IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
|Royal Courts of Justice|
Strand, London, WC2A 2LL
B e f o r e :
(1) BRITISH TELECOMMUNICATIONS PLC (2) BLOOMSBURY LAND INVESTMENTS
Claimants (an unlimited company)
- and -
GLOUCESTER CITY COUNCIL
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Lawrence Graham for the Claimants)
Mr. Guy Root Q.C. & Mr. John Pugh-Smith
(instructed by Mr. Gary Spencer, Head of Legal Services
Gloucester City Council for the Defendants)
Ms. Nathalie Lieven
(instructed by the Treasury Solicitor for the
Secretary of State for Transport Local Government & the Regions)
Mr. Richard Glover
(instructed by Berwin Leighton Paisner for Arrowcroft Group plc,
an interested party)
Crown Copyright ©
MR JUSTICE ELIAS:
The Blackfriars area.
The history of the proposed development.
The first compulsory purchase order.
Planning permission at the docks
The second compulsory purchase order
The second docks inquiry.
Decision under challenge
Compulsory Purchase Inquiry
Judicial Review challenge
The legal issues
Ground One: amendments to the original planning application
“The view I took was that a better level of understanding would be achieved through maintaining continuity by processing the one already made. A particular reason for maintaining continuity in this case was that, while the application was under discussion, the council and Arrowcroft were seeking to secure commitments by potential occupiers of the scheme, and in particular by occupiers for the “anchor” department store and a multiplex cinema; it was important that the scheme should be perceived as evolving. Having regard to the nature and scale of the proposed development as a whole, I did not consider that the changes would result in development substantially different from that originally applied for.”
The law and amendments
“This is not a field in which technical rules would be appropriate; the planning authority must simply deal with the application procedurally in a way just to the applicant in all the circumstances. There was no good reason why amendment of the application should not be permitted at any stage if that should prove necessary in order that the whole merits of the application should be properly ascertained and decided on”.
“He further thought it was competent for the applicants and the planning authority to agree a variation of an application at any time up to the determination of the application. To take any other view would fly in the face of everyday practice and make the planning machine even more complicated than it was, for it was common practice for an application to be amended by agreement following negotiations between the applicant and the planning officer.”
“Is the effect of the planning permission to allow development that is in substance not that which was applied for?…..The main, but not the only criterion on which that judgment should be exercised is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation…”
Ground Two: The Environmental Statement.
“environmental information” means the environmental statement prepared by the applicant or appellant or in a case falling within regulation 17 by the authority, any representations made by any body required by these Regulations to be invited to make representations or to be consulted and any other representations duly made by any other person about the likely environmental effects of the proposed development.”
“The specified information is-
(a) a description of the development proposed, comprising information about the site and design and the size and scale of the development;
(b) the data necessary to identify and assess the main effects which that development is likely to have on the environment;
(c) a description of the likely significant effects , direct and indirect, on the environment of the development, explained by reference to its possible impact on-
human beings; flora; fauna; soil; water; air; climate; the landscape; the inter-action between any of the foregoing; material assets; cultural heritage;
(d) where significant adverse effects are identified with respect to any of the foregoing, a description of the measures envisaged in order to avoid, reduce or remedy those effects; and
(e)a summary in non-technical language of the information specified above.”
Paragraph 3 then sets out further matters which it might be thought desirable to include by way of explanation or amplification.
The decision about the environmental statement.
(1) The site is an archaeologically sensitive area and the development may have a significant impact on important archaeological interests;
(2) The siting of the development could have a significant visual impact in terms of townscape in the city centre Conservation Area, a significant impact on the setting, character or appearance of Listed Buildings; and
(3) The development could have implications for city centre parking provision, traffic congestion and air pollution.
“However, it should be borne in mind that the normal planning and listed building controls already ensure that the effects of development proposals on the built heritage are considered.”
The letter pointed out that in this development the fact that listed building and conservation area consents were required would prevent the development having any significant negative effect on the heritage.
“First, by the time of this exchange of correspondence, much work had been done by Arrowcroft’s advisers and by the Council’s officers and advisers to examine both the existing features of the area and the effects of the proposals. In addition the proposals had been discussed with English Heritage and we had received no indication that they felt that the developers should be required to provide an Environmental Assessment. Second, I had regard to the fact that the development to which the outline application related could not be implemented without the grant of separate Conservation Area and Listed Building consents.”
Mr. Scott then made reference to paragraph 17 of the Circular which had been mentioned by Arrowcroft’s lawyers.
The detailed legal challenges
Was a decision ever taken?
The planning authority had no power after three weeks to exercise it discretion to require an environmental statement.
The decision was unlawful on Wednesbury grounds.
Does the environmental statement have to be produced only if the effects are adverse?
“the likely significant effects direct and indirect on the environment of the development proposed which may result from:-
(i)the use of natural resources;
(ii) the emission of pollutants, the creation of nuisances, and the elimination of waste.
It is then specifically provided that “in paragraph (e),
“effects” includes secondary, cumulative, short, medium, and long-term, permanent, temporary, positive and negative effects” (emphasis added).
“The Directive requires not merely that the planning authority should have the necessary information, but that it should have been obtained by means of a particular procedure namely that of an E.I.A. And an essential element in this procedure is that what the Regulations call the “environmental statement” by the developer should have been “made available to the public” and that the public should have been “given the opportunity to express an opinion” in accordance with article 6(2) of the Directive. As Advocate-General Elmer said in Commission of the European Communities v Federal Republic of Germany (Case C-431/92)  E.C.R. 1-2189, 2208-2209, para 35:
“It must be emphasised that the provisions of the Directive are essentially of a procedural nature. By the inclusion of information on the environment in the consent procedure it is ensured that the environmental impact of the project shall be included in the public debate and that the decision as to whether consent is to be given shall be adopted on an appropriate basis.”
The directly enforceable right of the citizen which is accorded by the Directive is not merely a right to a fully informed decision on the substantive issue. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrong headed its views may be, is given the opportunity to express its opinion on the environmental issues. In a later case (Aannemersbedrijf P. K. Kraaijeveld B.V. v Gedeputeerde Staten van Zuid-Holland (Case C-72/95  E.C.R. 1-5403, 5427, para 70) Advocate-General Elmer made this point again:
“Where a member state’s implementation of the Directive is such that projects which are likely to have significant effects on the environment are not made subject of an environmental impact assessment, the citizen is prevented from exercising his right to be heard.”
Perhaps the best statement of this aspect of an E.I.A. is to be found in the U.K. government publication “Environmental Assessment: A Guide to the Procedures” (H.M.S.O., 1989), p4:
“The general public’s interest in a major project is often expressed as concern about the possibility of unknown or unforeseen effect s. By providing a full analysis of the project’s effects, an environmental statement can help to allay fears created by lack of information. At the same time it can help to inform the public on the substantive issue which the local planning authority will have to consider in reaching a decision. It is a requirement of the Regulations that the environmental statement must include a description of the project and its likely effect together with a summary in non-technical language. One of the aims of a good environmental statement should be to enable readers to understand for themselves how its conclusions have been reached, and to form their own judgment on the significance of the environmental issues raised by the project.” (Emphasis added).
A court is therefore not entitled retrospectively to dispense with the requirement of an E.I.A. on the ground that the outcome would have been the same or that the local planning authority of Secretary of State had all the information necessary to enable them to reach a proper decision on the environmental issues.”
Were there significant adverse effects?
The approach to archeology.
Will the safeguards connected with conservation area and listed building consents suffice?
Did the authority have enough information to make the determination?
“[T]he specified information contained in an environmental statement is provided for the purpose of assessing the likely impact upon the environment of the development proposed to be carried out. It is therefore, not surprising that the first item of specified information in paragraph 2 is:
“a description of the development proposed , comprising information about the site and design and size or scale of the development.”
