English, R (on the application of) v East Staffordshire Borough Council & Anor [2010] EWHC 2744 (Admin)

[2010] EWHC 2744 (Admin)Case No CO/9102/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Birmingham Civil Justice CentreDate 02/11/2010
Before
THE HONOURABLE MR JUSTICE FLAUX
Between
THE QUEEN on the application of IAN FRAZER ENGLISHClaimantEAST STAFFORDSHIRE BOROUGH COUNCILDefendantNATIONAL FOOTBALL CENTRE LIMITEDInterested Party
Hugh Richards (instructed by Ansons LLP) for ClaimantGraham Machin (instructed by David Duckitt Head of Legal and Democratic Services) for DefendantPeter Village QC and Andrew Sharland (instructed by Berwin Leighton Paisner LLP) for Interested PartyHearing Hearing date: 21 October 2010
Judgment
[1]On 30 September 2010, HHJ McKenna sitting as a Judge of the High Court ordered the Claimant’s application for permission to apply for Judicial Review to be heard in Court, on an expedited basis, during the week of 18 October 2010. By his application the Claimant seeks to quash the grant of planning permission by the Defendant Council on 24 June 2010 for the construction of 28 detached houses at the National Football Centre, St George’s Park, Burton on Trent, Staffordshire (“the NFC”). At the end of the hearing on 21 October 2010, I indicated that the application for permission was refused, but that I would give reasons for that decision in a judgment to be handed down at a later date. This is that judgment.[2]The background facts to the application are as follows. The planning application was made by the Interested Party, National Football Centre Limited (“NFC Ltd”) a wholly owned subsidiary of the Football Association (“the FA”). The application was made under cover of a letter from planning consultants Nathaniel Lichfield & Partners to Mr Tim Furnell Chief Planning Officer with the Council, dated 24 February 2010, which stated that the housing development was required to “enable” the implementation of the NFC, for which planning permission was also being sought. The planning permission in respect of the NFC was a revised application from that made when planning permission was originally granted in 2001. Construction at the site had been suspended in about 2004, due to financial constraints. The revised application was not only to provide a national football centre of excellence for football training and development, which England distinctly lacks compared with other European countries, but a 228 bedroom hotel to provide appropriate accommodation for those attending courses.[3]It appears from a recent witness statement of Mr Alexander Horne, General Secretary of the FA, that the FA was intending originally to invest directly itself in the construction work now proposed, in addition to its original investment in the site, but that, in 2009, following the collapse of one of its domestic broadcast partners, Setanta, the FA suffered a drop in revenues. Accordingly, the FA asked the board of NFC Ltd to find funding for the NFC scheme without the need for recourse to central FA budgets.[4]It was in that context that the letter from the planning consultants explained that the development of the NFC “will be funded principally by the FA, Umbro, ‘the football family’, sponsorship, development of the hotel and public sector grant. However, even with these revenue streams, there is a gap in funding.” It was to meet some of that gap that the residential development was required. The letter described the two developments as “inextricably linked” and explained how the residential development was required to “enable” the implementation of the NFC.[5]With the planning application, NFC Ltd submitted a financial report which, according to the letter, explained:
“how 28 detached houses (open market) will ‘fill’ about 50% of the funding gap. Whilst less than the ‘minimum’ that is required to secure the delivery of St George’s Park, the funding that has already been secured from other sources will enable the development of the revised proposals for the NFC to commence. It is expected that additional funding will be secured should planning permission be granted. A planning permission indicates a scheme is certain and deliverable which results in greater interest from developers/lenders/sponsors and investors. … Residential development is required to enable the delivery of the revised proposals and, for the reasons given in the application documents is acceptable.”
