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QUEEN and Northampton Borough Council ex parte Northampton Rapid Transit System [2000] EWHC Admin 367 (10th July, 2000)

Case No: CO/1616/2000

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 10 July 2000
B e f o r e :
THE HON MR JUSTICE FORBES

	THE QUEEN
	and
	Northampton Borough Council ex parte Northampton Rapid Transit System	Respondent Applicants

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - -
Mr C Lockhart-Mummery QC and Mr J Litton (instructed by Wragge and Co) for the Applicants
Mr G Jones (instructed by Mrs Amas, Northampton Borough Council) for the Respondent
Mr M Spence QC (instructed by Denton Wilde Sapte) for the Interested Party, English Partnership

Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE FORBES:
1. INTRODUCTION In these proceedings the Claimant, Northampton Rapid System Ltd., applies for permission to apply for relief by way of Judicial review of the decision of Northampton Borough council (hereafter NBC), taken on 17 April 2000, to grant Planning Permission to English Partnership (formerly the Commission for New Towns and hereafter referred to as `E.P') for the development of Phase 1 of the land at Upton, Northampton, hereafter called "the proposed development".
2. The Claimant is a company jointly owned by Rapid Transport International PLC and Stagecoach Holdings PLC. Hereafter I shall refer to the Claimant as RTI. RTI was established to procure and manage a proposed rapid transit system in Northampton (hereafter "RTS") in accordance with current Government transport policy and with what are said to be the "well documented policies of Northampton County Council (the relevant highway authority - "NCC") and NBC to promote an efficient and sustainable transit system in Northampton providing high quality, fast and reliable transport between proposed major growth areas on the fringes of Northampton and its town centre": see paragraph 1 of the Form 86A.
3. The geographical relationship between RTI's proposed RTS and the various major areas of proposed development on the fringes of Northampton is clearly shown on the Plan which appears behind Tab 1 in the Claimant's main bundle of documents. The proposed development at Upton, planning permission for which is the subject matter of these proceedings, is the rectangular area, shaded brown and allocated for residential development in the Northampton Local Plan, which is shown to the west of Northampton and is situated on the line of Route 5 of RTI's proposed RTS.
4. These proceedings were commenced on 5 May 2000. On 24 May 2000 NBC purported to `ratify' an earlier officer's decision not to require EP to prepare an Environmental Impact Assessment (an EIA) with regard to the proposed development ("the ratification decision"). On 25 May 2000, NBC formally granted planning permission for the proposed development. Accordingly, RTI seeks permission to amend the Form 86A to include a challenge to both the ratification decision and the formal planning permission. On behalf of RTI, Mr Lockhart-Mummery QC has put forward a draft of the proposed amendments and the application had proceeded on the basis that the proposed challenge to those decisions is included in this application.
5. The Proper Approach Mr Spence QC, on behalf of EP, supported by Mr Jones on behalf of NBC, submitted that, in order to obtain permission to apply for Judicial review in the circumstances of this case, RTI must establish that its case "is not merely arguable but is strong; that is to say, is likely to succeed: (per Glidewell LJ in Mass Energy Ltd v Birmingham County council (1994) Env LR 289 at pp 307 -308). The reasons for this much higher threshold of arguability, it is submitted, are that (i) I have heard inter parties argument in considerable depth and there has been detailed consideration of the documents; (ii) there is unlikely to be a substantially greater number of points taken at the substantive hearing than have been taken in this inter parties hearing and (iii) that the interests of both RTI and NBC and of the public at large would be prejudiced by continued uncertainty as to the lawfulness of the decisions under challenge and by any further delay to their proper implementation.
6. Mr Lockhart-Mummery accepted that the hearing before me had been much longer than originally estimated (1/2 day estimate: the hearing actually took 2 days). However, he submitted that the matter was very complex, that the evidence was still incomplete (this was acknowledged by Mr Jones on behalf of NBC) and that the submission and citation of authority had not been as detailed in presentation and development as would be the case at the substantive hearing. Mr Lockhart-Mummery submitted that I should adopt the approach favoured by Brooke LJ in RTI v Derbyshire CC Ex Parte Woods (CA) (1997) JPL 958 at p 960, where he said this:
"Mr Hobson and Mr Ryan have argued that in the particular circumstances of the case the Applicant faces a higher threshold of arguability than is normally applicable to renewed ex parte applications of this type. He must establish that his case "is not merely arguable but is strong; that is to say, is likely to succeed".... Mr Gilbart argues on the other hand that he should only be required to show a reasonable prospect of success; in particular, further evidence would be needed at an inter partes hearing to establish what happened at the sub-committee's meeting and in particular what matters were and were not taken into account and discussed during the course of that meeting. He accepts that the effect of a full inter partes hearing is to make it easier for the Court to form a judgment of the prospect of success. For my part, in what is essentially a discretionary matter, I would adopt on the facts of this case an approach that is somewhere between the two that are advocated by opposing counsel."