Without such a description, the likely impact of the proposed development upon the environment could not begin to be assessed, and the underlying purpose of providing the information in the environmental statement would be frustrated. One is not seeking certainty as to the environmental effects of the project, which would be unattainable, one is merely seeking the specified information which will enable the likely significant effects to be assessed.”
“An outline application with only one or two matters reserved for later approval might enable the environmental statement to provide a sufficient description of the development to be carried out.”
“I can understand the advantages of an illustrative master plan in an ordinary outline application for a business park, but once it is decided that such a project falls within Schedule 2, Schedule 3 requires the environmental statement to assess the likely impact of the development which is proposed to be carried out, not the impact of a development which might or might not be carried out depending upon whether subsequent submissions for approval of reserved matters are or are not in accordance with an illustrative master plan.”
Ground Three: Conservations and Listed Buildings issues
(1) It is alleged that the planning authority failed to have regard to the desirability of preserving or enhancing the character or appearance of the conservation area.
(2) They did not have regard to the advice given in PPG15, which is specifically concerned with planning and the historic environment.
(3) They did not have regard to the effect of the proposed development on listed buildings which were within and adjacent to the Blackfriars area.
(4) Given the fact that questions of design external appearance and landscape have all been reserved matters, they did not in any event have sufficient information available to them to form a view about the effect of the development on the conservation area.
Relevant statutory provisions
“In the exercise, with respect to any buildings or other land in a conservation area, of any functions under or by virtue of any of the provisions mentioned in subsection 2, special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area.”
The functions referred to include all the functions under the planning Acts. These would include not only the function being exercised when planning permission is being granted, but also when the authority is giving consideration to the reserved matters.
“In considering whether to grant listed building consent for any works the local planning authority or the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.”
Here the duty arises at the point when the listed building consent is being considered.
93. Finally, section 66 of the Act provides a parallel duty to that imposed by section 16 when planning permission is sought for a development which affects a listed building or its setting. However, that duty does not apply when the development is within a conservation area: see the Planning (Listed Buildings and Conservation Areas) Regulations 1990 schedule 3. In this case the conservation area does not in fact embrace the whole of the site for which development is proposed, although it does cover most of it. It is not clear to me whether there are in fact any listed buildings outside the conservation area, but if there were then this duty would arise. On the facts of this case, however, even if the duty is engaged, I doubt whether it adds anything significant in relation to the particular challenges to the obligations imposed by sections 16 and 72.
“The statutorily desirable object of preserving the character or appearance of an area is achieved either by a positive contribution to preservation or by development which leaves character or appearance unharmed that is to say preserved.”
“We may, I think, take judicial notice of the extensive areas, both urban and rural, which have been designated as conservation areas. It is entirely right that in any such area a much stricter control than elsewhere should be exercised with the object of preserving or’ where possible, enhancing the qualities and the character or appearance of the area which underlies designation as a conservation area…But where a particular development will not have any adverse effect on the character or appearance of the area and is otherwise unobjectionable on planning grounds, one may ask rhetorically what possible planning reason there can be for refusing to allow it. All building development must involve a change and if the objective of [Section 72(2)] were to inhibit any building development in a conservation area which was not either a development by way of reinstatement or restoration on the one hand (positive preservation) or a development which positively enhanced character or appearance of the area on the other hand, it would surely have been expressed in very different language from that which the draftsman has used.”
“An objective and clear character appraisal provide a sound basis for development control and initiatives to promote the area.”
made no specific reference to PPG15 nor to either of the English Heritage documents. Appendix 1 to the report did identify certain relevant planning policies, including PPG6 relating to town centres and retail redevelopments, and PPG13 relating to guidance on transport when adopting development plan policies. Mr. Horton submits that this omission is highly symbolic: it demonstrates, he says, how little significance was given to the need to respect the conservation elements of the scheme. He also makes a series of complaints about the way in which the report to the members dealt with the whole question of conservation. This requires me to consider to what extent the report did identify conservation and listed building matters.
The report: conservation considerations.
“The planning application is accompanied by an application for conservation area consent to demolish, in part or whole, non listed buildings and structures and 11 applications for listed building consent to demolish elements of listed buildings and structures held in association with these buildings. The historical and architectural assessments of these buildings are set out in Appendix 6.”
“Plans, policies and programmes should aim to protect the built and cultural heritage and manage change in a way that respects local character and distinctiveness by conserving and maintaining historical and archaeological resources and by ensuring new development respects and enhances local character and is of a high standard of design.”
“I attended the Planning Committee on 12th March 2001 and spoke to my report and answered questions from members. It is the practice of the Council to use a camera system to project plans and photographs to television monitors so elected members have clear sight of the proposals under consideration. I can confirm that this practice was followed on the 12th March 2001. Additionally, plans were displayed in the Committee Room. A three dimensional, scale model was also on display and prior to the consideration of my report, I described the development for members using the model to explain the proposed relationship of the development to its; surroundings, highlighting as I did so, historically or architecturally significant buildings.”
“A land use pattern dominated by vacant and underused sites combined with a poor visual appearance……and a generally negative perception in the minds of businesses, residents and visitors alike.”
The Defendants say it was plain beyond any doubt at all that the proposed development, which was wholly in accordance with the local plan, would enhance the characteristics of the area, and that would have been obvious to the members.
“The fact that circulars and PPG’s are understood to be read by those responsible for taking [planning decisions] and likely to be familiar to them it is one of the circumstances to be taken into account and the simple absence of reference to a particular policy would be unlikely to be sufficient in itself to show that the policy had been left out of account.”
“…..an application for judicial review based on criticisms on a planning officers report will not begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken.”
“Part of a planning officers expert function in reporting to committee must be to make an assessment of how much information needs to be included in his or her report in order to avoid burdening a busy committee with excessive and unnecessary detail.”
Was there sufficient information?
Ground Four: Misunderstanding of a material fact.
“Section 106 Agreement
The City Council now has a Development Agreement in place with Arrowcroft plc. The Agreement includes a Schedule setting out obligations in the form that a section 106 agreement would take place. By the terms of the Development Agreement, Arrowcroft plc are required to execute the requirements of this schedule when they have, via the Compulsory Purchase Order process, secured the necessary interests.
A copy of the section 106 agreement is contained in Appendix 4 to this report. In summary, these obligation relate to the principle that any profit from Phase 1 (the multiplex/car park permission) is used to implement the comprehensive redevelopment of the rest of the Blackfriars area (Phase 2).”
Ground Five: The human rights challenge.
“either the jurisdictional organs themselves comply with the requirements of article 6 , or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of article 6(1).”
So the question is whether the role of judicial review in the particular circumstances of the case provides the apparent judicial safeguards to render the procedures considered as a whole compliant with the Article.
Are civil rights engaged?
The European Jurisprudence.
“The opening words of article 6(1) are: “In the determination of his civil rights and obligations or of any criminal charge against him….” Here again a broad; interpretation is called for. The decision need not formally be a decision on the rights. Article 6 will still apply if the effect of the decision is directly to affect civil rights and obligations. In Le Compte, Van Leuvan and De Meyere 4 EHRR 1 para 46 the court observed: “it must be shown that the ‘contestation’ (dispute) related to ‘civil rights and obligations’, in other words that the ‘result of the proceedings’ was ‘decisive’ for such a right.” The dispute may relate to the existence of a right, and the scope or manner in which it may be exercised (Le Compte, at para 49m, also Balmer-Schafroth v Switzerland (1997) 256 EHRR 598. But it must have a direct effect of deciding right or obligations. The court continued, at para 47:
“As regards the question whether the dispute related to the above mentioned right, the court considers that a tenuous connection or remoter consequences do not suffice for article 6(1), in either of its official versions (‘contestation sur’; (‘determination of’): civil rights and obligations must be the object-or one of the objects-of the ‘contestation’ (dispute); the result of the proceedings must be directly decisive for such a right.”
