COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION - ADMINISTRATIVE COURT)
(Mr Justice Richards)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
LORD JUSTICE SCOTT BAKER
| PAUL RICHARDSON & WENDY ORME
|- and -
|NORTH YORKSHIRE COUNTY COUNCIL
THE FIRST SECRETARY OF STATE
BROWN & POTTER LIMITED
(instructed by Richard Buxton) for the Appellants
T Straker Esq, QC & P Greatorex
(instructed by North Yorkshire County Council Legal Department) for the First Respondent
P Sales Esq & J Maurici Esq
(instructed by The Treasury Solicitor) for the Second Respondent
T Hill Esq (instructed by Messrs Mills & Reeve) for the Interested Party
Hearing dates: 8th/9th December 2003
Crown Copyright ©
Lord Justice Simon Brown:
"The case raises issues of some importance concerning the EIA regime and the working of local democracy that in my view provide a compelling reason why an appeal should be heard."
Richards J appears there to have had in mind CPR Part 52.3(6)(b), rather than to have thought that an appeal would have "a real prospect of success". Be that as it may, the issues arising, in particular perhaps the true construction and application of the Model Code, are certainly of sufficient importance to have justified an appeal hearing.
The EIA issues: legal framework
"Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out; whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question …"
"… adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment … are made subject to a requirement for development consent and an assessment with regard to their effects".
"When a decision to grant or refuse development consent has been taken, the competent authority or authorities shall inform the public thereof in accordance with the appropriate procedures and shall make available to the public the following information:
- the content of the decision and any conditions attached thereto,
- the main reasons and considerations on which the decision is based,
- a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects."
"The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so" (emphasis added).
"Where an EIA application is determined by a local planning authority, the authority shall –
(c) make available for public inspection at the place where the appropriate register (or relevant section of that register) is kept a statement containing –
(i) the content of the decision and any conditions attached thereto;
(ii) the main reasons and considerations on which the decision is based; and
(iii) a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development" (emphasis added).
The facts relevant to the EIA issues
"That, subject to the completion of a Section 106 Agreement requiring an extended aftercare period, a Management Plan, the establishment of a Management/Steering Group to oversee restoration and aftercare and a scheme of survey, monitoring and migration of [sic – i.e. mitigation for] species protected under the Conservation (Natural Habitats etc) Regulations 1994, planning permission be granted subject to the conditions as recommended and to the addition of a further condition requiring the phased working and restoration of the site."
"The above-named Council being the Planning Authority for the purposes of your application dated 11 February 2002, in respect of proposed development for the purposes of the extraction of sand and gravel at Ripon City Quarry have considered your said application and have granted permission for the proposed development subject to the following conditions: -
(See attached sheets)
In accordance with Article 22(2) of the Town and Country Planning (General Development Procedure) Order 1995 notice is hereby given that the County Council in determining the above application has taken into consideration the accompanying environmental information. Furthermore the County Council in determining the application has taken into consideration the policies of the North Yorkshire Mineral Local Plan adopted 1997 and all other material considerations as set out in the report to the Planning and Regulatory Functions Committee on 11 June 2002."
"The above named Council, being the Planning Authority for the purposes of your application dated 11 February 2002, in respect of proposed development for the purposes of the extraction of sand and gravel at Ripon City Quarry have considered your said application and, for the reasons set out in the attached sheets, have granted permission for the proposed development subject to the following conditions:-
(see attached sheets)
In accordance with Article 22(2) of the Town and Country Planning (General Development Procedure) Order 1995 and Article 3(2) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("EIA Regulations") notice is hereby given that the County Council in determining the above application has taken into consideration the environmental statement and environmental information (as defined by the EIA Regulations).
The main considerations on which the decision was based were the policies of the North Yorkshire Mineral Local Plan adopted in 1997 and all other material considerations as set out in the report to the Planning and Regulatory Functions Committee on 11 June 2002 (attached hereto).
The main reasons for the decision were as follows:
(1) agreement with the report to the Planning and Regulatory Functions Committee on 11 June 2002 (attached hereto) and the conclusion at paragraph 7.9 thereof;
(2) the development constituted an acceptable extension to existing working which would satisfy a local market for aggregates;
(3) the development would allow for the continuation of working at a well-run and well-maintained site where a good standard of restoration has been achieved;
(4) there would be no permanent scar to the landscape, a good standard of restoration has been proposed is proposed [sic] and the development would bring significant benefits in terms of site restoration for nature conservation purposes;
(5) the development site is at an acceptable distance from the nearest residential properties and would not cause undue disturbance to the amenity of local residents;
(6) minerals can only be worked where they exist in the ground;
(7) existing jobs in this local business would be protected;
(8) the requisite monitoring of conditions could be carried out;
(9) there is a need for sand and gravel in the locality which would not be met by the local market if this permission were not granted."
