Ghadami v Harlow District Council & Anor [2004] EWHC 1883 (Admin)

[2004] EWHC 1883 (Admin)

Case No CO/6799/2003

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 30 July 2004

Before

THE HONOURABLE MR JUSTICE RICHARDS

Between

Mohammed Reza GhadamiClaimant

Harlow District CouncilDefendant

Sapphire Retail Fund LimitedInterested Party

Mohammed Reza Ghadami acting in person for in person

Timothy Straker QC and Andrew Fraser-Urquhart (instructed by Harlow District Council Legal Services Division) for Defendant

Paul Greatorex (instructed by Olswang) for Interested Party

Hearing Hearing dates: 6 and 7 July 2004

Judgment

Mr Justice Richards :

[1]This is a challenge to a decision of Harlow District Council, made by resolution of its Planning Committee on 18 September 2003, to grant planning permission for a major redevelopment of Harlow town centre, focused in particular on a retail centre known as the Harvey Centre. The claimant, Mr Mohammed Ghadami, owns commercial premises that would be affected by the proposed development. He appears in person, but his is not a lone voice. Three members of the Planning Committee have provided witness statements in support of his claim. The claim is opposed both by the defendant council and by the developer, Sapphire Retail Fund Limited (“Sapphire”), which appears as an interested party. The proposed development is managed for Sapphire by Stannifer Developments Limited (“Stannifer”), which features heavily in the papers before the court but does not appear separately in the proceedings.

[2]The matter has been listed before me for a “rolled-up” hearing, i.e. a hearing of the application for permission with the substantive claim to follow immediately if permission is granted. I have heard full argument, reserving my position on whether and to what extent permission should be granted.

Factual background

[3]There is a widely perceived need for regeneration of Harlow town centre. An action plan, “Harlow 2020 Vision”, published by the council in November 2002 identifies the desire of the local population to see improvements in the town’s retail facilities, including provision of a department store. That is the broad context within which the proposed development under consideration in this case fell to be assessed.

[4]Stannifer, on behalf of Sapphire, had been actively promoting redevelopment of the Harvey Centre site since January 2002. It appears that by January 2003 the proposals had reached an advanced stage.

[5]By a letter dated 13 January 2003 the council was asked to issue a “screening opinion” under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the EIA Regulations”) confirming whether or not an environmental impact assessment (“an EIA”) was required in respect of “our proposed Planning Application for the extension to the Harvey Centre”. The claimant seizes upon the fact that the letter came from a firm called Reid Architects whereas Sapphire’s project architects for the proposed development were a firm called Benoy. That is a matter I shall have to consider in the context of the EIA issues.

[6]On 29 January 2003 Sapphire staged an exhibition of the proposals, which was attended by members of the council’s Planning Committee, among others.

[7]On 18 February 2003 the council adopted a screening opinion that an EIA was not required. Various issues are raised about the lawfulness of the screening opinion.

[8]Sapphire thereafter submitted a planning application, dated 27 March 2003, apparently lodged on 1 April (or possibly 3 April) but stamped as received by the council only on 9 April. The apparent discrepancy between the dates of 1 April and 9 April may be accounted for by the time taken in checking the application and the payment of the fee, before stamping a date for registration of the application. The brief particulars of the proposed development were “extension to the existing Harvey Centre, including 27 new retail units, a two storey department store, three levels of roof car parking & associated servicing. Development includes demolition of existing buildings as shown on drawings …”.

[9]Also on 9 April was the first of a number of telephone conversations between the claimant and Councillor Michael Garnett, the Chairman of the Planning Committee, which are central to an issue concerning the appearance of bias or predetermination.

[10]Written notice of the planning application was sent to the claimant, among others, on 10 April. There is an issue as to whether written notice was served on all persons required to be served. There is also an issue about the adequacy of notices by way of advertisement in local newspapers.

[11]By letter dated 22 April 2004 the claimant wrote to the council’s Chief Executive objecting to the proposal and indicating that further and better particulars of objection would follow.

[12]On 15 July there was a site visit by members of the Planning Committee. Later on the same day Sapphire made a presentation about the proposed development to members of the council. It appears that members of the Planning Committee were advised not to attend that presentation, though it is asserted in evidence for the claimant that some did attend. One of the matters of complaint is that members of the Planning Committee attended meetings to which objectors were not invited and did not have any corresponding meetings with objectors.

[13]By letter dated 16 July 2003 solicitors for the claimant wrote to the First Secretary of State raising detailed planning objections, complaining about the lack of an EIA and inviting the First Secretary of State to call in the application for his own determination. A letter raising the same concerns was sent to elected councillors soon afterwards.

[14]By a reply dated 23 July 2003 the First Secretary of State refused the request for a call-in, stating that he was satisfied that “there was not sufficient conflict in this case with national planning policies …, or any other sufficient reason, to have warranted calling in the application for his own determination”.

[15]On the same date, 23 July, the claimant’s solicitors wrote to the council to threaten legal action in the event that a resolution to grant planning permission were adopted.

[16]On 24 July the planning application was considered by the Planning Committee. The members of the Committee had before them a detailed officers’ report, recommending that permission be granted subject to a s.106 agreement and conditions. It appears that officers made a presentation to members and responded to questions. The minutes of the meeting record that members expressed concern about the effect of the development on existing small traders. It was resolved that “a decision on this application be deferred until the next meeting, pending negotiations being held between small traders and the developer, with the Council’s Regeneration Unit acting as mediators and a written report to be submitted to the next meeting of this Committee”.

[17]The planning application next came before the Committee on 21 August. There was a short report from officers appending the report of 24 July and repeating the recommendation that planning permission be granted. Members were also provided with a separate report giving an update on negotiations between the developer and small traders. At the meeting itself, however, advice was given that that report did not fall within the terms of reference of the Planning Committee and the report was withdrawn. It was resolved that the Regeneration Unit be requested to carry out further work and to provide progress reports to the most appropriate policy committee “and an interim report to the September meeting of the Planning Committee”. The meeting was evidently a tense and difficult one. Councillor Garnett was challenged by another member of the committee, Councillor Shepherd, to declare an interest and withdraw, which he declined to do. There were verbal exchanges with objectors and the disruption was such that the police were called to calm things down. I shall deal with this further when considering the issue of apparent bias and predetermination.

[18]The application came back before the Planning Committee on 18 September. Members had before them a report recording the progress made by the Regeneration Unit, with a recommendation that such progress be noted, and a further short report from officers appending the earlier reports and recommending once more that planning permission be granted. At the outset of the meeting consideration was given to a petition containing 104 signatures and requesting the removal of Councillor Garnett from the chair “because of his unacceptable conduct and the insults received at the last meeting”. The council’s Head of Legal Services, Mr Willcox, advised that the council’s standing orders contained no basis for requiring the Chairman to stand down or be removed in such circumstances. The Chairman decided not to vacate the chair. Again I shall need to come back to events at this meeting.

[19]Of the nine members of the Planning Committee present on 18 September, two were unable to take part in the discussion or vote because they had not attended the meeting of the Committee on 24 July when the application had been presented and discussed. The remaining members of the Committee resolved, by a majority of four to three, to grant planning permission on the terms recommended by officers. One of those who voted in favour was Councillor Garnett. Another was a substitute member, Councillor Jane Steer. In relation to each, though for different reasons, there is an issue as to their entitlement to vote.

[20]The adequacy of the officers’ reports on which the Committee’s decision was based, and the lawfulness of the decision taken on the basis of them, are further matters of challenge.

Issues

[21]In the course of his written evidence, written submissions and oral submissions the claimant has advanced a large number of complaints about the decision to grant planning permission and about the decision-making process. At one stage he produced a list of 60 issues, though many of the points were matters of argument rather than distinct issues in their own right. In his skeleton argument he divided matters into what he termed procedural grounds, natural justice and Wednesbury grounds, but at the same time appended his earlier list of issues and a separate document setting out legal points to be considered. In his oral submissions he put a clearer structure on things and, with some assistance from the court, kept substantially to that structure. I propose to follow broadly the same structure, which in my view encompasses the main features of the arguments scattered through the written material.

[22]Accordingly I will consider matters under the following headings:(1) the EIA screening opinion,

(2) notices and advertisements,

(3) apparent bias and predetermination: Councillor Garnett,

(4) the participation of Councillor Steer,

(5) other procedural matters, and

(6) the officers’ report to the Planning Committee and the substantive decision.

[23]It is not sensible for me to try to deal expressly with all the additional points embedded in the claimant’s written material. Suffice it to say that the claimant evidently did not think them sufficiently important to focus on at the hearing and that I have not detected in them anything of sufficient substance to warrant separate treatment.

[24]Before turning to the issues I should say a few words about the evidence and the claimant’s application to cross-examine witnesses.

The evidence and the application for cross-examination

[25]The evidence in the case is spread across 9 files. The documents are not in any sensible order and are very difficult to find. As a result of an Order made by the Court of Appeal on an interlocutory foray by the claimant, there are two core bundles, but they too are not well organised and they do not contain all the key documents. I am grateful to the legal representatives of the council and Sapphire for providing a full set of documents and helping to provide some guidance through the documents in advance of the hearing.

[26]Prior to the hearing the claimant applied to cross-examine Councillor Garnett, Mr Tremayne and Mr Willcox, who made witness statements on behalf of the council, and to cross-examine Sapphire’s witness, Mr Bell. Gibbs J ordered that the issue of whether any of those witnesses should give oral evidence and be cross-examined should be determined by the Judge hearing the claim. At the beginning of the hearing the claimant made clear that he was pursuing the application to cross-examine the council’s witnesses but not Mr Bell. I deferred a decision on that application until I had heard the claimant’s main submissions on the substance of his claim. I then heard argument from all parties on the application to cross-examine. In the light of everything that I had read and heard I refused the application. I indicated at the time that I did not consider the exceptional course of cross-examination to be necessary for the just and proper disposal of the case. It may be helpful for me to indicate my reasons in slightly greater detail.