7. In my view, Mr Lockhart-Mummery's general assessment of the extent and detail of the hearing before me is a fair one. I accept that, having regard to the actual length and detail of that hearing, RTI do have to show more than mere arguability in order to succeed in obtaining permission to apply for Judicial review of the decisions in question. However, I am not persuaded that the hearing before me was so detailed and complete in all particulars as to make the Mass Energy test the appropriate one to apply in this case. For the reasons expressed by Brooke LJ in Ex Parte Woods, I adopt the same approach, namely that somewhere between the two extremes must be demonstrated by RTI: ie that RTI must show something more than mere arguability, but not going as far as demonstrating that it is likely to succeed in obtaining relief on the substantive applications.
8. Chronology and Relief and Background In the first half of 1995 RTI made a formal proposal to NCC and NBC to undertake a feasibility study into a possible RTS for Northampton. Paragraphs 3 to 10 of the Form 86A set out the details of that feasibility study and the various ways in which it is said that both NCC and NBC expressed support for the developing project in its initial stages.
9. In February 1997 EP submitted the planning application for permission to develop Phase 1 of the proposed housing development at Upton which resulted in the planning permission of 17 April 2000 and which is the principal subject matter of these proceedings.
10. On 4 August 1997 RTI submitted an application to NBC for planning permission for the core network of 5 radial guided busway routes which is shown on the plan to which I have already referred.
11. Paragraphs 13 to 20 of the Form 86A set out further details of the various ways in which it is said that NBC and NCC continued to express support for RTI's proposed RTS. This included their joint commission in February 1998 of Turner and Townsend, Project Consultants, to:
(i) review the state of development of the RTI project;
(ii) consider the relationship between RTI and NBC/NCC; and
(iii) report on the further development of the project and the procedures that should be followed.
12. Turner and Townsend reported to NCC and NBC in May 1998 in terms which, by reference to various quoted passages, are said to be favourable to RTI and its proposed RTS. Inter alia, Turner and Townsend suggested in their report that NCC and NBC should enter into a "Charter" with RTI to record NCC's and NBC's desire to facilitate the implementation of RTS and the substantial investment that RTI had already made to that project.
13. On 10 June 1998 NBC's Planning and Transportation Committee considered RTI's planning application for the core network and resolved that:
"2.1 ... the proposed Rapid Transit Route (RTS) Routes 1 and 5 as amended, be approved in principle, subject to conditions and appropriate legal agreements as may be necessary...."
14. On 26 October 1998 NCC, NBC and RTI executed the Charter which Turner and Townsend had recommended. The Charter was witnessed by Angela Billingham as Northampton's MEP and Neil Kinnock as the European Parliament's Commissioner of Transport. The Charter included the following provisions:
"1. The parties agree that there is a window of opportunity for the provision of a Rapid Transit Core Network, and that it should accordingly have a high priority status.
2. The parties agree to work together in a structured arrangement which will assist in identifying and resolving obstacles to and achieving the implementation of the Rapid Transit System.
3. The very substantial investment made to date by RTI is acknowledged ...
7. Subject to all statutory and other constraints ... NBC and NCC agree to work together with RTI to facilitate the implementation of their Rapid Transit System, encompassing the following:
(a) ... including a Rapid Transit System as a key element of a future Integrated Transport Strategy, in line with emerging policy ...
(b) NBC ... to issue Supplementary Planning Guidance in line with the emerging comprehensive Transport Strategy for Northampton in relation to a Rapid Transit System.
(c) NBC shall ... support RTI in connection with applications for relevant Orders under the Transport and Works Act 1992.
9. The commitments contained in this Statement on the part of all parties shall determine in the event of the abandonment of the Scheme, a material failure of RTI to pursue its implementation, or the relevant Order ... not being approved by the DETR.""
15. On 3 November 1998, NBC, in accordance with its commitment expressed in paragraph 7(b) of the Charter, published in draft form a Supplementary Planning Guidance for consultation. On 23 February 1999, NBC's Planning and Transportation Committee adopted that Guidance (hereafter called "the "SPG"). In his Report to the Committee, the Director of Environment Service ("the Director") in recommending the adoption of the SPG stated that:
"5.1 The Guidance is designed to help introduce significant improvements in public transport provision in association with new development to support more sustainable travel patterns in the Borough. It is therefore of fundamental importance to such Local Agenda 21 objectives as reducing greenhouse emissions and improving air quality in the urban environment.""