The regulation 3(2) issue
"31. In my judgment the relevant "decision" for the purposes of reg. 3(2) was not the resolution dated 11 June 2002 but the notice of decision dated 6 August 2002, which constituted the actual grant of planning permission:
i) As a matter of domestic law, a resolution to grant planning permission has no immediate legal effect. A local planning authority is required to give an applicant written notice of its decision within the time laid down by article 20 of the GDPO 1995 and containing the details specified in article 22 of the same Order. The grant of planning permission is made only when the written notice is issued by a duly authorised officer of the authority. There is no effective planning permission unless and until the written notice is issued to the applicant: see R v. Yeovil Borough Council, ex parte Trustees of Elim Pentecostal Church, Yeovil (1971) 23 P&CR 39, 44-45.
ii) The same point lies at the heart of the decision of the House of Lords in R v. LB Hammersmith and Fulham, ex parte Burkett  UKHL 23,  3 All ER 97, in which it was held that time for bringing an application for judicial review runs from the grant of planning permission, not from the date of the resolution to grant it. An important part of the reasoning was that until the actual grant of planning permission the resolution has no legal effect and the authority has a discretion to revoke it (see e.g. per Lord Steyn at para 39).
iii) The general principle of the directive is that 'development consent' should be granted only after prior assessment of the likely environmental effects. One would expect the 'development consent' for present purposes to be the actual grant of planning permission which authorises the relevant development, rather than a resolution which in itself has no legal effect.
iv) The EIA Regulations tie the assessment requirements into existing planning procedures, as permitted by article 2(2) of the directive. The GDPO 1995 forms part of those planning procedures. Reg. 3(1), which provides that the regulation applies to EIA applications received on or after a certain date, refers expressly to the GDPO 1995, stating that the date of receipt of an application is to be determined in accordance with article 20(3) of the Order.
v) Against that background the natural and in my view correct interpretation of reg. 3(2) is that it is concerned with the issue of the written notice of decision referred to in articles 20 and 22 of the GDPO 1995. That constitutes the "grant" of planning permission which must not be made unless the authority has first taken the environmental information into consideration; and that is the "decision" in which the relevant statement must be made.
32. The next question is whether the notice of decision issued on 6 August 2002 complied with the requirement to state that the Council had taken the environmental information into consideration. In my judgment it did, for these reasons:
i) The notice included a "Note", which formed part of the notice, stating that "in accordance with Article 22(2) of [the GDPO 1995] notice is hereby given" that the Council had taken into consideration "the accompanying environmental information".
ii) Article 22(2) of the GDPO 1995 provides:
(a) the applicant for planning permission has submitted an environmental statement; and
(b) the local planning authority have decided (having taken environmental information into consideration) to grant permission (whether unconditionally or subject to conditions),
the notice given to the applicant in accordance with article 20(1) shall include a statement that environmental information has been taken into consideration by the authority.'
iii) Article 1(2) of the same Order defines 'environmental information' as having the same meaning as in reg. 2 of the 1988 predecessor to the EIA Regulations, which is materially identical to the definition in reg. 2(1) of the EIA Regulations themselves.
iv) It seems to me that article 22(2) of the GDPO 1995 is aimed at achieving the same result as is required by the relevant part of reg. 3(2) of the EIA Regulations, i.e. a statement in the notice of decision that the environmental information has been taken into account. Counsel did not provide me with any details of the legislative history, but it appears that the requirement to include such a statement in the decision was introduced into the EIA regime in 1994, by para. 3 of the schedule to the Town and Country Planning (Assessment of Environmental Effects) (Amendment) Regulations 1994. Given the integration of EIA procedures into the general planning regime, article 22(2) of the GDPO 1995 should in my view be read as consonant with that requirement. There is no material difference between the reference to 'environmental information' in article 22(2) of the GDPO 1995 and the reference to 'the environmental information' in reg. 3(2) of the EIA Regulations.
v) The relevant part of the Note in the notice of decision was evidently directed towards compliance with the requirement to state in the decision that the environmental information had been taken into account. It refers to the "accompanying" environmental information rather than simply to environmental information. That was plainly apt to include the environmental statement submitted with the planning application, but if narrowly construed might not cover representations made by other persons about the environmental effects of the proposed development. In my view, however, a narrow construction is inappropriate. Taking into account the statutory and factual context, I would construe the Note as referring to the environmental information as defined in the GDPO 1995 and (by cross-reference) in the EIA Regulations.
vi) On that basis I conclude that the Council did comply with the requirement in reg. 3(2) to state in the decision that it had taken the environmental information into consideration. It would certainly have been better to express it along the lines of the proposed substitute notice of decision ('the County Council in determining the application has taken into consideration the environmental statement and environmental information (as defined by the EIA Regulations)'), but the actual wording was good enough for the purpose."
Mr McCracken takes issue with the judge's conclusions in both those paragraphs.
"The court has jurisdiction to entertain an application by a citizen for judicial review in respect of a resolution before or after its adoption."
