Burkett, R (on the application of) v Hammersmith and Fulham [2003] EWHC 1031 (Admin)

Case No CO/1213/02

Neutral Citation No: [2003] EWHC 1031(Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Strand,

London, WC2A 2LL

Date Thursday 15 May 2003

Before

THE HONOURABLE MR JUSTICE NEWMAN

Between

The Queen on the application of Sonia BurkettClaimant

London Borough of Hammersmith and FulhamDefendant

St George West London Limited Interested Party

(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)

Robert McCracken, Saira Kabir Sheikh (instructed by Richard Buxton) for Claimant

Timothy Straker QC, Andrew Tabachnik (instructed by London Borough of Hammersmith and Fulham) for Defendant

Robin Purchas QC, Joanna Clayton (instructed by Masons Solicitors ) for Interested Party

Judgment

[1]This is a challenge by way of judicial review to the grant of outline planning permission to St George West London Limited (“the developer”) on 12 May 2000. On the 23 May 2002 the House of Lords allowed the claimant’s appeal from a decision of the Court of Appeal, which had held the application for permission to apply for judicial review to challenge the grant, to be out of time. The House of Lords remitted the matter for decision by the High Court on the substantive issues. This is the judgment of the court on the substantive issues.

[2]The grant of outline planning permission was in connection with a large development at Imperial Wharf, Fulham, London. The site comprises some 32 acres. It had formerly been used by British Gas for operational purposes, and parts of the site had been let out for industrial use. The developer has been joined as an interested party. It applied to the local authority for planning permission for:

“A mixed use development comprising 1,803 residential units (1,303 private flats and 500 affordable dwellings in the form of flats and houses), an hotel, Class A1 retail, Class A3 restaurant, Class D community uses, health and fitness club, Class B1 offices, public open space and riverside walk together with associated car parking, landscaping and access road.”

It is one of the largest current development sites in London. The application for outline planning permission proposed that design, external appearance and landscaping were to be reserved for later determination.

[3]The challenge is grounded in complaints in connection with the inadequacy of the environmental statement (“the statement”) submitted by the developer. The application for outline planning permission was lodged on 26 February 1998 and on 16 March 1998 the London Borough of Hammersmith and Fulham, the local planning authority, (“LPA”) requested an environmental statement. It was submitted in May 1998. It comprised a non-technical summary and technical reports as follows:- a) Planning Statement prepared by The Barton Willmore Planning Partnership. b) Design Statement prepared by Broadway Malyan, Architects (TR.2). c) Transport Study prepared by Alan Boreham Associates, Consulting Engineers (TR.3). d) Report on Air Quality prepared by Alan Boreham Associates (TR.4). e) Archaeological Study prepared by CgMs (TR.5). f) Ecological Appraisal prepared by SGS Environment (TR.6). g) Report on Trees prepared by Simon Jones Associates (TR.7). h) Contamination Statement prepared by John Savage Associates (TR.8). i) Landscape and Visual Appraisal prepared by The Barton Willmore Planning Partnership (TR.9). Further updates were provided by letters dated 12 November 1998, 23 April 1999 and 6 July 1999, these updates took account of revisions to the proposal. These updates were placed on the statutory register in the normal way.

[4]A local planning authority, when dealing with an application for planning permission, “shall have regard to the provisions of the Development Plan so far as material to the application and to any other material considerations” (Section 70(2) of the Town and Country Planning Act 1990). In 1988 formal procedures for environmental assessments were imposed by the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, which regulations transposed the terms of the European Council Directive 85/337/EEC into domestic law. The 1988 Regulations have been superseded, but they governed this application for permission. It will be necessary to consider the legislative purpose and the precise terms of the Regulations and the Directive in order to resolve the issues which have arisen on this challenge. There is no dispute that a local planning authority must take the environmental information into consideration (see Regulation 4(2)) and it is common ground that the environmental information includes: 1. The environmental statement, which is required to be submitted under the regulations by the developer. 2. Any representations made by anybody required by the regulations to be invited to make representations or to be consulted; 3. Any representations made by any other person about the likely environmental effects of the proposed development. Schedule 3 of the Regulations specifies the information which must be contained within the statement. It also identifies material which may be contained within the statement. The Regulations provide (regulation 21) a local authority with the power to require the developer to provide further information. The arguments in this case raise questions in connection with the true meaning and effect of the requirements in Schedule 3, the extent to which a local planning authority may reserve aspects of the development, which are capable of giving rise to environmental consequences and the flexibility which is available to a developer and local planning authority to consider and incorporate amendments to an application as submitted and supported by an environmental statement, without prejudicing the validity and effect of the latter.

[5]The argument advanced for the claimant was not tightly drawn but I shall endeavour to summarise the four grounds which survive the hearing and remain to be considered. Application was made in the course of the hearing to add ground 4 (to which I shall come) and another ground, ground 5. I refused permission to amend to include ground 5 which Mr McCracken, counsel for the claimant, put forward because he had thought of it overnight and felt duty bound to mention it. He wished to allege that condition 34 of the grant of planning permission was void for uncertainty or otherwise unlawful. I refused permission because, in my judgment, it was far too late in a case where there had been two years to consider what the substantive issues should be, to allow such an amendment. Exceptionally, the claimant’s case has had the advantage of continuous legal scrutiny and attention during the process of the interlocutory appeal to the House of Lords, as well as time for yet further consideration during its remission from the House of Lords to the date of the present hearing. Thoughts which occur overnight, after the commencement of the hearing, often suffer from their spontaneity. The argument was different in character from anything previously raised, would, if allowed, have given rise to the need for an adjournment and lacked merit.

Summary of the Grounds

[6]Ground 1: Because design, landscaping and external appearance were reserved for determination after the grant of planning permission, Schedule 3 paragraphs 1 and 2 of the Regulations have not been satisfied. Siting for stage 3 was reserved and subject to a condition. Further, the design having changed, the statement did not describe the development for which permission was granted, particularly in the vicinity of the claimant’s home. Ground 2: Traffic in connection with stage 3 of the development was reserved by a condition to the planning permission. As a result the LPA were not in a position to carry out a proper assessment at the time required by the Regulations. Further, contamination from the site, including contamination by dust during the progress of the works, was not properly assessed in the statement, and in particular the adverse consequences from contamination upon adjoining residents were not assessed nor provided for by remedial measures. Ground 3: Information supplied as a result of revisions to the original application and or further environmental information should have been given the same publicity as the Regulations required in connection with the original statement. Ground 4: Regulation 4(2) provides:

“The Local Planning Authority or the Secretary of State or Inspector shall not grant planning permission pursuant to an application to which this Regulation applied unless they have first taken the environmental information into consideration and state in their decision that they have done so.”

It has been common ground that according to whether one took the “decision”, as the resolution for the grant of planning permission, or the grant of permission, the LPA had not stated in its “decision” that they had taken the environmental information into consideration. It was also common ground that the material before the court demonstrated that a great deal of environmental information had been taken into consideration prior to the resolution and the grant. It is also obvious that, at all material times, it has been open to the claimant to take the point that the decision lacked the required confirmatory statement. It is also obvious that, at all material times, until the production of the Skeleton Argument in connection with this hearing that the point had not occurred to anyone on behalf of the claimant. Notwithstanding these aspects of the matter I granted permission for the ground to be argued, since it gave rise to a discrete question of law and did not give rise to the need for an adjournment. Accordingly I shall consider the point in due course.

The Legal Framework

[7]Case law in connection with environmental statements, or as they are now called environmental impact assessments, has continued apace over the last few years. In one of the most recent, the Court of Appeal distilled the principles they establish. (See Maureen Smith v Secretary of State for Environment, Transport and the Regions & Others

[2003] EWCA Civ 262

Court of Appeal 5 March 2003. In the course of argument before this court extensive reference was made to each of the cases listed in paragraph 24 of the judgment of Lord Justice Waller. I shall not list them. Between paragraphs 25 and 33 of his judgment, Lord Justice Waller identified the principles as follows: i) Where outline planning consent has been applied for it is at the outline consent stage that the planning authority must have sufficient details of the proposed development, sufficient details of any impact on the environment and sufficient details of any mitigation to enable it to comply with its regulation 4(2) obligation. ii) The obligation under regulation 4(2) is an obligation which must be fulfilled at the stage permission is granted and not at the time reserved issues are considered. iii) A planning authority will have failed to have complied with regulation 4(2) if it attempts to leave over questions which relate to the significance of the impact on the environment and the effectiveness of any mitigation. iv) It is consistent with principle to leave the final details of, for example, a landscaping scheme to be clarified, either in the context of a reserved matter where outline planning consent has been granted or by virtue of a condition where full planning consent has been given. (I would add that, in my judgement, it is also permissible to utilise a Section 106 agreement to secure final details.) v) In a case where a decision is taken by an Inspector it is permissible to leave the assessment of likely impact to a future occasion where the decision will be taken in relation to details by those who have the interest of the environment as one of their objectives, for example a local planning authority.