16. In Appendix 1 to his Report the Director made certain recommendations (in italics) in the form of responses to various consultees' comments on the proposed SPG as follows:
(a) To the following comment by the National Health Service Executive:
"5.1 Support provision of bus service ... but do not feel that a rapid transit system is either necessary or appropriate along the A45 corridor ..." the Director made the following response:
"The scale and extent of the proposed housing development in the Upton/St Crispin area requires a significant solution to transport issues, given the abandonment of major road proposals. The advice contained in the Guidance, that a new high quality public transport link from the area to the town centre which could be provided by means of the proposed rapid transit project, is considered a necessary element of a sustainable transport package for the development to take place".
(b) To the following comment by Abbcott Properties:
"The Guidance implies that developers will be asked to contribute to the private RTI system which is of questionably legality", the Director made the following response:
"All developers will need to contribute to a balanced package of transport measures in association with development of their land, including rapid transit. It would be possible for developers to work jointly with the promoter of a rapid transit system and propose a package of measures in accordance with the terms of this Guidance".
(c) To the following comments by Rapid Transit International, the Director responded as follows:
(i) Comment: "12.3 All new developments should contribute to the integrated transport system. The SPG should make it clear that the contributions are to be directed to the leg of the RTS that will serve them".
Response: "Paragraph 3.2 notes that developments other than the three major development areas on the west side of the town will be expected to contribute to improvements of public transport facilities ..."
(ii) Comment: "12.4 The rationale for directing contributions to the RTI needs to be clarified in the light of the priority status afforded to RTS as part of the integrated transport system ..."
Response: "The paragraph following 4.10 ... indicates the range of public transport facilities considered necessary. In most cases these will also be required in conjunction with a rapid transit system. The paragraph also indicates that the measures required might also be provided by a rapid transit system ..."
(iii) Comment "12.5 The rationale for naming the three "major development areas" needs to be more fully explained in paragraph 3.1, ie they are so extensive that RTS needs to be in place at the start in order to seek to establish the RTI concept and influence travel habits."
Response: "The justification for addressing specific development areas derives from the need for an enhanced public transport package in general and not solely to an RTS. The Guidance must specify what developers will be required to provide, indicating that public transport package is related to the demands arising from each stage of the development. Whilst the Council supports the advance provision of the RTS in any development it may not be appropriate, in relation to the expected phasing of each development area to include this as a requirement. The development of these areas is expected to commence on the basis of extending and providing for conventional public transport systems to a level appropriate to the scale and extent of each phase of development."
(iv) Comment: "12.6 The priority to be given to the achievement of RTS over other forms of public transport in the RTS corridors needs to be set out ... RTI is concerned that the draft SPG fails to state this and para 3.1 indicates that such a system may not be required for initial phases of development, thus avoiding commitments to the scheme from the outset. Paragraph 4.10 should be amended to require the RTS from the outset of development ..."
Response: "Whilst it is fully intended to seek contributions to a sustainable public transport system including rapid transit, as stated in the Draft SPG, the Guidance must adhere to the terms of DETR Circular 1.97 ... Public transport contributions are therefore expected to be phased and related to the scale of development proposed ... It should be re-iterated that the majority of the facilities proposed will be utilised by the RTS proposal and that the Guidance repeatedly indicates that high quality rapid transit bus services operating on segregated facilities will be a required element of the development at Dallington Grange and Upton/St Crispin areas. It will be expected that agreements on what is to be provided at each phase will be made at the outset of development in order that an early commitment to contributions to rapid transit provision is obtained."
17. The SPG, as approved by NBC, included the following passages:
"2.9 ...
In seeking contributions from developers to providing more sustainable forms of transport to support new development areas, the Council will require a significant proportion of overall transport infrastructure to be devoted to promoting and supporting provision of improved quality bus services to serve new development and the establishment of park and ride facilities served by a rapid transit system, where appropriate.
3.1 The abandonment of major highway improvements to the north and west of Northampton as outlined in section 2 of this guidance means that the following developments in particular will require a level of infrastructure for public transport commensurate with the scale of development, if they are to proceed to completion:
a) Dallington Grange housing development; (approx Capacity 2200 dwellings)
b) St Crispin/Upton housing development; (approx capacity 3600 dwellings)
c) South West District business development.
4. MAJOR NEW DEVELOPMENT AND PROVISION OF RAPID TRANSIT
4.1 To date, the Council has pursued initiatives ... to raise the quality of the conventional bus service ...
4.2 However dealing with the transport requirements of new development around Northampton in a sustainable manner in the light of the County Council's aim to reduce demand for travel by the private car, will require that additional and enhanced measures beyond the level of providing conventional bus services are agreed with developers ...
