Aldergate Projects Ltd, R (on the application of) v Nottinghamshire County Council [2008] EWHC 2881 (Admin)

Case No CO/4214/2008[2008] EWHC 2881 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 12th November 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF ALDERGATE PROJECTS LIMITEDClaimantv
Between
NOTTINGHAMSHIRE COUNTY COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Daniel Kolinsky (instructed by Eversheds) appeared for ClaimantTimothy Straker QC (instructed by Freeth Cartwright) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: This is a claim for judicial review seeking to quash the grant by the defendant county council to itself of planning permission for a development of a bus station in the centre of Mansfield.[2]The claimants own a site which adjoins the proposed development. It lies between Belvedere Street, Stockwell Gate, Quaker Way and Station Road. It is known as "Courtaulds site" and used to be occupied by a factory which no longer exists.[3]The claimants have outline permission granted by the district council, who are the local planning authority for the area, other than for the sort of development for which the county council has granted itself permission. I will come to the reason for that in a moment, but the outline permission granted to the claimants is to enable there to be an extensive development for the purpose of regeneration of the town centre. It is obviously important that the bus station, which is close to the railway station, should tie in to the development, because people will be encouraged to go to the development which the claimants are promoting as part of the process of being able to go to a bus or a to train, or to come from a bus or from a train. There is no question but that the development in question has general support, both that of the bus station and that of the claimants' land.[4]The claimants obtained their outline permission some time before the permission granted to the council for the bus station. The grant under attack is dated 5th February 2008 and, as the application indicates, is for the construction of a new, two-storey bus station, including shops, offices and food outlets, a footbridge, CCTV cameras and associated street works. The application indicates that the application site area is 1.73 hectares. That is material when I come to consider one of the matters raised by the claimants alleging that there was a failure to comply with the obligations relating to consideration of an environmental impact assessment.[5]The claimants themselves are, as is perhaps obvious, supportive of the idea that there should be a bus station developed on the council's site, but their concern has for some time been, and they have communicated with the council upon this, that there should be the possibility of access to their development from Station Road, which is itself within the council's development site. They have been concerned that the council's development should not preclude the possibility of such access being available. The importance is that there are levels which differ. The two sites are on land which is not level so there are potential problems of gradients, both for the buses and for possible access to the claimant's site. That is why it is, and has been, considered to be important that steps should be taken and discussions should be held to see whether the development that is proposed for the new bus station can retain the possibility of an access to the claimant's site from Station Road.[6]I have already indicated that the local planning authority for this area is the district council. Outline permission for a bus station to be constructed on the council's site (I have called it the council's site: that has nothing to do with who owns the land; it is merely a description of the site to distinguish it from the claimants' site) did not concern itself with the detailed design of what was going to be established on the site.[7]The reason why the county council is able to grant itself permission is because the relevant regulations provide that it is the appropriate planning authority, because it has an interest in the development which is to be carried out. I am putting that broadly. As I understand it, without looking in detail at the regulations, that is what they provide. That may seem a little odd on one view, but that is what Parliament has approved. That is why we have the situation that it is the county council granting itself planning permission for the relevant development.[8]I suppose one can understand that it is perhaps because it is the highway authority and clearly an appropriate bus station is something in which it would have a considerable interest. One can understand perhaps why Parliament took that view, because it did not want there to be any difficulties in the way of granting an appropriate permission for such a development in the public interest and avoiding what otherwise might be quarrels between, say, the county council and the district council in a given case. There is in fact no such quarrel here. Everyone recognises, the claimants among them, that the bus station should be developed. Thus it was that the claimants did not object to the grant of planning permission.[9]The correspondence which I have seen shows that they were asked specifically whether they did object, but they properly said no, they did not object, but they had the concerns which I have referred to in relation to the preservation of the possible access from Station Road, which in itself would mean that there had to be consideration of what levels should be adopted.[10]I say "what levels" for this reason. One thing that apparently has to happen is that the existing level of Station Road has to be lowered in order to cater for the access of buses. As I understand it, that may have something to do with the existence of a bridge, but it is perhaps immaterial. The fact is that that proposal is part of the proposed development. That means that what could have been a straightforward first-floor level access to the claimant's site has been made rather more problematical, because there would now, on the face of it, have to be a gradient, either down to the ground level or up to the first floor level into their site. The existence of those gradients would obviously create its own problems. It is not necessary for the purposes of this judgment for me to go into the details. The papers contain material which would enable me to do so, if I had to undertake that exercise, but I have not been invited to do that and it is in my view not necessary that I should.[11]A number of points are taken. The main point is that the officer's report to the relevant committee, which reached the decision in this matter, did not deal properly with the concerns which had been raised by the claimants, and did not make it clear to the committee that those concerns could have been and, Mr Kolinsky submits, should have been dealt with by the imposition of a condition which made it clear that the possible access to the claimants' site from Station Road should be a matter of detailed consideration between the parties. It should have been a condition which achieved the result that the development should not be carried out until discussions had been held and attempts had been made to ensure that such access was possible. Mr Kolinsky properly recognises that any such condition would have to provide that at the end of any negotiations, and possibly within a particular time, the council would have to decide what steps it should properly take in carrying out its development. Its decision on that could only be challenged if it was a decision which was perverse in all the circumstances, or otherwise failed to comply with the law on classic Wednesbury principles.[12]That there should have been some sort of condition, submits Mr Kolinsky, ought to have been made clear to the committee, but it was not. In addition, it is said that the development was such that it fell within Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 and as such required consideration whether an environmental impact statement was needed and so required a screening opinion, which had to be put in writing. He submits that those steps were not taken and thus there was a breach of the regulations. Thus, the grant of permission was unlawful.[13]It is further submitted that the reasons given by the council for granting permission did not comply with Article 22 of the Town and Country Planning (General Development Procedure) Order 1995 (as amended), in that the reasons given were inadequate and there was a failure to provide a summary of the relevant development plan and other material planning provisions.[14]In all the circumstances, it is necessary to consider the material parts of the officer's report to the relevant committee. It is a lengthy and detailed report and it clearly contains the observations and sets out the concerns of the claimants and points made by others who were consulted on the development.[15]The first relevant consultee was Mansfield District Council. The report records that they were supportive, as I have already indicated, but that they had indicated that changes in levels of Station Road should not prejudice any future development/vehicular access to the adjacent site benefiting from an outline, mixed-use planning permission. So there was the district council, which was directly concerned with the regeneration of the town centre, making the same point as the claimants were making, namely the need not to prejudice the possible access to the site from Station Road, because that is the relevance of the reference to the changes in the levels on Station Road.[16]So far as the claimants are concerned, paragraph 100 of the report sets out the matters which were raised by them. The relevant one is stated thus:
"Although supportive of the proposed development in principle, concern has been raised that... (d) Access to the adjacent former factory site, including road levels, are critical to its re-development. Finished levels should be reserved by condition. There is no explanation why levels on Station Road have to be reduced by 570mm at great cost. Changes in road level will affect levels on the highway leading to the railway station."
That is the only matter that I need specifically read into this judgment. There were a number of other matters raised which were not directly material for the purposes of this case.[17]The officer deals with the issues raised and considered in the observations section of his report. The relevant observations, so far as the levels and the access are concerned, are contained in paragraphs 140-145 of the report. I do not need to deal with paragraph 140. Paragraphs 141-145 state:
"141. The adjoining land owner has expressed concern that the potential development of the former factory site to the north of Station Road has not been taken into account in the design and access statement. However, as development of that site has been granted in outline only, with all matters reserved for future approval there is limited assessment that can be made. 142. NCC Highways Officer has confirmed that the proposed junction improvement on Belvedere Street and the exit from the bus station onQuaker Way would not affect the ability to gain a satisfactory means of access/egress. Concern over highway design or traffic flows that may be generated by development of the adjoining site have not been raised in the Highways consultationresponse. It is considered that the proposed bus station would not have an adverse impact on the uses approved on the adjacent site and the ability to access the site, in some form, would not be compromised. 143. The adjacent land owner is developing more detailed proposals for the former factory site which seek togain vehicular access from Station Road, as well as access from Belvedere Street with egress on to Quaker Way. However, the details of access have not received planning permission and development of the site may not finally come forward in that form. It is considered that a grant of permission for the proposed development would not have a prejudicial impact on the development of the factory site to the north of Station Road. 144. The application presented for determination proposes landscaping and tree planting between Station Road and the boundary with the former factory. If a future application on the factory site was to permit vehicular access from Station Road, Mansfield District Council would need to give consideration to landscape impact and the need for appropriate mitigation. 145. With regard to other issues raised in representations from the adjoining land owner, although matters may have been raised at stakeholder meetings prior to the submission of the application, they do not necessarily need to be included in theapplication. The detailed layout submitted for determination is considered to be acceptable."
[18]There are two matters in particular that Mr Kolinsky relies on as errors of approach in that. First, it is said that there is a limited assessment that is possible as a result of development of the factory site only being the subject of an outline permission and there being no concrete proposals as to the form of the development. Thus, it would be difficult to know how to ensure that there was the possibility of access. The answer to that is that there could be, and should be, further discussion and that it may well be incumbent upon the claimants, within a reasonable time, and a time limit could easily be set out, to say what they were proposing to do, what sort of access they regarded as one which was desirable and which would fit in with whatever proposals were within the detailed proposals made by the council.[19]I accept that it was not unreasonable to point out that there was a problem in that the permission to the claimants was only outline permission and that nothing specific had been put forward, but to take the view, that apparently was taken, that this meant that there was no need to take any steps by way of condition or otherwise, is not something that in my view necessarily followed.[20]The second is more serious, because in paragraph 143 it is said that it was considered that a grant of permission for the proposed development would not have a prejudicial impact upon the development of the factory site to the north of Station Road. That would be true, provided that there was a possibility for a proper discussion and consideration with the claimants of what would be required in order to maintain the possibility of access, because if the development went ahead, and went ahead on the basis of the plans that existed, and if that meant that it was not possible to achieve any feasible means of access, then there clearly would be prejudice to the claimants. Thus, grant of permission for the proposed development, without some accompanying condition of that sort, would potentially have a prejudicial impact.[21]It seems that the appropriate way of dealing with the concerns would have been for him to have informed the committee that this matter could be the subject of a properly and carefully drafted condition if the committee felt that that was a course which ought to be adopted. But the committee was not so informed and the view expressed, which it seems clear they acted upon, was that there would not have been any prejudicial impact.[22]Mr Straker has submitted that the report put to the committee the materiality of considering the effect on the claimant's site. There is no question that that was drawn to the attention of the committee. The committee then had to consider what weight to be attached to that factor. The officer's view was that little weight should be attached, in the sense that it was not necessary to impose any condition, and that was a planning judgment. That is a matter which the committee would properly deal with on the basis that it was put to them. It was open to them to grant the planning permission that it did grant, and in all those circumstances there is nothing unlawful in what they did.[23]It does not quite stop there, because it was said by Mr Kolinsky that the members were misled as to a matter that was dealt with by the highways officer. The principle development control officer of the council, Mr Ward, who was in the highways department, wrote to Mr Marsh, who was the officer concerned with this planning application in relation to the highways authority's approach to the proposed development. This was a communication on 25th January 2008. This drew attention to, although the planning officer was already well aware of, the concerns raised by the claimants, but what Mr Ward recorded was as follows:
"The owners main concern is over the proposed change in ground levels on Station Street which form part of this application. Two potential concept designs for the Courtaulds site have so far been put forward, one of these shows a first floor service yard accessed from Station Street and the other shows a first floor customer car park also accessed from Station Street. Lowering the ground level of Station Street could have an effect on the adjacent development site. However there are engineering solutions available that would overcome any difficulties such as lowering parts of the Courtaulds site or extending the length of any access ramp so as to reduce its gradient, although these may involve additional expense. It isrecommended that the applicant continues to liaise with the adjacent landowner to find a solution to this potential problem. The proposed 'busonly' section of Station Road and the traffic island shown could restrict any vehicular access to the Courtaulds site from Station Road as currently shown on the two concept designs, however these could easily be re-located slightly further along Station Road if necessary. The owner of the Courtaulds site has also raised concerns over the effect that the 'Bus Only' section of Station Road might have on the ability of drivers to enter and leave a first floor customer car park if that option is chosen. I consider that theamount of traffic generated by such a car park would be easily accommodated within the proposed design of Station Road."
[24]Those matters were not specifically included in the officer's report. So they were reported as additional comments on late representations. What was said in interpreting those was, so far as material, as follows:
"The proposed 'bus only' section of Station Road would restrict the point at which access could be gained to the adjoining site from that highway. The point of access could easily be located further along Station Road from the position shown on the concept drawings discuss[ed] with NCC highways."
[25]It is obvious that that is not a true representation of what Mr Ward had said. He had referred to the "easy relocation" of the "bus only" lane and traffic island, that is relocation by the council, not by the claimants. The impression given by what was reported to the committee was that the point of access could be relocated, but relocated by the claimants. There is a different emphasis, and quite an important different emphasis, Mr Kolinsky submits, because in the way that it was reported the committee might well have been led to believe that this was a matter which did not need anything to be done in relation to the planning permission before them, but was something that could be dealt with by the claimants.[26]I accept, as Mr Ward has made clear in a subsequent statement, that that could have been the solution. That is obvious on the face of it, because if there is a need to have a different access so as to avoid the "bus only" lane or the traffic island, that can no doubt be achieved by the claimants changing the position of the access. But that is not the point. The point is the impression that was conveyed to the committee in reaching its determination on the matter.[27]I have no doubt in the circumstances that the committee were not given the information that they ought to have been given so as to enable them to consider, as they ought to have done, whether there was any condition, such as the claimants requested, which could meet the problem of ensuring that the possibility of access existed. It is true that the outline permission, and the lack of any details, meant that it was impossible to make any specific provisions at the time of the grant. It is equally and obviously important that there should be a limited time for the necessary discussions and for a final decision to be reached, but all that could have been achieved by an appropriate condition.[28]I have not been asked to suggest, nor would it be appropriate for me to suggest, any possible draft condition. I appreciate that there may be difficulties in ensuring that there is a condition which complies with the law as being certain enough, but I cannot believe, and in fairness Mr Straker does not suggest, that it would be impossible to devise some form of appropriate condition which protected the interests, so far as was possible, of the claimants. It seems to me that the committee were not given the necessary information to enable them to reach a decision which properly took into account the concerns of the claimants. Mr Straker submits that it is dangerous and generally wrong to impose any condition which gives a neighbouring landowner some sort of control over the precise nature of the development that a particular applicant wishes to carry out.[29]As a general proposition, no doubt that is correct, but one has to bear in mind, in the circumstances of this case, the need for a global view to be taken about the regeneration of the town centre, of which both the bus station and the claimants' development are an integral part, and the concerns of the district council, and of everyone, that that regeneration should properly be able to take place. Part and parcel of that would be the question of access to the site by vehicles, and the most convenient, sensible and proper means of such access was needed so that there would not be problems with congestion if it was left only to the two possible accesses which otherwise would exist if there could be none from Station Road.[30]It seems to me that those considerations mean that this is put into a different category from cases where it is simply a neighbouring landowner saying, or complaining, that the development would stop him doing what he wants on his land. That is no doubt a material consideration, but it is not a matter which would be likely, in most cases, to be accorded much weight. Here, the failures in the officer's report to which I have referred mean that unlawfulness results on classic Wednesbury principles.[31]Let me turn to the impact assessment. It is unnecessary for me to go into great detail as to the applicable law, because it is clear, by virtue of Regulation 7 of the relevant regulations, that it was necessary in circumstances that existed in this case for there to be a screening opinion. I say that because Regulation 7(1) applies to an application made to a local planning authority without an environmental statement. It says:
" 7.—— (1) Where it appears to the relevant planning authority that—— (a) an application for planning permission which is before them for determination is a Schedule 1 application or Schedule 2 application; and (b) the development in question has not been the subject of a screening opinion or screening direction; and (c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations, Paragraphs (3) and (4) of regulation 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1)."
Turning back to 5(3) and (4), they provide:
"(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."
That is not applicable in the circumstances of this case, but (4) provides:
"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."
Thus, if no request is made by a proposed developer, whose development falls within Schedule 1 or Schedule 2, for the authority to provide a screening opinion, the regulations deem that such a request has been made. So there is the need to comply with Regulation 5(4). That requires that there is a written opinion, which may be that no environmental impact assessment is needed.[32]The development in question is said to fall within Schedule 2 of the relevant regulations, because it is within paragraph 10(b), which reads:
"Urban development projects, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas... [if] the area of the development exceeds 0.5 hectare."
As I have already indicated, the application for the development in question stated that the site area of the application was 1.73 hectares.[33]The officer who was dealing with the matter, Mr Marsh, has produced a witness statement in which he dealt with the question of an environmental impact assessment. That statement was made in May 2008. At paragraph 32 he says:
"The applicant did not formally seek a screening opinion for the need for an Environmental Impact Assessment to support the submission. Informal discussion took place with the applicant at pre-application stage to agree the supporting information that would be required. An EIA was not requested, having had regard to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. The proposed development was considered under Schedule 2 paragraph 10b) which seeks EIA for large developments that will attract large numbers of vehicles."
It does not actually say that, but it is a possible construction, in the circumstances of a case such as this, of the relevance of paragraph 10(b). Going back to his statement, he says:
"The bus station will result in the arrival and departure of frequent but controlled numbers of buses althoughit would replace an existing car park. Applying the selection criteria to Schedule 3 it was considered that the application did not require EIA."
[34]The relevant selection requirements under Schedule 3, which have to be applied are, among others, the size of the development, the production of waste, pollution and nuisances. In addition, the environmental sensitivity of, for example, densely populated areas.[35]I suppose the only one which could possibly give rise to concern might be pollution and nuisances, if it was a bus station that was going to take buses for most of the day and part of the night and there was an adjoining hotel, the Midland Hotel, which would need some special attention to avoid the impact on its guests of noise from the adjoining bus station. However, it is not suggested that a decision could not properly have been reached that no environmental impact assessment was needed.[36]The problem is that Mr Marsh failed to comply with the requirements of the regulations and did not put any screening opinion in writing. He says that he did consider whether one was necessary, and the relevant box was ticked in an internal memorandum to that effect, but that is not, as Mr Straker accepts, a proper compliance with the regulations. However, Mr Marsh has made a subsequent statement in which he has sought to deal with the problem of the lack of any screening opinion. What he has said is:
"7. Although the red line of the planning application site embraced a site area of 1.73ha, the majority of the site comprised areas of circulation and highway where modest highway modifications were proposed. The 'urban development project' relates to a much smaller part of the site comprised of the bus station building, the bus concourse and the bridge linking to Mansfield railway station... 13. The area of the bus station, bus concourse and bridge linking the bus station to the railway station comprises a site of 4893m 2."
That is slightly under the necessary 5,000 square metres which would constitute 0.5 hectares. He goes on:
"With reference to Paragraph 31 of circular 02/99, development falling below the threshold of the table in Schedule 2 does not require EIA."
[37]Mr Kolinsky understandably attacks that on the basis, first, that it never formed part of Mr Marsh's thinking at the relevant time. That seems to be self-evidently the case. Secondly, and in any event, it does not work because it is plain that the development was indeed in excess of that.[38]Mr Marsh's plan that he produced in order to justify the 4,893 square metres does not include Station Road. His difficulty is that part of the development proposals is to lower the level of the land at Station Road. That is clearly development. Accordingly, the attempt to show that the development is less than half a hectare simply cannot work. It is clear, and Mr Straker accepts that if he cannot persuade me that the 4,893 square metres approach is the correct one, there is a failure to comply with the regulations. So there was unlawfulness.[39]Mr Kolinsky has accordingly relied upon a decision of Sullivan J in R (Lebus) v South Cambridgeshire District Council [2003] Env LR 17. That case concerned a failure to produce a screening opinion in relation to a development which was for a proposed egg production unit possibly containing 12,000 birds. That fell within Schedule 2 because it was a building of more than 500 square metres. The point in that case was that there was no document which could properly be regarded as a screening opinion. The learned judge in that case took the view that in those circumstances it was unlawful and he said in paragraph 53 of his judgment, having referred to the Berkeley case in the House of Lords:
"53. In the present case I accept that consideration was given as to whether or not this proposal was an EIA development, but there was a complete failure to appreciate that this consideration had to be carried out and recorded and made publicly available in a formal manner in accordance with the Regulations. There is simply no written statement of Mr Hussell's opinion as to whether this development is an EIA development, save in so far as one finds references to that effect in the reports to Committee. But they merely record an earlier decision..."
