Elliott & Ors v Secretary of State for Communities and Local Government [2013] EWCA Civ 703

Case No C1/2012/1670[2013] EWCA Civ 703
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE KEITH)
Venue Royal Courts of JusticeDate Tuesday, 23 April 2013
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE LAWS
LORD JUSTICE LEWISON
LORD JUSTICE McCOMBE
Between
ELLIOTT & OTHERSAppellantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Robert McCracken QC and Anabel Graham Paul (instructed by Richard Buxton) appeared for First AppellantRupert Warren QC (instructed by Treasury Solicitors) appeared for RespondentDavid Elvin QC (instructed by Herbet Smith Freehills LLP) appeared for London Development Agency
J U D G M E N T
[1]This is an appeal with permission granted by my Lord, Lewison LJ, on 31 October 2012 against the judgment of Keith J given in the Administrative Court on 12 June 2012 ([2012] EWHC 1574 (Admin)), when he dismissed the appellant's challenge under section 288 of the Town and Country Planning Act 1990 directed to the validity of a planning permission granted by the Secretary of State on 13 December 2010. The planning permission was for a scheme of redevelopment of the Crystal Palace park. The appellants are members of the Crystal Palace community association which opposed the scheme.[2]As Keith J stated at the outset of his judgment, Crystal Palace Park is listed in English Heritage’s Register of Historic Parks and Gardens at Grade II*, but its condition is deteriorating. The London Development Agency, whose functions are now conducted by the Greater London Authority (whom I shall refer for convenience as the LDA), proposed a regeneration scheme. It became known as "the master plan". On 1 November 2007 the LDA applied to the London Borough of Bromley for planning permission to implement the proposals. The Secretary of State called in the application. There was a lengthy hearing before an Inspector, who submitted his report to the Secretary of State on 26 April 2010. The Secretary of State took a different view from his Inspector on an issue concerning planning conditions, but ultimately granted planning permission for the master plan in what I may call a modified form. The issue relating to conditions was canvassed as a ground of challenge before Keith J, who rejected it at paragraphs 14 and following of his judgment. The appellants do not have permission to pursue it here.[3]There were in fact five grounds of challenge at first instance, for which the appellants have permission to argue two in this court. I will refer to them as grounds 2 and 3 as they have been numbered in counsel's written arguments. I turn at once to ground 2.[4]This turns on the application of the provisions relating to outline planning permission in the Town and Country Planning (General Development) Procedure Order 1995 ("the GDPO"). The GDPO was superseded by the Town and Country Planning Development (Management Procedure) (England) Order 2010 between the submission of the Inspector's report and the Secretary of State's decision. But the language is identical, and I shall refer to the GDPO as did the judge.[5]An outline planning permission may be subject to a condition specifying reserved matters for the authorities’ subsequent approval; but the expression "outline planning permission" has a limited meaning. Article 1(2) of the GDPO defines it as "a planning permission for the erection of a building which is granted subject to a condition requiring the subsequent approval of the local planning authority with respect to one or more reserved matters". I should also set out the definition of "building" in Article 1(2):
"Any structure or erection and any part of a building as defined in this article but does not include plant or machinery or any structure in the nature of plant or machinery"
[6]The application form on which the LDA's application was set out is, I apprehend, a pro forma. It has a section headed "type of application", with five proposed tick box answers. Two relevant boxes are for "full" and "outline". In this case the "outline" box is ticked, but the form has a further box under a subsequent paragraph, which has been filled in with the words "full details provided for national sports centre and surrounding area". Still later in the form it is made clear that there is a change of use application, or applications, intended to be included.[7]All parties acknowledge, or now acknowledge, that the application was what may be called a hybrid application, although the pro forma does not in its terms accommodate such a species of application. The applicant's essential case on this part of the appeal is that that part of the application other than the national sports centre and surrounding area, the outline part, included matters which fell outside the definition of "building" within Article 1(2) of the GDPO. Alternatively, they were matters not capable of constituting "reserved matters" in relation to such buildings as were the subject of the outline application because they did not fairly and reasonably relate to the development applied for: Newbury District Council v the Secretary of State (1981) AC 578, or were not necessary in the sense contemplated by the Secretary of State's Circular 11/95.[8]Mr McCracken QC for the appellants this morning described the grant of planning permission in these circumstances as a "foundational jurisdictional error". The features of the LD's application are described specifically by

the judge thus at paragraph 28:

"(a) an application for the change of use of part of the camping and caravan site to public open space, (b) an application for the change of use of a former museum in the park at the park ranger's facility, (c) an application for the removal of existing hard surfaces and the establishment of new car parking facilities (which the claimants described as ‘major engineering operations’), (d) an application for landscaping (which the claimants describe as radical and having been sought for its own sake, and much of which, they contended, amounted to engineering operations), and (e) an application for what was described as ‘alterations to ground levels with new pedestrian paths’ (which the claimants also said was sought for its own sake and amounted to engineering operations)"
All these matters, say the appellants, are not within the meaning of "building" in the GDPO.

The judge summarised the argument of the Secretary of State and the LDA as follows:

"31. The schedule attached to the application form described the proposals for which planning permission was sought as a ‘[c]omprehensive phased scheme for landscaping and improvement of [the] park’. It then set out the various things which the scheme comprised. The first was ‘the demolition of and alterations to existing structures and buildings’.” The outline planning permission which the LDA claimed it was applying for was the erection of those buildings, and when the application form sought outline planning permission for things other than the erection of these buildings, the things for which outline planning permission was being sought all related to "reserved matters" for which the subsequent approval of the local planning authority was being sought."
[10]The learned judge in effect accepted this argument (see paragraphs 32 to 39). He dealt separately with the individual matters asserted by the appellants to lie outside the proper scope of an outline application.[11]In my judgment, the key to this part of the case is to recognise the practical force of the fact that the master plan proposals comprised a comprehensive scheme which certainly included new buildings, and anything that was not a building was anyway integral to the whole scheme. In my judgment, the statutory provisions should and can be read so as to accommodate schemes like this and allow for them to contain outline elements with provision for the later approval of reserved matters. The wide definition of "building" militates in favour of this conclusion; so does the scope of reserved matters, also defined in Article 1(2). They are access, appearance, landscaping, layout and scale. The definition of landscaping, as Mr Elvin for the LDA submitted this morning, is particularly wide. The strategic nature of a scheme of this kind must, in my judgment, colour what kind of development may properly be considered to be a reserved matter. The wide definition of "building" in Article 1(2) ("any structure or erection") is I think particularly important. Earthworks and other aspects of a scheme like this may, certainly in some circumstances, qualify. This approach is by no means contradicted by the provision of main legislation addressing outlying permission (section 92 of the Town and Country Planning Act 1990). I note in particular section 92(2): "Subject to the following provisions of this section, where outline planning permission is granted for development consisting in or including the carrying out of building or other operations, it shall be granted subject to conditions", and then the type of conditions contemplated are set out. It is of course right, as section 92(1) shows, that “outline planning permission” means planning permission granted in accordance with the provisions of a development order. But the terms of section 92(2) suggest that it is not the policy of the primary legislature to limit the use of outline applications in the specific and restricted manner that is, I think, here contended for.[12]In reasoning which Keith J thought well supportable, the Inspector, under the heading "Validity of the outline application", said this:
"1309. The parties agree that the definition [that is to say of outline planning permission] excludes the grant of planning permission for [change of use] or engineering operations on their own, for which fully detailed planning permission must be sought. This is what happens in practice. In any event, it would generally be meaningless to reserve matters and require subsequent approval in relation to these forms of development when not associated with building work. 1310. However, it often happens in practice that [change of use] and engineering operations are granted outline planning permission when applied for as part of proposals for buildings, as in this case. The engineering operations are sometimes contained within landscaping proposals, whether or not as a reserved matter, whose definition embraces banks, terraces or other earthworks. The LDA gives an example of a substantial project involving COU [change of use] granted outline planning permission."
[13]The Inspector refers back to paragraph 281 of his report. There appears to be nothing within the definition of "outline planning permission" to prohibit this. "1311. The CBCA [the community association] point out that landscaping appears as a separate item within the description of the development, but that it does not fall within the category of development for which outline planning permission may be sought. For the reasons noted above, it seems to me that the definition of outline planning permission is not exclusive. Landscaping clearly can form part of an outline application, alongside a building, either fully detailed or as a reserved matter. Further, I see no evidence to suggest that, as the CPCA maintain, landscaping should be necessary to the building for it to be admissible in an outline application. To insist on this would be to exclude many delightful but unnecessary landscaped gardens from approval under outline permission."