[27]First, although there are undoubtedly areas of factual conflict in this case, their resolution did not seem to me to be essential. Moreover, if cross-examination of the council’s witnesses had been permitted, it would also have been necessary to permit cross-examination of the claimant’s witnesses; and the resulting exercise would have been very time-consuming, potentially unproductive, and disproportionate to any possible benefits. The fact that it would have included competing evidence from councillors about the conduct of the Chairman of the Planning Committee and about events at meetings of the committee would have made it particularly difficult and sensitive. It is to be noted that the claimant’s time estimate for the hearing was 5-7 days, whereas the case was given a 2-day listing. In the event it was possible to conclude the hearing in two long days. I have no doubt that 5-7 days or longer would have been required if the court had gone down the path of oral evidence and cross-examination.

[28]Secondly, it seemed clear to me that the claimant was also looking to cross-examination as a way of highlighting deficiencies in the evidence and documentation and of exploring more generally the issues in the case. It would have been plainly inappropriate to permit cross-examination for those purposes. And if cross-examination had been permitted for any limited purpose, it would in my view have been next to impossible to get the claimant, as a litigant in person, to respect the limits imposed.

[29]For the same reasons I rejected the claimant’s contention that refusal of permission to cross-examine the council’s witnesses would be unfair to him and a breach of

article 6 of the European Convention on Human Rights

[30]The decision not to allow cross-examination does of course place some limitations on the court’s approach to the case. For example, it is not possible to resolve competing claims about the way in which meetings were conducted or about the motivation of individuals. At the same time it enables the court to concentrate on the essential issues without being distracted by the heated language that has been used in the course of the events to which the case relates and in some of the evidence itself. Nevertheless I have borne in mind the very real tensions that underlie this claim, both within the council and between the claimant, the council and the developers. I have also borne in mind that the claimant is far from being a disinterested member of a the public but may be advancing this claim out of a wish to delay and frustrate the development for his own commercial ends. (1). The EIA screening opinion

[31]In order to deal with the issues raised by the claimant under this heading, I need to describe the regulatory framework and give a fuller description of the relevant documentation.

[32]The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 implement Council Directive 85/337/EEC as amended by Council Directive 97/11/EC. Although the claimant made some reference to the terms of the Directive, I take the view that the matters referred to add nothing material to the implementing Regulations.

[33]The Regulations deal with the circumstances in which an application for planning permission must be accompanied by an environmental impact assessment (“EIA”), and with the procedures that apply where an EIA is required. “EIA development” is defined in regulation 2(1) as “development which is either(a) Schedule 1 development; or

(b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location.” It is not in issue that the proposed development was a Schedule 2 development, falling within paragraph 10 of Schedule 2 as an urban development project of an area exceeding 0.5 hectare. The question was whether it was likely to have significant effects on the environment so as to make it an EIA development.

[34]Part II of the Regulations lays down procedures for determining in advance whether a proposed development is EIA development. Of relevance here is the procedure for obtaining a “screening opinion”, which is defined by regulation 2(1) as “a written statement of the opinion of the relevant planning authority as to whether development is EIA development”. Regulation 5(1) provides in material part: “5.(1) A person who is minded to carry out development may request the relevant planning authority to adopt a screening opinion. (2) A request for a screening opinion shall be accompanied by-(a) a plan sufficient to identify the land;

(b) a brief description of the nature and purpose of the development and of its possible effects on the environment; and

(c) such other information or representations as the person making the request may wish to provide or make. (3) An authority receiving a request for a screening opinion shall, if they consider that they have not been provided with sufficient information to adopt an opinion, notify in writing the person making the request of the points on which they require additional information. (4) An authority shall adopt a screening opinion within three weeks beginning with the date of receipt of a request made pursuant to paragraph (1) or such longer period as may be agreed in writing with the person making the request. (5) An authority which adopts a screening opinion pursuant to paragraph (4) shall forthwith send a copy to the person who made the request.” (a) a plan sufficient to identify the land; (b) a brief description of the nature and purpose of the development and of its possible effects on the environment; and (c) such other information or representations as the person making the request may wish to provide or make.

[35]By regulation 4(1) and (2)(b), the adoption of a screening opinion to the effect that development is EIA development is determinative for the purposes of the Regulations, subject to the possibility of a direction from the Secretary of State. The adoption of a screening opinion to the effect that development is not EIA development means that the developer does not have to submit an EIA with the application for planning permission. If development is Schedule 1 or Schedule 2 development and a screening opinion has not been obtained prior to the making of an application for planning permission, the lodging of the application for planning permission engages the screening opinion procedure: regulation 7(1) provides, in summary, that paragraphs (3) and (4) of regulation 5 apply as if the lodging of the application were a request made under regulation 5(1).

[36]Regulation 20 contains provisions as to the public availability of screening opinions: “20.(1) Where particulars of a planning application are placed on Part I of the register, the relevant planning authority shall take steps to secure that there is also placed on that Part a copy of any relevant – (a) screening opinion … (2) Where the relevant planning authority adopt a screening opinion …, the authority shall take steps to secure that a copy of the opinion … and any accompanying statement of reasons is made available for public inspection at all reasonable hours at the place where the appropriate register (or relevant section of that register) is kept.

(a) screening opinion …

[37]In this case the request for a screening opinion was made by letter dated 13 January 2003 from Reid Architecture to the council and marked for the attention of Mr Clive Crake, who was Head of Planning Services. It referred to “our proposed Planning Application for the extension to the Harvey Centre” and asked the council to issue a screening opinion confirming whether an EIA was required or not. The letter was not accompanied by any information but stated:

“Hopefully you have enough information from us to make this decision, however, should you have any queries or require further details of our proposals please do not hesitate to contact me.”

[38]The request was registered by the council on 14 January 2003. It was responded to substantively by the adoption of a screening opinion dated 18 February 2003 and signed by Mr Crake as “Head of Planning Services (Duly Authorised Officer)”. The opinion stated:

“An Environmental Impact Assessment is not required under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, Part II Regulation 5. Reason: The scale, scope, nature and impact of the development is not considered to be sufficient to require an Environmental Impact Assessment.”

[39]Mr Crake appears to have signed more than one copy of the screening opinion. The files include two copies, bearing the same signature but in slightly different positions on the page. The second copy is date-stamped as having been received by Benoy, the project architects for the development, on 20 February 2003. From the other markings on it I infer that it was registered as one of the documents supplied in support of the planning application itself.

[40]Underlying the screening opinion was a report prepared by the council’s Mr Ian Tremayne. Under the heading “Details of Proposals and Surroundings” the report stated:

“A Screening Opinion is being sought prior to the submission of a planning application for the extension to The Harvey Centre into West Gate. The development will involve the development of a total of 24,765 sq. metres of floor space of which 14,092 will be new and 10,673 will be replacing that which is to be demolished. For comparative purposes the existing Harvey Centre has a floor area of 58,800 sq. metres. The site will have a cross area of 1.95 hectares (4.8 Acres). A 660 car park is proposed.”

A 660 car park is proposed.”

[41]Under the heading “Summary of Main Issues” the report first identified that the proposed development was a Schedule 2 development. It then examined the scale and impact of the development, concluding that(i) “the nature of the impact will be similar to that already experienced as the proposals are for retail development which is the character of the existing use” and

(ii) having regard to the fact that the floor space would represent an increase of less than 25% over the floor space of the existing Harvey Centre, “I do not believe that the increase is of a significantly greater scale than previously existed”. The proposal was then assessed by reference to three selection criteria, namely (i) the nature of the project, cumulation with other developments, and the use of natural resources etc.; (ii) the location of the development; and

(iii) the characteristics of the potential impact, including traffic generation (in relation to which it was stated that a transport assessment was to be required as part of the planning application). Other possible issues were then considered. The report indicated that other bodies had not been consulted as the only matter of relevance was likely to be highway and traffic matters, in relation to which the applicants were drawing up a transport assessment and were in discussion with highways officers, so that “there seemed to be little to gain by consulting them”. Consultation was said not to be a requirement of the Regulations. Finally, after setting out a brief summary of conclusions, the report recommended that no EIA was required.

[42]The claimant raised a variety of points concerning the screening opinion. First, he said that the opinion was requested by, and issued to, Reid Architects, whereas the subsequent planning application was made by Sapphire acting through Benoy as its agent. In my judgment there is nothing in that point. Although regulation 5(1) states that “[a] person who is minded to carry out development” may request a screening opinion, it is clear from the Regulations as a whole, including in particular regulation 2(2) (the definition of “screening opinion”) and regulation 4(2)(b), that when an opinion is given it relates to a development rather than to a particular applicant. Accordingly, the opinion can be relied upon by an applicant for planning permission even if it was requested by a different person.

[43]It follows that, even if Reid Architects was not acting on behalf of Sapphire, on which there appears to be no evidence, the screening opinion could be relied on by Sapphire in relation to the proposed development if the opinion was otherwise lawful and applicable to the development. (I should also mention in passing that I saw nothing in a further contention that it was unlawful to have two separate originals of the screening opinion, one sent to Reid Architects and one apparently sent to Benoys.)

[44]The claimant submitted, however, that the opinion related to a different development from that which was the subject of the planning application. He drew attention to the fact that the report in support of the screening opinion referred to “a total of 24,765 sq. metres of floor space”, whereas the planning application gave a figure of 35,163 sq. metres for “the total floor space of all buildings” to which the application related, and that the screening opinion referred to a “gross site area” of 1.95 hectares whereas the plan accompanying the planning application gave a “site area” of 2.26 hectares. It would be easy enough to resolve this matter if the court knew the full extent of the information in the council’s possession when it issued the screening opinion: the absence of documentation is a further matter of complaint, considered below. On the available material, however, I am not persuaded that the subject of the planning application was materially different from the subject of the screening opinion. The reasonable inference from the documents as a whole is that the figure of 35,163 sq. metres in the planning application is inclusive of car parking space whereas the figure of 24,765 sq. metres in the report underlying the screening opinion is exclusive of car parking space, and that the correct comparison is between the planning application’s figure of 22,249 sq. metres for “the amount of floor space for retail trading” and the report’s figure of 24,765 sq. metres. As to total site area, even if the comparison made by the claimant is correct I do not consider the difference in area to be sufficiently significant as to invalidate the screening opinion or to justify the conclusion that it related to a different development from that which was the subject of the planning application.

[45]The next matter to consider is the claimant’s contention that the screening opinion was defective because the request was not accompanied by a plan or by any description of the development and its possible effects on the environment, as required by regulation 5(2)(b) and (c). As to that, it is apparent from the terms of the letter of request that no such plan or description accompanied the request and that reliance was placed instead on information already in the possession of the council, with an offer to respond to queries or to provide further details if required. The witness statement of Mr Tremayne states that in coming to his conclusion he relied on “information submitted by the Developer such as site plan, the level of increased floor space proposed, a statement that the planning application would be accompanied by a Transport Assessment”. The council is, however, unable to produce copies of, or to give a precise description of, the plan and information that had been submitted at the material time. Although the claimant understandably places considerable emphasis on that point, it is not sufficient to sustain his arguments on this issue. For the following reasons I am not persuaded that there was a breach of the Regulations: i) The requirement in regulation 5(2) that a request for a screening opinion must be “accompanied by” the specified material is not to be construed narrowly. In my judgment it is unnecessary for the relevant material to be provided under cover of the request itself. The requirement is met if the material has already been provided or is provided under separate cover. ii) The council’s inability to produce the relevant material is not a good reason for rejecting the evidence of Mr Tremayne, the author of the report, that a site plan and other information had been provided. Further, his evidence is supported by the terms of the report itself, which show that the council had in its possession a body of information about the proposed development, including details such as site area and floor space. The surrounding circumstances, including the fact that the developer laid on an exhibition about the proposed development for council members on 29 January 2003, reinforce the point. (It follows, but should be spelled out, that I reject the claimant’s allegation that Mr Tremayne’s evidence about receipt of a plan and other information was “fabricated” and “misleading … to the High Court”. To the extent that the claimant sought to derive support, in relation to this or other matters, from a mid-2004 print-out of documents available for public inspection at the council’s offices, in my view it gave him no assistance whatsoever.) iii) The primary judge of the adequacy of the information provided was the council. By regulation 5(3), it was open to the council to request additional information if it considered that it had not been provided with sufficient information to adopt an opinion. Evidently the council considered in this case that it had enough for the purposes of the opinion. There is no basis for impugning that assessment.

[46]The claimant complained about the fact that no-one was consulted before the screening opinion was adopted. The regulations do not, however, impose a requirement as to consultation; and the reasons given in the report for not consulting were in my view rational.

[47]In the course of his submissions the claimant linked with this point a complaint about the absence of publicity for the screening opinion once it had been adopted: he said that no-one knew about the matter from start to finish. Regulation 20(2) requires that where a screening opinion is adopted before an application for planning permission for the development in question, the authority shall take steps to secure that a copy of the opinion and any accompanying statement of reasons is made available for public inspection at the place where the appropriate register is kept. Regulation 20(1) requires that where particulars of a planning application are placed on the register, the authority shall take steps to secure that a copy of any relevant screening opinion is also placed on the register. The claimant contended that the screening opinion in this case was not available on the register until very much later, and he pointed to correspondence indicating that people had difficulty in obtaining a copy of it. On the other hand, one copy of the screening opinion is stamped as if it was with the planning application on the register; and it appears from a letter dated 2 May 2003 from a chartered surveyor acting for another objector, Mr Bekir, that an inspection of the application had revealed that the council had determined that no EIA was required. On the evidence as a whole I cannot determine whether the screening opinion was made available for inspection prior to the submission of the planning application (regulation 20(2)), but I find that when the planning application had been submitted the screening opinion was included on the register with it (regulation 20(1)). More importantly, even if there had been a failure to comply with the inspection requirements, it would not in my view be such as to invalidate the screening opinion itself.

[48]Going back to the decision-making process, the claimant submitted that the screening opinion was invalid because Mr Tremayne lacked relevant delegated powers. The simple answer to that is that the decision was taken not by Mr Tremayne but by Mr Crake, the Head of Planning Services, who did have delegated power to take it. At the hearing before me the council produced its scheme of delegation, which provides in material part that “[t]he Planning Services Manager and Principal Planning Officer (Development Control) are authorised … to determine the requirements of submission of Environmental Impact Assessments”. I am satisfied that Mr Crake, as Head of Planning Services, met the description of “Planning Services Manager” (and I was told by Mr Straker, on instructions, that there was no-one else meeting that description). I am also satisfied that, although the relevant power of delegation is not very well expressed, it includes a power to determine whether the submission of an EIA is required at all.

[49]The claimant gains no assistance from the fact that Mr Crake relied on the report prepared by Mr Tremayne. Mr Crake was plainly entitled to rely on such material provided that he himself took the decision as to whether an EIA was required, as the issue of the screening opinion by him shows he did. It follows that it is unnecessary to consider an issue raised by the claimant about Mr Tremayne’s status as a consultant rather than full-time employee of the council; but, whatever his precise employment status, it has not been shown that references to him as an “officer” of the council were wrong.

[50]In so far as the claimant sought to challenge the substance of the screening opinion, I reject the challenge. Neither the opinion itself nor the report on which it was based discloses any error of law; proper account was taken of the position concerning a transport assessment; the issues were summarised sensibly and an appropriate comparison was made with the existing position; and the conclusion reached was a rational one.

[51]For those reasons I conclude that there is nothing in the claimant’s challenge concerning the validity of the screening opinion or its applicability to the subsequent planning application.

[52]I should, however, also record the council’s position that permission to challenge the screening opinion should be refused in any event on grounds of delay. The opinion was issued on 18 February 2003 but the judicial review claim form was lodged only on 17 December 2003, well out of time. Even if the screening opinion was not on the register prior to the submission of the planning application, it was (as I have already found) included on the register with the planning application when that application was submitted. The council notified the claimant of the planning application by letter dated 10 April 2003 and drew his attention to where and when he could view the application. Time for challenging the screening opinion therefore began to run from then at the latest. It appears from a letter of objection dated 22 April 2003 from the claimant to the council that he was aware of the details of the application by this date. Further, in a letter before claim from his solicitors, dated 23 July 2003, the absence of an EIA was one of the matters specifically raised. Accordingly, it is submitted, the challenge to the screening opinion was on any view out of time and there can be no excuse for the delay.

[53]In R (Malster) v. Ipswich Borough Council

[2001] EWHC 711

, at paragraphs 98-99 of the judgment Sullivan J held that as a general rule, where there is a discrete challenge to a screening opinion, it should be made promptly. Faced with a challenge to the lawfulness of an opinion, the planning authority may wish to reconsider its position and ask the Secretary of State to make a direction accordingly, or the developer may volunteer an EIA. It is not appropriate to wait until after planning permission has been granted, when it is too late to remedy the omission, and then complain that the screening opinion, which has been on the public register for some months, is erroneous. In Younger Homes (Northern) Ltd v. First Secretary of State

[2003] EWHC 3058 (Admin)

, at paragraphs 82-87, Ouseley J appears to have taken a different view, holding that, although the adoption of a screening opinion is a judicially reviewable act, it remains open to an applicant to challenge the lawfulness of a screening opinion indirectly through the medium of a challenge under s.288 of the Town and Country Planning Act 1990 to the subsequent decision to grant planning permission. In the present case Mr Straker invited me to prefer the reasoning and conclusion of Sullivan J in Malster.

[54]Since I have already held there to be no substance to the challenge to the screening opinion, I do not think it necessary for me to decide the separate point on delay. It is right to observe, however, that the claimant’s case in relation to the screening opinion extends beyond a free-standing challenge to the opinion and includes arguments, albeit arguments that I have rejected, that the opinion was not applicable to the planning application because it related to a different development from that which was the subject of the planning application. It may be thought that the claimant is entitled to raise that point, at least, in his challenge to the decision to grant planning permission even if it were otherwise too late to challenge the screening opinion.

[55]In all the circumstances I prefer not to decide this matter on a time-limit point. That also makes it unnecessary to reach any conclusion on the claimant’s evidence that he first obtained a copy of the screening opinion only in December 2003, when he attended the council’s offices to inspect the file.

[56]Finally, I should make clear that a point on delay is taken only in relation to the challenge to the screening opinion. No point on delay is raised in relation to the rest of the case. (2). Notices and advertisements

[57]I shall consider under this heading two issues raised by the claimant, namely(i) that there was a failure to comply with the statutory requirements as to service of notice of the planning application and

(ii) that the newspaper advertisements relating to the planning application were defective.

[58]Section 65 of the Town and Country Planning Act 1990 provides:

“(1) A development order may make provision requiring – (a) notice to be given of any application for planning permission, and (b) any applicant for such permission to issue a certificate as to the interests in the land to which the application relates or the purposes for which it is used, and provide for publicising such applications and for the form, content and service of such notices and certificates. (2) Provision shall be made by a development order for the purpose of securing that, in the case of any application for planning permission, any person (other than the applicant) who on such date as may be prescribed by the order is an owner of the land to which the application relates … is to be given notice of the application in such manner as may be required by the order. (3) A development order may require an applicant for planning permission to certify, in such form as may be prescribed by the order, or to provide evidence, that any requirements of the order have been satisfied. … (5) A local planning authority shall not entertain an application for planning permission unless any requirements imposed by virtue of this section have been satisfied. (6) If any person – (a) issues a certificate which purports to comply with any requirement imposed by virtue of this section and contains a statement which he knows to be false or misleading in a material particular; or (b) recklessly issues a certificate which purports to comply with any such requirement and contains a statement which is false or misleading in a material particular, he shall be guilty of an offence. … (8) In this section – ‘owner’ in relation to any land means any person who – (a) is the estate owner in respect of the fee simple; [or] (b) is entitled to a tenancy granted or extended for a term of years certain of which not less than seven years remain unexpired ….” (a) notice to be given of any application for planning permission, and (b) any applicant for such permission to issue a certificate as to the interests in the land to which the application relates or the purposes for which it is used, (a) issues a certificate which purports to comply with any requirement imposed by virtue of this section and contains a statement which he knows to be false or misleading in a material particular; or (b) recklessly issues a certificate which purports to comply with any such requirement and contains a statement which is false or misleading in a material particular, ‘owner’ in relation to any land means any person who – (a) is the estate owner in respect of the fee simple; [or] (b) is entitled to a tenancy granted or extended for a term of years certain of which not less than seven years remain unexpired ….”

