England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE BURTON)
[2007] EWHC 2352 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/06/2008

Lord Justice Buxton :

The nature of the case

1. This renewed application for permission to move for Judicial Review relates to a planning permission granted by Breckland Council [Breckland] to the Interested Party. The applicant for Judicial Review is the Roudham and Larling Parish Council [the Parish Council], in whose area the premises concerned fall. The application was refused on paper by Mr George Bartlett QC, sitting as a Deputy Judge, and then again refused after a detailed hearing by Burton J.
2. The site in question is at premises called Camp Farm, owned by the Interested Party, and currently with permission for agricultural use. Part of the site consists of a series of large agricultural buildings. The Interested Party made two relevant applications to Breckland for change to industrial use. The first, the subject of these proceedings, was for the installation of a hemp processing plant in what is known as building 10. The second, to which it will be necessary to refer at a later stage of the judgment, was for change to commercial storage of six other buildings on the site. Breckland refused the commercial storage application, and maintains that refusal. After deferring the hemp processing application for consideration of various objections, Breckland granted that application, subject to a significant number of conditions in relation to noise control, highway improvements and traffic control. It is that decision that is challenged in these proceedings. On 5-8 June 2007 an Inspector appointed by the Secretary of State conducted an inquiry into the commercial storage application, and also into an earlier refusal of permission in respect of the hemp storage plant. He dismissed the appeal in respect of the commercial storage application, but upheld the appeal in respect of the hemp storage plant, being significantly influenced by the fact that Breckland had by then granted the conditional permission with which we are concerned. In circumstances to which I shall come in due time the Secretary of State upheld the Inspector's recommendation. We were told that the Parish Council is pursuing a section 288 appeal against the Secretary of State's decision. The complaints raised in these proceedings are seen as relevant to that appeal, because of the weight placed by the Inspector on the decision by Breckland here under challenge.

The Development Plan

3. Much turns on the Breckland District Local Plan, the relevant parts of which it will be convenient to set out here.
4. Part of the Plan deals with the rural environment and development of agricultural land, and contains a paragraph 2.1.104 on "farm diversification", which reads:

Changing agricultural practices and crop surpluses have resulted in many buildings no longer being required for their original purpose. In order for farm enterprises to remain viable, many will seek alternative forms of income through a programme of diversification. There is now a recognised need to foster the diversification of the rural economy in order to open up wider and more varied employment opportunities. However some uses are best located in the urban areas as relocation to the countryside would do unacceptable harm.

There then immediately follows in the text policy ENV 22 which reads:

Proposals for the diversification of farm enterprises and associated change of use of agricultural land will be permitted provided that:

(i) the proposals are compatible with the agricultural operation of the farm

[and there then follow a number of other conditions, including compliance with policy with regard to traffic generation and the capacity of the local highway network; the re-use if possible of existing agricultural buildings; and avoidance of noise air or water pollution and harm to the amenity of local residents]

5. The Plan then deals with economic development, and sets out policy ECO5, which reads:

Industrial/Commercial development outside settlement boundaries for towns, villages and identified employment areas will only be granted in exceptional circumstances where it can be demonstrated that all of the following criteria can be met:

(i) there are particular reasons for the development not being located on established or allocated industrial sites;

(ii) within the area of important landscape quality and historic parks and gardens, the proposed development would not be significantly detrimental to their character or amenity

(iii) the proposal would not significantly conflict with landscape or nature conservation considerations

(iv) appropriate access and services can be provided.

The Plan then immediately goes on to its paragraphs 2.3.33 and 34, under the heading of "Farm Diversification and Conversion of Rural Buildings". That sets out, in slightly different terms, the background already discussed in paragraph 2.1.104, and then says:

Opportunities will arise where buildings can be brought back into economic use by conversion to industrial or commercial purposes.

6. At this stage it is only necessary to make two comments. First, although as was pointed out during the hearing the Plan does not read as if it had been settled by Parliamentary Counsel, nonetheless it is presented as a coherent whole, and has to be read as such. Second, a particular general theme is "farm diversification", which is regarded as an important objective in both parts of the Plan that are set out above.
7. Against that background I now consider the various grounds of complaint raised by the Parish Council, which failed before Burton J, and whose determination of them is the subject of this appeal.

Inadequate reasons

8. The Parish Council relied on regulation 22(1)(b) of the Town and Country Planning (General Development) Procedure Order 1995:

Where planning permission is granted subject to conditions, the notice

(i) shall include a summary of their reasons for the grant together with a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission.

There are various comments in the cases on how exigent that requirement is in practice. Mr Harwood, for the Parish Council, relied on some observations of Collins J in R(Tratt) v Horsham DC [2007] EWHC 1485 (Admin) [25]-[28], and I am content to proceed on that basis:

The requirement in planning cases--indeed not only in planning cases--has always been recognised to be that the reasons are to enable an individual, be he objector or failed applicant, to see whether there might be grounds to challenge the decision….summary reasons must deal in summary form with the substantial issues which have formed part of the consideration of the planning application and that they are likely to be used by objectors to see whether there may be some reason to seek judicial review.

9. The relevant part of the notice in the present case reads:

This decision to grant planning permission has been taken having regard to the policies and proposals set out in the Breckland District Local Plan adopted September 1999 summarised below, and to all relevant material considerations, including Supplementary Planning Guidance.

ENV22. Proposals for farm diversification will be permitted subject to criteria.

The Parish Council said that that was not good enough. The reasons simply recited part of the Development Plan without explaining how the Plan had been applied in this case. I do not agree. While, as the Judge said, the decision could helpfully have been spelled out slightly more fully, if only to avoid objections of the present order, it is quite clear that the decision-maker is saying that his conclusion is that the project is indeed one for farm diversification, as described in the Plan, and fulfils the requirements for the granting of permission for such development that are set out in ENV22. Objections previously raised, mainly in terms of noise and traffic, had been addressed by the conditions imposed on the grant, thus meeting the "criteria" referred to in ENV22. The potential litigant, if he was to make progress, accordingly knew that he had to establish that the project was not one for farm diversification. That has never been suggested, nor could it be. And I would also respectfully agree with the observation on this point of the very experienced Deputy Judge, who wrote:

It was clear from the recitation of the policies why the proposal was considered to comply with them, and the conditions and the reasons for their implementation constituted an implicit explanation that the concerns of those who had objected (on noise and highway grounds) were considered to have been met.

10. A further objection under this head was that although various potentially relevant policies in the Plan had been referred to in the officers' reports before the planning committee, none of them apart from ENV22 had been summarised in the notice. That complaint was misconceived. In accordance with the approach set out above, Regulation 22 requires the reader to know which policies the local authority relies on, thus which are relevant to the decision to grant permission. It does not require a theoretical account of what policies the local authority might have had to rely on, but in the event did not, when granting (or refusing) permission. The objection is, however, also relevant to the second of the Parish Council's grounds, which partly overlaps with the first ground, and to which I now turn.

Failure to take into account ECO5

11. In the officers' report that was before the planning committee reference was made to ECO5. The committee was told that ECO5 "seeks generally to resist proposals for new commercial development in the open countryside and outside allocated sites". Mr Harwood said that that was a misleading, or at least inadequate, statement. Not at all. It was a very proper warning to the members that they had to look at the proposal for commercial use on this site with particular care. The report then went on to say that ENV22 allows for farm diversification, and commented that the hemp plant proposal would relate well to the existing agricultural operation, as it would process hemp grown on the farm and in the surrounding area, and would add value to an existing farm product, which is a key objective of farm diversification policy. Burton J accepted the argument that, looking at the Development Plan as a whole, as we are bound to do, farm diversification in an acceptable form is supported by ENV22 and avoids the prohibition in ECO5. Once, therefore, the committee had concluded that the project qualified under ENV22 it by the same token saw the project as falling outside the prohibition of ECO5. I also would accept that argument. As the judge put it:

When the officer was referring, rightly, to ECO5 and ENV22 he was referring to two reverse sides of the same question. That question was then resolved by the defendant Council in favour of the Interested Party. I see no doubt at all that ECO5 was considered as part of the inevitable thinking process which led to approval being granted under and pursuant to ECO 21 and 22.

The judge went too far when, in a vivid phrase, he said that ECO5 was to be regarded as the "mirror image" of ENV22. Clearly, the two policies are not the same. But in the relevant respect, as clearly set out by the judge, the committee's decision under ENV22 on the facts of this case concluded the issue under ECO5.

12. It was also submitted before us that Breckland, under the influence of the Interested Party, had advanced a different case before Burton J in respect of ECO5 from that which they had put to the Inspector at the enquiry. Breckland's solicitors and counsel had no authority from the council to advance the case that they did, and had improperly failed to inform Burton J that that case was different from the case put to the Inspector. There was no substance in these, I have to say rather serious, allegations. The inconsistency was said to spring from the council having said before the Inspector that the grant of permission for the hemp plant was justified under criterion (i) of ECO5, the committee having placed weight on the agricultural link with the hemp processing plant. That was merely a statement that ECO5 was not infringed. When Breckland in its notice referred only to ENV22 as an exercise in farm diversification it was not saying that ECO5 was irrelevant, but rather that for that same reason there was no objection under ECO5. That was what was said to the Inspector.
13. Nor is there any justification for the argument put to us by the Parish Council that since the Inspector rejected the commercial storage proposals under ECO5, there was a realistic possibility that the hemp processing plant, "which is not materially different in terms of the features with which ECO5 is concerned," would equally have been rejected if the councillors had been asked to consider it under ECO5. However, Breckland's case, upheld by the Inspector, was that the commercial storage application failed under ECO5, first because there were no special reasons for having the use at Camp Farm rather than on an orthodox industrial site; second because it was not established that the buildings were redundant for agricultural purposes; and third because of its size. All of those issues were expressly or inferentially considered by the committee on the basis of the officer's report in connexion with the hemp processing plant, and none of them were seen as applying to that plant.

Environmental Impact Assessment[EIA]

14. If the hemp processing plant fell under any part of Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, then there ought to have been a screening opinion in relation to its environmental impact. Breckland considered that the project fell under no part of the Schedule. The Parish Council argues, at least before us, that the project falls under three different parts of the Schedule, which I consider in turn.
15. Paragraph 8(b): "Plants for the pre-treatment (operations such as washing, bleaching, mercerisation) or dyeing of fibres or textiles." The judge found, on unchallenged evidence, that the operation at the hemp processing plant will be limited to mechanical separation of the harvested hemp straw into its constituent elements of fibres (the outside of the stem) and the stem itself. Those elements are then sorted, and removed from the plant for treatment elsewhere. There will be no other process, and no washing, bleaching, mercerisation or anything similar to any of those operations. On those facts the judge was wholly justified in finding, on the assumption that hemp is indeed a fibre, that the plant is not going to be used for the "pre-treatment" of that fibre, either in the normal meaning of that expression or in the sense in which the term is used in paragraph 8(b).
16. Paragraph 10(a): "Industrial estate development projects". This category is placed under the general heading of "infrastructure projects". It is a simple abuse of language to describe the hemp processing plant as an industrial estate project, and much more as an infrastructure project. As the examples given in the rest of paragraph 10 demonstrate, what is envisaged is infrastructure in its ordinary meaning, that is, large general works of construction of, for instance, transport facilities, to support more particular industrial activities. The hemp plant falls into the latter, not the former, category. It was somewhat faintly argued that what should be considered under this head was not just the hemp plant, but the whole of the development at Camp Farm, including the commercial storage application. However, Breckland has throughout refused permission for commercial storage, and has been upheld in that refusal by the Secretary of State. It is very difficult to see how an EIA could be required because of the presence of a project that is not going to go ahead. But, in any event, Camp Farm taken as a whole, although large for its area (and that being one of the reasons why the commercial storage application failed) still cannot be called an exercise in infrastructure.
17. Paragraph 13 read with paragraph 1(c): "Any change to or extension of development of a description listed [in the Schedule, in this case an intensive livestock installation under paragraph 1(c)] where that development is already authorised…and the change or extension may have significant adverse effects on the environment". It was submitted that building 10 was presently being used for a livestock installation. The proposal was to change that to a different use, hence paragraph 13 was engaged.
18. There are two misconceptions in that argument. First, although this argument was not pursued before Burton J it was suggested, somewhat faintly, in the Grounds. Accordingly in response the Interested Party put in evidence that established that the livestock operation for which building 10 had been used had not been an intensive operation, in the sense of factory farming, but an albeit large-scale exercise in traditional farming. Ironically enough, it was the uneconomic nature of that exercise in modern conditions of competition that caused building 10 to become redundant and have to be turned to other uses. The point therefore fails simply on the facts. But, second and more fundamentally, paragraph 13 plainly envisages a change to the existing use that, while maintaining that use, alters its effect on the environment. It does not extend to any change from the existing use to a different use. If that were so, any change of use from a Schedule 2 category use that might have significant adverse effects on the environment would be caught, even though the new use would not itself fall under schedule 2. That cannot be right.
19. I should also mention a further candidate for change under paragraph 13, which was never relied on in the earlier proceedings, but which arises for reasons explained in § 20 below. That is paragraph 1(a): "Projects of the use of uncultivated land or semi-natural areas for intensive agricultural purposes". That equally does not apply here because of the non-intensive nature of the former use of building 10; and also because the livestock installation in building 10 was not a project for the use of non-agricultural land for an agricultural purpose, intensive or not.
20. The case on EIA accordingly fails in any event. There is a further point, as to the exercise of the court's discretion. The Inspector recorded at §§ 54-56 of his Report extremely tentative views that hemp processing plant might fall under one or other of the categories just discussed. He accordingly referred the two applications to the Secretary of State for screening. The Secretary of State concluded that both projects fell under paragraph 13 read with paragraph 1(a). She was wrong in that conclusion, for the reasons set out in §§ 18-19 above. However, that conclusion caused her to consider whether the project did indeed require an EIA. She decided on the basis of criteria set out in the Regulations that it did not. The Parish Council told us that it was challenging that decision in the section 288 proceedings, alleging that it was inadequately reasoned: a point that, we were told, has recently been referred by another constitution of this court to the European Court of Justice. Nevertheless, it would seem futile in these proceedings to require Breckland to consider an EIA when the council in all probability will take the same view as the Secretary of State, and in reliance on that view. If, after the matter has returned from Luxembourg, it is established that the Secretary of State must take the decision again, and if she then decides in terms that the Parish Council still thinks are unlawful, the section 288 proceedings will remain open to it. And, it should be emphasised, on this issue there is not even the justification that is mentioned in §2 above for continuing with the judicial review, that Breckland's decision to grant permission significantly influenced the Inspector: because he took a different view from that of Breckland on the EIA issue, and took the action on that issue that is described above.

Inadequate consultation

21. General complaints were made that the Parish Council, and the public generally, were not given a fair opportunity to put their objections to Breckland, and in particular that technical information in relation to noise and traffic effects was produced late and in an inaccessible form. The judge pointed out that he had no evidence to show how anyone was in fact prejudiced; and despite that indication there was no demonstration before us of what would have been relevantly said by anyone if further time had been allowed. I therefore agree with the judge that this objection must fail. However, if that seems too jejeune an approach, I would add two further points. First, we have seen a note (referred to in more detail in the next paragraph) of the proceedings before the committee, which demonstrates that a representative of the Parish Council and an individual objector spoke at the meeting. Second, while I would not suggest that the Parish Council or the local residents in any way welcomed the hemp plant, it is clear that a very substantial part of the objection was on grounds of noise and increased traffic. Those objections were attended to by Breckland and acted on, as is demonstrated by the significant conditions as to those matters included in the grant. That the conditions are stringent is demonstrated by the fact that before the judge the Parish Council contended that they were impossible to comply with: judgment, §11. Perhaps wisely, that contention was not repeated before us; but that it could be advanced at all is some sign that Breckland had indeed responded to the submissions made to it, even if not to the extent that the Parish Council would wish.

Coercion by incorrect information given to the committee

22. The note of the meeting referred to above was made by one of the persons attending in the interests of the Parish Council (I am not certain whether she is in fact a member of the Parish Council). It records the chairman of the committee as saying that if the application were to be refused but was approved on appeal there could then be no conditions attached to the grant; and a member saying words to the effect that therefore the committee should decide the application itself. The implication was that the committee had been pressurised into giving conditional permission when without the mistake about what might happen on appeal they might have refused permission entirely.
23. Burton J pointed out that there was no witness statement vouching the accuracy of the notes by the person who wrote them, and no application was made in this court to rectify that lacuna. Like the judge, therefore, I cannot act on this document. Like him also I find it entirely unlikely that the chairman could have said something so obviously wrong without being corrected by either or both of Breckland's solicitor and Chief Planning Officer, both of whom were present at the meeting. I also agree with the judge that it is far more likely that the chairman had, properly, said to a committee that clearly wanted to achieve considerable protection for the locality that if it imposed conditions it could achieve, subject to appeal, the conditions that it wanted. That would not have been the coercion of colleagues by improper information.

Disposal

24. I have well in mind that this is only an application for permission to move, and the test therefore is the arguability of the case. For the reasons set out above I consider none of the matters raised to be reasonably arguable, and I would refuse permission.

Costs of the respondents' acknowledgment of service

25. This is a separate issue, and is the subject of an appeal rather than of an application for permission.
26. Before Burton J Breckland claimed £5,000 as costs of the hearing, and the Interested Party claimed £17,000 as costs of preparation of the acknowledgment of service. As to the hearing, the judge awarded £2,500, and there is no appeal by either side on that sum. As to the costs of the acknowledgment of service, the judge indicated that he would be minded to award the whole of those costs, subject to assessment, and on that assumption made an order for interim payment in the sum of £12,500. That was over strong objections by the Parish Council that the twenty page grounds of response with annexed material was inappropriate to the occasion. On the authority of CPR 54.8(a)(i) and of this court in Ewing v Office of the Deputy Prime Minister [2005] All ER (D) 315 the acknowledgment should contain only a summary of the grounds on which the claim is resisted. If a party wishes to go further than that at the permission stage, he does so at his own expense: see per Brooke LJ at § 53 of Ewing.
27. The judge did not feel constrained by that guidance. He is reported as saying in this connexion during the argument on costs:

I do not want to discourage [respondents from going well beyond summary grounds]. I find it, as you can imagine, enormous help on a paper application to have the more the merrier.

I myself had the same view when I sat in the Crown Office, as it was called in those far-off days; and I was not surprised to be told from the bar that other puisne judges doing that burdensome work have expressed themselves in the same sense as Burton J. That however is not the view of this court. In Davey v Aylesbury Vale DC [2007] EWCA Civ 1166 this court was shown Burton J's observation, and said, per Sedley LJ at § 12, that cases in which it was appropriate to explore issues in depth at the permission stage would be quite exceptional. The court proceeded, in principles set out in § 21 of Sedley LJ's judgment and broadly agreed by Clarke MR, to explain how costs issues that arise in permission applications should be dealt with. For our purposes, the important rule is in principle (2), that when "preparation" costs are sought in addition to "acknowledgment" costs (those I apprehend being the costs of settling the short form acknowledgment) it will be for the defendant to justify those costs, which may well not be recoverable.

28. The present case raises some not altogether straightforward issues under that analysis. First, it is undoubtedly the case that even a short form acknowledgment does not settle itself, and study, which may or may not be properly called preparation, may be needed to decide what should go into it. Here, the Interested Party was faced not with a claim by a litigant in person (as in Ewing) or with what appears to have been a fairly standard planning dispute pursued by an individual (as in Davey), but with a claim by a public authority advised by a solicitor who, as Sedley LJ said in § 22 of his judgment in Davey, is extremely experienced in environmental litigation and in the judicial review process. A respondent is in such circumstances entitled to think that every page of the 30 page Grounds and some 400 page accompanying bundle was relevant to the claim and had to be taken seriously. The claim also was based on certain factual assumptions that needed correction: hence the need even at the permission stage for the evidence referred to in §§ 15 and 18 above.
29. Because of his error in approach, corrected in Davey, the judge did not address the implications of those considerations. In future, and in accordance with principle (3) of the Sedley-Clarke principles, it will be important that the permission judge, who is far better placed than anyone else to decide what needed reasonably to be said in response to a claim, should himself apply the Davey approach to claims for "acknowledgment" and "preparation" costs: bearing in mind what has already been said about giving fair weight to the work necessary before even a short form acknowledgment can be confidently settled.
30. How does that leave the present case? The order for interim payment has been stayed pending the determination of this appeal. The only substantive relief sought in the Notice of Appeal is that Burton J's orders should be set aside. That implies that not only should there be no costs in relation to the hearing before him, a claim no longer pursued; but also that there should be no costs in relation to the acknowledgment of service. That cannot be right, as the Sedley-Clarke principles assume that at least "acknowledgement" costs, in some amount, should be recoverable. We invited Mr Harwood to indicate what course he wanted the court to take, since it was clear that in the light of Davey the whole of Burton J's order could not stand. I understood him to favour the making of a summary assessment by this court. That course was opposed by Mr Fookes in favour of a simple remission to a costs judge: an approach specifically disapproved by principle (3) of the Sedley-Clarke principles.
31. In accordance with that principle (3) the logical course would be to remit the issue to Burton J, both for him to decide what work had been properly done within the ambit of the Davey approach, and preferably also for him to assess the value of that work. With some hesitation I do not adopt that course, for the pragmatic reason that it will cause more expense to two public authorities, and the further use of the very valuable time of the Administrative Court, in a matter that is necessarily one of broad appreciation. I therefore propose that this court should make its own assessment. In performing that task I accept that the acknowledgment in this case was too long and too argumentative. I understand why the Interested Party adopted that approach, which may well have served its own interests, but in accordance with what was said by Brooke LJ in Ewing that excess has to be at the Interested Party's own expense. However, there were in this case factors, referred to in §28 above, that properly required a good deal of consideration by the respondent even at the permission stage. Taking all the foregoing matters into account, I would award costs of the acknowledgment of service in what is not a token sum, but is an amount substantially less than the Interested Party has spent. The appropriate figure on that basis in this case is £5,000. It cannot be too strongly stressed that that sum is not to be regarded as any sort of benchmark or guide for trial judges who perform the task required of them by principle (3) of the Sedley-Clarke principles.

Lord Justice Rix:

32. I agree.

Lord Justice Toulson:

33. I also agree.