That case was followed in Sporrong and Lonnroth v Sweden (1982) 5 EHRR 35, where, para 80, the court noted that article 6(1) extended to a dispute concerning “an administrative measure taken by the competent body in the exercise of public authority”. It is also said that the dispute must be “genuine and of a serious nature”: Benthem v The Netherlands (1985) 8 EHRR 1, para 32. In that case a genuine and serious dispute was held to have risen “at least” from the date when the licence which the applicant had earlier obtained from the local municipality was cancelled by the Crown.
It is thus clear that article 6(1) is engaged where the decision which is to be given is of an administrative character, that is to say one given in an exercise of a discretionary power, as well as a dispute in a court of law regarding the private rights of the citizen, provided that it directly effects civil rights and obligations and is of a genuine and serious nature.”
“In this instance the applicant relied on public law and alleged that the provisions of section 23(2) of the aforementioned Act had not been complied with. In so doing, she nonetheless wished to avoid any infringement of her pecuniary rights, because she considered that the works on the land adjoining her property would jeopardise her enjoyment of it and would reduce its market value.
Having regard to the close link between the proceedings brought by Mrs. Ortenberg and the consequences for the outcome for her property, the right in question was a civil one.”
Was there a breach of Article 6?
“…it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.
In this connection the court would once more refer to the uncontested safeguards attending the procedure before the inspector: the quasi-judicial character of the decision-making process; the duty incumbent on each inspector to exercise independent judgment; the requirement that inspectors must not be subject to any improper influence; the stated mission of the Inspectorate to uphold the principles of openness, fairness, and impartiality. Further, any alleged shortcomings in relation to these safeguards could have been subject to review by the High Court.”
147. Similarly, in the case of Zumtobel v Austria (1993)17 EHRR116 the court pointed out that the domestic court in that case had been able to consider all the complaints raised by the applicants on their merits. It added, in a passage relied upon by Mr. Roots:
“The European Court should confine itself as far as possible to examining the question raised in the case before it. Accordingly, it should only decide whether, in the circumstances of the case, the scope of the competence of the Administrative Court satisfied the requirements of Article 6(1).”
What prejudice is alleged?
“The fact that an inquiry by an inspector is ordered is important. This gives the applicant and objectors the chance to put forward their views, to call and; cross-examine witnesses. The inspector as an experienced professional makes a report, in which he finds the facts and in which he makes his recommendations. He has of course to take account of the policy which has been adopted in, e.g., the development plan but he provides an important filter before the Secretary of State takes his decision and it is significant that in some 95% of the type of cases with which the House is concerned the Secretary of State accepts his recommendation.”
“Looking at the overall tenor of the speeches in Alconbury and at the underlying decisions of the Strasbourg court, however, I accept that the finding that the Secretary of State’s decision-making process was compatible in principle with article 6 was based to a significant extent on the fact-finding role of the inspector and it attendant procedural safeguards. By contrast, there is no equivalent in the decision-making process of a local planning authority. That process includes a right to make representations and to submit evidence, and persons may be heard orally at a meeting of the relevant committee. But there is nothing like a public inquiry, no opportunity for cross-examination and no formal procedure for evaluating the evidence and making findings of fact. The report of the planning officer is to the committee generally contains an exposition of relevant facts, including any areas of factual dispute, but does not serve the same function as an inspector’s report. In general there will be no express findings of fact by the committee itself. All of this considerably reduces the scope for effective scrutiny of the planning decision on an application for judicial review. It makes it more difficult, if not impossible, to determine whether the decision has been based on a misunderstanding or ignorance of an established and relevant fact, or has been based on a view of the facts that was no reasonably open on the evidence.
For those reasons there is in my view a real possibility that, in certain circumstances involving disputed issues of fact, a decision of a local planning authority which is not itself an independent and impartial tribunal might not be subject to sufficient control by the court to ensure compliance with article 6 overall.”
Discretion and Delay.
MR JUSTICE ELIAS: Yes, I am sorry you have been kept waiting. Yes, of course.
MR PUGH-SMITH: My Lord, can I just introduce the star-studded cast in front of you this morning. My learned friend Mr Jonathan Karas represents the claimants, who is Mr Horton's junior; as you know, my name is John Pugh-Smith and I was junior to Mr Roots; and Mr Guy Williams stands in for Mr Richard Glover.
MR JUSTICE ELIAS: Right, thank you very much.
I give judgment in accordance with the judgment already handed down to the parties, together with certain modifications as a result of helpful points highlighted by counsel. They have not as yet been done, I am afraid. They did not get here in time on Friday for them to be incorporated on the weekend. But they will be done today. Thank you very much for.... Yes.
MR KARAS: My Lord, as I understand it that leaves three matters outstanding. The first is the point which your Lordship asked for further guidance on, in relation to which decisions should be quashed. Then there is costs and there are the issue of permissions to appeal.
On the issue of which decisions should be quashed, as I understand it we are all agreed that all the decisions----
MR JUSTICE ELIAS: I assumed so, but I had not formally, I thought, addressed that with anyone. So I just thought I ought to leave it open.
MR KARAS: My Lord, yes, it does follow the conservation area of consent relates essentially to the retail scheme rather than (inaudible), your Lordship has taken that on board.
In relation to costs, if I can go on to that, I acknowledge at once on one view of the way this case has proceeded it may appear that the claimants have behaved rather badly. We have only won on one of the five issues----
MR JUSTICE ELIAS: It is not a question of whether it is behaving badly or behaving well. This is a question of who should bear the costs of the litigation.
MR KARAS: Quite so. But it is my respectful submission this is a case in which the claimants should have all their costs, and this is certainly not a case where the local planning authority or Arrowcroft should have any of theirs. As I understand it, Arrowcroft does not seek costs from us. So I need not deal with that any further. But if they do I will respond in due course.
Perhaps I can deal with matters generally. Firstly, in relation to the environmental statement issue. In my respectful submission, it is quite clear we have won very substantially on that and we must have our costs of that.
In relation to the other issues, in my submission these issues have arisen - or rather would never have arisen if the environmental statement issue had been properly considered, leaving aside human rights and the phasing for a moment. There are two other main issues, the conservation issues and the amendment issues. On those points I submit the council has effectively brought those issues upon its own head.
In relation to the conservation issues, if I could make three points. Firstly, it is my submission that if the environmental statement had been provided, it is quite clear that the sort of information which we say is lacking from the officer's report - which your Lordship has found is not a material omission - that sort of information would have been provided within the environmental statement. We would not have been here. Our complaint would not have arisen.
Refining that issue, my second point is that the conservation issues clearly, in my submission, overlapped with those within the environmental statement issue. Your Lordship saw the way we put it, there was cross-reference within the grounds of appeal. In considering the inadequacies in the environmental statement in relation to the conservation issues, it is inevitable that your Lordship would have had to consider the sort of issues which in substance fell for consideration in relation to this scheme.
Which leads to the third point, even if your Lordship concludes that we should not have our costs of that issue, in my submission this is a case, as I have indicated, of the council has brought this on its own head by failing to provide an environmental statement, we should certainly not have to bear----
MR JUSTICE ELIAS: That may be so, but on the other hand you did not have to pursue that particular line as well. By choosing to pursue both lines, there has been a certain amount of time and detail focused on something which----
MR KARAS: That is true. However, the bulk of the time in my submission would have had to have overlapped because your Lordship would have had to have seen----
MR JUSTICE ELIAS: Some plainly would, some plainly would, some would not. But any way, I have the general point.
MR KARAS: You have the submission.
In relation to the amendments issue, I draw your Lordship's attention to a number of points. There is no record of the council's decision on amendments. The reasons in relation to the council's decision are contained within Mr Scott's witness statement. Prior to these proceedings, it was unclear to us----
MR JUSTICE ELIAS: May be, I do not think you asked them, though, did you. I do not think the point was actually raised in the pre----
MR KARAS: The amendment issue was. The issue that was not raised, as I understand it, was the conservation issue.
MR JUSTICE ELIAS: I am sorry, the conservation was not, certainly, yes. The amendment was, was it?
MR KARAS: And in any event these amendments go back some considerable time. In my respectful submission, it is appropriate that the proper minutes be kept of decisions. No minutes appears to have been produced before your Lordship or indeed before the inquiry. This is a case of the council bringing that issue upon its own head. Your Lordship - I will deal with this perhaps more fully when I come to the issue of permission to appeal - on this particular issue the juridical basis of the law concerning amendments is unclear. At best, this was a point which in my respectful submission we were reasonably properly entitled to take....
MR JUSTICE ELIAS: Yes.
MR KARAS: ....given the absence of statutory grounding for this particular point, and indeed given the obscurity of the council's decision-making. That is, I think, all I can say on that particular point. It is a point we properly could take given the state of the law, and given the factual circumstances is one which we were entitled to take.
On the phasing issue, the only point I would make on this is that the council has brought this issue on its own head. Mr Scott, and indeed the grounds of opposition to claim, made it clear and accepted that the report which we sought to challenge was not well expressed. In my submission we were entitled to bring this point. We have, overall, succeeded. This is a case where, in accordance with the starting point in costs - and it is the starting point in costs - costs should follow the event.
MR PUGH-SMITH: My Lord, I have a copy of Phonographic Performance v AEI Redifusion for your Lordship, in which Lord Woolf deals with the position since the CPR came into effect.
Could I say this. I have three subheadings. The first is principles and then I deal with procedural and fairly substantive issues.
MR JUSTICE ELIAS: Yes.
MR PUGH-SMITH: My Lord, the PPL case (if one can use that shorthand) was a matter that dealt with somewhat different facts. It concerned the Copyright Tribunals. My Lord, the passage I would like to take your Lordship to starts at page 313. The context there is the extent to which the Tribunal's chairman could award a different basis of costs rather than those costs following the event.
MR JUSTICE ELIAS: Yes.
MR PUGH-SMITH: But, my Lord, if I can take you to letter G, this deals with Part 44 and then defines conduct as including:
"(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and (d) whether a claimant who has succeeded in his claim in whole or in part exaggerates his claim."
And then Part 44, he says, sets out the wide range of different orders which the court can make.
Then he goes on to say this:
"I draw attention to the new Rules because, while they make clear that the general rule remains, that the successful party will normally be entitled to costs, they at the same time indicate the wide range of considerations which will result in the court making different orders as to costs. From 26th April 1999 the `follow the event principle' will still play a significant role, but it will be a starting point from which the court can readily depart. There is also the position prior to the new Rules coming into force. The most significant change of emphasis of the new Rules is to require courts to be more ready to make separate orders which reflect the outcome of different issues. In doing this the new Rules are reflecting a change of practice which has already started. It is now clear that too robust an application of the `follow the event principle' encourages litigants to increase the costs of litigation, since it discourages litigants from being selective as to the points they take. If you recover all your costs as long as you win, you are encouraged to leave no stone unturned in your effort to do so."
My Lord, that was the instant situation before your Lordship; because if I could remind your Lordship of the following matters. My Lord, first of all, the original time estimate given in the claimant's skeleton was 2-3 days. Supplementary skeleton, which was served the night before we appeared before your Lordship on Wednesday the 17th, said three full days. My Lord, as you know, even with a long sitting day on day five, when you sat from 10 through to I think it was quarter past five, it took seven days. Indeed, you had to deal with human rights as a discrete issue, if you recall, when it came to matters being dealt with in those final two days.
My Lord, being the noting junior behind Mr Roots, I note that Mr Horton concluded his case at noon on day five, the 23rd. So, my Lord, by that stage he had already exceeded his time estimate by some considerable degree.
Can I help my Lord?
MR JUSTICE ELIAS: I am just looking for the White Book actually, I am sorry. It is all right, I may not even look at it. But just to have.... Yes.
MR PUGH-SMITH: My Lord, day three, Mr Roots rose to his feet at 3.55 in the afternoon and concluded on day five. So we took, effectively, a day and a half, just after noon, and then Mr Glover is on his feet until 2.20 in the afternoon and your Lordship sat another three hours, just under, to deal with Mr Horton's responding submissions.
Now, my Lord, the underlying basis of Part 44, and indeed Lord Woolf's comments, is to ensure that discipline is exercised in the way in which cases are presented, particularly in the High Court where clear time estimates have to be given. Now your Lordship will recall three significant factors in this case so far as amendment was concerned. First of all, my Lord, in the middle of June the claimants served an amended claim form in which they raised the conservation area point.
MR JUSTICE ELIAS: Yes.
MR PUGH-SMITH: My Lord, secondly, in front of your Lordship the phasing point grew into a somewhat more substantive case, where your Lordship in fact indicated (although it was never done) that a further amended claim form should be served.
Thirdly, my Lord, as you know, there was the attempt to add archaeology as a discrete issue, which you rejected as being too late on the morning of day seven.
My Lord, that is hardly appropriate with a case of this kind, where clearly what is being adopted is really a sort of multi-rocket attack so something will hit the target. As your Lordship has found, one rocket has hit the target. I submit it is a procedural error that is substantively with the council and has been found at fault over, rather than a substantive one. My Lord, we do not argue that the claimants should not be entitled to some of their costs, and indeed I do not stand here seeking our costs on the grounds upon which they have failed. What we say is that they should only have the costs of their success on ground two to be precise, and that would be the subject of detailed assessment. My Lord, whether that comes to a third of their costs or half their costs, we know not. But certainly my Lord I would strongly urge you to ensure that your costs order does reflect those factors I have just pointed out to your Lordship.
So my Lord that deals with the procedural matters. So far as the substantive points are concerned, well, as your Lordship has already noted, on the conservation area issues that was something that was pursued effectively in tandem with the environmental statement point. Indeed, the lateness of the amendment suggests that it was a further thought that had, indeed after the drafting of the claim form which was served, as you recall, on 18th May.
My Lord, the amendment issue your Lordship has conclusively found against the claimants, both on the merit of the point and procedurally as well. You took the view that they should have raised the point in 1998. They were clearly out of time. So my Lord, with respect, that was one they were doomed to failure on, if your Lordship's approach was thought to be the appropriate one which of course it has be found so to do. I do have to say that, yes, the decided case law is not conclusive on the point. But your Lordship has undoubtedly formed the view that for reasons of delay they were out of time.
My Lord, so far as the phasing issue is concerned that point was embellished substantially by Mr Horton on his feet. Indeed, the reference to the Sosmos case, upon which your Lordship makes reference, was a case which was not raised in their list of authorities, was not found in their skeleton. It was certainly thinking on your feet time. Again, my Lord, the nature of their case changed during the course of argument.
So my Lord, for those reasons I would submit that there is no substantive case there that justifies costs on those other grounds either.
As far as human rights are concerned, my Lord they tried and they failed. My Lord, the law on that I submit certainly was sufficiently clear after Alconbury for there to have been the opportunity for further reflection. As your Lordship will recall, Alconbury was decided in early May, I think about a week before the claim form was actually issued.
MR JUSTICE ELIAS: I am not sure that I found that it was determined by Alconbury in this case. However, that is----
MR PUGH-SMITH: I appreciate that, my Lord, but certainly in terms of - a moment for reflection was there. My Lord, indeed, quite the opposite we occurred. We had more grounds served upon us rather than less. Of course, again an expansion of the human rights argument. My Lord, I think that is probably best described as a score draw.
MR WILLIAMS: My Lord, on the question of costs the first submission is that this is not a case in which it would be appropriate to make any order for costs against the second defendant, Arrowcroft----
MR JUSTICE ELIAS: No, I think it is probably agreed that you should neither receive nor give any, is that right? I should think that is common ground.
MR WILLIAMS: Yes. I can add nothing further.
MR KARAS: My Lord, is it appropriate that I respond?
MR JUSTICE ELIAS: Do if you wish.
MR KARAS: Unless your Lordship is with me on my primary submission, I would briefly draw your attention to a number of points.
MR JUSTICE ELIAS: Yes.
MR KARAS: Firstly, as Mr Pugh-Smith has pointed out and as your Lordship will be aware, under the Civil Procedure Rules, Rule 44.3(2), makes it quite clear that the general rule still is that costs follow the event.
MR JUSTICE ELIAS: Yes, that is the starting point really.
MR KARAS: It is the starting point, but it is described in the CPR as the general rule.
MR JUSTICE ELIAS: I know, but I understand where we start from.
MR KARAS: Secondly, I do reiterate the point that the fact that we pursued issues on which we have failed does not mean that we have pursued these issues unreasonably, given the inadequacy of the council's recording of its decisions and the fact that two of the faults - the amendment of boundaries and the substance of the application and the conservation area issues would not have arisen at all if we had an environmental statement, because these issues would and should have been set out quite clearly in an environmental statement.
In relation to the other points raised by Mr Pugh-Smith, in relation to the time estimate, as I understand it your Lordship had power to exercise discipline if your Lordship wanted to, if your Lordship felt that any of the submissions were being unhelpful, by setting a Lloyd's litigation timetable at any stage. Your Lordship did not. No additional costs have been raised by the length that the case took, if your Lordship concludes that the submissions were properly made. The only question is whether or not your Lordship should exercise some discipline in relation to the listing generally. But in my respectful submission this is not that sort of case.
In relation to the procedural points raised by Mr Pugh-Smith, as I understand matters the amendment was not opposed in relation to conservation issues; and in relation to phasing, in my submission no amendment was needed to the grounds because if one read the grounds, apart from the rubric of phasing, is quite clear the point we were making. The Sosmos case was only brought in to rebut a suggestion by your Lordship in argument that economic matters were not - or economic viability matters were not material considerations, and in some circumstances they clearly can be. That is all that the Sosmos case goes to. So that deals with the specific points raised, and unless I can assist your Lordship any further those are my submissions.
MR JUSTICE ELIAS: Thank you very much indeed.
I have to decide how costs should be awarded in this case. Essentially the claimants advanced five grounds and they succeeded on one of them. Under the Civil Procedure Rules Part 44 there are certain matters that I must consider when deciding what the appropriate order for costs is. It is true the general rule is that the costs of the successful party should be paid by the unsuccessful party, but a different order may be made in certain circumstances. The court must have regard to the conduct of the parties and whether a party has succeeded in part of its case, even it has not been wholly successful.
In this case, as I have said, the claimants succeeded on one of the five grounds they advanced. I have heard some argument as to whether the conduct of the claimants in this litigation was altogether satisfactory. It is said that some of the grounds they ought not to have pursued from the start, and I think that is probably right in relation to the amendment claim which did seem to me, as I found, to be well out of time.
Doing the best I can, and bearing in mind that it seems to me the claimants are entitled at least to initiate the grounds in relation to conservation and phasing - but perhaps in relation to phasing they might have reconsidered their position after receiving the witness statement from Mr Scott - but taking a broad view, and not getting into the detail of conduct, it seems to me that just focusing in fact on the degree of success, overall it seems to me a just position would be for the first defendant to pay 50 per cent of the claimants' costs in this matter.
MR PUGH-SMITH: My Lord, that is very just and comes as no surprise. I am grateful.
My Lord that then leaves the issue of permission to appeal. I hope your clerk explained----
MR JUSTICE ELIAS: I gather you want to appeal.
MR PUGH-SMITH: I do. But it is on the discretion and delay point, my Lord. Can I just explain to your Lordship the way we see matters? For that purpose I have made a note of key dates, which is relevant to the submission I am going to make. If I could pass that up to your clerk? Thank you very much. (Handed)
My Lord, for those of us, certainly at the junior Bar, who have to make applications of this kind it is always a little invidious to say to your Lordship, "We think there are grounds upon which we can go to the Court of Appeal."
MR JUSTICE ELIAS: Please do not be embarrassed. That is perfectly in order.
MR PUGH-SMITH: My Lord, that is all part of the process. As your Lordship knows, the test that I have to satisfy you is either that there is a matter of general public importance and/or that there is a realistic prospect of success before the Court of Appeal.
MR JUSTICE ELIAS: I can see questions of construction of the regulations may be a matter of real public importance, but that is not what you are focusing on so much, is that right?
MR PUGH-SMITH: No. My Lord, the point I am focusing on is the question of delay and there is a public interest point there. Whilst your Lordship found the Malster case unhelpful - that was the Ipswich Town football club case - my Lord, there is a point that Sullivan J makes in the judgment in paragraph 99 of wider significance, and that is that in the interests of good administration if you find an error then you should point it out to the decision-making body. Clearly an environmental statement is of some significance, particularly in the light of the law since Berkeley----
MR JUSTICE ELIAS: Sorry, I recall in the Kathro case, I think Richards J took the view that you could be premature in raising your point about environmental statement before the actual ruling on planning permission.
MR PUGH-SMITH: Of course that was trying to quash the planning permission.
MR JUSTICE ELIAS: Yes, I understand.
MR PUGH-SMITH: But, my Lord, the point that we make here - and where, with respect to your Lordship, you have perhaps been unduly generous towards the claimant so far - is over the way in which they handled the matter. My Lord, what I put before you is a note of a key date drawn from the material which is in fact in your Lordship's papers. But my Lord, the starting point must go back to January 1996 when the initial outline planning application was submitted by Arrowcroft. As I draw to your Lordship's attention, both claimants were professionally represented from 1996.
MR JUSTICE ELIAS: Yes.
MR PUGH-SMITH: They responded to the outline application, but raised no issue on lack of or need for environmental statement. The references there, my Lord, the second one is to the committee report of March, where all the representations are set out in, I think it is appendix two. The first reference, paragraph 6, and that was to Mr Spencer's witness statement, he is my instructing solicitor, in which he was dealing with issues of delay, that was a witness statement which was filed in July of this year.
My Lord, the significance of that is this. Whilst your Lordship has found that the three-week, as it were, time period under regulation 9 was not mandatory, in other words it was open to the council to call for environmental statement at any time up until the grant of planning permission, nonetheless that is a significant starting point, bearing in mind the fact that the claimants were professionally represented. So in other words, one can assume that they knew what they were doing and they would take appropriate steps in order to safeguard their clients' position. This is the picture that unfolds to greater extent as we go through this timescale.
We then have the March 1997 `minded to grant' resolution, which was the view of members that they were prepared to support the scheme. Then, my Lord, we have the significant date of 29th July 1998, the advertised (?) provisions to which certainly BT responded. Your Lordship will recall that in respect of ground one, the amendment ground, your Lordship in fact notes in his judgment that the claimants took a point on that - in other words, that the issue should have been addressed then - and in (inaudible) discretion you took the view that they should have raised the point in 1998.
My Lord, the first point we make is that they could and should have raised the lack of environmental statement at that stage, bearing in mind the regulations have been in force for getting on for 10 years, and certainly the issue of the need for an environmental statement was something which must have been present, certainly in terms of overall consideration. Certainly that can be regarded as having deemed to have be of application, in view of the fact that they looked at the amendment point itself.
But my Lord, more significantly, we then have the objections from BT to first of all the first CPO----
MR JUSTICE ELIAS: Yes.
MR PUGH-SMITH: ----in June 1999, request in September 1999 to the government office to call in that multiple application for their own determination. But in terms, as it were, of the significance of the point and the significance of the error, my Lord I think the fairest way of putting it is this. Certainly from July of last year, when Burkett was decided in the House of Lords, I think it was July the tenth it was decided, certainly everybody was then aware of the fact that the planning process could not cure the procedural deficiency of having no environmental statement. Up until that time, the position, as it were, was still open to debate.
MR JUSTICE ELIAS: Still argument as to what the effect was, yes.
MR PUGH-SMITH: Yes. But, my Lord, the reason why the microscope needs to be applied to dates is this. One knows that in September there were objections lodged by Bloomsbury and then by BT in middle of the September to CPO number two. So really the battle had commenced, and indeed you will find certainly in one of the letters from BT they refer to a cancelled November inquiry, because originally the CPO inquiry was due to start in November of last year, then was going to be January and in the event it started just after Easter.
My Lord, again, one knows that in terms of the significance of the issue that the exchange of correspondence, or certainly the letters from Berwin Leighton and the Gethin response of 10th October.
My Lord, pausing there, whilst it was not until 10th April 2001 that BT requested a copy of the Gethin letter, my Lord that letter, I am instructed, was on the council's open file - that is the file which was accessible to the public - and, my Lord, certainly it would have been clear by then, anybody with even a rudimentary knowledge of environmental statement would have been aware of the significance of the fact that the issue was being debated. Again, no letter at all.
MR JUSTICE ELIAS: They would not necessarily have known from that what the final decision was. Was the reply on the file?
MR PUGH-SMITH: No, my Lord. There was no reply on the file, but the very absence of a reply----
MR JUSTICE ELIAS: But there was a reply.
MR PUGH-SMITH: Sorry?
MR JUSTICE ELIAS: There was a reply, but the question is: was it on the file?
MR PUGH-SMITH: My Lord, there was a determination, but as your Lordship noted in his judgment there was nothing on the file.
MR JUSTICE ELIAS: No, from the Gethin letter there was a reply from the solicitors?
MR PUGH-SMITH: Yes there was, that is right, the Berwin Leighton letter.
MR JUSTICE ELIAS: Yes, is that letter on the file as well?
MR PUGH-SMITH: Yes, oh yes. So it goes Berwin Leighton letter 1 in September, Gethin letter to Berwin Leighton letter 2.
But, my Lord, the significance of the point increases because we know that on 30th October - although we never saw this letter - BT actually wrote to the government office seeking to call in the planning application on the basis that there was an infringement of Article 6 of the Human Rights Act. So in terms of scrutiny, certainly the heat was being turned up.
MR JUSTICE ELIAS: It is certainly true I think that they had not noted the point or taken the point at an earlier stage. That I accept.
MR PUGH-SMITH: Yes, but the point that I am seeking to make is this my Lord: in view of the degree of scrutiny that was seemingly being paid to the whole process, they could and indeed should have done in the particular circumstances.
My Lord, there is then 2nd February when we formally sent a second letter notifying the claimants of further revisions. So, again, another opportunity, my Lord. But, my Lord, most important of all that on 12th February there was this pre-inquiry meeting at which BT were represented by Mr Horton, where an inspector directed the proofs were required by 3rd April. Indeed, my Lord, there had already been a request by us that statements of case should be provided, which the government office declined to enforce.
My Lord, we certainly know that certainly from February onwards Mr Horton has made it very clear to your Lordship in court that since his involvement certainly matters were looked at with even greater scrutiny.
My Lord, taking matters together, it is my submission that on the question of delay one has to look at when would be the first reasonable opportunity for the matter to be raised. I have already identified that certainly that was back in 1998, in July 1998. If your Lordship were to be against me on that point, certainly my Lord in the late autumn of last year. There was every reasonable opportunity to raise the point. But, my Lord, all that happens is there is a rather bland request on 2nd April from BT asking whether there has been environmental statement, and indeed followed up by this request on the 10th that we responded to perhaps more timeously than the first----
MR JUSTICE ELIAS: The bland request might be said to be a polite request.
MR PUGH-SMITH: Certainly.
MR JUSTICE ELIAS: If it had been an aggressive request, no doubt you would have said it was an aggressive request. Any way, but I take your point. There was a request, any way.
MR PUGH-SMITH: As your Lordship knows, until the actual decision notice is issued there is no formal grant of planning permission.
MR JUSTICE ELIAS: Yes.
MR PUGH-SMITH: It is well established law.
MR JUSTICE ELIAS: Yes.
MR PUGH-SMITH: So, my Lord, even at that stage, even at 2nd April, had the point been, as it were, properly drawn to the council's attention, there was the opportunity of the council to cure the situation. The inquiry was not yet opened. It could have actually asked the inquiry to be adjourned.
Instead what happens, my Lord, we have this sort of cat-and-mouse game. I submit, my Lord, for us to appreciate the significance of that, in terms of what is no more than essentially a fishing expedition, until the other side, conscious of the timescale running out, sent a letter before action on 4th May, which is the first time they actually say, "We think you have acted unlawfully."
My Lord, bearing in mind the approach of the courts to the question of time, and indeed the way in which litigants, lay litigants - as indeed in Malster and indeed in the case of Burkett - have been treated by the courts, one would think that a professionally represented claimant should be treated perhaps more strictly than a lay person. But the courts have made it clear that time is time and parties should act promptly.
My Lord, Burkett, your Lordship may be aware, is due to be heard in the House of Lords in February of next year. That may assist the law considerably on this whole question of time and planning permissions. But, my Lord, the issue that of course concerns my clients is the question of a CPO inquiry, which after all is in the public interest. It is not simply the preservation of a right to develop land. It is a right that in this instance has been used by the local authority to ensure that Gloucester City is regenerated. Therefore, my Lord, the issue of time and delay clearly is of critical importance, particularly in the situation in which we find ourselves where the inquiry has had to be adjourned to review the outcome of your Lordship's decision, although obviously we could not actually explain to anybody why we had to ask effectively for stumps to be drawn last week.
My Lord, taking these points together, my Lord, the question of time in this context (delay in other words) is a matter not only of wider public importance, but certainly open to considerable debate in this instance.
Whilst your Lordship has taken the robust view based on Ruddock that you would have extended time, with respect your Lordship did not indicate from whence you would have extended time. You just said simply "for a short period". I hesitate to ask your Lordship as to the date you had in mind, because after all your judgment has been handed down. But, my Lord, can I say that taking all these various points together it is my submission that certainly there are grounds in this particular instance for permission to be granted by your Lordship. Without reflecting any criticism at all, my Lord----
MR JUSTICE ELIAS: No, no, I am not offended. Yes, I am just looking at the time limit again it is:
"promptly and in any event not later than three months after the grounds to make the claim first arose."
MR PUGH-SMITH: Yes.
MR JUSTICE ELIAS: You have to identify some time when the grounds to make the claim first arose.
MR PUGH-SMITH: My Lord, I have sought to do that. We would submit that July 1998, taking the claimants' own case, was the date when----
MR JUSTICE ELIAS: But it must be - I mean, I cannot think of any case - there may be some, but I cannot think of any - which would have identified the time when you should take your claim as being the time when you think or you could have found out that there may be illegality, particularly when that illegality is? I have to say, I think the real problem with this point is that it could well be said that any action taken before the actual determination of planning permission would be premature. It could be said, "This can be provided any time, you should not be racing off to the courts at every whipstitch to challenge different stages in the procedure."
MR PUGH-SMITH: My Lord, that is where the issue of environmental statements perhaps can be treated as an area apart. Because as Sullivan J points out in the context of Malster, that if the error has been pointed out then the error can be cured. After all, the exercise is in the public interest because, as your Lordship has found, there is the opportunity, there must be a full debate as to the positive and negative effects of a particular development.
But, my Lord, the point which I home in on here is the fact that here is a claimant - here are two claimants, but BT in particular - who are preparing for a CPO inquiry, they are keeping their powder dry. Effectively, my Lord, the council has been ambushed. My Lord, it is my submission that is not only unfair but against the public interest, and certainly running contrary to the spirit of Part 54.5. But as far as the timing point is concerned, my Lord, in terms of the three months, certainly they knew or could reasonably have formed a view by the time there was a further circular letter notifying the claimants of the further revisions of 2nd February. My Lord, the claim was not even issued until 18th May, and even then it was wrongly served. If you recall Arrowcroft were not served, it had to be corrected and then they add the conservation area ground which Mr Karas said is so important for environmental statement. That was not even thought about and added until the middle of June, by which stage, my Lord, we are well into a public inquiry which was originally intended to last for two weeks and has now run for several months.
