COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Collins
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE THOMAS
LORD JUSTICE HUGHES
| Andrew Finn-Kelcey
|- and -
|Milton Keynes Council
|MK Windfarm Limited
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr D Elvin QC & Mr R Turney (instructed by Milton Keynes Council) for the Respondent
Mr J Litton (instructed by Messrs Burges Salmon) for the Interested Party
Hearing date: Friday 29th August 2008
Crown Copyright ©
Lord Justice Keene:
"Small-scale projects can provide a limited but valuable contribution to overall outputs of renewable energy and to meeting energy needs both locally and nationally. Planning authorities should not therefore reject planning applications simply because the level of output is small."
"I enclose 50 hard copies and 5 CD copies of the Supplementary Environmental Information (SEI) for Milton Keynes Wind Farm. This SEI addresses the points raised in your letter, received via email on the 28th of April.
The CD also contains the wind data file documents and the noise measurement data file documents, which are not printed as they are vast and considered to be only really useable in their electronic form. You are free to copy these CDs, if you are required, as part of the wind farm application process."
"The Developer has tabulated this letter (shown in Table 2) and responded to each point accordingly, either in the table or with reference to the relevant Appendix of this SEI."
"The raw wind data is shown graphically in Appendix N. The raw data is vast and has not been reproduced in the printed Appendix. The excel data sheets are available in the electronic version or on request."
"The claim form must be filed –
(a) promptly; and
(b) in any event, not later than 3 months after the grounds to make the claim first arose."
"It is important that those parties, and indeed the public generally, should be able to proceed on the basis that the decision is valid and can be relied on, and that they can plan their lives and make personal and business decisions accordingly."
In that same case this court rejected a submission that the requirement in CPR 54.5(1) for an application for judicial review to be made "promptly" offended against the principle of "legal certainty" in European law.
"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. "
"Good public administration requires decisiveness and finality, unless there are compelling reasons to the contrary."
That proposition is of general application. But in the present case there is in existence a particular consideration because of the nature of the proposed development. PPS 22 stresses the importance of renewable energy projects, referring to the UK target of generating 10 per cent of electricity from renewable energy sources by 2010, so as to comply with its international obligations entered into by the Government. As Sullivan J said in R (Redcar and Cleveland Borough Council) v. Secretary of State for Business, Enterprise and Regulatory Reform  EWHC 1847 (Admin)
"The need for promptness in challenging planning decisions within this policy framework is particularly acute. Delay in challenging decisions in respect of renewable energy projects is more than usually prejudicial to good administration."
I agree. That policy context was known to the appellant and BLEW, since it was summarised in the planning officer's report to committee.
B The Substance of the Claim:
"on or after the date these Regulations come into force."
They came into force on 15 January 2007, as Regulation 1(1) expressly states. It goes beyond mere interpretation to seek to hold those Amendment Regulations as coming into force on 25 June 2005 when Parliament has expressly provided a different date: it amounts to a judicial amendment, as it would if one were to remove the words "the date these Regulations come into force" from Regulation 1(3) and to substitute "the 25 June 2005". This court cannot properly do that, and Mr Stinchcombe was unable to cite any authority to support such a course of action. If, as is the case, this country failed to implement the Directive by the due date, the answer is to be found in the doctrine of direct effect of the provisions of the Directive itself, not in some judicial alteration to the later domestic legislation.
"19. – (1) Where the relevant planning authority, the Secretary of State or an inspector is dealing with an application or appeal in relation to which the applicant or appellant has submitted a statement which he refers to as an environmental statement for the purposes of these Regulations, and is of the opinion that the statement should contain additional information in order to be an environmental statement, they or he shall notify the applicant or appellant in writing accordingly, and the applicant or appellant shall provide that additional information; and such information provided by the applicant or appellant is referred to in these Regulations as "further information"."
By paragraph 3 of that Regulation, the authority which has received such further information must publish a notice in a local newspaper, identifying by various details the planning application and development concerned, and stating also
"(d) that further information is available in relation to an environmental statement which has already been provided; [and]
(e) that a copy of the further information may be inspected by members of the public at all reasonable hours."
The notice must also state where and until when such further information may be inspected, that copies may be obtained and, if a charge is to be made for a copy, the amount of the charge.
"The recipient of the further information shall send a copy of it to each person to whom, in accordance with these Regulations, the statement to which it relates was sent."
"shall make it available on request."
This, as all the parties recognised, imposes no greater obligation than arises from the direct effect of the provisions of Directive 2003/35/EC, amending the earlier Directives 85/337/EEC and 97/11/EC, which themselves gave rise to the United Kingdom's 1999 Regulations. I can therefore turn to the provisions of those European Directives.
"Member States shall ensure that, within reasonable time-frames, the following is made available to the public concerned:
(c) in accordance with the provisions of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information, information other than that referred to in paragraph 2 of this Article which is relevant for the decision in accordance with Article 8 and which only becomes available after the time the public concerned was informed in accordance with paragraph 2 of this Article." (emphasis added).
"The planning application has been determined, taking into account relevant Development Plan policies, national planning policies and all other material considerations and addressing the balance of benefits and disadvantages associated with the proposal. The proposal on balance is not regarded to have a detrimental impact on ecology and wildlife habitats, cultural heritage, highway/air safety, residential amenity or landscape character and the enjoyment of the countryside."
The reasons then go on to refer to certain benefits the development is likely to provide.
Lord Justice Thomas:
Lord Justice Hughes: