Berky, R (on the application of) v Newport City Council & Ors [2011] EWHC 2100 (Admin)

Case No CO/3841/2011[2011] EWHC 2100 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Cardiff Crown Court
The Law Courts
Cathays Park
Venue CardiffDate 29 th July 2011
CF10 3PG
Before
THE RECORDER OF CARDIFFHIS HONOUR JUDGE COOKE Q.C.(sitting as a Judge of the High Court)
Between
The Queen on the application of EDWARD BERKY,Claimanton his own behalf and on behalf of the "Say No To Morrisons" GroupClaimantNEWPORT CITY COUNCILDefendantW. M. MORRISON1 st Interested PartySUPERMARKETS PLCInterested PartyLINC-CYMRU HOUSING2 nd Interested PartyASSOCIATIONInterested Party
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Richard Harwood (instructed by Richard Buxton Solicitors) for ClaimantIan Albutt (instructed by the Legal Services, Newport City Council ) for DefendantsMichael Fordham Q.C. and James Maurici (instructed by Gordons Solicitors) for First interested partyThe Second interested party not being present and not being represented.Heard at Cardiff Civil Justice Centre on the 27 th and 28 th June 2011
JudgmentThe Recorder of Cardiff:I direct pursuant to CPR Part 39 PD 6.1 that no official recording shall be taken of this judgment and that copies of this version, subject to editorial corrections, may be treated as authentic.A. INTRODUCTION
[1]This is an application for permission to bring judicial review proceedings which falls to be dealt with on a 'rolled up' basis, pursuant to an order of Thirlwall J. dated the 27th of May, 2011. There is an issue as to whether or not this claim has been brought in time but, irrespective of that, I have heard full argument on the merits. The decision sought to be challenged is a grant of planning permission by Newport City Council ('Newport') for mixed development including the construction of a food store of 5,504m² gross, 2,784m² net and the restoration of a former workingmen's institute on land at Lliswerry, a district of the eastern part of Newport's urban area.[2]The claimant is a local resident, the group which he also represents is an anonymous - in terms of its membership - and unincorporated, loose, single issue campaigning organisation. W. M. Morrison Supermarkets PLC, the First Interested party ('Morrisons'), are now the landowners and the proposed supermarket operators. Morrisons have taken a full part in these proceedings, as have Newport. Linc-Cymru Housing Association, the Second Interested Party, made no submissions before me.[3]The relevant site is bounded by two significant highways, the Southern Distributor Road and Corporation Road, a watercourse and the boundary of a B&Q D.I.Y. store. It is level, vacant and located within a mixed commercial/residential area. Significantly, in the context of the planning issues which were to be resolved, the site is dominated by the disused W. R. Lysaght Institute. That building is unlisted although the building is clearly, from the material before me, regarded locally as having both architectural merit and significant community cultural associations. The latter flow from its place in the city's industrial heritage, it being very much, until comparatively recently, a 'steel town' and the workingmen's institute concerned being a legacy of that industry.[4]In the shortest of form the determining issue before Newport's planning committee was - does the benefit of the restoration of the workingman's institute and the development of this prominent, presently neglected and vacant site outweigh the breach of retail policy and consequential damage to the interests protected thereby which would be the negative consequence of permitting the development? Of course, striking that balance was a matter for Newport's planning committee, the Welsh Assembly Government having declined to call the matter in. It is not a matter for me.[5]The challenge brought by the Claimant may be divided into three separate attacks upon Newport's decision making. It is submitted that the manner in which the decision not to require an environmental statement was taken is fatally flawed. It is submitted that the decision making process was tainted by apparent or real bias or pre-determination. It is further submitted that Newport's approach to a consideration of enabling development was erroneous and, in consequence, its determination irrational.[6]The very short summary of the criticisms of Newport's decision making which I have set out is not intended to be comprehensive as to detail. I consider that there is some advantage to be gained by my seeking to produce a judgment in this case which is relatively brief and comprehensible to the non-specialist reader. I am conscious that the Claimant's skeleton argument extended to 42 pages, those of Newport and Morrisons 25 pages and 32 pages respectively. The agreed bundle of legislation, policy and authorities included 43 authorities. I make no specific criticism in relation to any of this but I do flag up the risk that the areas of law with which this application is concerned may very easily become hopelessly obscure even to those working in the relevant field, let alone the general public. There is also a danger that the speedy resolution of matters like this is rendered difficult by the sheer volume of material submitted. Such considerations and risks need to be borne in mind, lest the development control system be rendered avoidably inefficient and opaque.