[59]The Town and Country Planning (General Development Procedure) Order 1995 (“the GDPO”) gives effect to those requirements. Article 6 of the GDPO provides:

“6.(1) … [A]n applicant for planning permission shall give requisite notice of the application to any person (other than the applicant) who on the prescribed date is an owner of the land to which the application relates … - (a) by serving the notice on every such person whose name and address is known to him ….”

The argument before me proceeded on the basis that “owner” has the same meaning in article 6 as it does in section 65 of the 1990 Act, i.e. including tenants with an unexpired term of not less than seven years. Article 6 also imposes a requirement of service on “a tenant”, but that appears to be irrelevant since it is defined by article 6(6) as meaning “the tenant of an agricultural holding any part of which is comprised in the land to which an application relates”. (a) by serving the notice on every such person whose name and address is known to him ….”

[60]Article 7 of the GDPO requires that, where an application for planning permission is made, the applicant shall certify in a prescribed form or in a form substantially to the like effect that the requirements of article 6 have been satisfied.

[61]Article 8 of the GDPO provides:

“8.(1) An application for planning permission shall be publicised by the local planning authority to which the application is made in the manner prescribed by this article. … (4) In the case of an application for planning permission which is not a paragraph (2) application [EIA applications etc.], if the development proposed is a major development the application shall be publicised by giving requisite notice – … (b) by local advertisement.”

It is common ground that the development in this case was a major development. (b) by local advertisement.”

[62]By article 8(7), “requisite notice” means a notice in the appropriate form set out in schedule 3 to the GDPO or in a form substantially to the like effect. According to the form in schedule 3, the requisite details of an advertisement include the address or location of the proposed development, a description of the proposed development, information as to where and when the application and related documents can be inspected, and the address to which and date by which any written representations should be sent.

[63]The planning application in this case was accompanied by a certificate under article 7 of the GDPO that the applicant had given the requisite notice to all owners of any part of the land to which the application related, including tenants with an unexpired term of not less than seven years. An accompanying schedule gave details of the notices served.

[64]The claimant’s case is that a number of those upon whom notices should have been served did not in fact receive such notices. There are statements or letters to that effect from, among others, Mr Ozcan Bekir of Unit 3-5, Little Walk, Domino’s Pizza of 13 West Gate, and Woolwich PLC of 1 West Walk. I see no reason to reject the generality of that evidence, though there is room for doubt about the specific position of Mr Bekir: a letter of 2 May 2003 written on his behalf by a firm of chartered surveyors to the council made no complaint about failure to serve a notice on him but complained, by contrast, about the service of notices on tenants who were not required to be served. There are, however, two reasons why I do not think that the point about non-receipt of notices gets the claimant anywhere.

[65]First, in the case of most of those who did not receive notices, I am satisfied that notices were in fact posted to them. Not only was there an article 7 certificate, with the risk of criminal sanctions for the deliberate or reckless provision of false or misleading information, but the evidence filed on behalf of Sapphire also includes a supporting record of postal despatch in the form of recorded delivery slips (albeit that, because of the lapse of time, corresponding proof of receipt is not available). The 1990 Act and the GDPO contain no specific provisions about how service is to be effected. Mr Straker referred me to section 7 of the Interpretation Act 1978, which provides in brief that where a statute provides for service by post, service is properly effected by posting the document. I see no reason why that should not apply here. Accordingly I take the view that there was valid service of the notice on those listed in the schedule to the article 7 certificate.

[66]That line of reasoning is not dispositive of the issue because there is at least one relevant name, that of Woolwich PLC, which is not listed in the schedule and does not appear to have been served.

[67]That brings me to my second reason for rejecting the claimant’s case in relation to notices, which is applicable irrespective of whether notices were served as required. I am satisfied that none of those upon whom notices should have been served can have been unaware of the planning application or denied the opportunity to submit representations in respect of it. A letter from the firm of surveyors acting for Woolwich PLC in negotiations regarding the proposed development confirms that the firm has known about the plans since January 2003. The letter was produced late, during the hearing before me, but I see no reason to reject it. So too Mr Bekir, another of those said not to have received a notice, clearly knew about the application and made extensive representations about it in May 2003. The proposed development plainly attracted a great deal of attention locally and it is a reasonable inference that those are typical cases. Nor does the claimant actually allege any prejudice arising out of the alleged deficiency in service of notices. In the light of those considerations, I have no hesitation in exercising my discretion so as to refuse relief in respect of any failure to comply with the requirement to serve notices. That the court has a discretion is not in dispute. The exercise of that discretion in relation to a subject-matter of this kind is illustrated by Main v. Swansea City Council

(1984) 49 P&CR 26

, though the factor of particular relevance to the exercise of discretion in that case was delay. I have also taken account of R v. Lambeth LBC, ex parte Sharp, referred to below in the context of notices by local advertisement.

[68]I turn to consider the claimant’s case in relation to the advertisement. Notice of the planning application was given by way of an advertisement in local newspapers which gave details of the application and where and when it could be inspected. It described the proposal as:

“Demolition of Little Walk & West Walk & partial Demolition of West Gate & Broad Walk & The Erection of an Extension to the Harvey Centre Consisting of 27 Retail Units a New Entrance From Broad Walk, a Two-Storey Department Store With 3 Levels of Parking Over Providing 22.249m², Retail Floorspace Plus Associated Servicing.”

[69]The claimant contends that the description was inaccurate, in that the advertisement should have referred to the full demolition of Little Walk, West Walk, West Gate, Gate House North, Gate House East and Gate House South and the partial demolition of Gate House West and Broad Walk. He submits that local people, for example those in the various Gate House units, were prejudiced by the omission. I do not consider there to be any force in this point. In my judgment the description given in the advertisement was adequate and served to draw attention to the essential nature of the proposal. Nor is there evidence that anyone affected by the proposal was misled by the terms of the advertisement into thinking that they were not affected by it.

[70]The claimant’s second point concerning the advertisement has more substance to it. The advertisement failed to specify the date by which representations should be sent: it should have specified 8 May 2003. It may also be noted that the advertisement did not even state in terms the address to which written representations should be sent, but it did give the address of the council’s Planning Services; and it is the omission of the period for representations upon which the claimant has focused.

[71]The council admits that the advertisement was defective, but submits that this should not lead to the quashing of the decision because no prejudice arose from the defect. Reliance is placed on the wide public awareness of the planning application and the absence of evidence that the defect in the advertisement led to anyone failing to put in representations that might otherwise have been submitted. Further, the evidence given in Mr Tremayne’s witness statement is that no representations were received after the date that should have been specified, 8 May, and that all representations received were considered by the time the officers’ report was drafted for the meeting of the Planning Committee on 24 July. Although there was some relevant correspondence after 8 May, it is not of a kind that would have been generated by the newspaper advertisement and I do not think that it casts doubt on the accuracy of Mr Tremayne’s evidence. It is also material that the members of the public most closely affected were the tenants of the properties, most of whom had notices served on them and all of whom, as I have already held, must have been aware of the proposed development; and that the small traders most closely affected were also consulted separately by the council in a special exercise which caused the Planning Committee’s consideration of the application to be adjourned twice.

[72]The importance of compliance with notice requirements was emphasised by the Court of Appeal in R v. Lambeth LBC, ex parte Sharp [1987] JPL 440. That case concerned a proposed development by the council in a public park. The notice given in a local newspaper was defective, principally because the period during which objections should be made was not specified. So there is a close factual similarity, save that the present case was not one where the council was effectively seeking to grant planning permission to itself. In his judgment Stephen Brown LJ described the notice requirements as “fundamental” and “strict” and dismissed an argument that the defect was a mere procedural technicality. He considered that the judge at first instance had correctly exercised his discretion to quash the planning permission, since “[t]he failure to specify the period was fatal to the procedure which was being followed”. Woolf LJ held that since the particular provision was designed to give the public an opportunity to make objections to what was proposed, the court was bound to attach considerable importance to any failure to comply with the requirements. However, the breach of the requirements could not be considered alone but had to be considered in the context of the particular circumstances of the case. Adopting that approach he came to the same conclusion. He noted that it might be said that no prejudice had been caused to the particular applicant; but the applicant was making the application not only on his own behalf but, in effect, on behalf of the public. In considering whether or not relief should be granted, the court must have very well in mind that such regulations were designed to give to the public generally notice of proposals of this sort. Lord Donaldson MR agreed.

[73]I have kept firmly in mind what was said in Sharp about the fundamental nature of the notice requirements. I do not read Sharp, however, as removing the court’s discretion or as holding that it can only be exercised one way where there has been a breach of the requirements. Everything depends on the particular circumstances. In the present case I am satisfied that the defect in the advertisement did not frustrate the relevant objective of giving the public an opportunity to make representations about the proposed development. For the reasons put forward by the council, neither the claimant nor the public at large suffered any prejudice by reason of the defect. Accordingly, I exercise my discretion so as to refuse relief in respect of the defect in the advertisement.

[74]I should mention briefly an argument contained in the written material, but not developed orally by the claimant, that the planning application should have been advertised as a departure from the development plan and should have been notified to the First Secretary of State for consideration of call-in by him. In my judgment the view was reasonably taken that the proposed development accorded with the development plan, so that these additional procedural steps were not required. In any event the First Secretary of State refused the claimant’s request for a call-in. (3). Bias and predetermination: Councillor Garnett

[75]I turn to examine what I regard as the most important issue in this case, namely the claimant’s allegations concerning bias and predetermination. They relate primarily to the involvement of Councillor Michael Garnett, the Chairman of the Planning Committee, in the decision-making process. Additional points made, which I will deal with under separate headings, concern the participation of a substitute member, Councillor Jane Steer, in the actual decision, and other procedural matters including a complaint that members of the Planning Committee held meetings with the developer but not with the objectors, and a complaint that pressure was applied by officers of the council to rush the decision through.