[8]To the above distillation of principles, which is relevant to the determination of this case, I would add the following principles which, in my judgment, arise from an interpretation of the Directive and Regulations; i) It is for the local planning authority to judge the adequacy of the information provided in the statement and to decide whether it is satisfied, given the nature of the project in question, that it has full knowledge of its likely significant effects on the environment. (See The Queen v Rochdale Metropolitan Borough Council ex-parte Tew & Others

[1999] 3PLR 74

, p95G. The Queen v Rochdale Metropolitan Borough Council ex-parte Milne [2001] JPL 470, paragraphs 90 and 432.) This decision by the local planning authority will be subject to review by the courts on normal Wednesbury principles. (See for example R v Cornwall County Council ex-parte Hardy [2000] Env LR 273 at paragraph 65). ii) The content of a statement may give rise to a number of considerations and issues. Examples include: whether a description of the proposed development comprising information about the site and design and size or scale of the development, has been given, within the meaning of paragraph 1, Schedule 3 of the Regulations, and whether a description of the likely significant effects, direct and indirect, on the environment of the development, has been given by reference to the matters identified in paragraph 2(c) of Schedule 3. By way of further example the statement may fail to identify the significant adverse effects with respect to any of the required matters and fail to give a description of the measures envisaged to avoid, reduce or remedy those effects. In all these cases it will be a matter of judgment for the local planning authority to make an assessment of the material and to determine whether it has full and sufficient knowledge of the environmental factors to enable it to assess the environmental consequences and take them into consideration before granting planning permission. The judgment will be one of fact and degree to be considered in each case. iii) Where the developer fails to address matters which must be included in the statement, the statement will not qualify as a statement providing environmental information for the purpose of regulation 4(2) but an authority is empowered to acquire the necessary information from the developer (regulation 21) and when it is received it is part of the information to be considered. iv) The purpose of the Directive, as met by the Regulations, is to secure the establishment of procedures and processes whereby development which is likely to have significant effects on the environment will only be authorised after proper assessment of the likely significant effects. v) A proper assessment must take account of information in the statement from the developer, any supplementary information obtained by the planning authority and any representations from members of the public concerned by the project. vi) The objective of the Directive and the Regulations, namely the making of the requisite assessment before the grant of permission, is to be achieved through a dynamic process, which starts with the statement from the developer but it does not end with the statement. The statement can be supplemented by the authority, and the environmental information includes the representations from members of the public, where they have been provided. vii) The democratic right of a member of the public to make representations must be meaningful and therefore the information which is made available must be sufficient to enable a member of the public: a) to respond to the significant effects on the environment to which it is suggested the project may give rise; b) to examine the project to see whether it is likely to give rise to significant effects which have not been identified. viii) Where the developer has been required by notice under regulation 21 to provide further information, upon receipt by the planning authority, the information must be placed on Part 1 of the register (reg.21(5)). ix) The Directive and Regulations do not preclude the grant of permission where likely significant effects, whether adverse or not, have been identified, so long as the information has been gathered, the likely significant effects identified, the public have had an opportunity to respond and the grant of permission has been made with all the available information being taken into account. x) Where regulation 21 has not been employed but the planning authority has acquired environmental information, whether from the developer or elsewhere, the authority must consider whether it is obliged to make it available to the public to enable full and informed response. xi) Where likely significant adverse effects are identified consideration must be given to remedial measures to avoid, reduce or remedy such adverse consequences. First consideration in this regard rests with the developer and the information will be subject to the same dynamic process of consideration by the planning authority and the public. xii) The adequacy of the remedial measures is not governed by the terms of the Directive or the Regulations but is a matter for the judgment of the planning authority and its decision will be subject to review on Wednesbury principles. Schedule 3, paragraphs 1 and 2 of the Regulations stipulates that the statement must contain – “…a description of the development proposed, comprising information about the site and design and size or scale of the development.” These words are identical to those used in Article 5(2) of the Directive. Article 2 of the Town and Country Planning (General Development Procedure) Order 1995 (S.1. 1995 No. 419) requires a site plan and a description of the proposed development where outline permission is sought. The provision of a description is not to be equated with the provision of such detail as would be required for detailed planning permission to be granted. The ambit of the requirement and the meaning of “description” are governed by the purpose of the Directive and the Regulations (see paragraphs 7(i) and 8(ii) above). THE FACTS RELEVANT TO THE GROUNDS OF CHALLENGE Introduction

[9]When requesting the statement, by its letter dated 16 March 1998, the authority stated:

“The environmental statement should, of course, comprise all the information required by Schedule 3 of the Regulations. Whilst there may be other significant environmental effects for which information may be relevant or required after detailed examination of your application, some of the main areas where there are likely to be significant environmental effects as a result of your intensification of the use of the site are:- a) the interaction between human beings and the soil as a result of its contamination, the details of which have yet to be defined and the appropriate remedial action determined; b) the impact of this quantity of development on the River Thames and its environs of which part of the application site is designated in the Unitary Development Plan as an Area of Special Character and a Conservation Area, and which falls within the Thames Policy Area in the Strategic Planning Guidance for the River Thames; (RPG3B). c) the effect on human beings of locating dwellings in proximity to a hazardous installation – namely the land to be retained by British Gas with its gas holders and other structures; d) the impact of this quantity of development on the generation of traffic on the surrounding road network and thus on the human beings living nearby.”

[10]Having received the statement, according to the evidence of its Principal Planning Officer (Mr Kirby), the LPA concluded that the statement:

“7. ……....addressed all the important effects, and potential effects, that the development proposals would be likely to have. …… The Respondent [the authority] scrutinised and assessed the environmental statement and the individual reports through its own officers, within the specialised fields, and also through the use of outside consultants. Additionally the Respondent commissioned the Institute of Environmental Assessment (an independent, non-profit-making body, established to assist in the promotion of best practice in environmental assessment) to provide an independent assessment of the environmental statement. “8. Following massive consultation and extensive publicity, and after revision to the planning application, which [were] a direct result of the concerns expressed by the Respondent or by consultees, the planning application was taken to Committee on the 15th of September 1999. The recommendation was, subject to there being no contrary direction from the Government Office for London, to resolve to authorise the Director of the Environment Department to grant outline planning permission upon the completion of a satisfactory section 106 agreement. The Committee resolved in these terms on the 15th of September 1999. On 24th of February 2000, the Government Office for London indicated that there was to be no contrary direction (Applicants’ bundle – page 222). The s106 agreement was completed, and the planning permission issued, on the 12th of May 2000.”

[11]The Institute graded its assessment.

(d) , being defined as:

“parts well attempted but must as a whole be considered unsatisfactory because of omissions and inadequacies”

. Grade (d) was accorded to: “residuals associated with site run-off dust and spoil as a result of construction work” and “noise during construction period”. “residuals associated with site run-off dust and spoil as a result of construction work” and “noise during construction period”.

[12]In the report prepared by the officers for the committee having to consider whether to resolve to grant permission the following was stated: “In this case where D’s have been scored in the review your officers are satisfied that through subsequent meetings and submissions the identified weaknesses have been satisfactorily overcome. Planning conditions will secure this where necessary. On this basis the omissions identified in the Environmental Statement do not warrant refusal [of] planning permission”.

