Dry, R (on the application of) v West Oxfordshire District Council [2010] EWHC 1758 (Admin)

Case No CO/829/2010[2010] EWHC 1758 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 15th June 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF DRYClaimantv
Between
WEST OXFORDSHIRE DISTRICT COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr D Kolinsky (instructed by Richard Buxton) appeared for ClaimantMr R Kimblin (instructed by Ross Chambers) appeared for DefendantMr C Lockhart-Mummery appeared for Interested Party
J U D G M E N T
[1]MR JUSTICE MITTING: On 15th August 2008 Bryant Homes Oxfordshire Limited submitted a planning application to develop 100 houses on a site to the east of Eynsham in West Oxfordshire. The application was considered by the West Oxfordshire Planning Committee at its meeting on 20th July 2009. It resolved that planning permission should be granted.[2]On 21st October 2009 the formal document granting planning permission was signed by Mr Shaw, a Senior Planning Officer within the council.[3]Brenda Dry, a resident of Eynsham and a member, I think, of the Eynsham Society, on her own behalf and on behalf of a number of other residents of Eynsham, seeks permission to challenge the grant of planning permission. She sought it on paper before Ian Dove QC sitting as a Deputy High Court Judge. He refused permission. The application comes before me as a renewed application. I have, in fact, heard full argument on it as if it were a substantive hearing.[4]I am satisfied that one of the grounds advanced is arguable and I therefore grant permission to argue that ground. In headline form it is the sequential testing point. I do not regard the other two grounds as arguable, for reasons which I will briefly explain at the end of this judgment, and I refuse permission to apply on those two ground.[5]I need to say a little more about the background. In June 2006 a Local Plan for West Oxfordshire was adopted. It included, I am told as a result of an objection made at the inquiry conducted to examine the plan, the following proposal:
"Eynsham East. Land to the west of the B449 Eynsham Eastern Bypass as shown on the Eynsham inset map is allocated for housing. Within this area, the following provision will be made: "(a) housing 2.8 hectares which shall include up to 50% affordable housing, taking into account the level of local housing need. (b) structural landscaping and amenity open space 0.9 hectares."
[6]There then followed notes of guidance which indicated that the site should accommodate around 100 dwellings and should be the subject of a planning brief before any development was to be permitted. The brief was required to include measures for improving pedestrian and cycle links and to demonstrate sufficient sewerage capacity. Neither the policy nor the guidance referred to flooding on the site.[7]After that Local Plan was adopted two events occurred. In December 2006 Central Government published Planning Policy Statement 25 which dealt with the risk of flooding. It stated that:
"The aims of planning policy on development flood risk were to ensure that flood risk was taken into account at all stages in the planning process and to avoid inappropriate development in areas at risk of flooding."
[8]To that end, PPS 25 advised that Local Planning Authorities should, when determining planning applications, apply a sequential approach. The advice was that the sequential approach should be applied at two levels. First, when considering whether the site was suitable or more suitable than other sites to develop, and in regard to the risk of flooding; and, secondly, to minimise the risk by the design of the development on the site.[9]This was made explicitly clear in paragraph 16:
"LPAs allocating land in LDDs (Local Development Documents) for development shall apply the sequential test to demonstrate that there are no reasonably available sites in areas with a lower probability of flooding that would be appropriate to the type of development or land use proposed."
[10]Local Planning Authorities were referred to Annex D of the guidance which reiterated, in paragraph D1 that the risk based sequential test should be applied at all stages of the planning process.[11]To assist Local Planning Authorities to determine the extent to which a site was at risk of flooding, three zones were proposed. First, Zone 1 where there was a low probability of flooding defined as land having a less than 1 in a 1,000 annual probability of river or sea flooding in any year. Secondly, Zone 2, where there was a medium probability of flooding, land assessed as having between a 1 in 100 and a 1 in 1,000 annual probability of river flooding, and between a 1 in 100 and a 1 in 1,000 annual probability of sea flooding. Finally, Zone 3 which was categorised as a high probability risk and was broken down into two.