your Lordship will see at the end -- as things often happen, the page I want to refer to seems to have been truncated. It is page 695. It is McCowan LJ's judgment. After the short adjournment he deals with the position of costs. Miss Cameron is appearing for the Archbishops. The Archbishops had sought at the substantive hearing to recover costs for the oral leave hearing where permission had been granted. One sees at paragraph e that the question of costs arises:
"It is unnecessary for us to go into the authorities. It is sufficient to say that we doubt very much whether we have any power to grant the costs of the application. In any event, we do not think it an appropriate case to do so because the respondents were not under any obligation to attend. They chose to do so. They strongly argued the question of jurisdiction and argued that no should be given, and on that point they lost."
I make the point that when you turn up at a leave hearing you have to deliver a knock-out blow. You are saying, for the purposes of that hearing, that there is no arguable point. For most of the points that brought us here the respondent lost. There were a couple of grounds where permission was not granted. The majority of the points we were successful on. In any event, I go back to the Practice Direction. It makes it clear that the general position is that there should be no order as to costs. That does not distinguish between whether you succeed or not. There is nothing suggested in the present case -- if it is, I would ask leave to reply -- by either respondent that there is anything exceptional that would justify a departure from the Practice Direction.
MR JUSTICE RICHARDS: You refer specifically to the costs of the permission hearing, not, for example, the costs of the acknowledgement of service.
MR JONES: Insofar as the costs of acknowledgement of service are concerned, you are aware of Collins J' decision in Leach.
MR JUSTICE RICHARDS: Insofar as you are distinguishing between the two, you say it is a hearing that they did not need to attend?
MR JONES: I do distinguish that point. I distinguish between the acknowledgement of service, the hearing and the preparation of the hearing obviously.
MR JUSTICE RICHARDS: The costs of the hearing would include the (inaudible).
MR JONES: It does not matter if Leach was in issue. I would make submissions as to why you should not follow Collins J. It is not in issue here. Having lost at the last hearing, I accept that the acknowledgement of service would form costs against me. That deals with the point on leave.
I now deal with my learned friend's arguments in respect of the interested party. I think I can deal with those shortly. I have handed up Bolton and the decision of the Court of Appeal in Berkeley. It may be convenient just to go to the Court of Appeal decision in Berkeley. It sets out the headnote in Bolton. He asserted that it was in accordance with Bolton. He did not take your Lordship to the principles. It is clear, if your Lordship goes to page 6 of the transcript of the Court of Appeal in Berkeley -- this is Nourse LJ. He turns to the costs of Fulham Football Club. It had been their case that they had a particular separate interest because the future of the football club depended on the permission being granted. They indicated a number of reasons, as we can see from paragraph F, as to why they had a separate interest that required representation. Fulham were represented by counsel and submitted a series of affidavits in support of their view that the future of the club depended on it. Mr Hicks made a submission -- this is page 8. Mr Hicks makes the point that the club, having been thoroughly involved, were able to assist the judge, because obviously counsel for the Secretary of State would not have been at the public inquiry. It was handy to have Mr Hicks there who had been. I draw a distinction here. There is no question of the involvement of the interested party assisting in that way. We are dealing with a situation where North Yorkshire were able to deal with any matter that arose. He made various points about the environmental assessment. He raises the point that he had raised a separate interest and a point about whether it had been an urban development project. Nourse LJ deals with the position. It is whether the interested party had demonstrated a separate interest on which they were entitled to be represented. My learned friend has not demonstrated that.
Insofar as his witness statement is concerned, insofar as the response to anything the claimants put in, the claimants were responding to witness statements that had been put in by the interested party, which were the type of witness statements that do not go to the issues but to all types of prejudice that might arise. It goes to your Lordship's discretion, if you were minded to exercise it that way. Nevertheless, it was responding to that. It was not a separate issue and, in essence, the latest witness statement was responding to a witness statement that we felt we had to respond to in order to cover the points raised by the interested party. It does not come within the Bolton principles.
We had notice of this intention for the first time by fax today. We only learned of the substance of your Lordship's decision yesterday. Insofar as your discretion is concerned, if this point is taken, we would have expected greater notice. The amount charged for relatively little work seems high. The interested party could have given greater notice, since it must have had the possibility that we might have been less than successful in mind. It does not come within Bolton. Insofar as it responds to the claimants' statements, we were responding to stuff put in.
I turn to the position of North Yorkshire. It is not quite the position that obviously one always knows when one is commenting on your judgment. Your Lordship knows better than I as to what your judgment says. It is not quite as my learned friend puts it. Your Lordship found, first of all, a clear failure to comply with regulation 21(1)(c). That was also a continuing failure to comply. There is a point that is made by North Yorkshire, that one should take a different approach to their costs as to when they received the substituted grounds and then took steps to put as an alternative a witness statement that would seek to address the failure to comply with regulation 21(1)(c). That is the approach that your Lordship ultimately has adopted in making a mandatory order.
Insofar as costs are concerned, it is important to note this. The Council never accepted that that was an obligation incumbent upon it. Therefore, the distinction in time periods as to when and where they received our substituted grounds does not in the end make a difference so as to entitle them to their costs, because the Council did not say: "Having received our substituted grounds, we now acknowledge we were in breach of our duty." The point is that the Council were found to be in breach of their own duties under the regulation. It may be that we only pointed it out to them a bit later, but that does not make any difference insofar as costs are concerned, because the Council argued to your Lordship that there was no requirement for them to put the matter right. Your Lordship will recall Mr Straker making submissions on that. It is a different position to where a local authority is in breach of a duty. The claimants point it out. The local authority says: "Yes, we did not recognise it; we are putting the matter right", and the claimants press on regardless. That goes to the discretion as to costs. The local authority maintained throughout that it had not acted in breach of duty. Your Lordship has found that there was a failure to comply, that there was a continuing failure to comply, notwithstanding the offer made not to grant a remedy in the form of a mandatory order. The claim form contains an unusual provision: "We seek such other order as the court considers it fit to make." It is not necessary for us to have amended our pleadings.
Insofar as the breach of regulation 21(1)(c) is concerned, your Lordship indicated that the resulting situation in paragraph 53 is unsatisfactory. Your Lordship indicated that the members had not been advised about their duty. There had been no agreement at the meetings as to the reasons. It appears to have been overlooked by the officer. It is very unsatisfactory. Insofar as that is concerned, a local authority should not be rewarded in costs for having breach the regulations.
Insofar as the position in respect of the decision and the regulation 32 point is concerned, again, although we were unsuccessful, there is, as your Lordship indicated, some unfortunate consequences in the way in which the Council proceeded with the matter, even though, when one looks at the decision notice and the note that is attached to it, albeit there is no requirement to express it in a particular form, again it was less than best practice which had been followed by the local authority. At the end of the case, your Lordship expressed the view that you could understand why the claimants had brought the proceedings. This is uncharted territory to an extent, and here is a situation where the local authority has had to rely on a less than direct means of seeking compliance. It is not a practice your Lordship would have suggested to this local authority as good practice to follow, either in respect of their approach to regulation 3(2) or in respect of regulation 21(1)(c).
I turn to the question of the fairest position. Given that we have won something and North Yorkshire have lost something, there should be no order as to costs at all, but in particular between ourselves and North Yorkshire. Your Lordship will see in the Court of Appeal decision in the Berkeley case that another situation arose where the Court of Appeal at that stage found that the Secretary of State -- I know your Lordship is no doubt familiar with Berkeley. It is an important case. You will appreciate that at the Court of Appeal instance Lady Berkeley was unsuccessful on the exercise of judicial discretion. The court had held that the Secretary of State had failed to address the matter whether an environmental impact assessment was required. As a matter of discretion it would not have made any difference anyway. No remedy. Lady Berkeley had no remedy. We have obtained a remedy and we must have won something in order to obtain a remedy.
Insofar as the Court of Appeal's approach in Berkeley is relevant, page 5, when dealing with the Secretary of State's costs, I look at paragraph D:
"It is appropriate for the court, which has its own interest in preserving the high standards of civil administration which we expect in this country, to mark its disapproval of that breach by depriving the Secretary of State of a proportion of his costs, although only in the court below. I would, therefore, in substitution for the order made by the judge, order Lady Berkeley to pay two-thirds of the Secretary of State's costs below."
Therefore, one third of the Secretary of State's costs were removed. That was in the context of Lady Berkeley being unsuccessful and obtaining no relief. What I draw from the Court of Appeal's judgment, however, is the principle that a local authority that has acted in breach of its duty -- I would add, in breach of good practice -- should not be rewarded with having its costs. We are not seeking -- I make it clear -- as we might have done before your Lordship, a partial award of our costs in succeeding on a point before you, on a point contested by Mr Straker that there was a breach of the regulation. The appropriate submission is not to reward the local authority by awarding it its costs.
I turn to the Secretary of State's costs which deal principally with the issue of councillor's interests and the involvement of the Secretary of State. Mr Sales argued on the point of construction and on the point of validity. It would be wrong, if your Lordship were to award any costs, that both North Yorkshire and the Secretary of State should get their costs for arguing the point of construction and validity of the regulations. If you were to make a costs order in respect of that, only the Secretary of State should be entitled to his costs in dealing with the construction point and the validity point. My submission is that the Secretary of State's costs should lie where they fall. I agree with Mr Keen that this case adds a point of wider general public importance. The Code of Conduct required examination by the court in an effort to seek clarity. It is not abundantly clear, as your Lordship indicated, on a point on which we succeeded in the argument on construction, where you rejected Mr Sales' submission that Mr Richardson, if he was purely looking after his own interests, would have been precluded. The regulations are far from clear. It is of general public importance that they be clarified. Mr Keen indicated as much. That is a reason why you should not order the individual claimants in this case to pay the Secretary of State's costs. I also rely on the fact that, insofar as the argument on the individual protection of Councillor Richardson's own home and interests, you were not persuaded by the Secretary of State on the construction of the regulation, albeit your Lordship nevertheless, insofar as that was a matter that the Government fought and lost on, it was a substantive matter, and taking a rough approach to the matter, points were won and points were lost on our side. The appropriate order is no order as to costs; as an alternative, no order in respect of the leave hearing.
Insofar as North Yorkshire is concerned, they certainly should not have their costs. If there are to be costs on the issue of councillors' interests, it should only be the Treasury's cost. I think I have dealt with the various permutations.
MR JUSTICE RICHARDS: Does anybody want to come back?
MR GREATOREX: The date I gave your Lordship was wrong. It should have been the 13th February. That is the date. The second point is to remind your Lordship that the bulk of Mr Straker's submissions (inaudible). There was one point in the skeleton read out by Mr Straker. I am sure your Lordship will recall the bulk of Mr Straker's submissions.
MR JONES: There is one point I omitted. I omitted to deal with the request, notwithstanding that this does not come within the Practice Direction, that your Lordship can be invited summarily to assess North Yorkshire's costs.
MR JUSTICE RICHARDS: I do not think it right to engage in a summary assessment.
MR AUBURN: Bolton has been raised. They were seeking the whole of their costs. We are not seeking that. We are only claiming the cost of one witness statement. That relates to matters that no other party could have dealt with. The short point is that the witness statement did go to the substance. It did go to a separate issue.
MR JUSTICE RICHARDS: In relation to costs, I guide myself by reference to the principles laid down in Bolton by the House of Lords, and what I perceive to be the application of those principles in the Court of Appeal in Berkeley. So far as concerns the Council, it seems to me that the claimants have had a partial success on the regulation 21(1) issue, but on the main balance of the case it is the Council that has succeeded in resisting the claimants' case on all the other issues, indeed, on the main thrust of the relief sought on the regulation 21(1) issues.
Looking at the matter overall, I am satisfied that it is right for the claimants to pay some part of the Council's costs and that the suggestion that there should be no order as to costs at all would not meet the justice of the case. It would not adequately reflect the extent of the Council's overall victory. I must make allowance for the issue on which the claimants won or won to the limited extent indicated in my judgment. As regards that, I do not think it right to accede to the submission on behalf of the Council that I should disallow a week or two's costs. That would not adequately reflect the extent of the Council's initial error in relation to regulation 21(1) or of the claimants' ultimate limited victory on the point. In my view, the right course must be to allow the Council a proportion of its costs and, subject to the question of the permission hearing to which I will come, I take the view that the fair proportion is 50% of its costs.
As to the permission hearing, I accept the submissions of Mr Jones that the costs of and relating to the permission hearing should be excluded. Although permission was refused on some grounds, the case did proceed to a substantive hearing. Had there been an application by the Council for the costs of the permission hearing, in my judgment it would have failed. In any event, given that I am exercising my discretion now, looking at the case as a whole, I take it that it would not be right for the Council to recover the costs of the permission hearing. I order that they pay 50% of the Council's costs.
Insofar as concerns the Secretary of State, I am satisfied that he had a separate interest requiring representation before the court and a separate issue to be addressed by him. He was joined by the claimants as a party because the claimants were advancing issues as to the construction and lawfulness of the Model Code promulgated by the Secretary of State and were seeking relief as against the Secretary of State. The Secretary of State has succeeded on all but one sub-argument. In my view, the Secretary of State is entitled to an order for his costs. I am not impressed by the suggestion that I should exercise my discretion against making such an order on the ground that the issues are of general public importance, albeit they have a certain importance. I will order that the claimants repay the Secretary of State's costs of the judicial review claim, again, however, subject to the exception of the costs of and relating to the permission hearing for the reasons already given.
As regards the interested party, there was no separate interest requiring representation or separate issue to be addressed. That is effectively conceded by the fact that there is no general application for costs by the interested party. As regards the specific and limited application for the cost of one particular witness statement, it seems to me that the matters addressed in that witness statement arose ultimately out of points raised by the interested party. They were not matters that played any substantial part in the hearing or in my judgment. Looking at the matter overall, I do not think that it would be right, even to the limited extent sought, for the claimants to be required to pay a third set of costs. As regards the costs of the interested party, there will be no order.
MR JONES: There is an application for permission to appeal. I hope it is of assistance.
MR JUSTICE RICHARDS: You are seeking permission to appeal on both limbs, real prospect of success and general importance?
MR GREATOREX: It has to be some other compelling reason why the appeal should be heard. I am not sure what the claimants are -- --
MR JUSTICE RICHARDS: These are issues of wide general importance.
MR GREATOREX: That does not make it a compelling reason to hear it. The Court of Appeal can decide for itself if it wishes to hear it. On the first limb, reasonable prospect of success, the fact that it is important does not alter the prospect of success on the legal merits of this case. There is no reason why your Lordship's judgment should not stand as authority resolving the issues raised by the claimants in this case. My reading of your Lordship's judgment does not detect any doubt in your judgment. Your Lordship will remember better than I about that point.
MR JUSTICE RICHARDS: I did say at the end of the judgment that it was not without its areas of difficulty.
MR GREATOREX: Yes. It is difficult. The area which your Lordship appears to have found the most interesting is the point which did arise for decision, the appearance of a councillor as a private citizen. It is not of enormous relevance in the appeal. My submission is that the Court of Appeal would not take kindly to being asked to resolve academic questions. The first limb is the only ground on which permission could be granted. The fact is that the first limb in this case does not raise any important point at all. As I have said, that does not improve or indeed diminish the prospect of an appeal succeeding. Your Lordship's judgment is clear. It answers the question.
MR KEEN: Your Lordship has come to a clear conclusion on the lawfulness of and the proper construction of the Code, in particular paragraph 12, which was clearly central to matters requiring members of the council with a prejudicial interest to withdraw. You have found that to be a proportionate and rational rule. In that sense, I say that the matter would not have real prospect of success before the Court of Appeal. There are no other compelling reasons or interest which justify this being given permission for a further appeal.
MR AUBURN: I would adopt my learned friend's submissions. There is a real issue of detriment to my client if leave is granted. It is concerned to keep its business running. There is the continued uncertainty in relation to its business, the effect on its business. They have had one employee leave because of the uncertainty. My client is a one site company which is dependent on income from this site to maintain the 23 jobs. All that is in evidence before you. It is right that your Lordship should take those matters into account.
MR JUSTICE RICHARDS: What is said is that further delay is damaging. It is a fairly clear conclusion that has been reached on the various points and such importance is not sufficient to mount a compelling reason for an appeal.
MR JONES: First of all, it is now being asserted that it is not of such importance as to warrant the grant of appeal.
MR JUSTICE RICHARDS: You would say that the issues raised concerning the working of local democracy are important and would merit examination by an appellate court?
MR JONES: That is right. Your Lordship would have seen what happened in the Armstrong Brown(?) case. There was an interesting history to that.
MR JUSTICE RICHARDS: You need not go into it.
MR JONES: Closely bound up with that are the other limbs of the argument relating to the environmental impact, points of importance. As far as I am aware, this is the first time that the courts in this country have been called upon to distinguish between those requirements of the regulation which are seen as secondary and procedural and those regarded as fundamental. This is the first time that has arisen. That is an important point.
MR JUSTICE RICHARDS: One needs to know with greater certainty the limits of the principles laid down by Lord Hoffmann.
MR JONES: I have set out grounds of appeal. I have typed them out.
MR JUSTICE RICHARDS: I am sure that would be distressing. I am going to grant permission to appeal. I do so on the basis that the case raises issues of some importance that in my judgment provide a compelling reason why the matter should be considered by the Court of Appeal. I do not need to rule on prospects of success.