[13]The statement identified the impact from “residuals” during construction work as follows:

“Noise, Dust, Vibration 5.39a Noise and Vibration can be caused by a number of processes in connection with construction – delivery vehicles, pumps, generators, earthmoving and excavation machinery, and manual activity on site. Such noise can be intrusive and impact on adjoining properties. Dust can be caused by the moving of soil within the site and the use of building and construction materials, especially during long dry periods and windy conditions. Secondary Effects 5.40a Construction work can, by its very nature, lead to mud on roads, particularly around access points to the scheme, resulting in nuisance to road users. Construction generally can also generate a considerable amount of waste ranging from packaging material and damaged goods whilst the activities of workers themselves can create waste. MITIGATION 5.41a Although St George cannot be precise about the phasing of the development, certain basic measures to mitigate the above potential impacts can be identified at this stage, which will be implemented throughout the construction period of the scheme: a) routes for the delivery of materials will be defined and agreed with the Local Authority: b) access points for the construction phases will be agreed with the Local Authority: c) adequate parking areas will be defined for construction workers: d) restrictions of working hours on those parts of the scheme in close proximity to nearby residential properties; e) the control of dust, through careful management of on-site activity taking account of weather conditions, the need to dampen down soil and limiting on-site vehicle speeds; and f) the provision of wheel wash facilities on site. 5.42a St George is a “considerate contractor” and will follow the voluntary code of conduct which that implies. In addition, the activity on the construction site will be governed by statutory regulations, prevailing British Standards Environment Agency codes of practice and through the conditions placed on the development through the planning permission. 5.43a St George anticipate that it will be necessary to review potential impacts and mitigation on a phase by phase basis, with the local authority, and envisage a programme of notification to local residents in advance of unusual or disruptive activities. The effects of the construction phase are short-term and, given that they cease when the development is completed, are reversible. a) Construction Period: excavation for foundations could mobilise residual contamination causing air pollution, groundwater pollution and recontamination of clean soils, both on and off-site. Deep piling work could mobilise contamination and result in pollution of the low level acquifer; and b) Development occupation: a risk of exposure of occupants to residual contamination via ingestion and risk of explosion caused by emission of methane or other hydrocarbons.”

The contamination report from John Savage Associates stated:

“Construction Works The excavation for foundations will be carefully controlled to avoid the exposure of large areas of residual contamination at the same time, with excavations damped down as required to avoid air pollution. High level water will be pumped out of excavations and either cleaned prior to returning to the ground or tinkered off site to avoid the possibility of pollution of the shallow acquifer, foreshore and River Thames, and recontamination of “clean” soils. Piling works will be designed to avoid the possibility of transfer of contamination to depth and to avoid further unnecessary disturbed of shallow groundwater. It is anticipated that continuous flight auger piles will be used, founded in the London Clay. During site works suitable measures will be taken to ensure that operatives are protected from the effects of residual contamination including: The provision of dust masks, protective clothing, footwear and gloves to all ground workers. The provision of a basic decontamination unit including changing, hand washing and showering facilities. The prohibition of eating, smoking and drinking in contaminated areas on site. All work on site will be undertaken in accordance with the relevant Health and Safety Executives requirements.”

Secondary Effects MITIGATION The provision of dust masks, protective clothing, footwear and gloves to all ground workers. The provision of a basic decontamination unit including changing, hand washing and showering facilities. The prohibition of eating, smoking and drinking in contaminated areas on site. The Description of the development and information about the design, size and scale.

MITIGATION

[14]The statement described the site and the surroundings. No issue arises in connection with this part of it. The description given of design, size and scale of the proposed development included: i) the siting of all the proposed buildings; ii) means of access to the development; iii) the total quantum of floorspace across the development; iv) the quantum of floorspace allocated to each of the proposed uses (according to their Use Class) within the whole scheme; v) the distribution of each of these proposed uses; vi) the number of residential units; vii) the number of storey heights of each of the proposed buildings; viii) the size and location of the public open space, which represented the major part of the landscaping of the site.

[15]The grounds of challenge allege that “siting was reserved”. It was accepted that this was not correct, but reliance was placed upon the fact that siting for Stage 3 was reserved in accordance with condition 16 of the permission. Stage 3 comprises 300 dwellings and a small element of commercial floorspace. The decision to reserve the siting of Stage 3 was made following representations from local amenity groups which expressed concerns about the ecological and historic environment of the former dock and the Chelsea Creek area. About one half of the proposed 300 dwellings are affordable housing, the siting of which, according to the section 106 agreement, is fixed. The condition stipulated:

“……details of siting are hereby not approved for the whole of Stage 3. Such details shall be the subject of applications for approval of details in accordance with Condition 1, 2 and 4 of this permission.”

The reason given for the condition is “….in order that the siting and means of access to the development can be assessed in detail in relation to the ecological and historical environment of the former dock and Chelsea Creek area.” The evidence discloses the detail and full meaning and effect of this course of action.

[16]The local amenity interest in this regard stemmed from a desire to see the re-instalment of a navigational link between Chelsea Creek and the dock and the excavation and re-instatement of part of the dock, which some years ago had been filled in by the previous owners. The contemplated excavation and re-instatement might require a different orientation of the buildings in order to front the dock in a different manner. On the unchallenged evidence before the court “…..there would be no significant change in the nature of the land use”. Further by reason of the constraints in the section 106 Agreement and the planning permission the extent to which the stage 3 siting can vary is limited. Having regard to the extent and size of the development which is fixed, this reserved part is minimal. That said, however minimal, if it was likely to give rise to a significant environmental effect, which was only capable of being assessed at stage 3, then it should not have been reserved. Mr McCracken did not attempt to identify any significant effect but rested his case upon the inference that it having been reserved no proper assessment could take place.

[17]There was information in connection with the design, external appearance and landscaping but the claimant’s submission is that the information was inadequate. It was submitted that design is an environmental aspect, where the materials are not identified, there can be no foresight or assessment in connection with building or buildings which will foretell what the appearance will be. Is it to be glass, brick or plastic?

[18]There was a Design Statement which formed part of the environmental statement. It addressed, among other topics, the aims and objectives of the development. Mr Kirby concluded that in a scheme of the sort under consideration it was inevitable that details of design and external appearance would have to be left over, but paid regard to the certainty of height, siting, layout and quantum of space. In addition the authority considered and approved an application for details of two riverside blocks simultaneously with the planning permission under challenge, and it considered that the normal application of planning restraints at the reserved stage provided sufficient protection against significant environmental effects. Condition 3 was expressly directed to achieve – “that the external appearance of the development does not have an adverse effect on the visual amenity of the surrounding area.”

[19]Mr Straker, QC for the authority submitted that the flaw in the claimant’s argument was that it proceeded upon a false interpretation of the terms of Schedule 3 of the Regulations. Schedule 3 states that there must be “information about the design” not that the details of the design must be described, including information about the individual and particular design of individual components. Contamination

[20]Conditions 7, 8 and 21 formed the basis for the challenge to the approach taken to the assessment of the risks of contamination. Conditions 7 and 8 are cumulative and require, respectively, a “site specific risk assessment to identify the extent of and risk posed by contamination and a detailed remedial strategy” and “a scheme to deal with contamination of all or part of the site” to ensure “the site was properly cleared of contamination”. Condition 21 required a detailed investigation to assess “the degree and nature of the contamination present in order to prevent pollution of the wider/water environment.”

[21]Condition 9 related to “the ecological impact of the construction works”. It required “… details of mitigation works/measures….[to be]…submitted and approved in writing by the Council”. The condition also provided for remedial measures at the completion of construction and prior to occupation.

[22]I have already referred to the grade (d) rating accorded to “residuals” by the Institute. Although the grounds of challenge included an issue as to the contaminated nature of the site, to which conditions 7, 8 and 21 in particular applied, by the date of the grant of permission a material change had taken place. British Gas, the former site owners completed statutory remediation works in 1998 and 1999. The work comprised excavation, removal and disposal of contaminated soils off site, as well as the removal of contaminated structures such as tanks and underground structures. Excavated materials were screened for re-use and a proportion of contaminated soils were retained and underwent “bio remediation” treatment before being re-used on the site. As a result the conditions imposed on the planning permission are directed to ensuring that remediation occurs as part of the redevelopment and not as a necessary step in dealing with historic contamination. No doubt for this reason, Mr McCracken concentrated his argument on the risk of contamination to residents during construction.