But, my Lord, the point is this. In terms of, as it were, when a claim could reasonably be taken, my Lord I would ask you to focus on that period from effectively the middle of October through to 2nd February. Because we know that they were assiduously looking at matters - otherwise why write a letter to the government office on 30th October seeking and a call in on human rights grounds? Somebody must have sat down and given very careful consideration to where a call in could have taken place.
My Lord, the environmental statement point would have been an equal ground for a call in. Because as your Lordship knows----
MR JUSTICE ELIAS: I do see this. I see the point you are making. But it is not generally thought, I think, to be the approach in judicial review to say that you must take your claims within a certain time of the period when you ought to have recognised you had them, or that you would be likely to have them. In a sense you do not have your - I think at least it is arguable you do not really have your environmental claim - at least under the old rules, because of course the new ones pinpoint a particular time to decide----
MR PUGH-SMITH: Exactly.
MR JUSTICE ELIAS: ----until the planning permission is granted. I do have some sympathy for the idea that one might say parties can - I am not suggesting whether it was done in this case or not - but can deliberately not raise a ground, put it before the council or whoever the decision-maker may be, in the hope of catching them out. But I am not aware of any case that said that, as it were, they have to play that policing function, if I can put it in a slightly tendentious way perhaps. But you see what I mean.
MR PUGH-SMITH: My Lord, Malster, coming in 1999, actually says that. If I can pass the copy of the - or read out the relevant paragraph, my Lord. This is the paragraph that Mr Roots drew to your attention, and what Sullivan J says is this:
"Ground (1) remains the main complaint made on behalf of the claimant. Where such a challenge is to be made, it is of vital importance that it is made promptly. Faced with a challenge to the lawfulness of a screening opinion, the local planning authority may wish to reconsider its position and ask the Secretary of State to make a direction accordingly (see paragraph 66 of Circular 2/99), or the developer may volunteer an EIA. It is not appropriate to wait until after planning permission has been granted, when it is too late to remedy the omission, and then complain that the screening opinion, which has been on the public register for some months, was erroneous. Each case will of course depend on its own particular facts."
MR JUSTICE ELIAS: You see, that is different to this case since there was an obligation to make a screening opinion. So there would be an actual determination, the decision has been reached.
MR PUGH-SMITH: Yes.
MR JUSTICE ELIAS: Even then, it seems to me, with great respect to Sullivan J, there may be cases where it could be said to be premature to be going at that point. But nonetheless, I take the point that very often one can say, "There is a determination. It is one that has to be reached according to law." If you are going to do something about it, I can see a very strong case for saying that either you challenge it then, or at least you write to the council saying, "It is our clear view that this is wrong; do you want to us challenge it now or do you want us to leave it and wait and see what the outcome is?" I see the force of that, but it does and indeed did seem to me that that paragraph is in a different context.
MR PUGH-SMITH: My Lord, with respect, no it is not. Because what effectively took place in October last year was a screening exercise. Indeed, Berwin Leighton referred to regulation----
MR JUSTICE ELIAS: It is not a statutory----
MR PUGH-SMITH: I appreciate that.
MR JUSTICE ELIAS: I take your point, I see how you are putting it.
MR PUGH-SMITH: My Lord, with an objector who is clearly going through the documents preparing for a CPO inquiry, my Lord, that is very different from the individual who just happens to see something on the file because they are concerned about the impact of a new football stadium on their property. My Lord, that is a point which I would ask your Lordship to bear in mind. These are, as it say, professionally represented, as well as professionally advised, clients with almost limitless resources, my Lord, to throw resisting this particular CPO. That is, with respect, very, very different. Indeed, my Lord, their ability to write letters is certainly something which has not been, as it were, held back at all. It is just that there is this conspicuous period of silence until, of course, there is the run-up to the inquiry, and indeed after the actual resolution of 12th March.
My Lord, can I just say in that regard of course the very absence of any reference to an environmental statement in the committee report in itself is something, my Lord, which could have been remarked upon but was not. But, my Lord, I am perhaps speculating when I get to that stage, because I submit that it is was clear last October that the position was far, as it were, from happy over this issue.
My Lord, I suspect that if I continue I may start repeating myself. It is not the best approach for an advocate. My Lord, all I would invite your Lordship to do is certainly to allow this issue to be dealt with by the Court of Appeal. It is certainly something that needs to be addressed by the courts, and my Lord does not in any way invalidate the substantive findings you have made on the environmental statement issue upon which we stand here and we take it on the chin, as it were.
MR JUSTICE ELIAS: No, Mr Pugh-Smith, notwithstanding your persuasive arguments - and you have put the case well - this is ultimately a matter of discretion. I do, I have to say, still take the view that the Ipswich case is under different regulations, where different principles apply. It seems to me that this was a discretionary decision which I was entitled to make and which I think the Court of Appeal would have difficulty saying - or I would have difficulty saying there is a realistic prospect of success, given that I see the decision in that light. But you can try and persuade them otherwise.
MR PUGH-SMITH: Thank you very much, my Lord. Thank you also for the gracious way in which you dealt with it.
MR KARAS: My Lord, I anticipate that I will not ultimately need to go to the Court of Appeal if my learned friend does not seek permission and receive permission from the Court of Appeal. But in order to protect the claimants' position, I ought respectfully to ask your Lordship for permission. Though if your Lordship grants permission on the grounds which I put before your Lordship, I would ask for a general extension of time in relation to the service of any notice of appeal, pending the outcome of any application or indication that they are not going to pursue an appeal on the council's part. But perhaps I can make my substantive application for permission prior to determining the mechanism.
MR JUSTICE ELIAS: Yes.
MR KARAS: In relation to the grounds of appeal, in my respectful submission there are both grounds of general importance and grounds with reasonable prospects of success upon appeal - I am leaving the human rights' point aside for the moment - both in relation to the amendment issue and in relation to the conservation area issue.
In relation to the amendment issue, the law concerning the powers of local planning authorities, and indeed the Secretary of State upon appeal, although there is a practice that has grown up which has first instance judicial approval directly and in the (inaudible) Court of Appeal----
MR JUSTICE ELIAS: Indirect Court of Appeal support.
MR KARAS: Quite so. There is, in my respectful submission to the judges in this case, no satisfactory juridical basis upon which the local planning authorities and the Secretary of State's powers of amendment rest. Your Lordship has pointed to no provision within the primary, nor indeed the subordinate, legislation upon which the power of amendment rests. In my submission, in the absence of such analysis based upon the statutes which, after all, govern the local authorities, and indeed the Secretary of State's powers upon appeal, it must remain open to significant doubt as to what those powers are.
MR JUSTICE ELIAS: Yes, I have the general point.
MR KARAS: You have the point. It is of general importance, and in my submission in this particular case there are real prospects of success, depending upon what the test for amendment, if indeed amendment----
MR JUSTICE ELIAS: I think your other problem, if I may say so, I think is this. I have found, as you know Mr Karas, that it is in any event out of time. I do not think - in fact I remember Mr Horton saying in terms he was not saying that the 2001 amendments were sufficiently substantial. He was saying that the 1998 amendments were sufficiently substantial as to warrant the conclusion that they should not have been allowed, and so you have that hurdle to cross as well.
MR KARAS: My Lord, yes, we do have that hurdle, but in my submission the points - the way I put it to start with is a point which I submit is of sufficient public importance----
MR JUSTICE ELIAS: That would not help you, because the Court of Appeal would not just determine the matter, as it were, in the abstract. If they were going to come to the conclusion in any event that the matter was out of time, then they would not want to consider this point independently of that.
MR KARAS: My Lord, yes, but by analogy with the way in which your Lordship dealt with environmental statements, if we are right as to the substantive powers, in my respectful submission it is a point of general importance if the local planning authority has acted in such a way that it is wholly without its powers. I can probably say no more than that. But I make the application.