[6]The financial report evidently contained financial information which could have damaged the FA’s and NFC Ltd’s commercial interests, in particular in relation to negotiations with third parties such as potential operators of the hotel. It also contained actual costings from a contractor which were highly market sensitive in terms of the tendering for the construction contract. Accordingly the report was provided to the Council’s planning department on the basis that it was highly confidential and should not be disclosed to any third party without prior written consent. NFC Ltd also indicated to the Council that in its view, the report was exempt from disclosure under the Freedom of Information regimes.[7]The Council’s planning department accepted the basis upon which this financial report was submitted and did not disclose it either to the public or to the members of the Planning Committee. However, the Council did not simply accept the financial information provided at face value, but commissioned an independent review from DVS Property Specialists (a commercial arm of the Valuation Office Agency) to check the figures to ensure that the alleged funding gap existed and that the residential development would plug some of that gap. DVS received the financial report and information on the same strictly confidential basis as had the Council. DVS’s review verified NFC Ltd’s figures confirming that the funding gap did exist. DVS considered that the development might plug as much as 85% of the funding gap. Again the Council did not disclose the DVS review to the public or the members of the Planning Committee.[8]On 10 May 2010, the Claimant’s planning agent, Janet Hodson, submitted a consultation response to the planning application. It identified planning policy objections to the development of 28 houses in the open countryside. As to the ‘enabling development’ case being advanced, the objection was as follows:
“The financial viability exercise that seeks to demonstrate this, is not in the public domain and cannot be scrutinised by objectors, so no one has had the opportunity establish how robust such an analysis actually is. There is no parallel between enabling development to support Listed Buildings upon which the applicants seek to rely and this scheme. In any event those financial appraisals relating to listed buildings are always in the public domain and are open to scrutiny by the public, that is not the case here. There is no justification that the funding gap should be made up from a housing development in the open countryside and objectors may well ask where does this reasoning end. Does this mean that any one who has a funding gap on a significant project should adopt this approach, seek development in the open countryside and then not make the viability assessment open to scrutiny. ….”
[9]The Chief Planning Officer Mr Furnell prepared written reports to the Planning Committee on both the proposed developments. The report on the residential development advised, inter alia: “A confidential Financial appraisal has been submitted in relation to the applicant’s submission that the proposed housing development is required to help close a funding gap, and hence ‘enable’ the NFC sport/hotel scheme at St Georges Park. …. Barton Parish Council and CPRE also raised issues over the ‘funding gap’ Burton Civic Society objected asking: “Has the FA exhausted all other possible sources of funding before seeking to contravene the Local Plan?” ….[10]Enabling Development was identified by that report as being a main issue. The report then described the financial position as follows:
“Financial information submitted seeks to demonstrate that the development of the NFC will be funded principally by the FA, Umbro, ‘the football family’, sponsorship, development of the hotel and public sector grants. The issue for the FA is that even with these funding streams, there is what they describe as a ‘funding gap’. They cite this as the reason for submitting this associated planning application for 28 dwellings, and refer to how this is ‘inextricably linked’ to the NFC proposals. The Council has obtained independent verification of the financial information provided by the FA through DVS... On balance therefore the benefits of the NFC outweigh any residual harm caused by the housing development proposed, and the principle of housing here (linked through an appropriate Section 106 Obligation to the substantial completion of the NFC) is acceptable.”
[11]The Planning Committee meeting took place on 17 May 2010. It was attended by a number of objectors including Janet Hodson on behalf of the Claimant. There is a transcript available of the proceedings, which were recorded by the Council. Members of the Committee were told by Mr Furnell in his presentation that the financial information was confidential but that:
“We have sought verification of that analysis through a third party, a reputable national body who have verified that the figures provided are accurate and up to date. They offer no commentary on the issues that prompts but I can assure you that those figures have been verified.”
[12]Later in his presentation, Mr Furnell said this:
“Let’s be clear that housing in this location is fundamentally contrary to your planning policy and principles that I referred to earlier, there’s no doubt about that. There are however significant economic benefits from the NFC itself. But the question is could they be delivered by other means. Most importantly I think for this afternoon the discussion on housing is whether housing is perhaps the least harmful form of enabling development if you subscribe to the view that enabling development is important and necessary.”
[13]Janet Hodson repeated her objection about the non-disclosure of the financial information and invited members to defer making a decision until the information was made available to the objectors for analysis. Her concern as expressed was that since neither the objectors nor the Members of the Committee had seen the financial viability report, they could not know whether, if the proposed residential development only filled 50% of the funding gap, the whole project was viable. As she put it; “if it’s half of it are they going to come back for another 28 houses in the next round of getting the money in order, and how are you going to be able to say no?”. She said that this financial viability report should be in the public domain, as were other such reports obtained by other councils.[14]Mr Furnell said towards the end of the meeting, evidently addressing Mrs Hodson’s concern about whether the whole project would be viable if only 50% of the funding gap was plugged by the residential development: “the commentary that Janet Hodson referred to…in terms of this closing only 50% of the funding gap, just to correct the latest analysis verified by our advisors is that it would fill something approaching 85%”.[15]After lengthy deliberation, the Planning Committee voted unanimously to grant the National Football Centre application and 8: 4 in favour of granting the residential application with one abstention. On 25 May 2010, a week after the Planning Committee decision, the Claimant sent the Council a pre-action protocol letter which alleged amongst other things that the Council had erred in law when granting the Residential application because the confidential financial appraisal had not been disclosed to the public. The Claimant also, for the first time, made a formal application for the NFC Ltd financial appraisal and DVS review pursuant to the Environmental Information Regulations (“EIR”).[16]On 21 June 2010, the Council replied to the pre-action protocol letter denying the Claimant’s allegations of illegality and procedural unfairness. Then, on 22 June 2010, the Council refused to disclose the financial appraisal and the DVS review on the grounds that they were exempt from the duty to disclose because the information fell within two of the disclosure exemptions in the EIR (Regulation 12 (5) (e) and (f)) and that the public interest in maintaining the exemption outweighed the public interest in disclosing the information.[17]On 24 June 2010, the Council issued planning permissions for the Interested Party’s two applications following signature of the section 106 agreements. The summary reasons for granting permission given pursuant to Article 22 of the Town and Country Planning (General Development Procedure) Order 1995 recognised that the development was flatly contrary to established policy at all levels and therefore required special justification. The summary reasons then stated that:
“The applicant accepted that the development would be contrary to policy, but put it forward as necessary to enable the development of the NFC, by generating a profit which would be applied to partially close a gap in the funding available for the NFC scheme. The Applicant provided, in confidence, financial information to justify this contention, which was subject to independent scrutiny on behalf of the Council by DVS Property Specialists (the commercial arm of the Valuation Office Agency).”
[18]The reasons continued that the Committee (by a majority) had proceeded on the basis that:
“There is a genuine funding gap The housing development would fill more than half of the gap (50% on the Applicant’s initial calculation but 85% on valuation by DVS) The contribution from the housing development would generate sufficient confidence to enable the remaining gap to be bridged Without the enabling housing development there was a severe risk that the Applicant would be unable or unwilling to proceed with the NFC development, and The grant of permission for the housing development would make it very likely that the NFC development would proceed.”
[19]On 22 July 2010, four weeks after the grant of planning permission, the Claimant wrote to the Council informing them “as a matter of courtesy that proceedings are about to be issued herein seeking a judicial review”. However, the current application for Judicial Review was not issued until 26 August 2010, some five weeks later. I shall have to consider in more detail later in this judgment the reasons for what is admitted to have been delay in issuing the application, in order to determine whether, in all the circumstances, the claim has been made promptly as required by CPR 54.5. However, I propose to consider the substantive merits of the grounds for Judicial Review before considering whether the Claimant’s application should be dismissed on the ground that it was not made promptly.[20]The application for Judicial Review advances three grounds, only one of which, the first, is set out in the pre-action protocol letter. Mr Hugh Richards for the Claimant summarised these grounds, which I will consider in turn, in his Skeleton Argument as follows: Ground 1. The process / procedure adopted by the Council was unfair and the Claimant was substantially prejudiced thereby. In particular the Claimant was not given any sufficient information as to the financial justification for the enabling development, to which the Council plainly gave decisive weight, so as to be able to investigate and test the basis on which it was being advanced. Both NPC Ltd’s financial justification and the DVS report were not made available to the Claimant in either their original or a redacted form. In addition without sight of these documents, the committee was plainly unable to assess whether the objections by the Claimant and others to the non-availability of the information, and the lack of transparency in the process, had real substance. Ground 2. The members of the Planning Committee who authorised the grant of permission for the residential development did not see NPC Ltd’s financial justification or the DVS report. These were documents which they were required to see pursuant to the Town and Country Planning (Environmental Impact Assessment Regulations 1999 (“the EIA Regulations”). Without sight of them, the Committee was plainly unable to assess whether the objections by the Claimant and others had real substance. Ground 3. It was perverse of the Council to grant permission for 28 dwellings on the basis that NPC Ltd’s case was that about 50% of the funding gap needed to be filled by enabling development (as thereafter the remaining 50% would be provided by as yet unidentified sources) when the DVS report had apparently identified that 28 dwellings of ‘enabling development’ would fill 85% of the gap. In effect, the Council perversely granted permission for more (harmful) enabling development than was said by NPC Ltd to be needed.[21]Before considering each of these grounds of challenge, I should deal with a preliminary question as to the appropriate test to be adopted by the Court in determining whether to grant permission to judicially review the Council’s decision. The applicable test as set out in the commentary to CPR 54.4 at 54.4.2 of the White Book is that permission will be granted only where the Court is satisfied that the papers disclose that there is an arguable case that a ground for seeking judicial review exists which merits full investigation at a full oral hearing with all the parties and all the relevant evidence.[22]Of course, in the present case, as a consequence of the Order of HHJ McKenna, the permission application was not dealt with on the papers but at a contested hearing at which all parties were represented. In those circumstances, Mr Village QC for NFC Ltd contends that a different and more stringent test applies as to whether permission should be granted, namely that permission should only be granted if the Court is satisfied that the Claimant’s case is not merely arguable, but strong, that is to say likely to succeed. In support of that proposition he relies upon the judgment of Glidewell LJ in Mass Energy Limited v Birmingham City Council [1994] Env. LR 298 at 307-8.[23]Whilst I see the force of that argument, I do not consider that it is either necessary or appropriate to proceed on that basis in the present case; not necessary because, even applying the recognised lower threshold test of arguability, the application for permission fails for the reasons set out hereafter, not appropriate because, unlike in the Mass Energy case, I am not convinced that the Court has heard all the evidence or argument which might be adduced at a full judicial review hearing if permission were granted.[24]Turning to the various grounds advanced by the Claimant, as Mr Village QC and Mr Sharland for NFC Ltd point out in their Skeleton Argument, the first ground on which the Claimant seeks to challenge the Council’s decision in fact involves two distinct challenges to that decision:(1) A challenge based on procedural unfairness that the Council acted unfairly in that the NFC Ltd financial report and the DVS independent review were not provided to the Claimant;(2) An allegation that the Planning Committee should not have made its decision without first seeing the financial report and the DVS independent review, because by doing so, the Committee failed to have regard to a material consideration.[25]Dealing first with the question of procedural fairness, it is not in dispute that, in granting planning permission, a council must act fairly and that what is fair depends upon all the circumstances of the case. Mr Richards submits that fairness requires that enough information is made available to enable an intelligent response by someone in the position of the Claimant who may wish to object. He goes on to submit that, in a case such as the present, the information that was made available should have included NFC Ltd’s financial report and the DVS independent review.[26]The Council and NFC Ltd do not challenge the general principle that sufficient information should be made available to enable an intelligent response to the planning application to be made, but contend that this does not require financial information which is confidential (and which has not in fact been seen by the Planning Committee when making its decision) to be disclosed to objectors. In support of that contention, they rely upon the decision of Ouseley J in R (Bedford) v London Borough of Islington [2002] EWHC 2044 (Admin). In that case, the learned judge rejected a similar argument of procedural unfairness to the one in the present case, in relation to the non-disclosure of a confidential financial report concerning the financial position and business plan of the applicant for planning permission. As occurred in the present case, the Council officers did not provide that information to either the public or the members of the Council making the planning decision, on grounds of confidentiality.[27]In rejecting the challenge on grounds of procedural unfairness, Ouseley J stated at paragraphs 99 to 101 of the judgment:
“Moreover, fairness in the planning process is not confined to a consideration of the interests of the objectors. It also needs to respect the confidentiality of the applicant because it is to its figures rather than to DTZ's general appraisal [the confidential report in question] that the claimants' point is addressed. It has the gist of the appraisal. It is this actual appraisal, and within that Arsenal FC's figures, that the claimants want. This is emphasised by their constant references to a £50 million funding gap drawn from an e-mail in which that is referred to. But it would be unfair to Arsenal FC for the local planning authority to be made to reveal what was handed to its advisers in confidence in the clear expectation that it would have a very carefully restricted circulation. A planning authority needs to be able to examine matters in a confidential manner with applicants, as was done here, and for that purpose to use independent consultants to whom disclosure of the relevant information is made in confidence. This is the same process that the GLA went through. If a local planning authority cannot do that, it will be hindered in its negotiations with developers over the content of publicly beneficial packages such as the extent of affordable housing and other legitimate benefits related to the value of the development and its funding. The public interest would be harmed. It is quite clear that the information is confidential and disclosure of it would be in breach of confidence. There is nothing unfair in the non-disclosure of that document, with the gist of the DTZ appraisal being available.”