The August permission
The regulation 21(1) issue
"v) The notice of decision dated 6 August 2002 did not contain a statement of the main reasons on which the decision was based. It set out the terms of the decision and attached the conditions to which the permission was subject, together with the s.106 agreement and its annexes relating to mitigation measures and the like. By the oblique reference, in the Note, to the report of the Director of Environmental Services which the members of the planning committee had before them, it referred to the considerations taken into account. But it did not contain a sufficiently specific statement of the main reasons for the decision to achieve compliance with reg. 21(1)(c)(ii). Nor was there any separate statement of reasons."
"47. The consequences of a failure to comply with a requirement to give reasons depend very much on statutory context and the particular circumstances of the case. The authorities cited by counsel cover a range of different situations. In evaluating them it is also important to bear in mind that there has been, as it seems to me, a tendency in recent years to adopt a stricter approach to the requirement to give reasons and to be readier to quash a decision for failure to give reasons and less ready to allow a deficiency of reasons to be cured by the provision of reasons or supplemental reasons at a later stage.
48. The closest decision in point of subject-matter, though furthest away in point of time (and divorced from the context of an EC directive), is Brayhead (Ascot) Ltd v. Berkshire County Council, where it was held that a failure to comply with the duty to give reasons for the imposition of a planning condition did not invalidate the condition (let alone the planning permission) and the duty could be enforced by mandamus. At the other end of the spectrum, R v. Westminster City Council, ex parte Ermakov provides an example of a case, more recent and in a different statutory context, in which a decision was quashed for a failure to comply with the duty to give adequate reasons at the same time as the decision, and the court adopted a restrictive approach to the admissibility of later reasons. Flannery v. Halifax Estate Agencies was concerned with a different context again, namely the duty of a trial judge to give reasons for his decision. In that area a more up to date and detailed analysis is to be found in English v. Emery Reimbold & Strick Ltd  EWCA Civ 605,  3 All ER 385, which was not cited by counsel but which makes it clear that it may be appropriate in certain circumstances to remit the case to the trial judge for the provision of additional reasons (paras 22-25). Although these and the other cases to which I have been referred provide general guidance, they do not lay down a principle that is determinative of the present case. There is no substitute for a careful examination of the particular statutory context and the precise nature of the requirement to state reasons in each case.
49. As to that, the first and most important point in the present case is that reg. 21(1) looks to the position after the grant of planning permission. It is concerned with making information available to the public as to what has been decided and why it has been decided, rather than laying down requirements for the decision-making process itself. It implements the obligation in article 9(1) of the directive to make information available to the public "when a decision to grant … development consent has been taken' (emphasis added). That is to be contrasted with article 2(1) of the directive, which lays down requirements as to what must be done before the grant of planning permission (which may be granted only after a prior assessment of significant environmental effects).
50. The fact that the requirement focuses on the availability of information for public inspection after the decision has been made, rather than on the decision-making process, leads me to the view that a breach of reg. 21(1) ought not to lead necessarily to the quashing of the decision itself. A breach should be capable in principle of being remedied, and the legislative purpose achieved, by a mandatory order requiring the authority to make available a statement at the place, and containing the information, specified in the regulation.
51. Thus, to take a straightforward example, if the members of the committee had agreed in terms at their meeting on a specific statement of the main reasons for the grant of planning permission but the officers had failed to include that statement on the register, a mandatory order requiring the statement to be placed on the register (or, perhaps more accurately, requiring it to be made available for public inspection at the place where the register is kept) would plainly be the appropriate remedy.
52. The difficulties in this case arise out of the fact that there was no such agreement. The need to make a statement of main reasons available for public inspection appears to have been overlooked by the officers, so that members were not advised about it. That was a most unfortunate oversight. It meant that members did not have imposed upon them the same disciplined and structured approach as might have been thought appropriate had they been aware of the duty to make a statement of main reasons available. It also meant that they missed the opportunity to agree in terms on a specific set of reasons. The most obvious way in which that might have been done was by expressing agreement with the reasoning in the Director's report, subject to any agreed departures from or additions to that reasoning.
53. The resulting situation is very unsatisfactory. I have reached the conclusion, however, that it is still capable of being remedied by a mandatory order and that what has happened does not justify the quashing of the grant of planning permission. My reasons are as follows:
i) Although it is necessary to view with caution any subsequent statement of reasons for a decision, especially where the reasons have not been articulated until many months after the decision, I do not think that the exercise of obtaining reasons ex post from the individual members who voted for the resolution is inherently flawed or of such doubtful reliability that the evidence should be rejected. All that the individual members have been asked to do is to cast their minds back to the reasons that actually motivated them to vote for the grant of planning permission. There is no suggestion that they have had any difficulties of recollection. In my view there is nothing in the nature of the exercise or in the evidence obtained to cause concern that the answers might have been distorted by the existence of these proceedings or other extraneous considerations. The process does not involve changing a decision or reconsidering it or anything of that kind. This is a very different exercise from that found unacceptable in R (Carlton-Conway) v. Harrow LBC or in R (Goodman) v. LB Lewisham. In both those cases the councils had engaged in a later decision-making process and there was an understandable concern that that might be vitiated by a wish to sustain a former invalid decision. In this case it is simply a matter of being satisfied that the reasons now put forward were the actual reasons that motivated the decision-makers at the time.
ii) On the face of it, a greater difficulty is created by the fact that, although all the members were 'motivated by factors referred to in the report or in public session', each of them has given a different set of 'particular reasons' for voting for the resolution and those 'particular reasons' do not of themselves provide a sufficiently reasoned basis for a departure from the development plan and the grant of planning permission.
iii) It requires only a limited degree of beneficence, however, to read the evidence as meaning that all the members accepted the reasoning and conclusion in the Director's report but each attached particular significance to the 'particular reasons' that they have identified. If the evidence is read in that way, everything seems to me to fall into place and a reasoned basis for the decision is immediately provided. That is evidently how the author of the proposed substitute notice understood the information being provided by the individual members, since the first reason expressed in that notice, though not mentioned as a 'particular reason' by any of the members, is 'agreement with the [Director's] report … and the conclusion at paragraph 7.9 thereof'. All of the 'particular reasons' are consistent with the reasoning in the Director's report. All but one (namely (9), the need for sand and gravel in the locality) are clearly reflected in that reasoning. The tenor of the resolution and original notice of decision also support the view that the Director's report was accepted, though I recognise that they do not say so in terms. Taking all those matters into account, I have reached the view that the evidence should be read in the way I have indicated.
iv) On that basis the substitute notice of decision and its attached documents (including the Director's report) would contain an entirely satisfactory statement of the main reasons for the decision, and the placing of that material on the register would remedy the breach of reg. 21(1). There would be no problem with the decision to grant planning permission: I have already covered the point that the members took the environmental information into consideration and reached a rational conclusion on the information before them, and the statement of reasons would give rise to no separate cause for concern about the lawfulness of the decision reached.
v) It might be possible to refrain from making any order at all, on the basis that the Council has informed the court of its intention to place the substitute notice of decision on the register. In my view, however, the right course is to grant a mandatory order requiring the Council to follow that course. That will ensure compliance with reg. 21(1) and will thereby also ensure compliance with the obligation imposed by article 9(1) of the directive. No question of the discretionary withholding of relief arises."
"… one is concerned with the members' reasons not the planning officer's, but where a planning officer makes a recommendation which is followed by the members, the reasonable inference is that the members did so for the reasons advanced by the officer, unless of course there is some indication to the contrary".
"The requirement to make available the main reasons and considerations on which the decision is based now applies equally to cases where planning permission is granted and where it is refused. In practice, authorities may find that this requirement is met by the relevant planning officer's report to the Planning Committee."
" … reg. 21(1) looks to the position after the grant of planning permission. It is concerned with making information available to the public as to what has been decided and why it has been decided, rather than laying down requirements for the decision-making process itself."
"Although section 288(5)(b) [of the 1990 Act], in providing that the court 'may' quash an ultra vires planning decision, clearly confers a discretion upon the court, I doubt whether, consistently with its obligations under European law, the court may exercise that discretion to uphold a planning permission which has been granted contrary to the provisions of the Directive. To do so would seem to conflict with the duty of the court under article 10 (ex article 5) of the EC Treaty to ensure fulfilment of the United Kingdom's obligations under the Treaty. In classifying a failure to conduct a requisite EIA for the purposes of section 288 as not merely non-compliance with a relevant requirement but as rendering the grant of permission ultra vires, the legislature was intending to confine any discretion within the narrowest possible bounds ….
… In the present case the Directive has been transposed into domestic legislation and there was a failure to comply with the terms of that legislation. In my view, a court should not ordinarily be willing to validate such an act on the ground that a different form of transposing legislation … might possibly have also satisfied the terms of the Directive. I would accept that if there was a failure to observe some procedural step which was clearly superfluous to the requirements of the Directive, it would be possible to exercise the discretion not to quash the permission without any infringement of our obligations under European law. But that is not the case here …" (616D-F and 617G-H)."
Code of Conduct: legislative framework
"PART 1 – GENERAL PROVISIONS
1.(1) A member must observe the authority's code of conduct whenever he-
(a) conducts the business of the authority;
(b) conducts the business of the office to which he has been elected or appointed; or
(c) acts as a representative of the authority,
and references to a member's official capacity shall be construed accordingly.
(2) An authority's code of conduct shall not, apart from paragraphs 4 and 5(a) below, have effect in relation to the activities of a member undertaken other than in an official capacity ….
4. A member must not in his official capacity, or any other circumstance, conduct himself in a manner which could reasonably be regarded as bringing his office or authority into disrepute.
5. A member-
(a) must not in his official capacity, or any other circumstance, use his position as a member improperly to confer on or secure for himself or any other person, an advantage or disadvantage ….
PART 2 – INTERESTS
8.(1) A member must regard himself as having a personal interest in any matter if the matter relates to an interest in respect of which notification must be given under paragraphs 14 and 15 below, or if a decision upon it might reasonably be regarded as affecting to a greater extent than other council tax payers, ratepayers, or inhabitants of the authority's area, the well-being or financial position of himself, a relative or a friend ….
