ON APPEAL FROM QUEEN'S BENCH DIVISION,
HHJ COOKE QC, THE RECORDER OF CARDIFF
(Sitting as a Judge of the High Court)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
SIR RICHARD BUXTON
| THE QUEEN ON THE APPLICATION OF EDUARD BERKY
|- and -
|NEWPORT CITY COUNCIL
|- and -
|WM MORRISON SUPERMARKETS PLC
||2nd Respondent/1st Interested Party
|- and -
|LINC-CYMRU HOUSING ASSOCIATION
||3rd Respondent/2nd Interested Party
Ian Albutt (instructed by Newport City Council) for the 1st Respondent
Michael Fordham QC & James Maurici (instructed by Gordons LLP) for the 2nd Respondent
3rd Respondent was not represented.
Hearing date : 28th February, 2012
Crown Copyright ©
LORD JUSTICE CARNWATH :
"On this basis it must be considered whether there are compelling other material considerations to justify a decision contrary to the development plan. Having considered the merits of the application … it is concluded that the regeneration merits of the proposal do not justify a decision contrary to the development plan. They are not considered compelling. So although there is merit in the scheme and the restoration of Lysaghts is welcomed, it does not outweigh the very significant Policy objections to the scheme."
"The regeneration benefits of the proposal including the restoration, refurbishment and change of use of Lysaght Institute and the development of a vacant, urban site in a prominent location were compelling material planning considerations that outweigh the policy objections to the scheme."
The grounds for review
i) the decision not to require an environmental statement was erroneous in law, and inadequate reasons were given;
ii) the decision making process was tainted by real or apparent bias on the part of one of the members, Councillor Richards;
iii) the decision to grant permission contrary to the officers' advice was irrational or inadequately reasoned. In particular, the council were wrongly advised that, as an unlisted building not in a conservation area, the Lysaght Institute was not protected from demolition (contrary to the law as later established in R(SAVE) v Secretary of State  EWCA Civ 311).
i) The Council had been entitled to decide that an environmental statement was not required, having consulted relevant parties and reviewed the evidence before coming to its decision regarding the environmental statement. Although its letter of 7th January 2010 setting out the reasons for granting planning permission was "terse", the only reasonable interpretation was that it was based on the information in, and adopted the reasoning of, the GVA Grimley letter of 17 December 2009.
ii) Although there was some room for concern over aspects of Councillor Richards' conduct, both before and at the meeting, it had not been established that he actively canvassed support for the development. Applying the guidance of Pill LJ in R (Lewis) v Redcar and Cleveland Borough Council  EWCA Civ 746, he concluded that there was insufficient material to hold that the Councillor should have played no part in the decision, or to regard the decision of the committee as a whole as vitiated by apparent bias or pre-determination.
iii) The decision was not Wednesbury unreasonable. The planning committee considered the application carefully and had come to a rational decision. Although there is in Wales no statutory duty to give reasons for the grant of permission, the reasons were apparent from the report and the minutes. Knowledge of the possible option of preserving the Institute, as "a deteriorating derelict eyesore on a prominent site", would not have materially affected the decision.
The grounds of appeal
i) In calculating three months, the date on which the grounds arise is not counted, and in any event the bank holiday should be disregarded (see Pritam Kaur v S Russell & Sons Ltd  QB 336).
ii) Under European law (which governs the EIA issue) time for bringing proceedings runs from the date the claimant knew or ought to have known of the ability to challenge the decision, and a requirement to bring proceedings promptly is contrary to the principles of certainty and effectiveness and so unlawful Uniplex (United Kingdom) Ltd v NHS Business Services Authority  PTSR 1377; R(Buglife) v Medway Council  EWHC 746 (Admin).
i) EIA The judge should have held that the screening opinion was based on responses which were legally flawed, and in any event failed to provide adequate reasons.
ii) Bias The judge should have found the evidence sufficient to indicate that Councillor Richards was biased in favour of the proposal and had pre-determined the issue. Appearance of bias by one member of a committee can vitiate a decision (Bovis Homes Limited v New Forest District Council  EWHC 483 (Admin) para 103 per Ouseley J).
iii) Rationality Whilst there is no statutory duty in Wales to give reasons for the grant of planning permission, it was irrational to approve the application without sufficiently explaining why the members had differed from critical elements of the officers' report.
i) Did the material relied on by the officer disclose legal errors, in particular the Council's Highways department's reliance on the necessary information being provided in a Transport Assessment, and the applicant's reliance on the fall-back position of the existing residential planning permission?
ii) Had adequate and intelligible reasons been produced such that it was possible to tell whether the EIA screening decision was taken lawfully?
"1. I refer to your correspondence dated 17th December 2009 regarding the above.
2. This represents a formal screening opinion in accordance with the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 in relation to the above works.
3. As an urban development project, the proposal falls to be screened for Environmental Impact Assessment purposes on the basis that it exceeds the thresholds contained in Schedule 2 section 10b of the above Regulations and those of Circular 11/99.
4. Having consulted relevant parties in relation to your request and having considered the information provided in your correspondence and Schedule 3 of the Regulations, I am of the opinion that in accordance with the Town and County Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 an Environment Statement is not required."
"Although my letter providing the Council's screening opinion did not detail the reasons for taking the decision it did reference the consultation with relevant parties, consideration of Schedule 3 of the EIA Regulations and consideration of the information provided with the screening request in the first instance. Copies of all consultation responses received in relation to the request were attached to the Council's opinion on the public register. Taken as a whole record, it was clear why it was considered that an EIA was not required."
"In addition to the physical scale of such developments, particular consideration should be given to the potential increase in traffic, emissions and noise. EIA is unlikely to be required for the redevelopment of land unless the new development is on a significantly greater scale than the previous use, or the types of impact are of a markedly different nature or there is a high level of contamination." (para A18)
For sites not previously developed intensively, EIA is more likely to be required if the site area is more than 5 ha or there is more than 10,000m2 of new commercial floorspace (A19).
"We have requested a Transport Assessment as part of the justification for what is proposed. As far as I am concerned there is no requirement for an EIA as the TA should cover everything from our point of view."
The judge accepted the submission that this showed an erroneous approach, in so far as it appeared to indicate that a later transport assessment could be treated as a substitute for an environmental statement, but he was unwilling to infer that this defect was adopted by the author of the screening opinion.
"… the site benefits from a 'fall back' outline planning permission (reference 09/0180) … It is considered that the mixed use redevelopment of the site detailed herein represents a form of development that would have less of an impact than the approved residential development and comprises less sensitive land uses than the approved residential development. It is therefore considered that the proposed uses at the site are fairly conventional …"
The letter is said to make the error of comparing two proposed impacts, rather than asking whether the current application is likely to have a significant effect on the environment. The judge rejected this criticism. He read the paragraph as "fairly re-enforcing the point that this site would not appear from the planning history to be a particularly sensitive or vulnerable location, in the context of the type of development proposed".
i) Petition A 48-page petition to "welcome and support the proposals for a Morrisons Superstore..." was submitted to the Council in late September 2010, shortly before the committee meeting. Printed in the top left hand corner of three pages of the petition were the words "(14/09/2010) John Edward Richards petition Morrison's doc".
ii) Leaflet. A leaflet had been circulated by the Lliswerry councillors, named as including Councillor Richards, dealing with the Morrisons development, explaining "Why your councillors are Backing this Project".
iii) The committee meeting The notes of the meeting show that Councillor Richards spoke first in favour of the proposal, and, with reference to the officers' report, said that he "would remind officers you are here to serve the public". According to the witness statement of a local resident, Zahid Noor:
"The chair attempted to get a more comprehensive debate going but Councillor Morris [a ward councillor not on the committee] challenged the chair saying that Councillors supported the scheme and that they should simply vote on it. … There was a further attempt by the Chair and Mark Hand, Head of Development Control to get the policy grounds confirmed but this was shouted down by Councillor Morris, other Councillors and by parts of the public gallery."
"69 Central to such a consideration... must be a recognition that councillors are not in a judicial or quasi-judicial position but are elected to provide and pursue policies. Members of a planning committee would be entitled, and indeed expected, to have and to have expressed views on planning issues. The approach of Woolf J in the Amber Valley case  1 WLR 298 to the position of councillors, in my judgment, remains appropriate.
71 It is for the courts to assess whether committee members did make the decision with closed minds or that the circumstances did give rise to such a real risk of closed minds that the decision ought not in the public interest to be upheld. The importance of appearances is, in my judgment, generally more limited in this context than in a judicial context. The appearance created by a member of a judicial tribunal also appearing as an advocate before that tribunal (Lawal v Northern Spirit Ltd ICR 856) may make his judicial decisions unacceptable, but the appearance created by a councillor voting for a planning project he has long supported is, on analysis, to be viewed in a very different way."
"Although regrettable I do not consider it enables a submission of bias, apparent bias or pre-determination on the part of the decision maker - the whole planning committee - to be made good. Rather it should be seen as an example of an ill considered remark by a single member of a democratically accountable political decision maker made in the heat of the moment."
"(6) Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant - (a) leave for the making of the application, or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.
(7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made."
"Section 31(6) simply contains particular grounds for refusing leave or substantive relief, not referred to in rule 4(1), to which the court is bound to give effect, independently of any rule of court." (p 747)
"... for an applicant who must be taken to have acquiesced in the decision which he seeks to bring under review, or whose delay has been such that another interested party may be prejudiced, to be told that his application cannot proceed because he has delayed too long in bringing it." (para 66)
LORD JUSTICE MOORE-BICK :
SIR RICHARD BUXTON :
It follows from consistent case-law since Francovich that…it is on the basis of the rules of national law on liability that the State must make reparation for the consequences of the loss or damage caused; further, the conditions, in particular time-limits, for reparation of loss or damage laid down by national law must not be less favourable than those relating to similar domestic claims (principle of equivalence) and must not be so framed as to make it virtually impossible or excessively difficult to obtain reparation (principle of effectiveness).
It is of some relevance to our concerns that the requirement that the rules applying to the national remedy should not make it impossible to assert the Community right was first formulated in a case in which objection was taken to the time-limits in national administrative proceedings, Case 33/76 Rewe  ECR 1989.