4.7 Future public transport facilities serving major new development proposals (as included in section three) will therefore need to be provided in conformity with the enhanced public transport infrastructure considered necessary in Northampton.
The Council considers that provision of a rapid transit system in Northampton represents a key element in achieving the objectives of an integrated transport system ... It is expected that contributions to a rapid transit system arising from the development of land at Upton and St Crispin will be directed to implementing a route from Weedon Road to the town centre ...
4.9 The overall level of public transport service for a development should be established by agreement with the Borough Council at the outset. It is crucial that a programme of phased public transport facilities and in support of the transport infrastructure incorporating provision of rapid transit, where appropriate, should be agreed which is linked to the quantity of the development built.
4.10 ...
Planning applications for the major development areas listed in paragraph 3.1 of this Guidance and for other developments involving additional transport movement must be accompanied by full details of measures to encourage the use of public transport.
Such measures should be funded by the developer and should include, where appropriate, provision of park and ride facilities, bus priority measures on the existing road network and the provision of a specified level of service. Such facilities may be provided through the establishment of a rapid transit/guided busway system within Northampton.
Former St Crispin Hospital and land at Upton
5.14 The development of land in the St Crispin/Upton area is likely to result in the further building of 3600 new houses. The North West bypass and Kislingbury Way link would have served the new development area, but these have now been abandoned as strategic roads. The development of the area will still require the construction of new access roads, but new transport facilities providing significantly enhanced levels of quality and reliability will need to be provided.
5.15 The following principles should be taken into account by developers in the submission of planning applications. They form the package of measures considered appropriate and necessary to provide a realistic alternative means of transport. Obligations will need to be entered into by the developers of this area which secure a phased package of measures indicated below prior to the granting of permission for all or part of the development area, north and south of Weedon Road ...
Bus enhanced/rapid transit provision
5.20 Given the scale and extent of housing development proposed at Upton and St Crispin, a significant solution to transport issues is necessary if more than an initial phase of development is to be permitted. The provision of bus priority measures of a level and type equivalent to a rapid transit system to link the area to the town centre and to other important destinations in the Northampton area are considered necessary in order to achieve full development of the Upton and Berrywood areas. This could mean providing for public transport services from the periphery of the urban area to the centre and other key destinations utilising in part segregated priority guided busways which offer quicker journey times, regularity and reliability of service, journey comfort and ease of use to produce an attractive alternative to the private car.
5.21 The development of the Upton/St Crispin area will require the establishment of a new high quality public transport link to the town centre which could be provided by means of the construction of a segregated bus only route between Sixfields and the Town Centre. Associated measures such as traffic signals to provide priority for buses entering and leaving the busway will be needed. Planning obligations will therefore be sought from developers to assist the implementation of this rapid transit link to the town centre.
Summary of Guidance
5.24 Prior to granting planning permission for development of land at Upton/St Crispin, the Council will require that the developers enter into obligations to provide or contribute to, the transport requirements as outlined above. This will include, in a phased manner to be agreed with the Council, provision of park and ride site, associated bus service, bus enhancement measures along the Weedon Road and segregated rapid transit facilities. This will provide for the establishment of a high quality public transport link between Weedon Road and the town centre capable of forming a network with other similar routes proposed in the town.""
18. On 23 February 1999 the same Planning and Transportation Committee of NBC as that which had approved the SPG, deferred EP's planning application for Phase 1 of the proposed residential development at Upton, but approved in principle heads of obligations as set out in Appendix viii attached to the Director's Report, subject to further investigation of the development implications for the River Nene flood plain.
19. The Director's Report at paragraph 4.8 identified a number of proposals arising out of the proposed development put forward by EP, including the provision of a bus service between Upton and the town centre with the frequency of the buses increasing with the number of houses constructed. At paragraph 4.9 of the Report he stated that:
"The above measures would allow a maximum of 1020 dwellings to be developed, the surplus being either within EP's next phase of development or at the St Crispins Hospital site. Any development beyond the figure of 1020 will trigger further contributions and provisions, namely:
(i) operational park and ride site on A45
(ii) contribution to cross Valley link
(iii) Minor off site local highway improvements necessitated by the development ...
(iv) Contributions to further transportation measures which will be of direct benefit to development within South West District, eg Improvements to road links between A45 and A428.""
It is to be noted that there is no reference to any form of Rapid Transit System in those paragraphs of the Director's Report either in respect of the present proposed development or any future further development in this area.
20. At paragraph 7.8 of the Report, the Director concluded that:
"The principle of development in the South West District has long been established for major housing development. The package of measures proposed by the (EP) largely meets the aspirations for infrastructure both social and physical in this part of the South West District."
21. On 26 February 1999 RTI's Solicitors and, on 2 March 1999, RTI itself, wrote to NBC drawing attention, amongst other things, to the manner in which EP's application had been reported to the Committee on 23 February 1999 and what was said to be the inconsistency between EP's proposed transportation measures and those required by NBC's recently adopted SPG. They threatened legal proceedings if the application was not re-reported to the Committee with a full and proper regard being given to the SPG.
22. On 4 March 1999 NBC replied to RTI's Solicitors and stated, inter alia that:
"It is now proposed to progress the actual planning obligations and, in this respect, regard will be had to the provision of the RTI proposal for a guided busway along the lines promulgated in Mr Wooding's letter.""
23. In due course, RTI received a copy of a letter dated 9 March 1999 from NBC to EP in which NBC amplified its reasons for deferring EP's planning application on 23 February 1999. NBC stated, amongst other things, that:
"A number of the `heads of obligations' in appendix viii concern such matters and one in particular is "Weedon Road to town-centre corridor improvements-implementation." This requirement remains to be worked up in detail in the course of further negotiation. In this regard I would refer to this Council's newly adopted Supplementary Planning Guidance, "Securing Enhanced Levels of Public Transport in association with new development". This guidance was adopted at the same meeting of the Planning & Transportation Committee as the item on the agenda preceding your planning application. I would refer especially to paragraphs 5.20 to 5.24 and to the references to segregated bus only rapid transit facilities. This guidance is important in that it addresses specifically transportation matters in relation to your development proposals, it is up-to-date, supported by the highway authority and is now adopted by the Council. In taking forward your transportation proposals the Council expect that it will be given full and proper regard.""
Having seen and considered NBC's letter to EP dated 9 March 1999, RTI came to the conclusion that legal proceedings were not necessary at that stage after all. As it seems to me, that decision was entirely appropriate and proper.
24. On 17 March 1999 RTI submitted an application under the Transport and Works Act 1992 to the Secretary of State for an Order authorising the construction and operation of Route 5 of the Core Network.
25. In July 1999 NCC produced its Provisional Local Transport Plan ("the LTP") which included the following statements and policies:
""1.1 ... LTP's are a core part of the Government's proposals for delivery of the national policy framework for integrated transport set out in the Transport White Paper...
4.2.3 ...
Guided Bus Network/Park & Ride
There are currently private sector proposals for a guided bus network in Northampton which is being promoted by Rapid Transport International (RTI). This will provide a core network of guided busways to serve existing and proposed developments in Northampton and the surrounding area ... This visionary project provides an opportunity to secure a high quality transport solution to help meet the future needs of the town, and RTI have been actively seeking private sector funding contributions towards the system from major new developments.
The County and Borough Councils support the rapid transit system, which will form part of the integrated transport plan for the town. In terms of Park & Ride specifically, sites have already been identified in planned developments which will serve the guided bus routes proposed by RTI.""
26. On 28 July 1999 NBC wrote to Daventry District Council ("DDC") in response to DDC's request for comments on an application made for the residential development of land at Buckton Fields to the north of Northampton and in the area intended to be served by Route 1 of the core RTS network. In its response NBC stated (inter alia):
"2. Transport
The Borough Council wishes to express in the strongest possible terms its view that the strategy for transport at Buckton Fields should seek to minimise the impact of development upon traffic movement in the north of Northampton ... and should be consistent with the public transport strategy for Northampton...
The applicants state that the principles of high quality public transport at Buckton Fields can be delivered through conventional services and do not propose that Buckton Fields should be served by this particular proposal. It is of great concern that the public transport measures as proposed do not support or accord with the proposals for a system of rapid transit routes within Northampton in association with new development.
The Council has adopted supplementary planning guidance on securing enhanced public transport in new development, which indicates that guided busway provision is seen as a key element of future public transport in the town. This will ensure that public transport provision associated with new development is delivered at a specification which can really encourage people to use public transport within the urban area. The principle of guided busways is also supported by the County Council within the public transport strategy of the TPP Northampton package and the merging Local Transport Plan.
...
The Borough Council therefore requests that Daventry District Council does not accept the public transport strategy proposed by the applicant on the grounds that it falls short of the approach to public transport provision being sought by the Borough Council in other development areas on the edge of Northampton. It urges the District Council to negotiate for developer contributions towards a system of rapid transit services between the site and the town centre.""
27. On 13 March 2000 a report was prepared by NBC setting out the current position of RTS. Attached to that report was an Appendix headed "Note for Members". It stated:
"A Background
III The RTI/RTS is intended to be funded by developer contributions made directly by the developers to RTI from various new developments around the town. The original 5 routes are to cost in excess of £40m...