Disclosure of Personal Interests
9.(1) A member with a personal interest in a matter who attends a meeting of the authority at which the matter is considered must disclose to that meeting the existence and nature of that interest at the commencement of that consideration, or when the interest becomes apparent ….
10.(1) Subject to sub-paragraph (2) below, a member with a personal interest in a matter also has a prejudicial interest in that matter if the interest is one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice the member's judgement of the public interest ….
Overview and Scrutiny Committees
11.(1) For the purposes of this Part, a member must, if he is involved in the consideration of a matter at a meeting of an overview and scrutiny committee of the authority or a sub-committee of such a committee, regard himself as having a personal and a prejudicial interest if that consideration relates to a decision made, or action taken, by another of the authority's -
(a) committees or sub-committees; or
(b) joint committees or joint sub-committees,
of which he may also be a member.
(2) But sub-paragraph (1) above shall not apply if that member attends that meeting for the purpose of answering questions or otherwise giving evidence relating to that decision or action.
Participation in Relation to Disclosed Interests
12.(1) Subject to sub-paragraph (2) below, a member with a prejudicial interest in any matter must -
(a) withdraw from the room or chamber where a meeting is being held whenever it becomes apparent that the matter is being considered at that meeting, unless he has obtained a dispensation from the authority's standards committee;
(b) not exercise executive functions in relation to that matter; and
(c) not seek improperly to influence a decision about that matter.
(2) A member with a prejudicial interest may, unless that interest is of a financial nature, and unless it is an interest of the type described in paragraph 11 above, participate in a meeting of the authority's -
(a) overview and scrutiny committees; and
(b) joint or area committees,
to the extent that such committees are not exercising functions of the authority or its executive.
13. For the purposes of this Part, 'meeting' means any meeting of -
(a) the authority;
(b) the executive of the authority; or
(c) any of the authority's or its executive's committees, sub-committees, joint committees, joint sub-committees, or area committees.
PART 3 – THE REGISTER OF MEMBERS' INTERESTS
Registration of Financial and Other Interests
14. Within 28 days of the provisions of an authority's code of conduct being adopted or applied to that authority or within 28 days of his election or appointment to office (if that is later), a member must register his financial interests in the authority's register maintained under s.81(1) of the Local Government Act 2000 by providing written notification to the authority's monitoring officer of -
(f) the address or other description (sufficient to identify the location) of any land in which he has a beneficial interest and which is in the area of the authority …."
Facts relevant to the Code issues
"The application before you, concerning Ripon City Quarry, lies partly within my Division. I also live within and represent Littlethorpe Community, and as such will be affected by the Quarry, should the application be approved.
I have been advised by the officers of the County Council that, as such, I can neither speak nor be present in my capacity as Councillor or as a citizen, despite the fact that I have no decision making role on the Planning Committee.
The Rights of Representation, by their chosen elected Member, has been denied to the Littlethorpe Community by Government legislation, and my basic Human Right of Freedom of Speech, as a citizen has also been denied.
I will leave the room as instructed, but give formal notice that I will further fight for the rights of the individual and unrepresented Communities."
i) Which "member[s]", assuming that they have a prejudicial interest in a matter, are required by paragraph 12(1) of the Code to "withdraw from the room or chamber where a meeting is being held when … the matter is being considered at that meeting"? Is this requirement imposed on all members of the authority or only on those who are members of the committee holding the relevant meeting?
ii) Whatever be the answer to question (i), is a member, paragraph 12 notwithstanding, entitled to attend such a meeting in his personal capacity as opposed to his representative capacity?
iii) Was Mr Richardson properly to be regarded as having a "prejudicial interest" in the matter of this planning application?
iv) Did Mr Richardson indicate that, even were he not permitted to attend the June meeting in his representative capacity, he wished to attend in his personal capacity?
Issue (i): what is the meaning of "member" in paragraph 12(1)?
"i) I reject Mr McCracken's submission that attendance by a councillor at a meeting of a committee of which he is not a member falls outside the scope of the Code. It seems to me that such attendance falls clearly within paragraph 1(1). If a councillor attends a meeting of a committee of which he is a member, he is 'conduct[ing] the business of the authority' within paragraph 1(1)(a). If he attends a meeting of a committee of which he is not a member, he is 'conduct[ing] the business of the office to which he has been elected …' within paragraph 1(1)(b). He is there as an elected councillor performing the functions of that office. That is well illustrated by the facts of this case. Mr Richardson's wish to attend the meeting as a councillor representing his electorate and giving the community a representative 'voice' at the meeting was at the heart of his objection to withdrawing from the meeting (I deal later with the question of his attendance in a personal capacity as well). An additional consideration is that attendance by a councillor at any meeting of a committee of a council, whether or not he is a member of that committee, counts towards fulfilment of the minimum attendance requirement imposed on members by s.85 of the Local Government Act 1972.
ii) The ordinary and natural reading of paragraph 12 is that it applies to a member of the Council, not just to a member of the relevant committee. Throughout the Code, starting most obviously with paragraph 1(1), the expression 'a member' denotes a member of the Council. Where a provision is limited to participation as a member of a particular committee, it is done so expressly, as in paragraph 11(1) (which opens by a general reference to 'a member', i.e. a member of the Council, but then refers to decisions made or action taken by committees 'of which he may also be a member'). There is no such limitation in paragraph 12. On its face it lays down a rule applicable to any member of the Council in relation to any meeting of the council or of any of its committees (see the wide definition of 'meeting' in paragraph 13)."