[28]The Council and NFC Ltd submit that the present case is essentially on all fours with the Bedford case, since, as in that case, the Council officers did not disclose the confidential financial information to the public or to the councillors making the planning decision. However, in neither case was the applicant’s financial information simply taken at face value by the Council officers, but they subjected it to independent scrutiny. Furthermore, as in that case, the councillors and the public had the “gist” of the financial report, since they were provided with the conclusions but not the financial detail.[29]Mr Richards sought to distinguish the Bedford case, contending that without seeing the financial report or the independent review:(i) the Claimant could not make any meaningful assessment as to whether the proposed development of 28 houses was too many or too few;(ii) it was impossible for anybody who did not have access to the financial model to test the assumption that the “funding gap” being relied upon by NFC Ltd was appropriate and(iii) the Claimant was unable to assess whether other potential sources of funding had been exhausted.[30]In his oral submissions. Mr Richards seemed to me to be making much of the first point, pointing out that it was not until towards the end of the meeting that the objectors became aware, from what Mr Furnell said, at that late stage, that whereas the financial report of NFC Ltd had said that the residential development of 28 houses would fill about 50% of the funding gap, the DVS independent review suggested that it could fill as much as 85% of the gap. Mr Richards submitted that this demonstrated that NFC Ltd’s assumptions might be flawed, because in fact, on the hypothesis being advanced by DVS to fill 50% of the gap might require far fewer than 28 houses.[31]Of course, as Mr Village QC pointed out, an argument to that effect was the complete opposite of what Mrs Hodson was arguing on behalf of the Claimant at the meeting, namely that since the financial appraisal by NFC Ltd suggested that the residential development would fill about 50% of the funding gap, this cast doubt on whether the proposed development was sufficient to make the scheme as a whole financially viable. Her point was that NFC Ltd and the FA might come back later and seek planning permission to expand the residential development. It was to answer that argument that Mr Furnell referred to the DVS assessment that the residential development could fill as much as 85% of the funding gap, in other words to demonstrate that the financial viability of the proposed residential development had been verified by DVS and that Mrs Hodson’s argument was not justified.[32]Mr Richards contended nonetheless that, because the Claimant and Mrs Hodson had not known about the 85% figure at the time that she explained his objections, they had not known the “gist” of the financial report and the DVS independent review, in contrast with the objectors in the Bedford case. I was not convinced by that contention. When one analyses by reference to the relevant paragraphs of Ouseley J’s judgment (which without setting them out in full here were paragraphs 73, 90 and 97 of the judgment) what he meant by “the gist of the appraisal”, it is fairly clearly no more than that the conclusion had been that the residential development would fill a substantial proportion of the identified funding gap and that that conclusion had been independently verified. In my judgment, the position is no different here.[33]As for the suggestion that the Claimant and his advisors should have been told about the DVS 85% figure before the meeting to enable them to run some additional and indeed opposite argument to the one they were running anyway, it seems to me that this is in essence the same sort of submission to the effect: “if only I had seen all the confidential information, there are arguments I could have run” which Ouseley J rejected at paragraphs 74 and 75 of his judgment, in the context of the applications by Counsel for Mr Bedford to cross-examine the Council’s planning officer and for disclosure of the independent report commissioned by the Council. Those applications were not pursued, but Ouseley J indicated that they would have fallen on stony ground.[34]Furthermore, as Mr Machin for the Council pointed out, the 50% and 85% figures were no more than predictions. Whilst I agree with Mr Richards’ submission that it would be wrong for the Court to proceed on the basis of any speculation as to what the financial report or the DVS independent review did or did not contain, except to the extent that was clear from other information available, it is quite clear from the written and oral reports of Mr Furnell to the Planning Committee that both figures were obviously estimates which might or might not be correct. The Claimant had the opportunity to challenge the viability of any such estimates from the information available before the meeting, which amounted to the gist of the financial appraisal.[35]Equally, even without the 85% figure, it would always have been open to Mrs Hodson to argue at the meeting and in correspondence that the 50% figure might be an under-estimate so that the number of houses sought in the development was itself an over-estimate as to what was required by way of “enabling” development. Of course, she might have chosen not to run that argument precisely because it was flatly contrary to the argument she was running on behalf of the Claimant, but the gist of the financial appraisal she and the Claimant had was certainly sufficient to enable that argument to be run if they chose.[36]The second and third grounds of alleged distinction of the Bedford case relied upon by Mr Richards can really be considered together since they both involve the contention that, without access to the full financial report and the DVS review, it is impossible for the Claimant to test whether there is or should be a “funding gap” at all or whether, on the contrary, the FA should be providing the funds out of its central funds. Mr Richards went so far as to suggest in his written submissions that none of the objectors knew that the FA was not proposing to fund the NFC out of its central funds until the recent witness statement of Mr Horne.