B THE ENVIROMENTAL STATEMENT POINT

[7]I turn first to Newport's decision not to require an environmental statement. It is common ground between the parties that that was a decision which it was open to Newport to take and for which it was incumbent to give reasons. It is not in terms attacked as an irrational decision but the reasons given are said to be inadequate and it is submitted that the decision was founded upon some material error of reasoning.[8]The relevant decision was set out in Newport's letter of the 7th of January, 2010: 1. "I refer to your correspondence dated 17th December 2009 regarding the above, 2. This represents a formal screening opinion in accordance with the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 in relation to the above works. 3. As an urban development project, the proposal falls to be screened for Environmental Impact Assessment purposes on the basis that it exceeds the thresholds contained in Schedule 2 section 10b of the above Regulations and those of Circular 11/99. 4. Having consulted relevant parties in relation to your request and having considered the information provided in your correspondence and Schedule 3 of the Regulations, I am of the opinion that in accordance with the Town and County Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 and Environment Statement is not required." 5. It is important to note that although there was no obligation to consult, here there was consultation. There is no regulatory requirement as to the form in which reasons should be given.[9]In relation to the challenge made to the failure to require an environmental statement, I find the following authorities to which I have been referred of particular assistance. R (Lebus) v South Cambridgeshire District Council [2002] All E.R. (D) 96, R (Mellor) v Secretary of State for Communities and Local Government (Case C - 75/08) [2010] Env. L.R. 2, R (Friends of Basildon Golf Course) v Basildon District Council (2010) All E.R. (D) 153 and R (Bateman) v South Cambridgeshire District Council [2010] All E. R. (D) 226.[10]From these decisions I consider that the following propositions relevant to this matter may be distilled.(a) It is not permissible to dispense with the requirement for an environmental statement because the information which it would contain will be supplied in another form in any event or because it is concluded that any relevant adverse environmental effects will be able to be rendered insignificant by conditions.(b) A decision not to require an environmental statement must contain or be clearly attributable to information and reasoning sufficient to enable any interested party to check whether there has been adequate screening, in accordance with Directive 85/337.(c) The courts will be slow to interfere with the exercise of a judgment as to whether or not an environmental statement is required but it must be able to be clearly shown that the relevant decision has been taken carefully and conscientiously, the issues arising having been understood and considered.[11]Newport's letter of the 7th of January 2010 was undoubtedly terse and a few extra sentences might well have precluded a good deal of the argument which I have heard. It did however, proceed with express reference to GVA Grimley's letter of the 7th of December 2009. The only reasonable construction of Newport's letter of the 7th of January 2010 is that its decision not to require an environmental statement is based upon the information in and adopts the reasoning in GVA Grimley's letter of the 7th of December 2009. That letter provided a considerable amount of useful information in relation to the possible need for an environmental statement. Whereas it did, as some consultation responses also did, refer to the provision of other information later in the planning process, I do not consider that it can legitimately be construed as falling into the error of regarding that or suggesting that an environmental statement was not needed because further information will be supplied later. I also do not consider that the paragraph of this important letter dealing with the then extant outline planning permission and using the expression 'fall back' can legitimately be construed as evidencing the taking of an erroneous approach by regarding the need for an environmental statement as falling to be judged according to the difference in anticipatable environmental effects between already permitted and now proposed development. Rather that paragraph is to be read as fairly re-enforcing the point that this site would not appear from the planning history to be a particularly sensitive or vulnerable location, in the context of the type of development proposed.[12]I do not consider that Newport's letter of the 7th of January 2010 should be construed as adopting the reasoning in any of the consultation responses. The consultation response from the Glamorgan-Gwent Archaeological Trust Ltd. filled a gap in the available material since it provided a basis for concluding that an environmental statement was not needed because of potential archaeological interest, a subject on which GVA Grimley's letter of the 17th December 2009 was silent. The absence of any reasoning in the consultation response from Environmental Health (Pollution) and the erroneous (in the sense of believing that an environmental statement was not necessary because a transport assessment would later be required as part of the planning process) consultation response from the Highways Department I regard as unimportant. I am not prepared to infer that defects in consultation responses were adopted by the author of Newport's letter of the 7th of January 2010 or to find that such defects meant that Newport's reasoning in declining to require an environmental statement was flawed. There is no basis in the material which tends to shed light upon the work of Newport's relevant officer which indicates incompetence on her part - quite the reverse. See in particular her report to committee. These consultation responses were clearly merely consultation responses. The check which had to be able to be undertaken with reference to Directive 85/337 could be undertaken by looking at Newport's letter of the 7th January 2010 and the submissions advanced in GVA Grimley's letter of the 17th December 2009.[13]I note the consultation response belatedly received from the Countryside Council for Wales. It is only superficially of assistance to the Claimants. The reference to it being 'good practice' to request an environmental statement makes little real sense since the decision must be a site specific one. In any event this consultation response is dated the 28th January 2010 and post dates the decision not to seek an environmental statement and could not therefore have or sensibly be regarded as having influenced that decision.[14]The Claimant also relies upon the fact that Newport's environmental assessment check list sets out the wrong legal test by asking:
"Does the proposal have significant environmental effects....?"
As opposed to:
"Is the proposal "likely to have significant effects on the environment"? (likely being construed in this context as meaning 'potentially' or something similar). Again however this document post dates the relevant decision. Since it was not prepared in relation to the decision being taken as to the need for an environmental statement, I am not prepared to infer therefrom that the wrong test was applied in the relevant context. GVA Grimley's letter of the 17th December 2009 quotes two relevant sections of Circular 11/99, both including the word "likely"
. I consider that it is not tenable to hold that in response to such material Newport adopted a test more favourable to a developer than that which was proposed by that developer's agent. There is no material tending to support the proposition that Newport misconstrued "likely" in circumstances where it is obvious and well known that it must mean something less than "established on the balance of probabilities" given that what is being decided is the need for further information. That Newport did not make a mistake in relation to this aspect is also confirmed by the terms of the relevant section of the committee report.[15]The Claimant has also alleged that there was a failure to comply with regulation 20(1) of the Environmental Impact Assessment Regulations as a result of a failure to place the documents comprising the decision not to require an environmental statement on the planning register. That breach is disputed but since it is now conceded that even if it were made out it would not be fatal to the grant of planning permission, I can see no reason to devote further attention to that point. By way of background I note that none of the evidence submitted by the Claimant highlighted any particular adverse environmental consequence attributable to the development proposed and not considered during the planning process. That is a matter of background only and not something which could be fatal to the Claimant's case in this area if it otherwise had merit which, for the reasons set out in the preceding paragraphs, I consider it does not. The decision not to request an environmental statement in this instance is easily recognisable as rational and consistent with Circular 11/99. I accept the contents of Joanne Davidson's witness statement. She was Newport relevant principal planning officer, she states:
"Taken as a whole record, it was clear why it was considered that an EA was not required. Pre-request investigations on site relevant to consideration of environmental matters were material to the consideration along with site history and site context"
.

C. BIAS, APPARENT BIAS AND PRE-DETERMINATION

[16]I now turn to the points raised in relation to bias, apparent bias and pre-determination. The basis for argument relied upon by the Claimant in this area related to a member of Newport's planning committee, Councillor Richards. There is certainly some room for concern over and criticism of his conduct in relation to the consideration of this planning application. It is the case that some pages of the petition submitted in support of the relevant development make use of paper which bears a computer reference attributable to Councillor Richards. I find the explanation proffered by Newport for this state of affairs rather unconvincing but beyond forming an opinion that Councillor Richards must have been reasonably close to local residents who supported the development I am unable to make a firm finding of fact in this area. The suggestion that Councillor Richards actually played a part in collecting signatures for that petition has not been established to my satisfaction by the available evidence. I decline to act upon unattributed hearsay. In so far as it was suggested that a prominent signature on the petition was that of a relative of Councillor Richards that was not proved. Nor was it proved that Councillor Richards actively canvassed support for the development. I accept that it would have been known in the area that Councillor Richards was inclined to support the development concerned. Such a state of affairs is not uncommon in the world of local politics and for me to proceed on any other basis would be unrealistic. I do not find the fact the Councillor Richards' name appeared on a ward news letter which was supportive of the development of much significance. In relation to this point, I accept the contents of Councillor Richards' statement.[17]I am more worried by Councillor Richards' remarks at the relevant planning committee meeting. He is recorded as saying: "I have to say (I am) proud to be associated with ward colleagues, democracy is in action here, thousands have signed the petition. (I) would remind officers you are here to serve the public. Officer has not really nailed the true obj (ection) to (the) scheme, officers may (be) frightened of legal challenge if pp (planning permission) is granted......" (my insertions and emphasis) The emphasised remark was not only unfair and ungracious, it was capable of creating the impression that the speaker was biased or that he had pre-determined the matter. Why else would he criticise the author of a balanced, careful and comprehensive report in such immoderate terms?[18]In relation to bias, apparent bias and pre-determination I am particularly assisted by the following authorities to which I have been referred. Bovis Homes v New Forest D.C. and others [2002] EWHC 483 (Admin) and R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746. From the judgment of Pill LJ in the more recent authority I highlight: "It is for the courts to assess whether committee members did make the decision with closed minds or that the circumstances did give rise to such a real risk of closed minds that the decision ought not in the public interest to be upheld. The importance of appearances is, in my judgment, generally more limited in this context than in a judicial context. The appearance created by a member of a judicial tribunal also appearing as an advocate before that tribunal (Lawal v Northern Spirit Ltd [2003]ICR 856) may make his judicial decisions unacceptable, but the appearance created by a councillor voting for a planning project he has long supported is, on analysis, to be viewed in a very different way".[19]I examine the position here with the assistance of what I find to be a most helpful statement as to what should be the appropriate general approach, as set out above. In so far as a difference in approach may be detected between that indicated by Pill LJ in the quotation set out above and that indicated by Ouseley J in Bovis Homes Ltd v New Forest DC and others [2002] I follow the approach of Pill LJ. I also remind myself that there is no persuasive material tending to indicate that the anticipatable correctness of approach on the part of the other members of the planning committee was in some way tainted by the actions or words of Councillor Richards. The resolution to grant planning permission here was carried by 8 votes to 1, the chairman's vote or abstention not being recorded. In relation to Councillor Richards' intemperate remark I consider it to be a reasonable inference that it was so recognisably misconceived that it could not have had an adverse effect upon the fairness of the other members of the planning committee. Although regrettable I do not consider it enables a submission of bias, apparent bias or pre-determination on the part of the decision maker - the whole planning committee - to be made good. Rather it should be seen as an example of an ill considered remark by a single member of a democratically accountable political decision maker made in the heat of the moment. Upon careful analysis I do not consider that there is material here capable of vitiating the decision of the planning committee for bias, apparent bias or pre-determination. In reaching that conclusion I have fully in mind the need for the decision making process to be fair, practically operable in the context of local politics and democratic accountability and transparent. If, and I do not consider that there is, there is sufficient material available to enable a court to conclude that Councillor Richards ought not to have played any part in the eventual decision making process, I would in any event exercise my discretion not to quash the decision for the reasons explained above.

D. ENABLING DEVELOPMENT AND IRATIONALITY

[20]I now turn to the submission that Newport's approach to a consideration of enabling development was erroneous and, in consequence, its determination irrational. A number of sub points were explored in this area, most significantly in relation to an alleged material failure to give weight to a Welsh Assembly Government consultation paper, "Conservation Principles, Policies and Guidance", July 2009 and an allegedly material error with respect to a premise forming part of the decision making process - whether or not Newport could prevent the demolition of the former workingmen's institute, should it remain unused and therefore derelict and deteriorating.[21]The correct approach to arguments in this general area is fundamental and well known. I should only interfere with the decision taken if the decision maker - the planning committee here - has behaved in a way which was Wednesbury unreasonable. Matters of weight were for the decision maker and are not for me and the fact that I might have reached a different decision is quite irrelevant.[22]In Wales, as is agreed between the parties, it is not a requirement that reasons be given for a grant of planning permission. Notwithstanding that state of affairs however, where a grant of planning permission is challenged, as it is here, it will be necessary to seek to identify the decision maker's reasoning in order to rebut any suggestion of Wednesbury unreasonableness. I have done so. The contending considerations of relevance were all identified in a comprehensive and clear committee report, with a recommendation for the decision maker to accept or reject as it - rationally - chose. What happened is easily discernible. The planning committee gave exceptional weight to the restoration and bringing back into beneficial use of a locally valued building and a prominent site. That dual consideration was clearly a land use planning consideration and not an irrelevancy. The planning committee was entitled to regard that consideration as outweighing the conflict with retail policy which was identified and as to the practical manifestations of which the planning committee was entitled to be, as it seems to have been, sceptical. Whatever the retail planning policy framework was in terms of retail impact this appears to have been primarily a new supermarket affecting the trade of existing supermarkets case. It is not for me to re-assess the planning merits, beyond forming a view, as I have, that it was possible for a rational planning committee to decide this matter as this planning committee did.[23]I do not consider that there is any substance in the failure to have regard to the consultation draft, "Conservation Principles, Policies and Guidance", July 2009 point. That document was only a consultation draft and a potential consideration of a low order. The planning committee approach to this area was, in any event not, in my judgment, significantly inconsistent with the approach advocated therein. I accept and agree with the remarks of Carnwath J, as he was then, in R v Bolton Metropolitan Council ex-parte Kirkman [1998] ENV LR 560 as to the weakness of arguments directed towards securing the quashing of a decision of this type upon the basis of a disregarded non-statutory statement. As for the mis-statement, as it was subsequently shown to be, of the position in relation to the ability to prevent demolition of a disused and a deteriorating unused former workingmen's institute, I regard that too as a point without substance. Knowledge of the possible option of preserving a deteriorating derelict eyesore on a prominent site would not, I consider, have materially affected the planning committee's decision. I mention in passing that the background to this point is that, at the time that the committee report was prepared, the law was thought to be that a planning authority could not prevent the demolition of an unlisted building because planning permission or other approval was not required for such demolition. After the decision in R (Save Britain's Heritage) v Secretary of State for Communities and Local Government [2011] EWCA Civ 311, the law is to the contrary. Thus it could be submitted that the planning committee proceeded upon a false premise - but not in my judgment one of sufficient materiality to justify any interference by me.[24]I therefore consider that the Claimant has failed to disclose sufficient grounds to justify a judicial review of this decision in relation to any of the areas where a challenge has been sought to be mounted and relief is therefore refused

E. ABSENCE OF PROMPTNESS AND THE THREE MONTHS RULE

[25]In considering this aspect of the case I follow the approach which can be identified as the correct one from R (On the application of Hardy) v Pembrokeshire C.C. [2005] EWHC 1872 (Admin) and [2006] EWCA Civ. 240. I take the view that it would not serve the interests of the public, the parties or the promotion of good administration for me to have disposed of this matter simply with a decision as to whether this application was brought within three months of the decision sought to be challenged and in any event promptly. In relation to whether this application was brought within three months of the decision sought to be challenged and in any event promptly I accept the argument advanced in writing and orally by Newport and Morrisons. I record that I am somewhat unsympathetic to a claim by an organisation that refuses to disclose its membership that it has acted promptly. The refusal to disclose details of membership renders the fair assessment of whether there has been promptness more difficult but that is not however, a determining issue in relation to my decision in this area.[26]For the reasons advanced by Newport and Morrisons and set out in paragraph 58 to 72 and 54 to 92 of their respective skeletons I do not consider that this application has been made within three months or promptly. The points derived from C-406/08 Uniplex (UK) Ltd v NHS Business Services Authority therefore do not arise because I resolve the dispute as to whether the challenge was brought within three months against the Claimant. I need to make clear that if this application had been brought within three months and promptly I would have refused permission for judicial review on the merits as already explained. In my judgment a merits based assessment of this case was required at the earliest practicable stage to preclude the possibility of litigation over the technical aspects of the delay point dragging on without reference to the merits over a considerable period and potentially to the significant prejudice of good administration and a legitimate commercial interest.[27]I therefore refuse permission for judicial review in this case. If the position in relation to costs is not agreed I require submissions from Newport and Morrisons, if they wish to make any, within twenty eight days of this judgment being handed down and any reply thereto from the Claimant within fourteen days thereafter.