[14]This reasoning needs to be looked at with some care. However, the matters which appellant say fell outside the proper scope of an outline application in this case may, in my judgment, reasonably and properly be regarded either as buildings within the meaning of the GDPO, whose permission was applied for, or as reserved matters, saves perhaps for the change of use applications which may be regarded simply as a freestanding element within the hybrid application. On that footing the application was properly constituted and, other things being equal, the Secretary of State was entitled to grant planning permission. It cannot be right that large comprehensive schemes are required either to be fully detailed or presented in effect as a string of separate applications outlined strictly for buildings only, full applications for the rest. That would be an impediment to good administration in this field.[15]In my judgment, the false premise of Mr McCracken's case is the proposition that an outline application must always have as its primary and overriding purpose the construction of a building or buildings. The GDPO does not say that. A scheme which involves the construction of buildings but has a broader planning purpose may be applied for in outline form, and in such case there may be reserved matters which are not merely subsidiary details relating strictly to buildings themselves. On that footing, the Newbury case, and the relevant test of necessity in the Secretary of State's circular relating to reserved matters may properly be met. It all depends on the context. They are, in my judgment, met here.[16]I note further that at 13.13 the Inspector says this:
"For these reasons, I am not persuaded that the outline element of the application is invalid. In any event, the information supplied with the application is very full, and it would be open to the Secretary of State to treat other elements of the proposals as an application for full planning permission, besides the NSC [the National Sport Centre] which is already identified. In doing so, if necessary, he could request further information before making a decision, or attach conditions to a decision requiring the submission and approval of further details.” Mr McCracken is at pains to point out, perfectly rightly, that the Secretary of State did not adopt this paragraph, but the reference there made by the Inspector to the wealth of available material was simply factual and not, as I understand it, contradicted. This in my judgment is of some importance, with respect, given the concern expressed by Lewison LJ in granting permission on this ground, when he said: "
In my judgment there is a real prospect of success on that ground, not least because the effect of the decision is that the Community Group have not had the opportunity of challenging the principles behind the landscaping rather than the details, which according to the conditions must follow the Masterplan.” It is of course elementary, not to say inherent in the statutory scheme, that interested persons and certainly objectors must have proper opportunities to make their case in relation to planning applications. However, despite Mr McCracken's submission that his clients were in effect deprived of the opportunity of making representations on various matters, it seems to me that, given the reach of the information that was available at the inquiry and referred to by the Secretary of State, as indicated in brief by paragraph 1313, the argument lacks force. The parameter plans to which Mr Elvin referred in this context, which are required by the demands of the Environmental Impact Assessment and whose compliance was a condition of the development, gave important information to those participating in the inquiry process, and the details are discussed by the Inspector. An example is at paragraph 1111 of the Inspector's report. There is therefore nothing in this aspect of Mr McCracken's submissions to contradict the approach I would take in principle to the use of an outline application in this case.[17]I should add that Mr McCracken also criticises the judge for describing the development (paragraph 32 of his judgment) as "an application for an outline permission for the erection of a number of buildings, with a large number of reserved matters...". The Secretary of State described it, as Mr McCracken points out (see final decision letter paragraph 11), as "a comprehensive phased scheme for landscaping and improvement of the park comprising the demolition of and alterations to existing buildings and structure". Mr McCracken's argument is that the judge had no business taking over for himself the task of categorising the application in the way he did, for it is to exercise in effect a planning judgment and that is not for the section 288 court. But the judge, as I see it, was not finding facts or exercising planning judgment here. He was simply giving a summary description of the development for the purpose of applying the provisions concerning outline applications.[18]For all these reasons I conclude that ground 2 should fail. For my part, I would dismiss the appeal so far as it relates to that.[19]I turn to ground 3. This concerns the Habitats Directive. There was evidence before the Inspector that foraging bats commuted across the park and that the loss of trees in the vicinity of part of the residential site would have an adverse effect on their flight line and foraging habits. The Inspector noted that the environmental statement in the case concluded that the development would have only a minor adverse impact on the bats' breeding and foraging habits when steps had been taken to mitigate any harm caused. The Inspector concluded that planning permission should be granted despite such impact as there might be on the bats. He said at paragraph 1201:
"The alternative would be to do nothing substantial to the Park, resulting in loss of the minor beneficial effect to bats of the completed scheme. This would be unsatisfactory, not only because of the loss to biodiversity, but also because the substantial benefits of the Masterplan would be lost in other areas, including regeneration, open space, heritage, sport and education. The Secretary of State may consider that in total these aspects amount to Imperative Reasons of Overriding Public Importance (IROPI)."