[76]As regards Councillor Garnett, reference is made first to telephone conversations between him and the claimant in April and May 2003. The claimant recorded the conversations and has produced transcripts of parts of them. Although Councillor Garnett took issue with transcripts originally submitted, as being “a reconstituted version of differing sentences I had with the Claimant over a number of weeks and a deliberate attempt to distort the true facts of our telephone conversations”, Mr Straker did not object to the admission of transcriptions subsequently made by Smith Bernal. I bear in mind that they are not transcripts of the complete telephone conversations and that I have not heard the tapes themselves or, therefore, the tone of the conversations. An issue was raised by Mr Greatorex about the dates of the conversations. He submitted that the April dates did not fit with the fact that negotiations between the claimant and Stannifer had broken down in late February or early March (see below). But the claimant referred me to dated documents that fit with certain observations in the transcripts, and on the balance of probabilities I accept the accuracy of the dates given by the claimant. There was also some dispute about who initiated the calls. I shall proceed on the basis of what Councillor Garnett says on the subject in his witness statement:

“The Claimant was one of the constituents within my ward, whom I represent, and I understood from our telephone conversations that he had concerns regarding his position within the development. On several occasions as I had not been able to take his calls at the time that he had tried to contact me, I returned his calls.”

[77]The first telephone conversation was early on 9 April 2003, the date when the planning application was received (or stamped as received), though Councillor Garnett says he was unaware of that fact when he spoke to the claimant.

[78]To set the scene, I should first deal with two matters. The first is a brief account of the general state of play between the various parties at the time. In February 2003 there were discussions between Stannifer and the claimant about the impact of the proposed development on his premises and ways in which his concerns might be accommodated. In a letter of 11 February 2003, following a meeting on 10 February, Mr Bell of Stannifer indicated a willingness to minimise disruption to the claimant’s business during the construction period (and to consider payment for any business losses) and, for the longer term, to consider the provision of car parking space and an extension to the claimant’s premises. There was an expression of hope that Stannifer and the claimant could work together. After a heated telephone discussion with the claimant on 20 February, Mr Bell sent him a further letter on 21 February reiterating a wish to maintain a working relationship. At a meeting on 26 February Stannifer presented a proposal for a scheme to demolish and rebuild the claimant’s premises. There is a dispute about the outcome of the meeting. The claimant says that an agreement was reached, on which Stannifer subsequently reneged. Mr Bell states that the claimant was making excessive financial demands which it was impossible to meet.

[79]However, on 27 February Mr Bell telephoned the claimant to put forward an alternative proposal for Sapphire to acquire the claimant’s business. The claimant confirmed that he would be willing to consider a price of around £15 million. Mr Bell says that he considered this a totally unrealistic figure; and since on the basis of initial advice Stannifer believed that it could undertake the development without an agreement with the claimant, it was decided to suspend negotiations with the claimant. On 6 March, when he told the claimant by telephone that Sapphire could not meet the sum of money he was seeking, the claimant became very agitated and made certain threats to Mr Bell. Mr Bell had no further contact with the claimant until the meeting of the council’s Planning Committee on 21 August. In the meantime, on 22 April, the date when the claimant lodged his formal objection to the planning application, Stannifer wrote to inform him that it would have to allow the council’s review of the application to be completed before Stannifer could enter into further dialogue with him, and to make it clear that Stannifer did not accept that an agreement had been reached on 26 February.

[80]Although Stannifer took the stance that they could build round the claimant’s premises, it is plain from other correspondence during April that the claimant was putting forward a different view and was contending that the planning application was contrary to the agreement allegedly reached between him and Stannifer on 26 April.

[81]Secondly, and as part of that background, I should mention specifically a telephone conversation on 28 March 2003 between the claimant and Mr Douglas Patterson, the council’s Chief Executive, a transcript of which has also been produced. The claimant had indicated to the developers that he would accept £15 million from them to buy him out. The developers had refused. Mr Patterson was seeking to see if there might be some middle ground:

“Patterson: This is just entirely from me, is there any middle ground in seven or eight million (inaudible). No? If you were to offer something in that region. I mean, I don’t know. I’ll tell you what I can see. I can see this development in the town centre that I’m very keen on all going pear-shaped. Yes? Claimant: Yes. Patterson: I can see the whole thing going pear-shaped. And I’d rather it didn’t. Do you know what I mean? And I’d rather we (inaudible) for the town centre and if there was any way, middle ground where everyone can walk away from this happy, they can go on with the development and you can be happy with cash. Is there any middle ground? Maybe that’s unfair to ask you that just now. Claimant: No, it’s not unfair. (several inaudible words) alternative, but they will never build it ….”

[82]The transcript of the first conversation between the claimant and Councillor Garnett on 9 April starts in the middle of a discussion on the same theme:

“Garnett: £15 million, or say to you, well what is your bottom line, you know, and you say, ‘Right, the minimum I’m going to take is £12 million and you either take it or leave it’. A lot of money. I wish I had £1 million. I’d be all right. Claimant: … Mike, I’m not interested. I don’t want the money. I’m not poor. I’m never selling the thing …. Garnett: You must bear in mind though that if Doug [Patterson] feels and the members feel – it’s not just me, the members feel – that you’re in the way of the whole development – Claimant: Sure. Garnett: And I don’t know whether your are or not, because it could be they could build round you, then the members are going to vote overwhelmingly to take you to court, to get a CPO on it. Claimant: They’ll make my day. Garnett: I said to Doug, you know, you’re fine, we don’t end up years in court, we need to get this resolved. Now, I don’t know the process of CPOs and how good they are or how reliable they are. Claimant: It would be very, very, very, very wrong (inaudible) any council will do it because of the negative publicity and all that ….”

[83]The claimant says that he took this as a threat. Councillor Garnett states that he was not threatening the claimant with a CPO but was stating hypothetically that if members at the appropriate committee felt that he was in the way of the development and the council wanted to acquire the land, the council would obtain a CPO against him. He was not sure how it would be obtained as he was unfamiliar with the process.

[84]At the end of that conversation Councillor Garnett asked if he could ring back later. He did so within an hour. At the point where the transcript commences the claimant was referring to talks he had had with the Bank of Scotland. The conversation moved, as it would appear, to possibilities for relocation of the claimant’s premises. At one point the claimant said that he was not trying to rock the boat and he was not against the development; but he had been trying to buy the premises (namely, I am told, Gate House Buildings) which had then been sold behind his back. As the conversation continued, the following exchanges occurred:

“Garnett: Let’s – sorry, because I’ve obviously got a job to do here, so I don’t want to spend hours, but what – where are we at the moment? Has Doug [Patterson] said to you that if you don’t come to an arrangement or don’t sell then we will go for a compulsory purchase? Claimant: No, no, Doug said, ‘We don’t do a (inaudible) on you’, on myself. Garnett: Okay, that’s fine. Claimant: He’s got to write to me. He hasn’t listened to me. Garnett: (overspeaking) negotiations with you now. Claimant: He wants to look at some sites, after he said he was going to talk to you today. Some sites, and then see what we can (several inaudible words) legal and above the board, which – Garnett: (several inaudible words) Claimant: Of course, it’s (inaudible) with the valuer saying one grand or £1 million, £2 million, then development value would be, I don’t know with hotel and casino because they’ll want to do that, then Stanniford [i.e. Stannifer] would have to (several inaudible word) cost another x amount which we want you to do it. And then after that let’s have the money in cash. I said, ‘As long as it totals that amount I don’t mind how you do it’. Garnett: Which, £15 million? Claimant: Yes. Garnett: You’re not prepared to budge on that figure then? Claimant: I wouldn’t never – (several inaudible words) I would budge it because if they give me the property, which they have, they haven’t given the money, they can give me property, they said (inaudible) – Garnett: If they – say somehow we identified the site for you to go on, okay, (inaudible) to buy from the council, they could then (inaudible) the building on there which would consist of a casino – Claimant: Hotel and all the rest, yes. Garnett: I don’t know whether the hotel would go with it. Claimant: That’s what they said, yes. Garnett: The area was supposed to be for a hotel, post office as I mentioned to you yesterday. Claimant: Yes. Garnett: That was earmarked for a hotel, and I don’t know what development costs of that would be. What we’re looking at, £15-20 million to develop that? Claimant: Whatever. Could be something like that …. Garnett: What appears to be, we’re still talking, that’s the thing, and Doug’s going to talk to Stanniford again today. I think – Claimant: Have you talked to him today? Garnett: I’ve not spoken to him, no, whether he’ll ring me later I don’t know. I’ve only thrown that in as a suggested way of going round it, whether that particular site suits probably what you want, there may be other sites which would be better suited but I think that Doug (several inaudible words) the inference yesterday was, ‘Let’s see if we can identify one or more sites that Mo [the claimant] would be interested in and say, ‘Well, all being equal I’m happy on that site or I’m happy on that site’, let’s get the first piece of the jigsaw puzzle in place. Then we have to go to Stanniford and say, ‘Right, this is the proposal now, is that you develop this area’ and it could be a joint development, I don’t know, if the development is too much for him, say it’s £20 million. … Garnett: Money has got to be a consideration and I don’t know what developments cost, so, you know, Stanniford are happy that they’ve got you out of the main where they want to develop, you’ve got a new place which you’re happy with, on a site you’re happy with, with the relevant car parking, and you’ve got the required amount of, you know, the cash equivalent or the building equivalent. Claimant: That’s it. Garnett: So, you know, that seems to me to be a good starting block for discussion. Now, whether Stanniford have got enough money in the pot to do all that is another matter. I know when we spoke to them at the meeting they were stretched or the Bank of Scotland were stretched, for all the figures … … Garnett: Got to be careful there, how much money they’re swallowing abroad, but providing we’re talking we’re not in a situation where planning (inaudible) says, ‘No, no more’. Doug has said, ‘No, no more, we’re going down the CPO route’, then we’re okay. We don’t want to go down that route because I don’t think it’s going to solve anything at the end of the day. We end up 9 months, 12 months later and we’re still in the same boat. … Garnett: I don’t think there’s any councillors involved with any of the development. Claimant: You’re not, but there are, certainly there are. I can’t tell you, give name, (several inaudible words) forward, they are readily available to give CPO to anybody against – for Stanniford, that is not on. Garnett: I’d be a bit careful about that, you know, saying things like that, because certainly anybody that’s on the planning committee that I know I would say that they’re all straight and straight as a die … … Garnett: The planning committee, you know, at the end of the day we can only look at things in the terms of planning. The question of CPOs is something that has to be dealt with outside the planning process and that would be dealt with by Stanniford being the (inaudible). I assume it would need to go to full council for the authority and the process and that, so that in itself would be a very tricky route to follow …. I think while we can keep you three people talking that’s the best way forward, so hopefully it won’t come to a full stop. You need to keep calm. … Garnett: Do let things gel a little bit without keep winding them up. If Doug’s going to speak to Stanniford today then let him speak to Stanniford today and put this new proposal towards them and let that develop over a couple of days ….”