B Current Position/Issues
II EP, who await determination of their application for phase 1 of their SW District proposals, have presented an alternative rapid transit system for the town, costing circa £10m, based on bus enhancement measures. Some details have been made available but it is considered that work on this alternative system has to be developed further before it can be appropriately compared to RTI/RTS.
V Other developers known to be closely monitoring the RTI/RTS situation. Particular attention is being given to the County Council responses as Highway Authority to the Borough as Planning Authority on the SW District planning application ... The County's response to Daventry DC on the Buckton Fields proposals is also relevant ... These responses are perceived by developers as being far less supportive of RTI/RTS than is necessary to justify the substantial contributions to be secured from developers for RTI's proposals. It is considered likely that if the Borough Council approve EP's SW District planning application based on the current EP transportation package proposals then other developers would follow suit and the likelihood of them contributing at the scale required by RTI would be very small...
C Concluding Comment
III The proposed meetings with RTI, EMDA, EP and the County Council are extremely important to the realisation of RTI/RTS in its entirety. Indications at present are that neither EP or the County Council are as supportive to RTI/RTS as is necessary for that realisation."
28. On 17 April 2000, NBC's Planning and Transport Committee ("The Planning Committee") considered EP's planning application for the development of Phase 1 of Upton. The Officers' Report to the Planning Committee recommended that EP's application be approved in principle, subject to the prior conclusion of a legal agreement to secure the heads of terms that were detailed in Appendix iii to the Report. Appendix iii to the Officers' Report contained a summary of the obligations which NBC wished to secure through a legal agreement with EP and provided, amongst other things, for:
"... a contribution to inbound bus priority link between Weedon Road access roundabout adjacent to Princess Marina Hospital and the Gambrel Road roundabout or provision of such alternative scheme incorporating provisions for a rapid transit or guided bus system as the Borough, the County and EP shall agree.""
29. At the meeting on 17 April 2000 the Planning Committee resolved:
(1) to approve EP's planning application in accordance with the recommendations made in the Report; and
(2) to authorise a scoping study for a Northampton Multi-Modal Transportation Study.
30. In relation to the grant of planning permission to EP the Officers' Report made the following observations:
"5.13 The package would form part of a townwide strategy to improve public transport in Northampton as proposed in the Local Transport Plan. It is proposed to develop this strategy through a brief prepared by officers for a study which will examine the appropriate way forward to achieve the most cost effective, sustainable and environmentally acceptable transportation solution for the town. The study will look at the merits of road based public transport improvements (of which the measure in 5.11 could be regarded as a first stage) and off road segregated public transport systems (of which the measures in 5.11 would form part of the complementary road based improvements). The funding and brief for the study are the subject on ongoing discussions....
5.16 The application is considered to generally accord with the principles of PPG13. It is also consistent with the measures anticipated in the Local Transport Plan associated with development of the South-West District. The proposals do not however appear to provide for the guided bus way provision, an aspirational proposal in the Local Transport Plan.
5.17 The Council's SPG on public transport supports the principle of "a rapid transit system" within any package of public transport measures proposed by developers. The proposed package seeks to provide public transport with a swift and unimpeded progress between Princess Marina site and the town centre. This is considered to be generally consistent with the objectives of the SPG.
5.18 In respect of development at Upton/St Crispin, the SPG seeks the establishment of bus priority measures providing for rapid transit to form a high quality link to the town centre which could be provided by a segregated bus only route. The package of measures proposed by the applicant makes provision for segregation of public transport from other road users which provides for `rapid transit' and which would form a high quality link to the town centre. It is therefore considered generally consistent with the SPG but does not include the elements of `off highway segway' as being promoted by RTI plc.
5.19... Subsequent correspondence from the County Council confirms that the present submission of transport measures in support of the application are consistent with the principles of the SPG and would not prejudice the provision of RTI's Northampton Rapid Transit system proposals to the west of the town. However, the present level of contributions being offered by English Partnerships in respect of its applications would be insufficient to secure the present RTI proposal for route five.""
31. Various objections had been lodged to the Orders sought by RTI under the Transport and Works Act 1992 and a Public Inquiry fixed to commence on 31 May 2000 (the "TWA Inquiry"). In early May, RTI sought deferral of the TWA Inquiry to await the outcome of this challenge to the decision to grant EP planning permission for the proposed development: eg see the letter written by RTI's Solicitors, dated 4 May 2000. On 11 May 2000, following refusal of the request for deferral of the TWA Inquiry, RTI withdrew its two applications for orders under the Transport and Works Act 1992. In my view, RTI cannot be meaningfully criticised for making that decision.