"103. The background material provides some support for the view that the mischief at which the provision is aimed is the presence of a councillor in the room, whether or not he is a member of the relevant committee, though it is fair to say that the point does not seem to have been addressed in terms. Paragraphs 6.51-6.52 of the Widdicombe report deal as follows with the question of withdrawal from meetings, referring first to pecuniary interests and then to non-pecuniary interests:
'6.51 At present there is no statutory requirement for someone who has declared an interest at a meeting to withdraw from the room …. We believe that this is wrong. By staying in the room, even though he or she may not speak or vote, a councillor may still influence the decision or might gather information which would help in the furtherance of his or her interest …. We propose that there should be a statutory requirement for councillors in all such instances to withdraw. Withdrawal should be from the room, not just to the space set aside for the public. There should be no option to invite councillors to stay, which could place their colleagues in an invidious position.
6.52 The 1975 Code … currently requires councillors to treat non-pecuniary interests precisely as if they were pecuniary ones: that is to say that the councillor should not only declare such interests but also abstain from voting and speaking (and, under our recommendation, withdraw from the room). We do not think that this is right. Non-pecuniary interests will sometimes be substantial and clearly justify such disabilities. In other cases they will be much more distant …. The councillor should … only be required to abstain from voting and speaking and, under our recommendation, to withdraw from the room, if the interest is a clear and substantial one ….'
104. It is true that, as Mr McCracken says, that recommendation does not deal in terms with the issue of a single member constituency and the problem of representation to which withdrawal in such circumstances may give rise. But other passages of the report show that the authors were well aware of, and attached value to, single member constituencies (see e.g. paragraph 7.16); and in my view it is clear that they put forward their recommendation as one of general application.
105. The Nolan report deals extensively with general principles of conduct for local councillors, including a lengthy discussion of conflicts of interest. Paragraph 82 refers to the complexity of the issues and the balancing exercise required:
'The issues are particularly complex in local government. Local authorities are multi-purpose bodies, involved in many different activities within a restricted geographical area. They are run by councillors, elected on a ward basis, whose task is to represent the interests of local people. Councillors are themselves local people, who are likely to have been actively involved in the local community before election, both in commercial and non-commercial activities, and who may be even more involved after election. Potential conflicts of interest are likely to occur frequently, and the public interest requires that a sensible balance should be struck between avoiding impropriety, and enabling councillors to fulfil the role for which they were elected.'
106. Paragraphs 112ff. deal specifically with public and private interests and bias, drawing the distinction between a situation in which a councillor or his family is no more affected than the generality of the community and a situation in which he or his family is particularly affected. For example, I have referred already [this is a reference to paragraph 84(iv) of Richards J's judgment, now set out in paragraph 76 below], in the context of 'prejudicial interests', to the illustrative contrast drawn in paragraph 118 between a case where a councillor's home is one of a hundred households affected and a case where it is one of ten households affected. On the specific issue that I am now considering, however, I do not think that the Nolan report takes matters further.
107. The Department's consultation paper contained the following passage under the general heading 'dealing with conflicts of interest':
'4.17 Under the proposals put forward by the LGA, members would be required to withdraw from consideration of any matter in which they had a financial interest. The Government agrees that this is the right approach to such interests. In relation to non-financial interests, the LGA proposed that members should be required to declare such interests but (unless that interest related to a planning, licensing or grant application) should then be able to speak and vote. Where a member had a non-financial interest in relation to a planning, licensing or grant application, members should be able to speak, but not vote.
4.18 Ministers believe that, in relation to non-financial interests, these proposals tilt the balance too far in favour of member participation, at the expense of public confidence. The range of potential non-financial interests is very large, and some of these may be of greater significance than some financial interests. Nor are significant non-financial interests restricted solely to planning, licensing and grant-related matters. They may arise in any area of council activity. So the Government believes that a more restrictive approach is needed in relation to such interests. The approach proposed below reflects that view' (original emphasis).
108. The draft of paragraph 12 required a member with a prejudicial interest in any matter to 'withdraw from a meeting wherever it becomes apparent that the matter is being considered'. The evidence before the court is that responses to the consultation paper and subsequent discussions suggested that 'withdraw from the meeting' was too vague, since it would allow a member to withdraw to the public gallery and use his or her presence there to put pressure on those taking part in the debate; and that there was considerable anecdotal evidence that this could cause problems. The paragraph was therefore amended so that the final version required a member to 'withdraw from the room or chamber where the meeting is being held'.