Garnett: (several inaudible words) Garnett: Which, £15 million? Garnett: You’re not prepared to budge on that figure then?

Claimant: Have you talked to him today?

[85]I should note that on 10 April the claimant wrote to Mr Patterson contending that the planning application was contrary to the agreement allegedly reached between him and Stannifer on 26 February and stating:

“When we met recently you confirmed that there will be no CPO’s against anyone, in particular not against any part of my premises at Gate House West. I then requested that your confirm this in writing; you said you would do so after the meeting with leaders and other councillors at tonight’s meeting, I am expecting to receive it by return fax. … May I finally reiterate that I am fully in favour of the development of Harlow Town Centre, with all my legal rights reserved and on that basis I am reluctant to take any legal action as yet, in order to issue a caution/injunction against the developers, save to say that they have entered into an agreement with me, which they are not honouring, this gives me no choice but to pursue this matter, I am honouring your request (made on 8th April) of giving you one more chance to sort this out, it goes without saying you have my full support.”

[86]In the course of a further conversation with the claimant on 12 April, Councillor Garnett indicated that he had spoken to someone who is not identified in the transcript (but who, from the context, was probably Mr Patterson), and said:

“Garnett: Obviously got other things he needs to do which is obviously important but we need to get it resolved but… I take it you until I’ve spoken to him there’s nothing further we can (inaudible). At the moment I’m still Chairman of the Planning Committee, but as I said to you before I need to keep in touch with you, but be careful – let me talk to Doug and I’ll see if I can get to this meeting on Monday so I can get a proper update ….”

[87]In the last of the transcribed conversations, on 9 May, the claimant said that it was “getting a little bit dirty” and complained about Mr Patterson making a mess of everything and changing his mind about a CPO. The conversation continued:

“Garnett: I think – because I think, without splitting hairs, it doesn’t come into the situation because the development doesn’t include your premises, so therefore there was no – we took the view that there was no reason to say to you either plus or minus, which way a CPO, because it doesn’t come into it. Claimant: You were all misled. You were all misled, there is a lot going on ….”

[88]The claimant then made allegations, expressed in strong language, of bribery, cheating and lying. His complaint appeared to be that he was expecting a CPO in relation to his car park, and payment of a lot of compensation. Councillor Garnett sought to explain his understanding that the requirements of the claimant’s lease would be met by alternative parking provision. After the claimant had voiced various complaints the conversation continued:

“Garnett: You need to take that up with – Claimant: I want to. You’re my councillor, I can talk to you as well, but what I want to do is – Garnett: I have to be a little careful because I’m Chair of the Planning Committee …”

[89]Those are the telephone conversations relied on by the claimant. At some point he drew the conversations, or at least the two conversations on 9 April, to the attention of Councillor Shepherd, one of the members of the Planning Committee who ultimately voted against the grant of planning permission for the proposed development. He also played the tapes of the two conversations to Councillor Shepherd. In his witness statements, Councillor Shepherd says that he was astonished:

“Given the information I had received and the evidence I had heard I formed a view that the Councillor Garnett could not properly sit on the Council’s Planning Committee during the consideration of the planning application because he had already formed a view on the matter at a very early stage and had indicated that he was prepared to go so far as supporting the issue of a compulsory purchase order to ensure that the scheme could be implemented.”

[90]At the meeting of the Planning Committee on 21 August, Councillor Shepherd challenged Councillor Garnett to declare an interest and asked him whether he had issued a threat to use CPO powers. Councillor Garnett “denied everything”. The legal officer at the meeting informed members that the advice previously given on interests was superseded by the obligation not to announce that one’s mind was unalterably of a certain view. Councillor Garnett refused to allow questions on the advice given and refused to withdraw. When Councillor Shepherd tabled a motion that he vacate the chair, Councillor Garnett put the motion to the vote and participated in the vote, which went in his favour. This is said by Councillor Shepherd to have been in breach of standing orders, but the point was not actively pursued, let alone made good, before me.

[91]The meeting itself was plainly difficult and disrupted, and at one point the police were called to calm things down. Councillor Shepherd complains about Councillor Garnett’s conduct of the meeting, saying among other things that he used insulting language about the objectors. For his part, Councillor Garnett describes the claimant as being extremely disruptive and threatening at the meeting, and failing to heed warnings. Likewise Stannifer’s Mr Bell says in his witness statement that it was the claimant and other members of the public who verbally harassed Councillor Garnett and disrupted the meeting, resulting in an adjournment while the police were called. He says that during the adjournment the claimant also used offensive and insulting language against Mr Bell. After the police arrived and had spoken to the claimant, the claimant was allowed to remain. At the end of the meeting, however, the claimant repeated allegations of financial corruption against Councillor Garnett and Stannifer. Mr Bell felt intimidated and physically threatened. These matters were subsequently raised in correspondence by Stannifer’s solicitors with the claimant and his solicitors.

[92]Councillor Shepherd says that he again challenged Councillor Garnett at the meeting on 18 September but that his challenges were ignored. In fact, according to Councillor Garnett, Councillor Shepherd accused him of acting as agent for the developers, but the accusation was untrue and unfounded, and he stated that he had no interest in the matter. Councillor Shepherd refers also to the petition lodged by objectors, “to remove Mr Garnett from the chair, in view of his unacceptable conduct and the insults received at the last meeting”. He says that the fact that Councillor Garnett continued to participate in the meeting and voted in favour of the resolution was “a matter of grave concern” to him.

[93]Elsewhere in his evidence Councillor Shepherd makes further scathing comments, alleging among other things that Councillor Garnett wished to rush through consideration of the planning application, was not prepared to allow councillors to ask relevant questions, and was biased, incompetent and dishonest.

[94]Councillor Gregory Peck, another member of the Planning Committee who voted against the resolution to grant planning permission, also makes forceful criticisms of Councillor Garnett. He says that it was clear to him that Councillor Garnett was exhibiting a wish to process the application as quickly as possible with a view to securing a resolution granting planning permission, that he did not provide an adequate opportunity for objectors to state their case, and that he demonstrated bias in favour of the proposals during the committee meeting. He further states that Councillor Garnett demonstrated a commitment to the scheme and did his best to secure a resolution in favour of the grant of planning permission, and that the application was handled by Councillor Garnett in an arbitrary, biased, incompetent and unfair manner.

[95]Councillor Valerie Clark, the third member of the Planning Committee who voted against the resolution to grant planning permission, also expresses concern about the conduct of the meeting on 18 September, as well as about what she says was a shortage of information about the proposed development. She states that, despite protestations and objections, Councillor Garnett decided to ignore the representations and immediately rushed the matter through to a vote. She was horrified to find that such a major decision was being made without full and careful consideration of all the material planning considerations. It appeared to her that Councillor Garnett had already made up his mind and wanted to rush to an immediate decision without considering all the issues. Referring to the various allegations previously made about Councillor Garnett and to his demeanour at the meeting, she expresses the view that he had clearly prejudged the application.

[96]I cannot resolve the conflicting accounts of what happened at those meetings, but it will be apparent that the atmosphere was highly charged and that, whatever the rights and wrongs of the respective positions taken, strong feelings were aroused in some councillors as well as objectors by Councillor Garnett’s decision to continue to participate in the decision-making process.

[97]The claimant has made complaints about Councillor Garnett to the Standards Board for England and the Audit Commission. I understand that they are still under investigation. In any event the existence of those complaints cannot advance the claimant’s case in this court.

[98]The claimant also drew my attention to a newspaper report dated 23 October 2003 to the effect that Councillor Garnett had lost a vote of no confidence “in the light of an ongoing accusation that he had acted as agent for Harvey Centre owner Stannifer over its expansion plans”, but had refused to step down. Whether or not the report is accurate, it does not assist the claimant’s case, which is based on apparent rather than actual bias and must be assessed by reference to events at the time of the resolution under challenge. I should, however, also mention that my understanding is that Councillor Garnett is no longer Chairman of the Planning Committee.

[99]The claimant’s case is that Councillor Garnett’s conduct gave rise to an appearance of bias or predetermination. Although various authorities were cited in the skeleton arguments, the parties accepted for the purposes of the hearing before me the approach that I adopted recently in Georgiou v. London Borough of Enfield

[2004] EWHC 779 (Admin)

, though Mr Straker reserved his position in relation to any appeal. One of the questions in Georgiou was whether the principles relating to an appearance of bias applied only to pecuniary or personal interests in the outcome of a decision or were also applicable to an allegation of predetermination or closed mind. By reference to Porter v. Magill

[2002] 2 AC 257

, the relevant part of which concerned an allegation that the district auditor’s earlier conduct suggested that he had a closed mind and would not act impartially in reaching his decision, I held that the same principles were applicable. Paragraph 31 of my judgment reads:

“I therefore take the view that in considering the question of apparent bias in accordance with the test in Porter v. Magill, it is necessary to look beyond pecuniary or personal interests and to consider in addition whether, from the point of view of the fair-minded and informed observer, there was a real possibility that the planning committee or some of its members were biased in the sense of approaching the decision with a closed mind and without impartial consideration of all relevant planning issues. That is a question to be approached with appropriate caution, since it is important not to apply the test in a way that will render local authority decision-making impossible or unduly difficult ….”