32 The issues in these proceedings
Mr Lockhart-Mummery submitted that there were two broad issues raised in these proceedings and that both issues were sufficiently arguable (in the ex parte Woods sense) for it to be appropriate to grant permission to RTI to apply for relief by way of Judicial review. Mr Lockhart-Mummery identified the two issues as follows:
(i) whether the policy pronouncements and actions on the part of NBC and NCC over the 4 to 5 year period from 1995 had created some or all of the legitimate expectations which are pleaded in paragraph 21 of the From 86A. Mr Lockhart-Mummery pointed out that the expectations in question are precisely identified in paragraph 21 and that it was RTI's case that, having regard to EP's public transport proposals for the proposed development, each and every one of those expectations had been broken by the decision to grant EP the planning permission in question and/or that the decision in question (and the resulting planning permission) was irrational and unlawful because of the failure of NBC to take into account as material considerations those matters which, in effect, gave rise to the legitimate expectations in question: (see paragraphs 51 to 54 inclusive of the Form 86A). Hereafter I shall refer to this issue as "the legitimate expectation issue"; and
(2) whether any lawful decision was made pursuant to the Town and Country Planning (Assessment of Environmental Effects) Regulation 1988, which were the relevant regulations in force at the material time. Mr Lockhart-Mummery emphasised that this was an entirely separate issue from the legitimate expectation issue and I refer to it as "the Environmental Assessment Issue". A significant aspect of the Environmental Assessment Issue is whether the ratification decision (see paragraph 4 above) is a lawful and/or effective decision.
33. The Legitimate Expectation Issue
Mr Lockhart-Mummery submitted that the previous actions and statements of NBC (supported by NCC), in particular the signing of the Charter and the adoption of the SPG, had created all or some of the following legitimate expectations, namely that NBC would:
(i) seek to exercise its planning policies to support a new public transport infrastructure (such as and including a rapid transit system);
(ii) seek to exercise its planning powers so as to achieve implementation of a rapid transit system;
(iii) apply its planning policies including the SPG consistently in relation to major development proposals;
(iv) apply its planning policies including the SPG in relation to any major development proposal to secure a financial contribution to a rapid transit system to be provided by RTI whether in relation to that proposal or later phases of development in the same area; and
(v) would not seek to withdraw from its commitment to the development of a rapid transit system without giving the Claimant an opportunity to make representations as to NBC's change of position.
34. Mr Lockhart-Mummery referred to the following well known passage in the judgment of Simon Brown LJ in R v Devon County Council Ex Parte Baker (1995)NBC 1AER 73 at p 89, where he said this:
"The final category of legitimate expectation encompasses those cases in which it is held that a particular procedure, not otherwise required by law in the protection of an interest, must be followed consequent upon some specific promise or practice. Fairness requires that the public authority be held to it. The authority is bound by its assurance, whether expressly given by way of a promise or implied by way of established practice. Re Liverpool Taxi Owners' Association (1972) and A-G of Hong Kong v Ng Yuen Shiu (1983) are illustrations of the court giving effect to legitimate expectations based upon express promises; Council of Civil Service Unions v Minister for the Civil Service an illustration of a legitimate expectation founded upon practice albeit one denied on the facts by virtue of the national security implications."
35. Mr Lockhart-Mummery submitted that each of the various expectations which are pleaded in paragraph 21 of the Form 86A is of the type recognised by the Court and referred to in that passage of Simon Brown LJ's judgment. He maintained that the decision to grant EP planning permission for the phase 1 development at Upton, on its facts and with particular reference to its transportation proposals, constituted a breach of all or some of those expectations. Accordingly, he argued that the Court was entitled to review NBC's decision to grant planning permission to EP for the proposed development: see R v North and East Devon Health Authority, ex parte Conghlan (2000) 2WLR 622 at pp 644-654.
36. Mr Jones, supported by Mr Spence, submitted that, at the heart of the legitimate expectation issue, the key question is the proper interpretation of the SPG since this was the relevant approved policy at the time the decisions in questions were made. He argued that Mr Lockhart-Mummery's submissions on this issue were fatally flawed and unarguable because the SPG did not contain any unqualified statements or promises of the type contended for by RTI as giving rise to the legitimate expectations in question.
37. Mr Jones submitted that the correct interpretation of the SPG was not as prescriptive as suggested by RTI and that the SPG expressly contemplates alternative public transport proposals. He argued that the SPG envisages that public transport provision for relevant developments is to be considered on a case by case basis and for NBC to adopt the restrictive type of approach suggested by RTI would involve an unlawful fettering of its discretion. Mr Jones submitted that RTI was unable to specify which particular actions or statements by NBC were said to have created each of the legitimate expectations in question. He argued that this inability to be specific revealed that there was nothing in NBC's approved policy (ie in the SPG) which could be said to amount to a representation that is " ... clear, unambiguous and devoid of relevant qualification": see R v IRC ex parte MFK Underwriting Agencies Ltd (1990) 1WLR 1545 per Bingham CJ at p 1569.