[23]As to this risk to residents, he submitted that although the John Savage report recommended workers on site should wear masks and protective clothing, such measures had not been considered for the residents and manifestly should have been. The report did suggest measures to protect residents from dust by(1) dampening down the soil

(2) limiting the area of activity at any particular time

(3) limiting on site vehicle speeds. Further there were mitigation measures in connection with pumping out and piling works which would serve to protect the local population. Mr Straker submitted that regard also had to be paid to the authority’s statutory powers to control pollution, which it was rational for the authority to weigh when deciding whether adequate remedial measures existed. Traffic

[24]Mr McCracken placed considerable reliance upon the terms of condition 34 in connection with traffic. As a result it will be convenient if I set it out in full:

“Stage 2 of the development, as specified in unnumbered drawing entitled Staging Plan and dated April 1999, shall not commence until a station and passenger train service with a minimum of four trains per hour each way has been provided at Chelsea Harbour/Sands End on the West London Line or a Transport Impact Assessment has been submitted which demonstrates to the Council’s reasonable satisfaction that Stage 2 of the development (or part of it) can proceed without causing adverse traffic conditions on the highway network or prejudicing the Council’s policy of restraining the use of private cars particularly for journeys for work. Stage 3 of the development as specified in the same drawing, shall not commence before Stage 2 has been completed and occupied, and until a subsequent Transport Impact Assessment has been submitted which demonstrates to the Council’s reasonable satisfaction that this part of the development can proceed without causing adverse traffic conditions on the highway network or prejudicing the Council’s policy of restraining the use of private cares particularly for journeys for work. ”

[25]It will be apparent that uncertainty as to whether there would be a railway station with a train service having a minimum of four trains per hour each way was catered for by the requirement for a Transport Impact Assessment for Stage 2 and Stage 3. The adequacy of the results is to be tested by reference to the Council’s view of “the adverse traffic conditions” and the need not to prejudice its policy of “restraining the use of private cars particularly for journeys to work.”

[26]Having regard to the weight of argument directed to the traffic issue it is somewhat surprising that it did not appear in the original grounds of challenge. The statement included a transport study prepared by Alan Boreham Associates. The officers’ report to the Committee included a section headed Transportation Issues (paragraph 8). It refers to national policy guidance in PPG1, PPG6, PPG13 and RPG5. It refers to the Unitary Development Plan (“UDP) and specific site policies which establish “a mechanism for assessing the relative quantities of residential and employment land uses” and the need to take account of all relevant circumstances. At paragraph 6 of the Report under the heading ‘Highway and Traffic’ it is recorded that both the developer and the council employed expert consultants. The report states:

“6.2.2 The study that St George finally submitted (covering the full application for 1615 dwellings plus other land uses) is believed to be flawed by officers and the Council’s transport consultants. Nevertheless officers do accept that the first stage of the proposal could be acceptable in traffic terms if the measures to improve public transport and discourage private care use as proposed in schedule 1 of this study are successfully implemented. But there will undoubtedly be adverse traffic conditions, particularly prior to the anticipated provision of a new railway station. 6.2.3 Officers do not accept that stages two and three can take place without the provision of a new station at the site or evidence that traffic generation in the area and from the site is at lower level than officers currently believe is likely. It is the officers’ view that the first stage of this development, as proposed for 1015 homes, some of which would be specifically “car free”, and other land uses, is at the very limit of what would be acceptable as far as traffic generation is concerned. 6.2.4 The applicants are willing to part-fund a station on the West London Line if such a proposal can be agreed wit the train operators and the railway line owners. The latest signs are encouraging and Council officers are pursuing this option with the appropriate bodies with vigour. A bid for funding to carry out infrastructure works which would increase the capacity of the line and enable new stations to be built, is being submitted t the Office for Passenger Rail Franchising and a decision is expected in the Autumn.” “6.2.5 The Council has been concerned for many years about the use of the local road network and the very large volumes of vehicle traffic in the area generally. The UDP policies for the highway network seek to ensure that Townmead Road and Imperial Road, which are classified as second tier local distributor roads, distribute traffic within the Sands end area. “The UDP site policies also included a proposal that William Morris Way be extended through the site linking to Imperial Road/Townmead Road in order to fulfil the function of local distributor road, thereby relieving the stretch of Townmead Road between the Sainsburys Roundabout and Imperial Road of existing non-local traffic. Traffic calming was envisaged along Townmead Road. This proposal has been dropped form the current development because the new route would have seriously compromised the local park. It is now intended that there be no traffic route through the park. The consequence of this is that traffic on Townmead Road will not be relieved. It is also intended in order to achieve bus priority in Townmead that all other southbound traffic using Townmead Road will divert via Watermeadow Lane and the Sainsburys Roundabout. Any necessary traffic calming measures which can be incorporated within Town mead Road, Watermeadow Lane and William Morris Way will be able to be funded the monies proposed within the Section 106 Agreement.”

[27]Pages 173-182 of the Report are devoted to the traffic issue. The conclusion is set out in paragraph 6.2.57:

“6.2.57 In conclusion, the traffic assessment provided in support of this development is considered to be unsatisfactory. Your officers consider that even the scale of the Stage One development proposed will have a significant effect on local highway and traffic conditions in the area ultimately increasing delays and congestion through the area. The public transport improvements currently proposed are barely sufficient to deal with the problems likely to be created by the Stage One development. Officers are however conscious that any development of this site would inevitably generate substantial additional traffic. Consequently highway and traffic problems for the local community and the South Fulham area generally are bound to be created by practically any conceivable development on this site. The potential long-term scale of these depends on the development quantum. Traffic disbenefits will have to be balanced against the regeneration of this site and any other planning or community benefits which may accrue. If Stage One is implemented, any further phases of development must be dependent on the provision of a station and further evaluation of the highway network in the light of success or otherwise of the infrastructure and planning obligations contained for Stage One ”

Revisions to the Planning Application

[28]The application for permission was revised. The revisions flowed from presentation meetings, representations and consultations. The consultations and meetings were extensive and were attended by members of the public. Proposals were ultimately presented to the Sands End Planning Consultative Group (a forum of local groups, established by the council and chaired by a council member) in January 1999.

[29]The revisions are summarised in the evidence of Mr John Herron, the Land Director for the developer. They included: i) a revised schedule of floorspace for each use type; ii) the proposed massing of the development was refined including significant reductions in the heights of a number of buildings; iii) the total number of residential units was confirmed as 1,665 (down from 1,803) iv) the total number of affordable dwellings was increased; v) staging was proposed in 3 stages.

[30]Notwithstanding the revisions: i) the description of the site and surroundings was unchanged; ii) the projected population growth was from 4,644 to 4,750; iii) there was no change to nature conservation; iv) the change to contamination was noted; v) there was no change to cultural heritage vi) the revisions served to reduce the visual impact. It was therefore concluded that the overall environmental impact remained unchanged. Conclusions

[31]Applying the principles set out in paragraphs 7 and 8 above to Grounds 1 and 2, I conclude as follows: Ground 1

[32]In my judgment the claimant’s challenge hardly advanced beyond a contention that design, external appearance and landscaping can never be reserved. So far as it addressed particular facts the specific complaint was that the line of view through the development from Townmead Road to the river changed so as to affect a part of the development very close to the claimant’s residence. It did, but I can see no basis for concluding that this aspect had to be regarded by the planning authority as a change which rendered the description of the project as given on the application inapplicable. The authority was entitled to conclude that it was not a matter which gave rise to a significant environmental effect.

[33]I accept that according to the development in question the reservation of external appearance and detailed design, including the character of the building materials might give rise to a position where an assessment of the environmental effect of the development could not take place. But, in my judgment, the arguments advanced by the claimant so strain the underlying purpose of the Directive and the Regulations as to appear to be more an attempt to frustrate the project than to identify a valid environmental effect which has not been properly assessed. Having regard to the fixed features of the development the authority concluded that the significant environmental effects could be assessed. As Sullivan J recognised in R v Rochdale MBC ex parte Milne [2001] Env.L.R 406 the “…..local planning authority will need to be satisfied that the description of the proposed development in the outline planning permission is adequate, given that it will be able to impose conditions in respect of reserved matters so that matters of detail can be dealt with at a later stage”. The fallacy in the claimant’s argument is that it assumes that unless design details, external appearance and landscaping are supplied at the permission stage an assessment of the environmental effects cannot take place. Where design parameters exist because of surrounding development and where the local planning authority has responsibility for the environment and the likely parameters of the reserved details can be assessed, it is open to the authority to reserve and protect the position by conditions. It has to be remembered that the Regulations require attention to be paid to “likely significant effects” not each and every likely effect. Again, as Sullivan J pointed out in Milne what may be regarded as significant by a resident will not necessarily be a significant environmental effect. The LPA was entitled to conclude on the basis of the environmental information it had received that sufficient “information” had been provided to enable it to make an assessment. It was entitled to conclude that the reservation of stage 3 siting for the purpose expressed in the condition could take place because the environmental effect to which it related had been assessed and no significant effect would flow from reservation. Further the revisions were not so radical in character as to oblige the LPA to regard the changes as having altered the “description” of the proposed development.

[34]I am satisfied that no ground has been advanced which can possibly sustain the conclusion that the local authority acted irrationally or otherwise unlawfully in granting permission having reserved “design, external appearance and landscaping”. The reserved siting of stage 3 was a product of consideration which had been given to environmental matters. From those considerations a judgment was reached that “no significant change in the nature of the land use” would occur and that the constraints in the section 106 Agreement would serve to preserve the contemplated outcome. Mr McCracken made no submission which suggested that in this case the authority had acted unlawfully in reaching this conclusion. Having regard to the degree and detail of the development which remained unchanged, in my judgment, the authority was entitled to conclude that the revisions in connection with this development did not change the nature of the development from that to which the application relates. Ground 2 Traffic

[35]It is manifest that the local authority assessed the likely impact of traffic. It is of no assistance to the claimant’s case that the authority considered the developer’s assessment was “flawed”, because the authority thereafter carried out its own assessment with the assistance of an independent expert. Further the parameters of the issue were established by: i) the size of the development; ii) the national planning policies and the UDP; iii) its own assessment of the local traffic; iv) its own policy in connection with traffic, particularly the use of the car for travelling to work. Within those parameters the authority was entitled to conclude, as it did, that the likely significant effects had been assessed and provided for and it remained only for the details to be worked out when it was known whether there would be train transportation. Contamination

[36]The statement did identify the measures to protect the residents from dust during construction. The mere fact that a need for site workers to have protective clothing was identified did not give rise to a need for consideration for similar equipment to be supplied to residents. Plainly site conditions were open to being separately considered from the offsite conditions which could arise. There was no evidence of the likely existence of an “onsite” condition requiring protective clothing which would also be present for residents. The most particular matter, Mr McCracken submitted, was that the statement should have included reference to the need for residents to be warned that there could be a need for extra “hoovering” and possibly a need for “taping up windows”. There was simply no factual basis for asserting that the likely effects would give rise to such a need.

[37]In relation to both Grounds 1 and Ground 2 I am satisfied that the authority’s approach was consistent with the dynamic process which the provisions envisage in connection with the process of gathering information. The constraints and requirements of the provisions in connection with likely environmental effects of a development are not to be applied so as to frustrate development, but to improve the quality of judgment required in considering applications. Ground 3

[38]This ground began as a contention that regulation 21 material had not been placed on the register in accordance with regulation 21(5). At the permission hearing before Richards J, counsel for the claimant did not pursue it. There was good reason for that, since the authority had not utilised regulation 21. The information was provided by a series of updates which were volunteered by the developer. The letters were placed on the public register and were available for public comment. Further, the letters were referred to in the officer’s report prior to the committee meeting convened to determine the application for planning permission. There was neither a breach of the Regulations nor any unfairness nor any impediment to the public’s opportunity to make meaningful representations. Ground 4

[39]The requirement for a LPA to “state in their decision” that they have taken the environmental information into consideration was introduced by amendment in 1994. Mr McCracken submitted that the purpose of the requirement is to ensure environmental information is taken into consideration in every case; it being more likely that it would be if a LPA is required to state that it has taken it into account. He made the same submission to Harrison J in R v Cornwall Couty Council, ex parte Hardy [2000] Env LR 473, 488. Had Harrison J not quashed the planning permission for another reason he indicated that he “….would have been inclined to agree with Mr Straker that the breach of regulation 3 (as it became under the 1998 Regulations) could have been appropriately dealt with by way of a mandatory order”.

[40]Mr Straker made a similar submission to this court. In effect he submitted that the “decision” could be amended to take account of the fact that the required statement did not accompany the “decision”, because its absence was plainly the result of an administrative error. In response Mr McCracken submitted, relying upon regulation 25, which expressly states that a grant of planning permission by the Secretary of State in contravention of regulation 4 of the Regulations shall go to the validity of the decision for the purposes of section 288 Town & Country Planning Act 1990, that the requirement could not be regarded as merely procedural.

[41]I have no doubt that a failure to comply with the requirements of regulation 4 goes to the validity of the decision for an issue will be raised as to whether the requirements of the law have been met. But, that said, it does not determine the position, when the terms of the regulation have not been met in the regard disclosed by this case, but it is plain that the statutory purpose of the provision itself has been met. It seems to me that once it has been demonstrated that the substantive purpose of the provision has been met, the court has to consider whether the failure to follow the procedural aspect of the requirement should continue to affect the validity of the decision.

[42]In my judgment the court should be cautious in the degree of indulgence it extends to any failure to comply with a stipulated requirement. If the principle of substantial compliance can come into play, as in my judgment, in this instance it can, then the court should carefully consider the cogency of the material disclosing that the substantive purpose of the statutory provision has been met and consider whether prejudice has arisen to interested parties by the failure to meet the strict legal requirements.

[43]So far as prejudice is concerned, in this case it is noteworthy that the claimant, with the benefit of full legal representation over some two years or more failed to take the point until the last minute, but nevertheless conducted litigation involving a sustained attack on the manner in which the environmental information had been taken into account.

[44]I am satisfied that: i) there is compelling evidence that the failure to make the statement was an error and is not to be interpreted as an indication that the environmental information was not taken into account; ii) on the contrary the material before the court demonstrates that it was taken into account at the relevant time; iii) the requirements of the regulation 4(2) have been substantially complied with; iv) no prejudice to any interested party, including the claimant, has been shown.

[45]Alternatively, if I am wrong in concluding that this court can, by this judgment declare, that substantial compliance has occurred, I would exercise my discretion to refuse any relief to the claimant, because: i) the point was taken at the last minute; ii) the claimant can show no prejudice; iii) there would be unconscionable prejudice sustained by the developer and the LPA. In planning matters, in particular, it is essential that objections are raised timeously and as fully as possible.

[46]For all these reasons this application for judicial review fails. - - - - - - - - - - - - - MR JUSTICE NEWMAN: For the reasons given in the judgment, which is handed down, this application for judicial review fails. Any applications? MISS PETER: My Lord, there is an application for the defendant's costs. MR JUSTICE NEWMAN: Sorry? MISS PETER: There is an application for the defendant's costs. MR JUSTICE NEWMAN: The defendant's costs? MISS PETER: I understand the defendant is legally aided, but we ask that those costs are set-off against the costs that the defendant is liable for in respect of the House of Lords and Court of Appeal actions. My Lord, there is a precedent for such a set-off. It is clearly established on the basis of the case of Lockley v National Blood Transfusion Service heard by the Court of Appeal. I can hand up a copy of it. MR JUSTICE NEWMAN: Could you just hand that up to me? I cannot say that I have it in my mind. (Handed). Just run through the essence of this, please? MISS PETER: My Lord, the relevant passage is found on page 5, where Scott LJ at the bottom of the page sets out the relevant principles, and at number 1 -- that is the fourth sentence from the bottom -- directions for set-off of costs:

"(1). A direction for the set-off of costs against damages or costs to which a legally aided person has become or becomes entitled in the action may be permissible. (2). The set-off is no different from and no more extensive than the set-off available to or against parties who are not legally aided"

. If I could refer you over the page to page 6, in the middle of the penultimate paragraph, Scott LJ states:

"A set-off of costs against costs, when all are incurred in the prosecution or defence of the same action, seems so natural and equitable as not to need any special justification"

. MR JUSTICE NEWMAN: Just remind me what was the position in the House of Lords? What happened in the House of Lords, so far as costs were concerned? MISS PETER: The House ordered that the defendant pay the claimant's costs in respect of the House of Lords and Court of Appeal and bear their own costs in respect of the previous High Court action, and an assessment has not yet taken place, so if that is in the process of occurring -- MR JUSTICE NEWMAN: The claimant was legally aided in the House of Lords? MISS PETER: Has been throughout, my Lord. My Lord, in our submission, it would be in the interests of justice to do this, considering it was simply a preliminary issue in the House of Lores and the claimant has now lost on the substantive merits of the case. MR JUSTICE NEWMAN: I see. Who is here for the claimant today? MS SHEIKH: My Lord, I am. Mr McCracken apologises because he had a long standing commitment in the North East of the country, a planning enquiry. My Lord, we have had no notice at all of this application. MR JUSTICE NEWMAN: I see. You have had no notice at all. You, personally? MS SHEIKH: Not at all, my Lord. MR JUSTICE NEWMAN: Until you heard it now? MS SHEIKH: This is the first I heard of any question of setting off costs against a judgment in the House of Lords or Court of Appeal. My Lord, I am not, therefore, in a position to deal with this and, in any event, it raises issues of complicated matters relating to the Legal Services proceedings and I would not attempt that in the absence of my leader. MR JUSTICE NEWMAN: No. It is a bit of a burden for you, is it not? MISS PETER: I do apologise for not speaking to my learned friend beforehand. MR JUSTICE NEWMAN: It would have helped, I am bound to say. If somebody could have drawn the other side's attention to Lockley yesterday, they could have been forearmed with it. I do not think it is necessary to await the return of Mr McCracken. It does not seem to me we need go down that route. At least at this stage, why do we not give you time to look at the case of Lockley and think about the matter? MR PURCHAS: My Lord, I did not have an order of costs against me in the House of Lords, so I am not affected by this. Whether there is opportunity for me to make my application for that to be resolved and then the time allowed thereafter, and whether that would be a possible way forward, if your Lordship wished to use the time now and come back and deal with it all? MR JUSTICE NEWMAN: I see. What is the nature of your application? MR PURCHAS: My application is a limited order for costs, my Lord. I have taken the view and my client accepts in this case there is not a Bolton situation where we had a sufficient separate interest to justify a second set of costs, but I would ask for an order for costs for the evidence that we prepared and also for the part 18 request which was served on us and to which we had to reply. My Lord, I can elaborate on that. MR JUSTICE NEWMAN: I see. How long do you think you need to look at Lockley and think about this? If I was to say come back at 12.30, would that be all right? MS SHEIKH: My Lord, that would not be sufficient for me at all, I have to admit. I really need to take this back and consider it and attempt to contact my leader as well. I would simply say immediately this would appear to be going behind the Community Legal Services Regulations 2000 and the method that is adopted for assessing costs. That is my preliminary submission, but I need time and have to study the Legal Services Commission Rules. It would certainly take me longer than 12.30. MR JUSTICE NEWMAN: Are you really telling me you do not want to do it? MS SHEIKH: I am not in a position, my Lord. MR JUSTICE NEWMAN: 2 o'clock, or any time? MS SHEIKH: If I had had notice of this, I would have put in all the time to deal with it today, but there was not even a hint of such an application. It has come as a complete surprise to me and I have not had an opportunity preliminarily to discuss it with my leader. MR JUSTICE NEWMAN: I am sensitive to that. Let me think. MISS PETER: The principle here is a very simple one and relies on the ordinary principles of set-off, which are well established and the case is clear. These apply to legally aided cases and in our submission that is the end of the matter. MR JUSTICE NEWMAN: I know, but I think the best thing to do, Mr Purchas, is that I should hear your application. MR PURCHAS: Yes, my Lord. MR JUSTICE NEWMAN: Then at least you will not have to come back. MR PURCHAS: I would be very grateful. MR JUSTICE NEWMAN: In the meantime, I will ponder how much longer I need give to Miss Sheikh. MR PURCHAS: My Lord, I am very grateful for that. MR JUSTICE NEWMAN: Does Miss Sheikh have any notice? MR PURCHAS: Yes -- would have had last night, but certainly she did this morning. MR JUSTICE NEWMAN: You are in a position to deal with this one? MS SHEIKH: My Lord, yes. MR JUSTICE NEWMAN: All right. MR PURCHAS: My Lord, as I said to your Lordship, we accept here while we have been joined as a party, we do not come as we see it within the principle of Bolton, but it is our submission that this is a case where it would be proper for our costs of the evidence to be awarded to us, albeit that may be somewhat theoretical, bearing in mind the claimant is a publicly assisted party. I should tell your Lordship that Richards J in the High Court in refusing permission gave us costs of preparing the evidence of prejudice, but only of prejudice. Of course, he was satisfied there was a case on the merits, at least for the purposes of giving permission. My Lord, the way we put it is this way, that in the light of your Lordship's judgment, and indeed the way the case was argued, it was very much focussed on detailed questions of evidence relating to the way the authority dealt with the application and permission, and indeed the environment statement -- we actually have a decision letter to deal with, and whether there is some other matter of that kind, and if one takes your Lordship's judgment at page 6, your Lordship has very conveniently set out a summary of what your Lordship respectfully, I would submit, accurately described as the wide ranging nature of the case. Your Lordship will recall that it included detailed matters relating to design, landscaping and external appearance. Also the question of stage 3 and its particular relationship to the rest of what was in the application -- the change in the application -- your Lordship will recall, among other things, the views on the claimant's house. Traffic figured large and contamination -- marked, at all levels -- including, your Lordship will recall, the question of dust, and I will come back to that in a moment, if I may. Then ground 3: as far as the revisions are concerned, again the challenge being made as to the changes in the application, and finally on grounds of the question of prejudice. I will not take your Lordship to the skeleton, but very much the same points were adumbrated in the skeleton. My Lord, the evidence we adduced consisted of three witness statements: two of them in bundle 2; and then bundle 4 contains the third -- all from John Herron. Does your Lordship need the references? MR JUSTICE NEWMAN: No, I remember. MR PURCHAS: I am obliged. Then, following the third witness statement was a part 18 request in November, and your Lordship has the response to that in bundle 5 dealing with matters relating particularly to evidence in paragraphs 4 and 5. MR JUSTICE NEWMAN: I must say, if it is necessary for me to know the detail of part 18, it is not in my mind at all. MR PURCHAS: I do not think the detail matters. If it does, may I assist your Lordship? May I deal with the principle at this stage and we will see where we go? I just need to touch briefly on the background in this way. In form 86A and a supporting witness statement of Miss Grigg of the first three witness statements in April 2000, there were only parts of the environment statement produced and, for example, the passage your Lordship quotes in your Lordship's judgment about the dust and relating to contamination was not in there. That is not a criticism, but it is an example of the evidence that we produce and on which your Lordship, and indeed if I may say so the claimants and all parties, rely. It did not include a number of matters. I will not go into the detail of them. For instance, the application was not included, which your Lordship recognises is of some importance. Mr Herron's first witness statement, which was of some substance, dealt with prejudice. It also dealt with missing areas of fact and explanation of fact, including production of the application, the relevant plans, the missing part of the report to the Committee, and completing the environment statement. By that, I mean the statement, not the technical appendices. That was the first witness statement and preceded Mr (inaudible) on behalf of the defendant, which was produced on 20th June, some nine days before a permission hearing Mr Richards J. The second witness statement is relatively short, but dealt with an update on prejudice and also dealt with the detail affecting stage 3. Your Lordship will recall in your Lordship's judgment your Lordship summarised that evidence of the linkage between stage 3, if your Lordship recalls the relevance that -- MR JUSTICE NEWMAN: Yes. MR PURCHAS: -- and other fixed parameters of the application. My Lord, two days before the first hearing before Richards J, there were two witness statements produced from the claimant. The one from Susan Green does not touch on this application, but there was one from Mr Burkett, who has since sadly died, dealing with dust, particularly germane to the point I made a moment ago. Next, so far as evidence is concerned, a week or so -- just under a week before the House of Lords hearing, there was a witness statement from Susan Green, a third, which dealt with certain matters relating to contamination and particularly the photographs with comments on them. Following that, and following permission being granted, on 12th September 2002 -- and that is within the time allowed for the other parties to file evidence -- this is under the old rules, order 53, as it was -- Mr Herron's third witness statement was filed and that dealt with, as your Lordship may recall, and indeed it was very much used in the submissions, both the changes in the application. MR JUSTICE NEWMAN: Yes. MISS PETER: Your Lordship will remember it filled in all the details. It dealt with the photographs, questions of contamination and provided the factual matrix for the hearing. That was followed up with specific requests in November, the part 18. Your Lordship has the response to that, and particularly replies 4 and 5. That is at page 94. What I would submit is that evidence was clearly necessary -- I do not think I put it other than that -- necessary for a proper consideration of this matter by the court. Of course, it could have been filed by the authority, it could have been filed by the claimant, but the fact that we incurred the costs of providing that necessary evidence should not mean that we should be denied what are proper costs of this application to the court, triggered by the grounds sought to be explored in detailed fashion by the claimant. So, my respectful submission, in this situation is it is appropriate for an award of costs to be made. I should add also we dealt with prejudice, which your Lordship relied on at paragraph 43, particularly on ground 4. I think it is paragraph 43. MR JUSTICE NEWMAN: Yes. What are we talking about in terms of amount? Is there any estimate you can give me? MR PURCHAS: My Lord, I am afraid I have not come with that figure, but it was carefully prepared, and I hope in a clear fashion, in an application that was of considerable complexity. MR JUSTICE NEWMAN: How do you define the suggested order by reference to evidence? MR PURCHAS: Preparation of the evidence filed on behalf of the interested party. MR JUSTICE NEWMAN: After a particular date? MR PURCHAS: We can actually identify the three witness statements, because that is the evidence of John Herron. MR JUSTICE NEWMAN: The three witness statements of Mr Herron. They can be easily identified. MR PURCHAS: And in responding to the part 18 request, again I give your Lordship the date of that. It is in bundle 5 and your Lordship has that. MR JUSTICE NEWMAN: I see. There we are. MR PURCHAS: My Lord, I can go into the detail. MR JUSTICE NEWMAN: No. Let us see what Miss Sheikh has to say about this one. MS SHEIKH: My Lord, I resist the application. In my respectful submission, the principles of Bolton and Berkeley still apply and the interested party should not normally be entitled to any set of second costs. I would rely on the case of Berkeley. MR JUSTICE NEWMAN: Do you have it there? MS SHEIKH: I have it, yes. MR JUSTICE NEWMAN: Could you hand it up? MS SHEIKH: Yes. (Handed). My Lord, Berkeley says that the interested party for a second set of costs would have to demonstrate a separate issue. My learned friend says there is no separate issue in this case. MR JUSTICE NEWMAN: Where do you find that? MS SHEIKH: My Lord, that is in the actual decision and it is -- MR JUSTICE NEWMAN: Nourse LJ, is it? MS SHEIKH: That is right, my Lord. It is page 5 of 6 of this printout and it is about halfway down the big paragraph, which says:

"I am nevertheless unable to conclude that they have been able to demonstrate a separate issue, not covered by the Secretary of State, on which they were entitled to be heard"

. My Lord, this is derived from the case of Bolton. MR JUSTICE NEWMAN: Just forgive me if I look at this. MS SHEIKH: Certainly, my Lord. Do sit down in the meantime. MR JUSTICE NEWMAN: Thank you. I have looked through Berkeley now. Do I need to look at Bolton? MS SHEIKH: My Lord, no. I am going to rely on the same paragraph that is already cited in Berkeley, on page 4 of 5, right towards of bottom of it, where it says that in planning appeals there would not be two costs normally unless there is a separate issue that has been identified. My Lord, have you had the opportunity to look at that paragraph? MR JUSTICE NEWMAN: Yes, I have. MS SHEIKH: In that respect, this particular matter goes on and talks about the assistance that the interested party was able to provide to the Council and in the case of Berkeley, the learned judge determined that, although the Club was able to assist throughout and provide all sorts of helpful material to the court, it was merely assistance and that was not enough to warrant further costs. My Lord, that is on page 5 of this judgment. MR JUSTICE NEWMAN: Yes. I have read that. MS SHEIKH: In that situation, I would say that any assistance provided by the interested party in this case amounts to the same, assistance -- evidence that was put forward to assist in reaching the determination that your Lordship did reach -- and it could have been filed by the local authority and in any event it was merely in the form of help. It was useful and helpful, but cannot be classified as a separate issue for which any costs should be made. That would fall outside the principles established by Bolton in the House of Lords and Berkeley on the costs and, that in -- MR JUSTICE NEWMAN: That is your submission? MS SHEIKH: Yes, my Lord. MR JUSTICE NEWMAN: Thank you very much indeed. Mr Purchas, what basis do you say there is for the court, if you are not identifying a separate issue? MR PURCHAS: May I deal with that point? I am very grateful to Miss Clayton for producing this. There are plainly material differences in the principle which do not apply to this situation. May I just deal with those very briefly? This is not a situation first of all of a set of costs, which is a principle which has gone back through the Crown Office years ago and through to the Administrative Court today. The costs I seek have not been paid, or would not be paid, to the defendant because he has not prepared this evidence. This is additional cost. There is no question of the principle of a second set of costs being awarded here. If one looks at Berkeley, and I confess I have not had the opportunity to on this occasion -- I make it clear I have seen this decision before, so I am not disadvantaged, but I have not re-read it on this point -- it does not look as if Mr Hicks in being of assistance actually provided any additional evidence. Certainly, it was the Secretary of State's decision letter that contained all that is necessary, or there was, I think, the environmental assessment point. Certainly, there was no application recorded on the decision, so far as I have been able to look at, seeking costs of the production of evidence. That does not seem to be the case. What happened there was slightly bizarre, I think, in the court below. The Secretary of State did not get his costs, I think, but in any event, the question of an application for the preparation of additional evidence was not before the Court of Appeal. May I ask your Lordship just to look at page 4 of 5 to see what it was that Mr Hicks was providing? MR JUSTICE NEWMAN: Yes. MR PURCHAS: It reads:

"Mr Hicks submits that the Club qualifies for orders for costs here and below within those principles. He has made a number of points. In regard to the environmental assessment question, he has said that the Club, having been throughout represented and fully involved at the public inquiry, was uniquely able to assist the judge as to the information available at the inquiry, in order to help him decide whether, in the absence of an environmental statement, there had, as has since been held, been sufficient information available to take its place"

. That looks as if certainly there is nothing to the contrary. Mr Hicks' submissions are referred to. He made a similar point in regard to the policy question:

"His third principal point is that it was recognised ahead of the hearing before the judge that the Secretary of State was unlikely to argue the question whether there had been an urban development project"

. That is a separate submission. So far as I can detect, there is no suggestion by Mr Hicks that the Club had actually put in additional evidence. So essentially the differences I make, to summarise the position, are: first, this is not a second set of costs. It is not recovering costs which have already been awarded. Secondly, the issue considered in Bolton and Berkeley was about representation, essentially -- the case presented -- and, my Lord, that is different from this situation. I would invite your Lordship to approach it in the normal way, having regard to the overriding objective and at your Lordship's discretion. MR JUSTICE NEWMAN: Thank you very much. MR PURCHAS: Unless I can assist your Lordship further? MR JUSTICE NEWMAN: No. Thank you very much indeed. As to the costs in this matter, the Secretary of State asks for his costs and there can be no doubt that he is entitled to the whole of his costs to be assessed. But as to that, there is an outstanding question, which has yet to be resolved, namely the extent to which there should be any set-off. That is a matter to which I shall return. I also have an application for some costs to be awarded to the developer. Mr Purchas limits his application to the costs of the preparation of the evidence filed on behalf of the developer (who was the interested party) of the evidence being contained in three witness statements for an executive of the company, John Herron. This application is resisted on a principal ground by Miss Sheikh, who appears for the claimant, who is legally aided. She submits that, according to the case of Berkeley -- that is Berkeley v Secretary of State for the Environment and Fulham Football Club (transcript 12th February 1998) in the Court of Appeal, Nourse LJ dealt in similar circumstances in a planning case with the costs of the interested party, namely a football club. Nourse LJ cited the House of Lords decision in Bolton and Metropolitan District Council v Secretary of State for the Environment

[1995] 1 WLR 1116

and stated that the particular paragraph which he cited satisfactorily set out the essence of their Lordships' decision:

"Although costs are in the court's discretion, in planning appeals, where the Secretary of State succeeds in defending his decision he will normally be entitled to the whole of his costs and should not be required to share them by apportionment. The developer will not normally be entitled to his costs unless he demonstrates a separate issue, not covered by the Secretary of State, on which he was entitled to be heard, or has an interest requiring separate representation. A second set of costs is more likely to be awarded at first instance than in the Court of Appeal or the House of Lords, and an award of a third set of costs will rarely be justified"

. Mr Purchas QC, for the developer, submits that what he is asking for here is really outside that principle, as stated in the Berkeley case, and the facts in Berkeley are to be distinguished from the facts here. In my judgment, it is the first part of the citation which is important. It seems to me that the focus of attention on this application should be to that; namely, that the Secretary of State will normally be entitled to the whole of his costs and should not be required to share them by apportionment. What in effect Mr Purchas submits in this case is that the evidence of Mr Herron was evidence which was put in by the developer because of the wide ranging issues which this application gave rise to, and he accepts that it is evidence which could have been put in by the Secretary of State. Thus, in effect, he submits that this was necessary evidence in the case, the costs for which have been incurred by the developer, and they have not been incurred by the Secretary of State, who is going to succeed. The Secretary of State has succeeded and will have an order for all his costs. Therefore, this aspect of the matter, relevant as it was and of assistance to the court, should be met by the court, exercising its discretion, to cover that aspect of the preparation for the case. As I indicated in my judgment, that touches on what the Court of Appeal were referring to, namely a question of apportionment. In effect, what is being said, as I understand it, is that there is no separate issue which can be identified, in accordance with the Bolton principle, but what can be identified is a step taken by the developer which has had the effect of assisting the Secretary of State to succeed in this case without him having to incur the costs which he could have incurred. That seems to me to get very close to an apportionment argument, but there has been no argument advanced so far as to apportionment, having regard to the authorities which bind me to throw open the door on this occasion to the developer to recover costs of any sort in these circumstances from the unsuccessful claimant. For all those reasons, I do not exercise my discretion. MR PURCHAS: My Lord, may I just say your Lordship said "Secretary of State". That should obviously be the London Borough. MR JUSTICE NEWMAN: It is the London Borough, indeed. MR PURCHAS: It is the London Borough of Hammersmith. MR JUSTICE NEWMAN: Thank you very much, Mr Purchas. As to your difficulty, what I would suggest really is why do you not take time and make some submissions in writing? MS SHEIKH: In writing? MR JUSTICE NEWMAN: Prepare some submissions in writing. You must submit them to me. If you want to avoid incurring further costs by attending, I am content, with your agreement, to deal with the application on the papers to save any further costs being incurred. But if you do not want that course, you must let the court and my clerk know and it will have to come back. So that may be the way forward. I do not know if you want to put anything in writing? MISS PETER: I would have asked for an opportunity to respond. MR JUSTICE NEWMAN: I was going to give you that, but I was wondering whether you should go first. Why do you not go first by 10.30 tomorrow morning? MISS PETER: Yes, my Lord. MR JUSTICE NEWMAN: So you must serve your short, as I imagine, submission by 10.30 tomorrow morning and then you can respond the next morning. Tomorrow is Friday, so Monday morning. MS SHEIKH: I am grateful, my Lord. MR JUSTICE NEWMAN: Then, if you want to say anything in reply, Miss Peter, will you do it by -- I do not know how committed you are to court next week, but could you do it by Tuesday? MISS PETER: My Lord, unfortunately I do not think I would be able to. May I ask by Thursday? MR JUSTICE NEWMAN: What about by Wednesday? MISS PETER: All right. Wednesday, my Lord. MR JUSTICE NEWMAN: Wednesday, close of business? MS SHEIKH: My Lord, in that case, may I extend the time to Tuesday morning, because I am going to be in court the whole of tomorrow? MR JUSTICE NEWMAN: All right. You can have Tuesday morning and you can have Thursday morning. MISS PETER: My Lord, yes. MR JUSTICE NEWMAN: Could you agree between you, if you can, whether you want me to deal with it on the papers? Otherwise, we will have to have you back. MS SHEIKH: My Lord, yes. MR JUSTICE NEWMAN: Thank you very much. Any other applications? MS SHEIKH: I do have an application for leave to appeal, my Lord. MR JUSTICE NEWMAN: Yes. Would you like to develop that? MS SHEIKH: Yes. My Lord, obviously the nature of such an application is that I would have to submit that your Lordship has erred in law, but I hope to be as deferential as I should be. MR JUSTICE NEWMAN: You do not have to worry about that. MS SHEIKH: My Lord, we seek the grant of leave on four grounds. MR JUSTICE NEWMAN: Four? MS SHEIKH: The first is that the learned judge has erred in law and in principle in that he failed to address, in accordance with the requirements of the legislation transposing the directive, the issue of the consequences of the acceptance by the London Borough of Hammersmith and Fulham of the criticisms made in the report by the Institute of Environmental Assessors. MR JUSTICE NEWMAN: Goodness me. MS SHEIKH: My Lord. That is your Lordship -- MR JUSTICE NEWMAN: Is that Mr McCracken, or is that you? MS SHEIKH: On directions from my leader, my Lord. MR JUSTICE NEWMAN: I think I know what you mean. What is the next one? MS SHEIKH: My Lord, the next is that the learned judge failed to apply principles laid down by the House of Lords in Berkeley as to the importance of the opportunity for public participation. That is in relation to the same point. MR JUSTICE NEWMAN: Right. MS SHEIKH: That public participation would have to be based on the material that is published in the developer's environmental statement. If that was not there, then the opportunity for public participation was not there either. MR JUSTICE NEWMAN: Right. MS SHEIKH: On the same point, that the learned judge wrongly considered that the private meetings with the Council could remedy the deficiencies accepted by the Council in the environmental statement and the officer had conceded that the report was bad. That is the Committee report that was referred to earlier. MR JUSTICE NEWMAN: Thank you. Those are the four? MS SHEIKH: No. That is all part of the first ground relating -- MR JUSTICE NEWMAN: I see. MS SHEIKH: Traffic, my Lord. MR JUSTICE NEWMAN: Traffic, yes. MS SHEIKH: This is ground 2. In respect of traffic, the learned judge erred in law and in principle in that he regarded it, or treated it, as permissible in law for the local authority to reject in its entirety the relevant section of the environmental statement and as an alternative to carry out its own assessment as an alternative. That we say is an error of law and principle and that is referred to in paragraph 35 of your judgment. MR JUSTICE NEWMAN: Yes. MS SHEIKH: The third ground is that the learned judge failed to appreciate that the issue before him in respect of the neighbours or the residential neighbours was not whether precautions were in fact necessary but whether the issue should have been examined. That is paragraphs 36 and 37 of your judgment. MR JUSTICE NEWMAN: Yes. MS SHEIKH: The fourth ground is that, in failing to hold that the regulation 4(2) -- that was the regulation requiring the statement by the local authority -- by failing to hold that that regulation statement is integral to the method of transposition of the directive adopted by the legislation in this country, that was an error also of law and of principle. MR JUSTICE NEWMAN: Yes. MS SHEIKH: In relation to that point, in applying the principle of substantial compliance where the directive had been transposed directly was an error in law. The doctrine of substantial compliance cannot apply in that situation -- only where there is not a correct transposition, and the learned judge erred in failing to appreciate that he had no discretion to withhold a quashing order as it was not de minimus in relation to regulation 4(2) and the reason for that is the failure to comply with a requirement which is integral to the transport (inaudible) cannot be _de minimis_, and for those reasons -- MR JUSTICE NEWMAN: You seek permission? MS SHEIKH: Yes. MR JUSTICE NEWMAN: Thank you very much. Anybody want to say anything about that? MISS PETER: No, my Lord. MR JUSTICE NEWMAN: Thank you very much. So far as permission is concerned, I will not recite the catalogue of grounds that have been submitted to the court. Suffice it to say that in my judgment permission ought to be refused. None of the matters in my judgment is either likely to succeed, nor do they raise any other point of importance. Thank you very much indeed. MS SHEIKH: Thank you. MR JUSTICE NEWMAN: Right. Anything else? MISS PETER: My Lord, one final point is that, although I understand there was some discussion about whether permission was to be granted, it is not formally granted in the judgment. So it is open to you to refuse permission for judicial review and we would invite you, on the grounds it would appear from the judgment that the whole application was misconceived in the first place. MR JUSTICE NEWMAN: You are right. MISS PETER: Permission was not granted by either the House of Lords or -- MR JUSTICE NEWMAN: Except it had been remitted to the High Court for substantive issues to be determined without it being clear. The House of Lords did not make it clear whether they were saying permission or not. MISS PETER: No. They simply said the substantive issues -- MR JUSTICE NEWMAN: I do not think we need dwell on that. I will treat it as a case, -- having regard to the House of Lords judgment, which merits permission, but the application has failed. Thank you very much. I will look forward to hearing from you both.

Burkett, R (on the application of) v Hammersmith and Fulham [2003] EWHC 1031 (Admin)

Summary of the Grounds

The Legal Framework

(d) , being defined as:

MITIGATION

Cited in 2 later judgments