[37]In my judgment, there is nothing in these points. The argument that any “funding gap” was essentially of the FA’s making in the sense that, if it chose, the FA could have funded the NFC scheme from its own not inconsiderable funds not only was available to any potential objector in the position of the Claimant but was in fact made at the meeting. This was precisely the point made by the Burton Civic Society and was reiterated by Councillor Morris during the discussion at the meeting.[38]Thus, in conclusion on the question of procedural fairness, I do not consider that there is anything in the Claimant’s contentions that the non-disclosure of the financial report and the DVE review was unfair. In his application, the Claimant puts forward the alternative submission that, on the basis that the financial information was confidential, in acting fairly the Council should have disclosed suitably redacted copies of both documents to the Claimant. As NFC Ltd points out in its submissions, if there were anything in this point by way of “half way house” between the parties, it would surely have recommended itself to Ouseley J in the Bedford case, particularly since he was at pains to point out that procedural fairness in this situation involves what is a balancing exercise between the public’s entitlement to information and the applicant’s entitlement to maintain confidentiality.[39]In any event, the short answer to this point is that it was never suggested by the Claimant at the time that redacted documents should be disclosed; this is clearly an ex post facto suggestion by his lawyers. There is no merit whatsoever in Mr Richards’ suggestion that it was somehow implicit in the Claimant’s request for disclosure of all the financial information that the Council should provide redacted copies of the information.[40]In what I regarded as a somewhat desperate attempt to breathe some life into the redaction argument, Mr Richards revived a submission based upon the recent decision of the First Tier Tribunal (on appeal from the Information Commissioner) in Bristol City Council v Portland and Brunswick Squares Association (2010, 24 May) to the effect that a report which was said to be confidential was disclosable in the public interest. However, that was not a case where the report had only been disclosed to the Council on a strictly confidential basis, as in the present case and thus was not a case where the exemption in regulation 12(5)(f) of the EIA Regulations was being relied upon. The Tribunal expressly stated in paragraph 23 of its Decision that it was not intending to deal with such a case.[41]In any event, in circumstances where this argument was not raised at the time of the Council’s decision, I do not see how it assists the Claimant in any argument that the decision was procedurally unfair. Accordingly, in my judgment, the challenge on the basis of procedural unfairness is unarguable.[42]So far as the other aspect of the first ground for Judicial Review is concerned, namely the suggestion that the Council failed to have regard to a material consideration, however this point might have previously been put, by the time of the hearing of the application for permission, it was clear that the basis for this challenge was that the Planning Committee should not have proceeded to make its decision in circumstances where the confidential information was being withheld from them. If it is being contended that the Committee’s decision on the basis of the information it had was irrational or perverse, that adds nothing to the third ground of challenge, which is not arguable for the reasons set out in relation to that ground below.[43]To the extent that it is being contended that the decision makers should not have made their decision without access to the confidential information, in circumstances where the objectors did not have access to that confidential information, that approach is contrary to established authority, namely the earlier cases distinguished in Bedford. The argument that both the Council and the objectors should have had access to the confidential information before the Council made the decision is simply the same argument about procedural unfairness which I have held is unarguable.[44]The second ground of challenge is that the planning application for the residential development was accompanied by an environmental statement and was thus an EIA development for the purpose of the EIA Regulations, which required the Planning Committee to consider all “environmental information”. The Claimant contends that such environmental information includes the financial report and the DVS review which the Committee did not see, so that the Committee had failed to consider all environmental information.[45]I agree with NFC Ltd that the short answer to this point is that it is based upon a factual misconception. Whereas the main planning application for the NFC scheme was an EIA development which required an environmental statement, NFC Ltd’s position was that the planning application for the 28 houses was of insufficient size to require such a statement. Indeed, the pre-action protocol letter from the Claimant recognised that this was the position, since what was in fact the first ground for proposed judicial review in that letter was the contention that acceptance of the planning application without an environmental statement was flawed. That allegation, implicit in which was that the Council had dealt with the application on the basis that the residential development was not an EIA development, has not been pursued.[46]In any event, as Mr Village QC submitted in his Skeleton Argument, the planning application in the Bedford case was subject to the EIA Regulations, but there was no suggestion that in relying on the summary of the financial appraisal by the planning officer without seeing the confidential report, the Committee had acted without seeing all relevant “environmental information”. Even if the present case were one where the EIA Regulations applied, it follows that the Council was not in breach of the Regulations as alleged. This ground is unarguable.