38. Mr Jones pointed out that RTI had been given ample opportunity to comment upon the draft SPG and had taken full advantage of the opportunity to do so. Accordingly, he submitted, RTI had been afforded all appropriate and fair procedures to fulfil its procedural expectations in the formulation of this key policy document. Mr Jones contended that the SPG was the fulfilment of the various earlier supportive statements and actions by NBC and NCC for RTS and, in particular, of the level of support to be found in the Charter for RTS and submitted that the essential point was whether it had been open to NBC properly to reach the view that EP's public transport proposals were in accordance with the SPG and/or not in conflict with it. He maintained that EP's proposals were unarguably in accordance with the wording of the SPG, which was sufficiently qualified in its terms as to make that so, and/or were within the scope of reasonable interpretation of the provisions of the SPG which had been open to NBC as the relevant planning authority. He emphasised that the relevant express policy in the SPG, when dealing with the land at Upton (see paragraph 5.14 onwards), was expressed in words which make it clear that RTS is not an exclusive public transport policy nor is the supportive policy unequivocally committed to RTS to the exclusion of all other proposals for the provision of improved public transportation in residential developments in and around Northampton. In all these submissions Mr Jones was echoed and supported by Mr Spence on behalf of EP.
39. I have taken the somewhat unusual course in a permission application of setting out in this judgment a fairly detailed account of the main events, policy statements and actions by NBC upon which RTI's submissions relating to the legitimate issue are largely based because, as it seems to me, this is the main if not the critical issue in the proceedings which I have to decide. If I come to the conclusion that this issue is sufficiently arguable for permission to be granted then, in my opinion, the other issues which were raised before me, such as failure to take into account material considerations (RTI Skeleton, paragraph 21), irrationality (RTI Skeleton, paragraph 30), failure to give adequate reasons (RTI Skeleton, paragraph 31), delay (NBC Skeleton, paragraph 8: EP Skeleton, paragraph 3), RTI's standing (EP Skeleton, paragraph 6), discretion (NBC Skeleton, paragraph 9: EP Skeleton paragraph 9) and the Environmental Assessment Issue, are all sufficiently complex to make it both proper and appropriate for those issues to be left to the substantive hearing without further comment or observation from me, because to do so would be to lengthen greatly an already somewhat over-lengthy judgment in an application of this type.
40. I agree with Mr Jones' submission that the key policy document is the SPG. However, whilst paying tribute to the persuasive nature and content of the submissions made by both Mr Jones and Mr Spence on the legitimate expectation issue, I am persuaded by Mr Lockhart-Mummery that RTI's case on this issue is sufficiently arguable to merit the grant of permission - even when that case is limited to the effect and proper interpretation of the SPG. In my view, there is force in Mr Lockhart-Mummery's submission that, if Mr Jones' and Mr Spence's submissions as to the qualified and generalised nature of the relevant provisions in the SPG are correct, developers and/or NBC would be able to rely on the provisions of the SPG to justify and support proposals providing the provision of public transportation needed for relevant future developments solely by securing an improvement in existing bus services. If that is correct, there is also force in Mr Lockhart-Mummery's further submission that this would, in effect mark an end to RTS for Northampton, because no developer is likely voluntarily to contribute to RTS, if the much cheaper alternative of enhancement of existing bus services in available and fully in accordance with approved policy. In those circumstances, Mr Lockhart-Mummery submitted, it would mean that the previous 4 to 5 years' effort and expenditure on RTS would have been a complete waste of time and the plain meaning of policy statements, such as those found in paragraphs 4.2, 4.7, 4.9, 5.20, 5.21 and 5.24 of the SPG (see above), will be defeated and/or avoided. Again, without determining the point one way or the other, I acknowledge the force of that submission. I emphasise that my decision goes no further than to accept that RTI's case on the legitimate expectation issue is sufficiently arguable, in the ex parte Woods sense, to make the grant of permission appropriate.
41. Accordingly, I have come to the conclusion that RTI have established a sufficiently arguable case on the legitimate expectation issue for the grant of permission and I reject Mr Jones' and Mr Spence's submissions to the contrary. In those circumstances, as already indicated, I do not propose to go on and express any view as to the other issues raised in these proceedings, except to say that I am satisfied that it is appropriate to leave those matters to be raised and fully developed at the substantive hearing.

Order: Costs reserved. Permission granted to amend Form 86A. Interested Party to be formally joined as Second Defendant.

(Order does not form part of approved judgment.)