[20]The reference to IROPI is in fact a reference to an expression used in the Habitats Directive 92/43/EEC, which permits development having adverse implications for the habitats of protective species "for imperative reasons of overriding public interest" (see Article 16(1) of the Directive). The Secretary of State did not expressly refer to IROPI; and that is a major part of Mr McCracken's complaint, although it is right to say that in the interim decision letter of 21 July 2010 the Secretary of State stated that he had "particular regard to the impact on bats", which he was aware were a species protected by the Habitats Directive. He stated in that decision letter:
"Overall, like the Inspector, and for the reasons given by him (IR1192-1209), the Secretary of State is satisfied that the proposals would enhance biodiversity associated with the park over the long term and that, over the construction period, subject to the mitigation measures outlined, the effect would be acceptable."
The Secretary of State did not depart from that view in his final decision letter.[21]The judge considered (paragraph 50) that the Secretary of State was, in the circumstances, obliged to fulfil regulation 9(5) of the Conservation of Habitats and Species Regulations 2010, which provides:
"(5) Without prejudice to the preceding provisions, a competent authority, in exercising any of their functions, must have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions."
[22]It is not in dispute that the Secretary of State is obliged by Regulation 9(5), but Mr McCracken seeks to emphasise that he is also the appropriate authority for the purpose of Regulation 9(1), which provides:
"The appropriate authority and the nature conservation bodies must exercise their functions under the enactments relating to nature conservation so as to secure compliance with the requirements of the Habitats Directive."
[23]The extent of the Regulation 9(5) duty was considered by the Supreme Court in R (Morge) v Hampshire CC [2011] 1 WLR 268 in relation to a predecessor regulation. I need only cite paragraph 30 in the judgment of Lord Brown: "Where, as here, Natural England expressed themselves satisfied that a proposed development will be compliant with Article 12, the planning authority are to my mind entitled to presume that is so.”[24]The point made by the respondents is that in this case, as is clear from the facts, Natural England had not objected to the proposals. The Inspector had noted as much. The judge said this: "...the upshot was that when the Secretary of State was obliged to have regard to the requirements of the Habitats Directive to the extent that they may be affected by his planning functions under the 1990 Act, he was entitled to have regard to Natural England's views about the impact of the proposals on the foraging and roosting habits of bats, and to grant planning permission unless it was likely that(a) a licence under reg.53 would be required and(b) when it was applied for, it would be refused.”[25]Morge is different from this case because here the Secretary of State is himself the licensing authority when the point is reached where any licence is applied for to introduce matters of substance constituting IROPI. However the respondents submit that the judge was right to draw from Morge the observations which I have just set out.[26]Mr McCracken disagrees. He has submitted that the law of the European Union shows that this formulation by the judge cannot be right, because it is in essence not consistent with the duty of the Member State (Article 4(3) of the TEU) not to impede obtainment of the EU's objectives. He refers in particular to paragraph 50 of the judgment in Inter-Environnement Wallonie ASBL v Régionwallone [1998] 1 CMLR 1057.[27]However, in my judgment, this is not in the real world. The judge's formulation related to the facts of this case, in which the view had been taken in the environmental assessment that the impact on the bats would be minor and is not anything that can constitute an infringement of or impediment to the attainment of the EU's objectives.[28]Mr McCracken has submitted that the Secretary of State simply did not have regard to the terms of the Habitats Directive and therefore did not fulfil his obligation under Regulation 9(5). The judge disagreed, and so do I. The judge said this at paragraph 54. "That brings me to the question whether the Secretary of State addressed the issue whether there were imperative reasons of overriding public interest for permitting the development, because he would have had to consider that to comply with his duty under reg.9(5) of the Habitats Directive. Although he did not refer to ‘IROPI’ as the inspector had done, he would have seen the inspector's reference to ‘IROPI’, and it is inconceivable that he did not know what that was a reference to, or that he thought it could be ignored -- especially as the inspector had said in terms that ‘IROPI’ was something which the Secretary of State had to consider. It would have been better if the Secretary of State had spelt out that he had considered issue, but I have concluded that he must have done so. On that basis, there is no substance in the contention that he failed to give sufficient reasons for his conclusion on IROPI. The reasons which he gave in his letter of 21 July 2010 were sufficient.”[29]There is a final point on the Directive. Mr McCracken submitted that the need for or the benefit of raising funds out of the residential development that was proposed could not amount to IROPI. He cited Solvay v Region Wallonne[2012] 2 CMLR 19 in the Court of Justice of the European Union, where the court elaborated a test of “exceptional circumstances” (see paragraph 76 of the judgment). But the facts there were very different. The project in that case that was in question conferred only private benefit (see, for example, paragraph 71).[30]I accept of course, as Mr McCracken submitted, that the concept of IROPI must be interpreted strictly. I accept his emphatic submission that the law of Europe pays special attention to environmental concerns and gives them effect by a number of measures and principles. However on this point it is salutory to note what

the judge said at paragraph 56:

“The court went on to say at [76] and [77] that ‘[w]orks intended for the location or expansion of an undertaking [will] only in exceptional circumstances’ satisfy the condition that the development ‘must be of such importance that it can be weighed up against [the] directive's objective of the conservation of natural habitats …’. But you cannot get from that that if a particular feature of a set of proposals was included only because it would provide some of the funding for the development as a whole, and if it happened to be that aspect of the development which would have an impact on the conservation of natural habitats, there cannot have been imperative reasons of overriding public interest for permitting the development.”
[31]I agree. In any event I do not accept that what may be called “the fundraising element” here is in some way severable from the whole. It was a means to the achievement of a public interest end, namely the very interest described by the Inspector at a paragraph 1201 which I have read. I should add, with respect to Mr McCracken, that in my judgment there is nothing here that could remotely justify a reference for a preliminary ruling to the Court of Justice and I have not in the particular circumstances, with respect, found the citation of authority such as Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij [2005] Env LR 14 of any substantial assistance. Nor is there any failure of reasoning here such as to land a successful appeal.[32]In all the circumstances it does not seem to me there is any force in the Habitats Directive argument. I would dismiss the appeal on this ground also.

Lord Justice Lewison:

[33]I agree.[34]I also agree.

Order

Appeal dismissed