In relation to conservation areas, again this is a point in my submission of general public importance. It does overlap with the environmental statement issue. The general point is that your Lordship's judgment has a significant impact, may have a significant impact, on the way local authorities and indeed the Secretary of State will view the application of the Secretary of State's policy of PPG15 and the general approach requiring detailed planning permissions to be in place, in the absence of something extraordinary prior to the granting of this building and conservation area consent. That is the general point. It is a matter of the construction and application of policy.
The more specific point in this particular case is that in my respectful submission on the substantive points your Lordship has taken a view to the material before the local planning authority. What your Lordship, in my submission, has not done is analysed certain parts of the evidence which indicate not only what material was before the authority, but genuine omissions from consideration. For instance, Mr Blaney's evidence as to what Mr Scott has said in relation to his understanding of the height of the flank wall of the BT store in relation to the Grade II-style listed building, Robert Raikes House. He did not know at the inquiry that it would be up to 17 metres high. That is a clear, serious omission.
So I submit that, both in the general points and in relation to the evidence before your Lordship, there was a clear failure on behalf of the local authority to apply policy.
MR JUSTICE ELIAS: On the general point, sorry, on the general point, is it your submission that the council would not as a matter of law be entitled to look at the conservation area issue again when dealing with the reserved matters?
MR KARAS: They would be severely constrained. They would have to----
MR JUSTICE ELIAS: No, no, it is not a question of - sorry, it is not a question of the extent to which they may or may not be entitled. I just want to know as a matter of law, are you saying that when they deal with the reserved matters they could not, at that stage, take into account conservation area considerations?
MR KARAS: They could only take them into account to a limited extent, because the principle of development had been established. That is clear. So as a matter of law: yes, conservation areas might be taken into account, but only, only, in a limited way. They could not reopen the general conservation issues. That of course is a very important distinction between the position on an outline application and a reserve matters application. An outline application, what one is considering is the principle of development and once that is established it is not possible to revisit----
MR JUSTICE ELIAS: No, I understand that. But I am not sure why that limits the analysis in conservation terms. If one says, for example, "On the face of it this seems entirely compatible with preserving or indeed enhancing the conservation of the area. True it is that we do not have at this stage the detail on design or external appearance, and so we cannot exclude the possibility that it will not because they can put in what they like, as it were. We cannot exclude the possibility that when we see the detail it may not be in accordance with preserving or conserving the environment. But surely they could at that stage take that into consideration?
MR KARAS: They can take it into consideration. The difficulty is, of course, in this case we do not have an environmental statement----
MR JUSTICE ELIAS: That is a different matter.
MR KARAS: It is perhaps not when looking at the particular facts of this case. We do not know. There are omissions of detail in relation to archaeology, in relation to various environmental issues. We do not know what constraints may be thrown up as a result of the environmental statement. Accordingly, one does not know at this stage whether or not, when one gets to the details stage, one will be able, consistent with all the other constraints on the site, to be able to produce a scheme which in principle will not have an adverse impact on the conservation area in a way which is inimicable. This ground is tied in with the environment statement ground. Indeed, in the ground we have linked both grounds together. They are integrally bound up. My Lord, I think I have probably made the submission on that.
On the phasing issue, I leave it to your Lordship. I ask it. It is a discrete point. One cannot say it is of general importance. We do say, however, that there are reasonable prospects of success.
On the human rights ground, firstly in my submission it is of obvious general public importance. In relation to the prejudice point, on which your Lordship has found against us, we do submit judicial review in this particular case has not been adequate because of the lack of transparency in relation to two of the issues on which your Lordship has found against us. Not a lack of transparency in your Lordship's judgment, but the lack of transparency in the decisions which we have had to challenge. The amendment ground, the reasoning did not come from the process which we were considering. They have come by luck in evidence in the (inaudible). But it would have been open to the local planning authority to sit back and say, "You simply have not proven your case." On the conservation area ground, your Lordship heard Mr Horton's submissions, and your Lordship has dealt with Mr Horton's submissions as to the way this sort of decision is treated by the court and what has to be expressly considered. But in the absence of fuller consideration, rather than the elliptical officer's reports which are generally taken as adequate in this context, it is very hard, if not impossible, in very many instances to get to the bottom of the decision-making process. So that is----
MR JUSTICE ELIAS: I fear though, Mr Karas, I think with great respect you are falling into the trap of complaining about the general procedure. I think the fact that you could identify these two issues, which are indeed issues you were able to raise and did pursue show you were not prejudiced. True it is that I found against you, but in other words in this case - I am not saying as a general principle - but in this case the lack of transparency plainly did not prejudice you on those two matters. As I have indicated in my judgment, I am not unsympathetic to the idea there will be cases, perhaps, where the lack of transparency will justify somebody saying: "We actually have suffered a prejudice and it is not capable of being put right." But the two things were capable of being put right.
MR KARAS: Perhaps I can point to one specific instance where we have been prejudiced. In relation, for instance, to the 17 metre high flank wall of BT's, abutting Grade II* - not simply a Grade II - a Grade II* listed building----
MR JUSTICE ELIAS: It was not put like that, I am afraid, in argument. I am not going to----
MR KARAS: It was put - with respect, it was put in the written----
MR JUSTICE ELIAS: No, no, it was not put in terms of the human rights' point. It was not put in as a fact, as it were, as a feature that you were not able to----
MR KARAS: One of the general points we did put, and this is clearly in the skeleton argument, and we did put the point on a lack of transparency, and this is one example of a lack of transparency that in my respectful submission does appear within the papers, if he is looking to particulars to support the general point. If one looks at that specific example in relation to the conservation area ground, your Lordship has found, as your Lordship would do following the approach of the courts generally, that the conservation area issues were dealt with in the usual elliptical manner perfectly satisfactorily. However, in my submission, that is a particular instance, the treatment or lack of treatment of the relationship between the department store and the Grade II* listed building, which should be dealt with and we should have had an opportunity of being able to challenge and explore issues such as that. That is simply one example of the general point. So I do say in this particular instance we have been prejudiced. One could point to others, but I have plucked one which clearly does appear on the papers before your Lordship.
So I have made the application. One hopes one will not need to pursue it, but at least I raise the application.
MR JUSTICE ELIAS: No, I understand.
No, I am sorry I would not give you leave on any of these grounds. As to the first, even if I thought there were any real doubt about the legal principles, I do think this is plainly now out of time and there is no analogy, it seems to me, with environmental statement in that regard.
As to the question of the human rights ground, as I have indicated I took the view that you had not in fact been prejudiced in the circumstances of this case. It seems to me that the grounds which you advanced at the hearing were not grounds, which were not the sort of factual grounds which seemed to me might have permitted a case of this kind to get off the ground. You have indicated, perhaps Mr Karas, one ground now that you might have run, but you did not at the time (clearly not with any fervour) and I do not think it would be right that you should be able to run areas where you now say the lack of transparency did cause you problems.
As to the conservation area points, it seems to me that was a matter at the end of the day in my discretion of seeing whether what had been done was an adequate compliance with the law or not. I have come to a conclusion about that, and it seemed to me a matter of discretion.
So the answer is no on those three matters.
Thank you very much. Sorry.
MR WILLIAMS: My Lord, just for the record, we took the same stance as regards the application for permission to appeal as my learned friend Mr Pugh-Smith. Obviously the interest - the public interest in the development not being prejudiced by delay is different from the council, and the prejudice arising from it is also different, but the process and the public interest from a developer's point of view is well documented and I am not going to rehearse the argument that Mr Pugh-Smith took you through on how the process arose. For the record, I take it on board.
MR JUSTICE ELIAS: You share his concern.
MR WILLIAMS: Yes.
MR JUSTICE ELIAS: I am sorry, I had not appreciated you wanted to make any submissions about the matter. But any way, you have put on record that you agree with him and support his application.
Can I thank you all - I am sorry, you had something else----
MR PUGH-SMITH: No, my Lord, I was just rising to my feet.
MR JUSTICE ELIAS: Thank you for your time.
MR PUGH-SMITH: I thank your Lordship for his time.
(The court adjourned)