[100]The claimant submits that in this case there was a real possibility that Councillor Garnett was biased in the sense of approaching the decision with a closed mind and without impartial consideration of all relevant planning issues. What emerges from the transcripts of the telephone conversations is that he was close to the developers, knew a lot about the development and the financing of it, and was engaged in discussions with the claimant, including the threat of a CPO, with a view to enabling the development to go ahead. His evident concern was the same as that of the Chief Executive, Mr Patterson, to ensure that the development he was very keen on did not go “pear-shaped”.

[101]For the council, Mr Straker submits that it must be possible for a councillor, even if he is chairman of the planning committee, to talk to his constituents about matters of concern to them. The planning system is founded on a democratic relationship between constituents and their representatives. One must be careful not to allow or create a situation in which the democratic relationship is undermined by fear about its consequences for the validity of decisions taken. Further, context is everything. In this case a fair minded and informed observer would not conclude that there was a real possibility of bias in the sense of the decision in September in respect of the specific planning application being approached by Councillor Garnett with a closed mind and without impartial consideration of all the planning issues, as a result of expressions used in informal telephone conversations in April – conversations which were recorded without his knowledge and then partially transcribed.

[102]Mr Straker draws attention to the context of the April conversations. There was a generally accepted desire to improve Harlow town centre, and also a view that it would be better to move forward in partnership to achieve that purpose. An attempt was therefore made to secure co-operation between Stannifer and the claimant. Mr Straker submits that it can be seen from the transcripts of the telephone conversations that the claimant was a constituent who wanted to talk with his councillor. He had a number of activities which involved him with the council. He was persistent, concerned that he might not be involved in the arrangements to redevelop the town centre, and sought to see if his councillor could assist his position to aid his discussions with the developers. The councillor preferred people to talk rather than to take opposed positions. The councillor was also conscious of his position as Chairman of the Planning Committee. The comments he made cannot be said to have been related to the particular application or to have amounted to a predetermination of that application.

[103]Mr Straker further submits that it would be wrong to carry over what happened in April into September. Councillor Garnett has deposed to the fact that whilst he reached an initial view on the application, that did not prevent him from forming a fair overall view of the merits of the scheme when it was fully examined through the application and the committee process: i.e. he kept an open mind. When the petition was presented at the September meeting, the legal advice was that it did not affect Councillor Garnett’s position; and Councillor Garnett publicly denied that he had any interest as alleged by Councillor Shepherd. It could not be said that there was a real possibility of bias or predetermination when Councillor Garnett voted on the resolution at the September meeting.

[104]Mr Greatorex, for Sapphire, submitted that particular care should be taken not to draw false inferences from the telephone conversations, given in particular that the informality of the context might lead to views being expressed less carefully than otherwise.

[105]Whilst not taking issue with the approach in Georgiou, he submitted that a predisposition towards a particular outcome was still to be distinguished from predetermination and was not itself a ground of disqualification: see R v. Amber Valley District Council, ex parte Jackson

[1985] 1 WLR 298

and R (Cummins) v. Camden London Borough Council

[2001] EWHC Admin 1116

, in particular at paragraph 254.

[106]Despite the points made by Mr Straker and Mr Greatorex, I have very real concerns about the position of Councillor Garnett in this case. It seems to me that what happened here went well beyond the normal relationship of elected councillor and constituent. The impression that I have got from the transcripts of the telephone conversations is that Councillor Garnett was anxious to see the proposed development take place and was seeking to remove the potential blockage or delay that the claimant could cause. That was why he was asking whether the claimant would be prepared to be bought out by the developers for a lower figure than the £15 million he had demanded; why he was pointing out to the claimant that a CPO might be made against him (whether or not this is characterised as “a threat”); and why he was also discussing the possibility of another site for the claimant and of a joint development between the claimant and Stannifer (as agent for Sapphire). Moreover he was discussing the matter closely with Mr Patterson, the Chief Executive, and was involved directly or indirectly (through Mr Patterson) in discussions with Stannifer. It looks as though he shared Mr Patterson’s desire to avoid the development going “pear-shaped”. He was, or appeared to be, acting in effect as a broker in trying to resolve the problem created by the claimant or at least to keep everyone in discussion with a view to resolving that problem.

[107]It is true that the telephone conversations were informal and that Councillor Garnett was unaware that they were being recorded. As was observed in argument, he might have expressed himself more carefully had he known. But the point cuts both ways. It can be said with at least equal force that his true colours appear more clearly in what were believed to be off-the-record remarks.

[108]All this was taking place not simply in the broad context of a general wish to see the redevelopment of Harlow town centre, but in the specific context of the development that was the subject of the planning application. It does not matter when precisely the planning application was received or whether, at the time of the telephone conversations, Councillor Garnett knew that it had been received. The intention to make the application, and the nature of the development proposed, were known since at least January 2003, when the application was made for a screening opinion and a presentation concerning the proposed development was made to members of the Planning Committee. The discussions were taking place within the framework of the specific proposal.

[109]I find it surprising that the chairman of the Planning Committee should have involved himself in this way in discussions concerning a development which was, or was going to be, before the Committee for a decision on the grant or refusal of planning permission.

[110]Councillor Garnett did not state in terms that he was determined to get the proposed application through. But what he said in the telephone conversations, looked at in the context in which those conversations took place, would in my view cause a fair-minded and informed observer to conclude that there was a real possibility that he had made up his mind in favour of the proposed development and that he would approach the decision on the planning application with a closed mind and without impartial consideration of all relevant planning issues. I accept that a predisposition in favour of a proposal does not equate to predetermination or a closed mind, but in my view what was evidenced here was more than a mere predisposition.

[111]Although there was a lapse of time between the telephone conversations and the decision on the planning application, nothing that happened during that period would cause the fair-minded and informed observer to take a different view about the possibility of the decision being approached with a closed mind and without impartial consideration. The dispute about what happened at the meetings of 21 August and 18 September cannot be resolved, but on no view can those meetings be said to have dispelled any concerns arising out of Councillor Garnett’s earlier conduct.

[112]I have borne in mind Councillor Garnett’s own evidence that whilst he reached an initial view on the application this did not prevent him from forming a fair and overall view of the merits when the application was assessed in the Planning Committee. Only limited weight, however, can be given to such evidence when considering a case of apparent bias or predetermination. I have also taken into account that, as appears from the conversation of 9 May, Councillor Garnett was aware that as chairman of the Planning Committee he needed to be careful.

[113]It seems to me that a similar approach is required in relation to the evidence of Councillor Shepherd as to his reaction on hearing the tapes of the telephone conversations. It is evident from Councillor Shepherd’s evidence as a whole that he was strongly opposed to the proposed development and cannot be regarded as a neutral observer. Only limited weight can be given to his expressions of astonishment and grave concern. It is nevertheless striking to find a member of the Planning Committee expressing such concerns about the participation of the chairman of the committee in the decision-making process. Similar points can be made about the evidence of Councillors Peck and Clark to the effect that Councillor Garnett appeared to them to have prejudged the application. The views expressed by all three councillors should, however, be taken into account as part of the overall picture that needs to be considered by the fair-minded and informed observer.

[114]The conclusion I reach is that the decision to grant planning permission was vitiated by the participation of Councillor Garnett. Applying the principles stated in Georgiou, I consider that the claimant’s case of apparent bias or predetermination has been made out. In my judgment Councillor Garnett ought to have stood down as he was requested to do.

[115]As a footnote under this heading, in so far as separate complaint is made about the legal advice given at the meeting on 18 September that there was no basis for requiring the Chairman to stand down as sought in the objectors’ petition, I have seen nothing to show that the advice was in error in so far as it related to the technical position under the council’s standing orders. It is the separate and wider issue concerning an appearance of bias or predetermination that causes me to conclude that he should have stood down. (4). The participation of Councillor Steer

[116]The claimant complains about the fact that Councillor Steer participated in the discussion and voted on the resolution at the meeting of 18 September. She had previously been a full member of the Planning Committee and in that capacity had attended all the previous meetings relating to the application. With effect from 1 September, however, she became a substitute member. She attended the meeting on 18 September as a substitute for Councillor Samantha Warren, who was a full member of the Committee. Since Councillor Warren had not attended all the previous meetings, it would not have been open to her to participate or vote had she attended the meeting on 18 September. Legal advice was given at the time, however, that Councillor Steer, as her substitute, was free to participate and vote. Whether that advice came from outside counsel, as indicated in one letter, or was internal advice is in my view irrelevant. The issue is whether it was correct.

[117]The claimant’s contention is that since the full member for whom she was substituting could not vote on the resolution, Councillor Steer was likewise debarred from voting on it. Mr Straker meets that contention by reference to the council’s standing orders, which provide in Order 27 (substitution):

“(1) Subject to Council policy, the provisions of the Local Government Act 2000 and Statutory Instruments and Statutory Guidance made thereunder …, a Political Group may, by notice to the Head of Legal Services or such other officers as she/he may appoint, vary its representation on a Committee or Sub-Committee but not a Partnership. (2) The Council may, from time to time, approve lists of reserve Members for each Political Group for each Committee or Sub-Committee. (3) Where a Political Group wishes to effect a change of representation, written Notice (to include electronic mail) shall be served to such effect (naming the reserve Member who is to replace the outgoing Member and confirming that the consent of the outgoing Member has been obtained) on the Head of Legal Services or such other officer as she/he may appoint before the time arranged for the start of the meeting of the Committee/Sub-Committee in question. (4) The effect of the service of the Notice shall be that the outgoing Member shall cease to be the Political Group’s representative on that Committee or Sub-Committee from the time the Notice is received for the duration of that meeting or any adjournment of it, and that reserve Member shall become the representative on the Committee or Sub-Committee for the same period, unless the Notice specifies some other period ….”

[118]The evidence is that a substitution notice in relation to Councillor Steer was received before the meeting on 18 September. Its effect, pursuant to Standing Order 27(4), was to make her a member of the Planning Committee in her own right for the duration of the meeting. It follows, in my judgment, that she was not subject to any limitations to which Councillor Warren might have been subject as regards participation in the discussion and voting on the resolution. Her entitlement to participate and vote fell to be determined on the basis of her own knowledge of the application. Since she had participated in all relevant previous meetings, it was open to her to participate and vote at the meeting on 18 September.

[119]The claimant makes the further suggestion that the Chairman of the Planning Committee arranged for Councillor Steer’s attendance so that she could vote and swing the balance in favour of the resolution. He seeks to feed this point back in to his wider argument on bias. What he says, however, is pure speculation and must be rejected. (5). Other procedural matters

[120]Complaint is made of the fact that members of the Planning Committee, outside meetings of the committee, attended meetings with the developers to which the objectors were not invited, and had no separate meetings with objectors. This is said to have involved a lack of even-handedness. The first meeting was the exhibition of the proposals on 29 January 2003, the others were the site meeting and the presentation on 15 July 2003. As to 15 July, the council’s evidence is that members of the Planning Committee were specifically excluded from the presentation because it was for non-Planning Committee members of the council. A letter of 4 July notifying councillors of the site visit and presentation stated that the presentation was for “all members”, but it appears that advice was subsequently given to members of the Planning Committee that they should not attend the presentation. Councillor Shepherd states that members of the Planning Committee did nevertheless attend it, though he gives no particulars.

[121]In my judgment there is no bar to members of the Planning Committee attending meetings with the developers without having objectors present at those meetings or having separate meetings with the objectors. Meetings with the developers must of course be approached with considerable care. For example, as the council’s letter of 4 July reminded members of the Planning Committee, they must be careful about expressing any views prior to consideration of the application at committee. It is important, too, to ensure that attendance at such meetings does not result in members taking into account information in respect of which the views of objectors might be material and on which objectors have not had an opportunity to express their views. More generally, objectors must of course be given a proper opportunity to express their views even if that opportunity does not take the form of a separate meeting. But what matters is the achievement of fairness overall, and in this case there is nothing to show that attendance at the meetings in question or the lack of similar meetings with objectors resulted in unfairness. In that connection I repeat that I cannot resolve the conflict about what happened at the meetings of the Planning Committee on 21 August and 18 September, but must proceed on the basis that a sufficient opportunity was given for representations to be made.

[122]The claimant contends further that the council tried to push through the application in a rush. He took me to letters in which certain consultees said they could not respond within the timescale set or requested an extension of time. I saw nothing unusual or troubling in any of that material, and certainly nothing to support a case of apparent bias or other procedural unfairness.

[123]The claimant advanced what can only be called a conspiracy theory on the basis of references to contacts in April 2003 with a Mr Cook, an officer in the Highways and Transportation Department of Essex County Council, in relation to the planning application even though it was only by letter of 24 April 2003 that the County Council acknowledged receipt of the planning application and informed Mr Tremayne that Mr Cook was the officer dealing with the matter. There is nothing in the point. There is no reason at all why those concerned should have been unaware, prior to that date, of the identity of Mr Cook as an appropriate contact within the County Council.

[124]A point of a different nature, not pursued orally but mentioned in the written documents, is that the council owned some of the land to which the proposed development related and that this gave rise to a separate problem of bias. Councillor Garnett states, however, that he was unaware that the council owned land within the scheme, and it did not affect his decision; and there was no overlap between officers dealing with landholdings and those dealing with planning applications. I do not think that there is any reason for concern in relation to this matter.

[125]Accordingly the only respect in which I accept the claimant’s case on bias or predetermination is in relation to the position of Councillor Garnett. I do not think that the separate matters raised are of any substance. (6). The officers’ report and the substantive decision

[126]Various criticisms are made of the report prepared by officers for members of the Planning Committee for their consideration of the planning application. The main report was prepared for the meeting on 24 July. It bears the name of Mr Crake, Head of Planning Services, and refers to Mr Tremayne as “officer” or “contributing officer”. Mr Tremayne makes clear in his witness statement that he drafted it. At the later meetings members were given short supplementary reports together with copies of the earlier report.

[127]The main report was in an orthodox form. It described the proposal in some detail, also giving a location plan. It also described briefly the relevant planning history. It then set out the results of consultations, summarising the comments made by the various internal and external consultees. There was a separate sub-section on neighbours and additional publicity, summarising the representations received from local traders and residents. The report moved on to planning policy considerations, referring first to the applicable policies of the adopted local plan and the replacement local plan and then discussing various matters. Under “other material considerations” reference was made to the objections received in respect of the service of notices, and to advice that the application was valid and the council could properly proceed; and the effect of national and regional planning guidance was summarised. There followed a discussion of the main issues, in terms of national policy, local policy, transport and parking, design and impact, and access and linkage. Various other implications (e.g. equal opportunities, sustainability) were then considered. The conclusions were:

“The application will bring much needed and improved retail facilities to Harlow and help to contribute to the regeneration of the town centre as a whole. The development accords with Government guidance and local policy in both locational terms and in terms of impact. It is of a design, bulk, massing and scale appropriate for the location and should not have any adverse impact on surrounding occupiers. On that basis, and subject to the entering into of a satisfactory legal agreement officers are recommending a conditional approval.”

The report concluded with a recommendation that permission be granted subject to a s.106 agreement and specified conditions.

[128]The claimant says that the report failed to draw properly to members the results of an Urban Design Appraisal prepared for the council by a firm of consultants, Roger Evans Associates, in June 2003. The Appraisal identified a number of weaknesses in the proposed development. Mr Tremayne drew these to the attention of the developers’ architects by a letter of 13 June 2003, and also held a meeting with them. The outcome was the production by the architects, under cover of letter of 7 July 2003, of a set of amended drawings. In the officers’ report to members the matter is dealt with as follows:

“Both local and national policies seek to ensure that developments are satisfactory in themselves and the way they relate to their surroundings. Officers commissioned an Urban Design Appraisal of the proposed developed and stemming from that changes have been achieved from the original submission. Matters such as the widening of the north south access route from West Square have been recommended and indeed that access has now been widened slightly. Also a feature of Harlow is the continuous canopies that run along the frontages at first floor level, they have now been included in the development proposals. Other concerns included the relationship of the new shop units fronting onto Broad Walk and the blank area of frontage running along the public access way opposite the flank wall of the Cinema. Both matters have been addressed and the shops fronting Broad Walk will be encouraged to have access from Broad Walk and dummy display windows with lighting will be introduced to the elevation opposite the flank wall of the Cinema.”

[129]Although the claimant has talked in general terms of a failure to draw members’ attention to weaknesses identified in the Appraisal and to an inadequate response on the part of the developers to the concerns raised with them, he has failed to identify any specific points that could sustain his case. It seems to me that the report dealt properly with the Appraisal and supports Mr Tremayne’s evidence that he gave full consideration to it when drafting the report. (The claimant also took issue with Mr Tremayne’s reference to the consultants as “independent”. In my view the point lacked any substance and could get the claimant nowhere.)

[130]The claimant also complains about a failure to mention other matters in the report. He refers to a letter of 19 June 2003 from Mr Crake to Chase & Partners, a firm acting for the owner of another development in Harlow, in response to a request by Chase & Partners for consideration to be given to a retail impact study and an EIA. Mr Crake’s letter said that “all comments will be taken into account when the decision is made”. In early August, Chase & Partners requested a meeting to discuss their concerns, including the need for a retail impact study. An internal email of 13 August 2003 from Mr Tremayne observed that it was officers’ opinion that no retail impact study was required and additionally “it is too late to include any of their comments or views in the report, and there is no real chance to make members aware of their concerns”, in that all relevant planning issues had been outlined in the report for the meeting on 24 July and members had had the formal presentation at that meeting. It is clear, submits the claimant, that the report failed to cover the points raised by Chase & Partners despite the assurance that all comments would be taken into account when the decision was made.

[131]I find it a little surprising that the report made no reference to the concerns of Chase & Partners about the need for a retail impact study, even though the council’s officers took the view that such a study was unnecessary. Nor is it obvious to me why it was thought that members could not be made aware of those concerns after the meeting of 24 July, given that no decision had been taken on the grant of planning permission at that meeting. Nevertheless, looking at matters overall, I think it unrealistic to suggest that members might have been affected in their decision if reference had been made to a retail impact study which officers considered to be unnecessary. In my view the omission was not material. As to the EIA issue, one might have expected reference to the screening opinion as part of the history of the application, but nothing can turn on the absence of reference to EIA issues in circumstances where, as I have held, there was a valid screening opinion that an EIA was not required.

[132]A final area of complaint conveniently considered in the context of the report is that there was a failure to consider the adopted local plan or the emerging local plan. This is linked to some extent to the contention, to which I have already made brief reference, that the application involved a departure from the development plan and should have been advertised as such. In his submissions the claimant referred back on this point to a letter written by his solicitors to the council on 23 July 2003 threatening judicial review proceedings. That letter contains, among other things, a generalised assertion that the proposals contravened national policy guidance as set out in PPG 6 and was also inconsistent with the development plan. It is sufficient for me to observe that relevant national policy guidance, including PPG 6, and the seemingly relevant policies of the development, including emerging as well as adopted local plan, were considered in the report and were therefore plainly taken into account. Moreover the report reached what was on the face of it an entirely reasonable conclusion that the development would be consistent both with national guidance and with the development plan. That must be taken to be the basis upon which the majority of members voted in favour of the resolution. The claimant has not put forward anything capable of casting doubt on the correctness of the approach adopted on those matters.

Conclusion

[133]As already indicated, I have not tried in this judgment to cover every point raised in the papers but have concentrated on the main issues as developed in oral argument.

[134]Having regard to the conclusions I have reached on the individual issues, it seems to me that the right course is to refuse permission to apply for judicial review to challenge the screening opinion. This will keep open the council’s arguments on delay should the matter go further. As regards the rest of the claim, which encompasses the various grounds of challenge to the decision to grant planning permission, I grant permission but, considering the matter as a substantive claim, reject all but one of the claimant’s grounds for the reasons already given.

[135]The one ground on which I find in the claimant’s favour, again for reasons already given, is that of apparent bias or predetermination in relation to the Chairman of the Planning Committee, Councillor Garnett. Since the decision to grant planning permission was reached by a majority of 4 votes to 3, the view I have formed about the inappropriateness of Councillor Garnett’s participation in the decision-making process must lead inevitably to the quashing of the planning permission. To that extent the claim succeeds, and on that ground the impugned decision will be quashed.