[47]So far as the third ground is concerned, this necessitates the Claimant establishing that the Committee’s decision to proceed to consider the planning application without seeing the confidential financial information was perverse. Mr Richards accepts that the hurdle to demonstrate perversity is a high one, but when one analyses how high it is, it becomes evident how difficult this ground would be to argue.[48]The relevant test was formulated by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 375 at 410: the relevant decision must be “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” Applying that test, even if it were possible to criticise the Planning Committee’s approach in proceeding to a decision without insisting on confidential information, which in my judgment it is not, that decision could not even begin to be described as perverse.[49]At the end of the day, what the Claimant’s case came to was the assertion that to have granted permission for a residential development of 28 houses which might be harmful to the environment where that scale of development might well fulfil 85% of the funding gap was perverse. This argument does not get off the ground. As Mr Village QC submitted, it was entirely open to the Council to conclude that the fact that the residential development would substantially reduce the funding gap (whatever the estimated or eventual extent of that reduction) in order to allow the development of the NFC, outweighed any countervailing planning policies. In my judgment, this third proposed ground of judicial review is also unarguable.[50]Given that I have concluded that this application for permission must fail on the merits, it is strictly unnecessary to conclude whether it should also be excluded on the grounds that it was not made promptly, but since the point was argued I will deal with it shortly.[51]The provisions of CPR 54.5 provide that the claim form must be filed promptly and in any event not later than three months after the grounds to make the claim first arose. A number of decisions have laid down that this provision does not mean that an applicant has three months to file his claim form: he must do so promptly and what is promptness will depend upon the circumstances of the case. The relevant principles were recently authoritatively summarised in paragraphs 20 to 29 of the judgment of Keene LJ in R (Finn-Kelcey) v Milton Keynes Council [2008] EWCA Civ 1067; [2009] Env. LR 17, another case where the applicant was seeking to challenge the decision of a planning authority.[52]Of particular relevance in the present context is the passage at paragraphs 22 to 24 of the judgment: “22 The importance of acting promptly applies with particular force in cases where it is sought to challenge the grant of planning permission. In R v Exeter City Council Ex p. JLThomas & Co Ltd [1991] 1 Q.B. 471 at 484G, Simon Brown J. (as he then was) emphasised the need to proceed “with greatest possible celerity”, as he did also in R v Swale BC Ex p.Royal Society for the Protection of Birds [1991] 1 P.L.R. 6. Once a planning permission has been granted, a developer is entitled to proceed to carry out the development and since there are time limits on the validity of a permission will normally wish to proceed to implement it without delay. In the Exeter case, Simon Brown J. referred to the fact that a statutory challenge under what is now s.288 of the Town and Country Planning Act 1990 to a ministerial decision must be brought within six weeks of the decision. Thus if a planning permission is granted by the Secretary of State on an appeal or a called-in application, the objector seeking to question the validity of that decision must act within six weeks, without there being any power in the court to extend that period of time. 23 That factor led Laws J. (as he then was) to conclude in R v Ceredigion CC Ex p. McKeown [1997] C.O.D. 463, [1998] 2 P.L.R. 1 that it was nearly impossible to conceive of a case in which leave to move for judicial review would be granted to attack a planning permission when the application was lodged more than six weeks after the planning permission had been granted. That was perhaps a somewhat extreme statement of the position, and certainly it was rejected by the House of Lords in R. (on the application of Burkett) v Hammersmith and Fulham LBC (No.1) [2002] UKHL 23, [2002] 1 W.L.R. 1593 , where Lord Steyn (with whom the rest of the Appellate Committee generally agreed) said at [53] that from the McKeown case “the inference has sometimes been drawn that the three months limit has by judicial decision been replaced by a ‘six weeks rule’. This is a misconception. The legislative three months limit cannot be contracted by a judicial policy decision.” 24 I would respectfully agree that, where the CPR has expressly provided for a three-month time limit, the courts cannot adopt a policy that in judicial review challenges to the grant of a planning permission a time limit of six weeks will in practice apply. However, that does not seem to me to rob the point made by Simon Brown J. and others of all of its force. It may often be of some relevance, when a court is applying the separate test of promptness, that Parliament has prescribed a six-weeks time limit in cases where the permission is granted by the Secretary of State rather than by a local planning authority, if only because it indicates a recognition by Parliament of the necessity of bringing challenges to planning permissions quickly. There are differences between the two situations: for example, where the Secretary of State grants a permission, an objector is entitled to be notified of the decision, which is not the case where a local planning authority grants the permission. Thus where in the latter case an objector is for some time unaware of the local authority decision, the analogy is less applicable. That was not the situation in the present case, where BLEW and its supporters, including the appellant, were very well aware of the decisions by the respondent's committee and then by the full council. My point is simply that, while there is no “six weeks rule” in judicial review challenges to planning permissions, the existence of that statutory limit is not to be seen as necessarily wholly irrelevant to the decision as to what is “prompt” in an individual case. It emphasises the need for swiftness of action.[53]In the present case, the Council and NFC Ltd contend that the proceedings were not issued promptly, primarily because of the delay between 20 July 2010 (by which time the statement of facts and grounds had been prepared by Mr Richards) and 26 August 2010 when the proceedings were actually issued. Furthermore, as Mr Village QC pointed out, the Claimant knew that this development was one of national importance, he is a solicitor himself and so knowledgeable about legal matters, he was very well informed about the basis of challenge and he is financially secure.[54]The reason given by the Claimant for not issuing the proceedings immediately the relevant documents had been drafted is that he wished to obtain After the Event (“ATE”) insurance before embarking on the proceedings and the insurers would not approve the provision of such insurance, without seeing and having an opportunity to consider the relevant documents and Counsel’s advice. Once the insurance was in place, the proceedings were issued. Mr Richards submits that there is nothing in the suggestion that ATE insurance would only usually be sought after permission to bring Judicial Review had been granted. He points to the need for someone in the position of the Claimant to protect himself against the potential costs liability of an unsuccessful application for permission, demonstrated by the amount of costs sought by NFC Ltd in the present case.[55]That point might have some force coming from a litigant who did not have much in the way of financial resources, but I am not convinced that someone in the position of this Claimant who sold his company for a substantial sum of money and is a significant owner of local land needed the protection of ATE insurance before issuing proceedings. Of course he was entitled to obtain such insurance if he wished to, but in my judgment that should not have held up the issue of proceedings.[56]Accordingly, I consider that these proceedings were not issued promptly. There was certainly not the swiftness of action referred to at the end of the passage from the judgment of Keene LJ in the Finn-Kelcey case quoted above. It is irrelevant in that context whether or not that lack of promptness has caused specific prejudice to the defendant or an interested party, although despite the Claimant’s arguments to the contrary, I do consider that any delay in commencing the construction may imperil the intended use of the NFC during the 2012 Olympics and that it follows that NFC Ltd can show prejudice caused by the lack of promptness of the Claimant in bringing these proceedings. It follows that I would have concluded in any event that this application for permission should not be allowed, because the claim form had not been filed promptly. The point is in fact academic because, for the reasons I have given, I do not consider that any of the grounds put forward by the Claimant is arguable.[57]In those circumstances, both the Council and NFC Ltd apply for an order for costs against the Claimant. In the case of the Council, the costs sought are both preparation costs and acknowledgment costs totalling in the region of £8,800 plus VAT. NFC Ltd claim preparation costs, acknowledgment costs and the costs of the evidence which was filed on behalf of NFC Ltd. Those costs total just under £28,000 plus VAT.[58]Mr Richards resists any order for costs which goes beyond acknowledgment costs, which he submits should be limited to the costs of producing short summary grounds. In that regard he relies in particular upon the decision of the Court of Appeal in R (Roundham & Larling Parish Council) v Breckland Council [2008] EWCA Civ 714; [2009] Costs LR 282. In that case the Court reiterated and endorsed what had been said by Sedley LJ in R (Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166 at paragraphs 21-22, that when “preparation” costs are sought in addition to “acknowledgment” costs (in the sense of settling a short form summary grounds of resistance), it will be for the defendant and/or interested party to justify these, which may well not be recoverable and that the question of whether those costs are also recoverable should be decided by the trial judge (in this context the judge who hears the oral permission application): see per Buxton LJ in the Breckland Council case at paragraphs 26 to 31.[59]Whilst in a straightforward case, it can legitimately be said that the defendant or an interested party should limit himself to summary grounds of resistance, this is not a straightforward case. The planning decision which is under attack is of national importance given its impact on the viability of the proposed centre of excellence. Furthermore, the grounds raised by the Claimant were ones which required some detailed analysis and dissection by both the Council and the FA/NFC Ltd if they were to be challenged effectively. NFC Ltd was also entitled to put into its grounds submissions about lack of promptness.[60]I reject the suggestion on behalf of the Claimant that it would have been sufficient or even appropriate to put in just summary grounds of resistance. However, I am not convinced that it was necessary for NFC Ltd to go beyond the detailed grounds of resistance which they did file, by also filing the witness statements they produced.[61]In my judgment, the right order is that the Council and NFC Ltd should recover from the Claimant both their reasonable preparation costs and their acknowledgment costs (which for the avoidance of doubt should include the summary grounds actually filed but exclude any witness statements), those costs to be assessed if not agreed. I propose to make an order for interim payment in the meantime. I am prepared to receive whatever written submissions counsel wish to put forward as to the amount of such interim payment and time for payment, but my current view would be that the amounts should be £6,000 in the case of the Council and £12,000 in the case of NFC Ltd, the latter lower percentage reflecting a concern I have about the size of the costs bill put forward by the Interested Party. It seems to me that in each case that amount should be paid within 21 days.

Cited in 3 later judgments