109. The consultation paper, together with the evidence concerning the amendment to the draft of paragraph 12, shows the general mischief at which the provision is addressed and that a restrictive approach was intended. It does not show in terms that paragraph 12 was intended to apply to withdrawal by any member of the Council with a prejudicial interest, and not just by a member of the relevant committee. The general thrust of the material seems to me, however, to provide greater support for that view than for the contrary view. Again I take the point made by Mr McCracken that there was no express consideration of the effect on a single councillor constituency, but again it seems to me that the intention was to formulate a rule of general application.
110. Overall, I do not regard the background material as decisive, but there is nothing in it that could possibly justify my departing from what I have found to be the ordinary and natural meaning of the relevant provisions."
"i) In my judgment the question at this stage is one of rationality, not proportionality. Despite the observations of Lord Slynn in Alconbury and of Sedley LJ in R v. Flintshire CC, ex parte Armstrong-Braun (who, in the context of that case, may in any event have had the Convention in mind), proportionality has not yet displaced rationality as the relevant test in domestic law, though in practice the result will very often be the same.
ii) It was plainly rational for the Secretary of State to adopt a Code that has the effect of requiring a councillor with a prejudicial interest to withdraw from a meeting of a committee even if he is not a member of that committee. In my view the principle of proportionality, if applicable, would also be satisfied.
iii) The Code reflects the outcome of a complex balancing exercise after extensive consultation and deliberation. There has been a sufficiently structured and articulated approach (to the use the language from South Bucks DC v. Porter on which Mr McCracken relied). The Secretary of State has placed particular weight, as he was entitled to do, on the need to retain public trust and confidence in the operation of the system. This is expressed extremely clearly in the consultation paper:
'4.3 The retention of public confidence is not so much a desirable goal, as a fundamental necessity. Without the public's trust, an authority would quickly become discredited. So Ministers see the requirements of public probity as paramount. The system we design must, first and foremost, meet those requirements.'
iv) Although the presence of a councillor with a prejudicial interest may give rise to lesser public concern when he is a non-member of the relevant committee than when he is a member of the committee, a non-member is still able to exert influence by reason of his position as a councillor, and the risk that public confidence in the decision-making will be impaired is a real one.
v) To require the highest standards of behaviour in public life is properly viewed as promoting rather than offending the principles of local representative democracy. Moreover, as Mr Sales submitted, the principles of democracy do not require that any particular councillor sit on a council committee or attend or speak at a committee meeting. It is in the nature of council committees that they conduct business on behalf of the council without full participation by every member of the council. Nor is attendance by a councillor at a meeting the only way in which the interests of his constituency can be taken into account. In the present case, for example, the committee heard from a district councillor, the chairman of the parish council and a member of the parish council (the second claimant), as well as receiving written representations."
"The Secretary of State has placed particular weight, as he was entitled to do, on the need to retain public trust and confidence in the operation of the system."
"… the Government believes that the requirement [to withdraw from a meeting] should be modified by making a distinction between decision-making activities and the other types of member activity provided for under such constitutions. Where decisions are not being taken, the Code could take a less restrictive approach to handling conflicts of interest. The functions of overview and scrutiny committees are constrained by statute to prevent them exercising any traditional decision-making function. Area committees and joint committees may carry out decision-making functions formally delegated to them by the authority, or the executive, but they may well also conduct discussions in order to review or inform policy decisions, rather than actually to make those decisions."
Issue (ii) - Is a member entitled, notwithstanding paragraph 12, to remain at a meeting in his personal capacity?
"i) On its face, paragraph 12 would seem to apply to such a situation, since a councillor is still "a member" of the Council even if acting only in his private capacity. It must, however, be read in the light of the limitations expressed in paragraph 1 on the scope of the Code.
ii) Paragraph 1(2) provides that the Code "shall not, apart from paragraphs 4 and 5(a) below, have effect in relation to the activities of a member undertaken other than in an official capacity". In my view a councillor would not be undertaking activities in an official capacity if he attended a meeting solely in his private capacity. In particular, he would not be "conduct[ing] the business of the office to which he has been elected", within the meaning of paragraph 1(1)(b).
iii) I would reject Mr Sales's submission that paragraph 12 is to be seen as an illustration of paragraph 4 and/or paragraph 5(a) of the Code. It is not so expressed; and if it had been intended to apply to activities undertaken otherwise than in an official capacity, I would have expected an express reference to it in paragraph 1(2) as a further exception to the general rule there laid down. There may of course be circumstances in which attendance at a meeting in a private capacity would be caught directly by paragraph 4 and/or paragraph 5(a), but that is a different matter and is not a reason for adopting a strained interpretation of paragraph 12 so as to apply it in all cases to attendance in a private capacity. Nor was any advice given, or suggestion made, by the Council's officers that attendance by Mr Richardson would be a breach of paragraph 4 or 5(a).
iv) The policy objections to attendance by a councillor at a meeting might reasonably be considered to apply even where attendance is on the express basis that the councillor is attending in a private capacity to defend his own personal interest, rather than in a representative capacity. They might, however, be thought to have less weight in that situation, on the basis that the risk of damage to public confidence would not be so great. In any event I do not regard the policy objections as so compelling that they ought to lead to a construction of the Code that would not be justified on its ordinary and natural meaning.
v) Accordingly, I would have held that the Code did not in principle preclude attendance by Mr Richardson solely in his private capacity to defend his own personal interest, though steps would have had to be taken to ensure that the limited basis of his attendance was abundantly clear to all.
vi) On that basis the arguments about the lawfulness of the Code in its application to a councillor wishing to attend a meeting in his capacity as a private citizen would fall away."