[12]In the second of the two sub-zones the site was identified as a functional flood plain and in the first a site in which developers and Local Authorities should seek opportunities to reduce the overall level of flood risk or to relocate existing development to land in zones with a lower probability of flooding.[13]A tick box was contained in table D3 which suggested that when development of a type categorised as "more vulnerable", including housing development, was considered that development was appropriate in Zones 1 and 2 but that an exception test would be required for Zone 3A and that development was not appropriate at all, unsurprisingly, in zone 3B, a flood plain.[14]Ordinarily, that advice would be considered before a Local Development Plan was adopted. There is, after all, little point in identifying a site for development which would be regarded as inappropriate for development applying PPS 25. That did not, as a matter of timing, occur in this case. As the guidance makes clear, even in such circumstances it was required to be taken into account: it is to be taken into account at all stages in the planning process.[15]The next thing that occurred was a flood, a serious flood, in 2007. The flood was observed and photographed by residents. It was ultimately noted by the Environment Agency, perhaps as a result of having its attention drawn to the flooding by residents.[16]When the planning application was made the developers did not consider that it would be necessary to conduct a sequential test. This prompted an objection from the Environment Agency on 11th September 2008. The basis for the objection was that no evidence had been provided that the flood risk sequential test had been adequately demonstrated; and that their objection would remain until the developers had carried out the sequential test to demonstrate that there are no reasonably available sites in areas with a lower probability of flooding which would be appropriate for the type of development proposed.[17]Eventually the Environment Agency's view prevailed. The developers commissioned a sequential test from professional planning agents; and their report, dated March 2009, concluded that there were no other available more appropriate sites. The methodology adopted was plainly adopted as a result of discussions between the experts, the Environment Agency and the Local Planning Authority.[18]Two features should be noted. First, they confined their search to the area of Eynsham and Woodstock. They did so for reasons which are not challenged in these proceedings and do not appear to have been the subject of comment, let alone criticism, at any stage in the course of the planning process.[19]The reason, in short, that they narrowed their scope to those two centres was that the housing proposed was intended to satisfy local housing need and not, principally at least, housing need for people who might work elsewhere.[20]The second feature that is noteworthy is that the test was conducted on the premise that the whole of the site would be considered as Flood Zone 2. That is to say subject to a risk of between a 1 in 100 and a 1 in 1,000 risk of flooding by river annually.[21]The reason for adopting that approach was explicitly stated in paragraph 5.2 of the report:
"The Environment Agency have advised that they wish the site to be considered as Flood Zone 2."
[22]That observation is of significance because in the plan produced by the Environment Agency up to that point only the south-east corner of the site was shown as being within Zone 3 and only a slightly larger area as being within Zone 2. The bulk of the site was shown as being within Zone 1. As the flood in 2007 suggested, that plan required revision.[23]The Environment Agency was, ultimately, satisfied by the sequential test and other investigations carried out by the developers. The investigations included a report by hydraulic engineers which suggested mitigation measures to avoid the risk of flooding on the site.[24]In consequence, on 23rd April 2009 the Environment Agency withdrew its objection. The position was clearly stated in the report of the Planning Officers to the Committee, which noted the Environment Agency's comments. It stated in particular, their observation that, during the consultation period:
"It was agreed by all parties that the site is affected by flooding which is not identified on our national flood zones map."
[25]The principal cause was stated to be the lack of maintenance and limited hydraulic capacity of a culvert flowing under the road. That is a matter of contention between those who propound that view and some, at least, of the residents of Eynsham who consider that the flooding is not wholly or not, perhaps, even mainly thus caused. That is not, of course, an issue which is for me to determine today.[26]In the report of the Officers to the Committee, they noted that one of the main issues was whether the development would be at risk of flooding or would increase the risk of flooding elsewhere. They noted that residents had provided evidence that much of the site had been subjected to frequent flooding, notably in July 2007. They explicitly drew attention to the guidance in PPS 25 and to the need for a sequential test.[27]Basing themselves on the original Environment Agency plan, they noted that no residential development was proposed within the Zone 2 and Zone 3 parts of the site identified on that plan. They summarised the sequential test report briefly. In paragraph 8.7 they put forward a proposition that is at the heart of the claimant's challenge to the decision to grant permission:
"Having regard to the fact that no residential development or roads would be within Zone 2 or 3 on the site your Officers are satisfied that the sequential test report demonstrates that there are no reasonably available sites that are preferable in terms of flood risk Zones 1 and 2."
[28]Mr Kolinsky, for the claimant, correctly identifies that statement as being the only statement in the written advice of the Planning Officers to the Committee about the reason why the sequential test report demonstrated that there were no reasonably available sites which were preferable in terms of flood risk. If the decision of the Committee had been founded on the premise that only the areas identified on the original Environment Agency plan as being within Zones 3 and 2 were at risk of flooding, such as to require examination of alternatives both within and to the site, then it is possible that a viable challenge could have been mounted to the Committee's decision. But the notes of the meeting demonstrate that that was not, in fact, so.[29]The Area Planning Manager, Mr Shaw, told the Committee about the strong concerns of the Eynsham Society in respect of flooding amongst other matters. He confirmed that the Environment Agency had withdrawn its objections to the development "whilst acknowledging that its flood map was inaccurate". The brief minutes note the concerns of Members of the Committee about flooding on the site.[30]That flooding was a principal, if not the principal, matter of concern to the Committee is demonstrated by the alteration in the reasons given for the grant of permission between those proposed by the Officers and those adopted by the Committee. As proposed by the Officers, all that was said about flooding was:
" ... and the development pays proper regard to the need to regard flooding."
As ultimately resolved, the Committee gave as its reason:
"Furthermore, although the site has a history of flooding a number of mitigation measures are proposed and the Environment Agency has raised no objection on flooding grounds."
[31]The mitigation measures proposed included raising part of the level of the land and taking steps to ensure that the culvert which had featured in the hydraulic engineer's report was adequate for the purpose of draining away surface water from the site.[32]That alteration, to my mind, demonstrates, beyond argument, that the Committee had at the forefront of its mind the following. First, the Environment Agency's plan was not the last word on the matter of flooding risk. Secondly, the site had a history of flooding which required mitigation measures to address it. Thirdly, the Environment Agency had raised no objection on flooding grounds. Fourthly, and implicitly in the grant of permission, the risk of flooding on this site was adequately dealt with by those means.[33]The real issue -- would this development, if permitted, be subjected to an unacceptable risk of flooding -- was accordingly addressed by the Committee. It did not make its decision, I am satisfied, on the footing that only the small area on the original Environment Agency plan shown as Zone 3 and Zone 2 might be at risk of flooding.[34]On 23rd September 2009 Mr Shaw e-mailed Julie-Ann Hedel at the Environment Agency acknowledging recent notification that the flood plain boundaries on plans produced by the Environment Agency had been extended. In relation to this site the flood plain boundary was extended to cover virtually the whole of the site. The Zone 3 area was not materially altered but the Zone 2 area covered well over three quarters of the site. As a glance at the plan shows, that would have meant that it would not have been possible to build anything like 100 conventionally designed houses on the site. If it were impermissible to build houses on the site within the Zone 2 area, a radical redesign or reduction in number would have been required.[35]Mr Shaw asked the Environment Agency to confirm: "That the series of ameliorative mitigation measures that the developer put forward as a means to overcome your holding objections on that site are still appropriate for the extended flooding area".[36]She responded on 2nd October and confirmed that the development "is not at risk of flooding during the design flood event and appropriate mitigation measures are included". Thus, at all times once the sequential test report had been produced and considered by the Environment Agency it had no objection on flooding grounds to the proposed development.[37]Mr Shaw did not refer the Environment Agency's new plan to the Committee to invite it to reconsider its decision of 20th July. That forms the fundamental challenge to the grant of the permission mounted by the claimant. It is common ground that the test is that set out by Parker LJ in Kides v South Cambridgeshire District Council (2003) JPL 431 at paragraph 126. In that case a resolution to grant planning permission had been made five years before the permission itself was finally signed. The issue in the case was whether or not the developments which had occurred in between times required that the question be referred back by the Officers to the Committee for them to take the decision afresh.[38]The following advice was given by Parker LJ at paragraph 126:
"In practical terms, therefore, where since the passing of the resolution some new factor has arisen of which the delegated officer is aware, and which might rationally be regarded as a 'material consideration' for the purposes of section 70(2), it must be a counsel of prudence for the delegated officer to err on the side of caution and refer the application back to the authority for specific reconsideration in the light of that new factor. In such circumstances the delegated officer can only safely proceed to issue the decision notice if he is satisfied (a) that the authority is aware of the new factor, (b) that it has considered it with the application in mind, and (c) that on a reconsideration the authority would reach (not might reach) the same decision."
It is paragraph (c) which is in issue here.[39]Mr Shaw has provided a witness statement, the truth of which is unchallenged for these purposes, in which he emphasises that which is already apparent from the documents, namely that the Committee considered the flood risk on this site not by reference to the Environment Agency's original plan but by reference to a wealth of evidence which established that there was, indeed, a flood risk and which demonstrated that the Environment Agency plan was no longer accurate.[40]As the resolution which I have cited makes clear, the Committee, having addressed the flood risk issue, decided that planning permission should nonetheless be granted. Mr Shaw, when considering whether or not to refer the matter back to the Committee, would inevitably have had in his mind two questions: would the Committee have reached a different decision? Should it have reached a different decision? That decision would, of course, have to be rational and not open to challenge itself.[41]But, subject to that, if Mr Shaw was reasonably satisfied that the Committee would have reached the same decision then he was under no obligation to take the pointless step of referring the matter back to the Committee for further determination.[42]I approach the question on the basis of the two propositions contained within PPS 25. Mr Kolinsky submits that if the new Environment Agency plan had been made available to the Committee, then it might have reviewed the decision of the developer to confine the search for suitable available sites to Eynsham and Woodstock. Or, alternatively, and in addition, it might well also have asked itself whether a redesign within this site was required to avoid the risk of flooding to built houses.[43]As to the first, there is nothing whatever in the documents to which I have been referred to indicate that such a possibility would or should have occurred to anyone within the Local Planning Authority, officer or Committee Member. The reasons for confining the search to Eynsham and Woodstock were those which I have recited and which were set out in the sequential test report, namely that this site was intended to provide local housing. There would have been no purpose in searching outside the two areas to find a site for housing local to Eynsham and Woodstock. It is unsurprising that the possibility of re-opening that aspect of the screening test occurred to nobody except (as a matter of theory) in the submissions of Mr Kolinsky.[44]As to the second, the matter was, in truth, already dealt with by the Committee. It considered the internal layout of the site on a realistic basis in the light of the facts as they subsequently turned out to be, namely that there was a low risk of flooding on substantially the whole of the site.[45]In this context it is to be noted that the Government advice which I have recited accepts and advises Local Planning Authorities to accept that house building on Zone 2 sites is appropriate. I am satisfied that this Committee took its original decision on the basis that the site was or might be substantially a Zone 2 site and that ameliorative measures were required and that it was satisfied that the ameliorative measures proposed by the developer would deal with the problem.[46]Accordingly, although I have granted permission for this ground of challenge in principle because there was no formal change in the advice given by the Officers to the Committee and it is apparently limited in terms to rearrangement of development within the site, in substance, on proper analysis, there is no basis upon which the decision of the Local Planning Authority, viewed as a whole or the decision of its Officers to sign the grant of permission, is properly challengeable.[47]I turn to the two remaining grounds of challenge. The second ground advanced is that inadequate reasons have been given for the Local Planning Authority's decision that no Environmental Impact Assessment was required. It gave no reasons when it made that decision in 2008. It was not required to by law. As the European court as established in Mellor a decision of that kind is only required to be supported by reasons when reasons are asked for.[48]The reasons were sought two years later and were given in a document dated 8th February 2010. The document should be read as a whole. I am not going to read it out. It deals with a number of matters, not just flooding. But about flooding, under the heading, "Location of development" it states:
"The absorption capacity of the environment was considered in relation to flooding but the Environment Agency had not objected to the allocation of the site in the Local Plan on flooding grounds."
[49]The reference in the second part of the sentence is, apparently, to the lack of objection from the Environment Agency at the time the Local Plan was adopted and at the inquiry which recommended its adoption.[50]The reference in the first part of the sentence to the absorption capacity of the environment is somewhat opaque and might, perhaps, were this challenge to be one of substance, be expanded upon. But it certainly contains no error, nor, indeed does the second part of the sentence. The Environment Agency did not object.[51]What Mr Kolinsky says, however, is that the answer makes no reference to the flood which occurred in July 2007 and should have done; and that, without such a reference, the reasoning is either incomplete or demonstrates an error.[52]I simply do not agree. The reasoning is very short but it is adequate to explain what is called the negative screening decision. Whether or not those reasons suffice to justify a negative screening decision is, essentially, a matter of planning judgment. It is for the Local Planning Authority to take into account or not take into account an event such as the July 2007 flood in determining whether or not an Environmental Impact Assessment was required. It clearly did not. It was entitled to reach that view and the challenge to it on that ground accordingly fails. It fails at the preliminary stage as being unarguable.[53]The third ground of challenge is that what is called a planning brief was not prepared in relation to this site. As I have already noted, the guidance accompanying the policy in the Local Plan suggested that a planning brief would be required before development was permitted.[54]The principal purpose of such a planning brief would have been to identify any problem on the site, mainly, but not exclusively, to inform potential developers about them. Mr Kolinsky says that it would have had with it an element of public participation. No doubt that is right. But the public participated in the deliberations of the Planning Committee not by being able to make oral representations to it but by submitting documents which, as I have indicated, were plainly considered by the Officers and by Members of the Committee.[55]A planning brief is not a creature of statute. It emanates from Central Government and it is the product of guidance and guidance only. Paragraph 2.2 identifies the circumstances in which a planning brief might not be necessary. They include the following circumstances:
"Acceptable proposals are anticipated or are already being discussed with developers ..."
That was precisely the position here. The developers made a planning application before ever the Local Planning Authority got round to issuing a planning brief. The developer submitted detailed proposals for overcoming the problems which might have been canvassed in the planning brief. There would simply have been no purpose in preparing it, as Mr Brookes, the town planning consultant appointed by the Local Planning Authority to provide professional advice, observes in his witness statement of 4th February 2010. He advised Officers of the District Council that a planning brief would not serve any useful purpose. I conclude that he was obviously right in giving that advice.[56]This challenge too is not arguable.[57]For those reasons, as I have indicated, I have granted permission for one challenge but rejected it and refused permission for two.[58]Are there consequential matters?[59]MR KIMBLIN: My Lord, principally one. During the course of my Lord's judgment there arrived in court copies of the two policies.

MR JUSTICE MITTING: Yes.

[61]MR KIMBLIN: Perhaps one of those could be handed up, in case there was anything which my Lord would like to incorporate into the judgment. (Handed).

MR JUSTICE MITTING: Thank you.

[63]MR KIMBLIN: CC2, climate change. Not very much flows from that.

MR JUSTICE MITTING: No.

[65]MR KIMBLIN: NRM 4 effectively brings into the development plan the provisions of PPS 25, which ground we have already covered.[66]MR JUSTICE MITTING: Yes. That adds nothing to my reasoning and I do not think I need make any further reference to it.[67]MR KIMBLIN: It is my understanding that the claimant in this case benefits from a certificate and is legally aided. In those circumstances, I just ask for the usual order in that regard, my costs but not to be enforced.[68]MR JUSTICE MITTING: I think your costs -- I do not think the wording is not to be enforced anymore. I think it is "only such as are reasonable to be paid in all the circumstances" -- that, I think, is the wording of the relevant rule.[69]MR KIMBLIN: I think that that is right. I am happy to be corrected. The essential upshot is that the council does not get its costs.

MR JUSTICE MITTING: Exactly.

[71]MR KOLINSKY: My Lord, I am entirely grateful for that essential upshot. I just raise, on costs, the fact that the matter, obviously, was listed for a permission hearing and were it to have been a permission hearing then the position, obviously, in accordance with the established practice and case law, would be that the costs of a renewal would not ordinarily be given to a defendant interested party.

MR JUSTICE MITTING: Indeed.

[73]MR KOLINSKY: So, my Lord, given that we are actually dealing with, frankly, a fairly hypothetical exercise anyway, and given that there was never -- it was not expected to be a substantive hearing, I would, pursuant to my duty to both the client and, potentially, the Legal Services Commission, urge upon my Lord that you consider no order as to costs in relation to the defendant's costs.[74]MR JUSTICE MITTING: Had you won, you would have made an application for costs and the defendants would have found it difficult to resist, or one of them would at least.[75]MR KOLINSKY: My Lord, yes. In that case the only point is whether you made a general application order subject to the Legal Services Commission or whether it is only in relation to the ground which has got past the permission stage, which may be technically correct.[76]MR JUSTICE MITTING: I make the order for costs of the claim. I am not prepared to break it down into individual bits. The two subsidiary issues were just that, subsidiary issues. Your main ground of challenge was all too clear.[77]MR KOLINSKY: I am grateful, my Lord. May I ask for an order for --

MR JUSTICE MITTING: A public funding assessment?

[79]MR KOLINSKY: Indeed, my Lord. I am most grateful.

MR JUSTICE MITTING: Yes.

[81]MR KOLINSKY: And may I raise ancillary matters.[82]The only matter that I can formally address my Lord on is the matter that got past the permission.

MR JUSTICE MITTING: Yes.

[84]MR KOLINSKY: In relation to that I say, very briefly, that my Lord's judgment against me, in my respectful submission, indicated that there was, arguably, an error in the analysis in 8.7 of the Officer's report but it was not one that was operative in the minds of the Committee. I respectfully say my Lord is right to say that there was, insofar as my Lord did, an error in 8.7 of the report in the reasons advanced for the sequential test and that the Committee's assessment was dealing with flood risk rather than the central issue of the sequential test. Accordingly, there is, at the very least an arguable -- a real prospect that the Court of Appeal will take that view.[85]My Lord, before my Lord rules upon that, I would just invite my Lord to -- just indicate to my Lord that in respect of the EIA, which I cannot ask my Lord for permission on, the effect of that were we to want to take that point further, and I do say that there is a real possibility that we might because, post Mellor, there is a real lack of clarity as to how one approaches reasons that have been given, in that context the inevitable consequence would be that -- of my Lord's judgment refusing permission in relation to that is that the two points will have to travel separately to the Court of Appeal if we appear on the sequential test and we have to renew the refusal to the Court of Appeal.[86]So, my Lord, that may be -- the dye may be cast on that, but, my Lord, I just mention that as part of my application, because an alternative approach might be to grant permission on the EIA purely for the purpose of allowing the two to travel together in an expeditious manner. But I do not want to do not convention by going behind my Lord's judgment.[87]MR JUSTICE MITTING: Attractively put but I am afraid I do not think there is any realistic prospect of success on the ground on which I did give you permission to apply for judicial review. If therefore follows that I am not going to grant you permission on any of them.[88]MR KOLINSKY: I am grateful, my Lord.

MR JUSTICE MITTING: Mr Lockhart-Mummery?

[90]MR LOCKHART-MUMMERY: My Lord, I have no application to make. My Lord, can I just make this observation: that when your Lordship reviews a draft of the judgment you will see that in the flooding ground you twice inadvertently referred to a screening test as opposed to sequential.[91]MR JUSTICE MITTING: Rather than sequential. I was aware of that after I had done it. You may say I ought to have been aware of it after the first occasion, but I certainly was after the second.[92]MR LOCKHART-MUMMERY: That is my only comment, my Lord.[93]MR JUSTICE MITTING: Thank you. Thank you very much.