Then he said the council had simply failed to recognise that screening decision cannot be taken informally. He then referred to submissions by counsel inviting him to refuse relief on the basis that there had been no separate challenges to the screening decisions, and that in any event the applicants are well aware that the screening decision had been taken, albeit not properly recorded. Effectively, it was a plea to the discretion of the court not to grant relief in the circumstances. The judge refused to do that.[40]It seems to me that it is open to this court to refuse to grant relief in the exercise of its discretion, even if there has been a failure to comply with the obligations, if it is clear that the matter has been given consideration and there could be no detriment to the individual claimant resulting from the failure, but it is clear, and Mr Straker accepts, that if there has been a failure to comply with the regulations, and thus unlawfulness in the process which led to the grant of planning permission, it is for the defendant to establish that it is an appropriate case for discretion to be exercised against granting relief. Normally, unlawfulness will lead to the quashing of the permission affected by that unlawfulness.[41]Even if I have formed the view that the failure to consider the imposition of a condition in order to protect the claimant's position did not amount to an error of law, it seems to me that it is obvious that, were this permission to be quashed and reconsideration to be given, it would be open to the committee to decide to impose some sort of condition. It may well be that, in the light of the matters I have referred to earlier in this judgment, it would be unreasonable for the committee to fail to consider whether some such condition would be appropriate. Accordingly, I am not persuaded that I should refuse to quash the condition in question.[42]Finally there is the question of reasons. In the light of what I have said, it is not necessary to go into that in any detail, but since the point has been raised, I should deal with it, at least in relatively short terms. The reasons in question were as follows:
"The County Council is of the opinion that the proposed development gives rise to no material harm, is in accordance with the relevant Development Plan policies and that there are no material considerations that indicate that the decision should be made otherwise. The County Council considers that any potential harm as a result of the proposed development would reasonably be mitigated by the imposition of the attached conditions."
Then there are a considerable number of conditions, reasons for which are given, and there is no question that they are proper reasons.[43]The relevant provision in Article 22 of the GDPO reads as follows, so far as material:
"(1) When the local planning authority give notice of a decision or determination on an application for planning permission or for approval of reserved matters and... (b) planning permission is granted subject to conditions, the notice shall: - (i) include a summary of their reasons for the grant together with a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission..."
[44]There are a number of authorities, which have been put before me, relating to the proper approach to the obligations arising under Article 22. Two of those decisions are previous decisions of my own; one is a decision of Sullivan J.[45]The approach of Sullivan J, which was followed by me, is attacked by Mr Straker on the basis that it does not properly distinguish a previous Court of Appeal decision R (Richardson) v North Yorkshire County Council [2004] 1 WLR 1920. The decision of Sullivan J is R (Wall) v Brighton and Hove City Council [2005] 1 P&CR 566.[46]Wall was a case where the relevant challenge was an alleged failure to comply with the requirements of Article 22 of the GDPO because the decision notice did not include a summary of the planning application subcommittee's reasons for granting planning permission.[47]Sullivan J distinguished Richardson because in the Richardson case the challenge was to a different regulation under the Environmental Impact Assessment Regulations, 21(1), which provided:
"21. - (1) Where an EIA application is determined by a local planning authority, the authority shall... (c) make available for public inspection at the place where the appropriate register (or relevant section of that register) is kept a statement containing - (i) the content of the decision and any conditions attached thereto; (ii) the main reasons and considerations on which the decision is based..."
Then (iii) which is not material.[48]It is (ii), that is "the main reasons on which the decision is based", that was in issue, because the council had not done what it should have done and placed on the register that statement. Richards J, in his judgment, which was approved by the Court of Appeal, stated that the first and most important point was that Regulation 21 looked to the position after the grant of planning permission. It was concerned with making information available to the public as to what had been decided and why it had been decided, rather than laying down requirements for the decision-making process itself. That was regarded in Richardson's case as an important consideration. Sullivan J indicated in paragraph 61 of Wall that that was distinguishable, since that case, together with another one cited to him on the same point, was concerned with what happened after the grant of planning permission. He made the point that the requirement under Article 22 of the GDPO was a requirement as part of the decision-making process.[49]It seems to me that that is clearly a material consideration and thus a failure to give proper reasons is a failure to comply with part of the decision-making process and falls into the same category as the failure to provide a written screening opinion in compliance with the EIA regulations. Thus, if reasons which do not accord with the requirements of Article 22 are provided, then that is a breach of the requirements of the law in relation to the decision to grant planning permission and is capable of leading to the quashing of the permission.[50]The question, therefore, is what is required, and whether what was stated in this case complies. I have decided in R (Tratt) v Horsham District Council [2007] EWHC 1485 (Admin) that the reasons to be given should fulfil the same requirements as applied for the detailed reasons required on the rejection of the planning permission, save that they can be stated very shortly, but they should deal with the important issues which were raised in connection with the planning permission in question.[51]Mr Kolinsky submits that one such important, and clearly important, issue was the question of access to his client's site. He submits that that should have been included in a sentence in the reasons so that the claimants, indeed anyone, could understand that that matter had been taken into account and had been regarded as something which did not need to be reflected in the grant of planning permission. He also submits that the reasons given are formulaic and are such as could apply to virtually any planning permission on which conditions were imposed.[52]The fact that it may be formulaic does not of itself necessarily mean that it fails to comply. It seems to me that this one is very much on the borderline, because what is being said is that the conditions imposed, and the reader will look at the conditions, are all that is necessary to justify the grant of this permission. It is clearly implicit in that that the Committee has not formed the view that any condition was needed to meet the concerns raised by the claimants. Accordingly, if this stood on its own, and if I had to reach a firm conclusion on this matter, it may well be that I would have some concern about compliance on what was said, but I do not think that if that had been the only matter I would have taken the view that the breach, if there was a breach, was such as would justify relief being granted.[53]As I say, I think it is a borderline matter and it is no part of the decisions for which I have been responsible to indicate that there should be any need for a council to go into any detail. On the other hand, it can be said that if there is a serious matter raised, it ought, generally speaking, to be referred to. I appreciate that this is a somewhat unhelpful judgment on that issue, but as I say the resolution of that point is not essential for the purposes of this case.[54]The point is further made that there is a requirement under the article that there be a summary of the relevant planning policies. All that is done here is to set out a list. I have decided in the past that there is a distinction to be drawn between the requirement to provide a summary and simply providing a list. It is difficult to follow precisely what Parliament intended by the provision in question, but it seems to me that what was thought to be needed was an indication for the reader of the relevance of the policies. All that was needed was to indicate what the policies went to. That is not done here. So there is a breach of the requirement in that regard. Whether or not there is a breach on reasons, there is a breach on summary of policies. If pressed, I would have decided that there was not proper compliance with Article 22, but that is not a determinative factor in the decision I have reached, for the reasons I have given, to quash this grant of planning permission.[55]The Council can enter into a necessary meaningful dialogue. I do not doubt that it should be possible to obtain planning permission very speedily, because there are no other objections and it is clear that it would be, in my view, unless there had been any change of circumstances since February 2008 which were material, to rely largely upon the consultations that have already taken place, although no doubt it would necessary formally to indicate to those who are properly to be consulted that there has to be a fresh determination, but to suggest that they do not need to comment unless there is anything additional that they want to add to what they have already stated. I appreciate the exercise has to be gone through in that regard, but I would not anticipate that it would take any lengthy time.[56]Clearly there will have to be a discussion as to whether any condition that is appropriate can be considered and incorporated. I have no doubt, having regard to those who have appeared before me, and who represent the various parties, that a sensible condition can be drafted and can, if necessary, be put into effect. I make it clear that I am not suggesting that it is incumbent upon the Council to impose any particular condition, merely that they must consider and give reasons as to why they decide not to, if they decide not to. If they decide to do so, they have to give reasons why they have imposed that condition, but that should not create any difficulty.[57]I apologise that my judgment was a little bit rambling in parts, but that is the danger of an extempore, but I did not want to extend it beyond today.[58]MR KOLINSKY: I am most grateful to your Lordship. May I mention two accuracy things?

MR JUSTICE COLLINS: Yes.

[60]MR KOLINSKY: My Lord referred to a memorandum from Mr Justin Ward, which I think referred to a date in late November. In fact the date was 25th January 2008.

MR JUSTICE COLLINS: I am sorry I was looking at the date of in the top right-hand corner.

[62]MR KOLINSKY: Indeed, my Lord. At one stage in your judgment, when you were dealing with cases of Wall and Richards, you referred to Richards in relation to Article 22, when in fact you meant Wall, but that may be apparent.

MR JUSTICE COLLINS: That I can correct.

[64]MR KOLINSKY: Apart from that, the only ancillary matter arising on this side is the matter of costs.

MR JUSTICE COLLINS: You cannot resist, can you?

[66]MR STRAKER: I cannot, my Lord.[67]MR KOLINSKY: I would ask for an order for detailed assessment.

MR JUSTICE COLLINS: Detailed assessment if not agreed.

Cited in 1 later judgment