Issue (iii) - Was Mr Richardson properly to be regarded as having a prejudicial interest?
"84. In any event I think it plain that he did have a prejudicial interest and that neither he nor the Council could reasonably have taken a different view:
i) I do not understand it to be in dispute, and I would certainly hold, that he had a 'personal interest' within paragraph 8(1), in that the decision on the planning application (i) related to an interest of which he had to give notice under paragraph 14(f), namely his home in Littlethorpe, and/or (ii) might reasonably be regarded as affecting his well-being and/or financial position to a greater extent than other relevant persons.
ii) His personal interest was also a 'prejudicial interest' within paragraph 10(2) if it was 'one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice the member's judgement of the public interest'.
iii) Mr Richardson's home, Ox Close House, was very close to the proposed extension of the quarry and was one of a handful of properties liable to be most affected by the development. As it was put in paragraph 6.7.1 of the Director's report:
'The properties potentially most affected by the development proposal are Ox Close House, The Bungalow, Ox Close Farm and Great Givendale. The closest properties are Ox Close House, The Bungalow and Ox Close Farm. These lie approximately 250 metres to the south west and west of the application area. Residents in these properties have expressed concern with regard to noise arising from the proposed workings …. Residents are also concerned about the impact on their views of the valley ….'
iv) Mr McCracken relies on the statement in paragraph 118 of the Nolan report that '[i]f one hundred households are affected by a council decision, then most people would agree that a councillor similarly affected has no special interest which might debar him or her from speaking or voting, providing the interest is declared'. He submits that that was the case here and points to the fact there were some 400 signatories to a local petition opposing the development; Mr Richardson had the same interest as his constituents, albeit to a greater degree than many (and less than some). In my judgment, however, the next sentence of paragraph 118 of the Nolan report is more pertinent: '[i]f in a different decision ten households are affected, then in most circumstances a councillor might feel that taking part in a decision was inappropriate'. The present case is stronger still, since Mr Richardson's home was one of three or four properties closest to the site and potentially most affected. The owners of those properties were not merely 'similarly affected' as other residents of the parish, but had a greater and special interest in the outcome of the planning application.
v) Anyway, the test is not what was said in the Nolan report but what is laid down in paragraph 10(2) of the Code; and in my judgment a member of the public with knowledge of the relevant facts would reasonably have regarded Mr Richardson's personal interest as so significant that it was likely to prejudice his judgement of the public interest. I reject Mr McCracken's submission that a knowledgeable member of the public would reasonably have regarded him as simply putting forward the views of the people he represented, or making a contribution to the debate based on his perception of the public interest, rather than being influenced by the potential impact of the development on his own home. However conscientious a councillor might be in his representative role and his concern to protect the public interest, the personal interest was a highly material additional consideration.
vi) As a further way of examining the point, though this is not necessary for my decision, I have asked myself whether, if Mr Richardson had been a member of the committee and had participated in a decision to refuse planning permission, it would have been open to the developer to object to the decision on the ground that his participation gave rise to the appearance of bias. In my view it would have been, for the very reason that a fair-minded and informed observer would have concluded that, by reason of the personal interest, there was a real possibility that the committee was biased. The test in paragraph 10(2) of the Code is not in identical terms but similar considerations underlie it."
Issue (iv) - Did Mr Richardson in fact indicate that he wished to attend the June meeting in a private capacity?
"As you are now well aware I was forbidden to speak at the North Yorkshire Council's Planning Committee on Tuesday, 11 June.
Had I been allowed my freedom of speech I had intended to give emphasis on two points. One was the impact on the environment and the lack of a cohesive overall plan of restoration for the whole valley. The second was the impact of the probable increase in flooding; on the flood plain; the villages and towns along the River Ure Corridor and the safety of the workforce …."
These plainly were just the sort of points which Mr Richardson was wishing to make on behalf of his constituents but which, because of his personal interest in the matters, he could not properly be allowed to do. (The fact that they may well have been entirely lacking in merit - a point urged in particular by Mr Hill for the Interested Party - is not for this purpose material).
"Whether it is compatible with the requirements of Directive 85/337/EEC, as amended by Directive 97/11/EC:
(1) for the decision maker not be aware while making its decision of its obligation for formulate and state publicly the reasons for its decision
(2) for the reasons for the decision to be formulated otherwise than contemporaneously with the decision and in advance of the public registration of the decision
(3) for the reasons for the decision to be formulated and stated publicly after the period of time for legal challenge has expired?"
Lord Justice Keene:
Lord Justice Scott Baker: