QUEEN'S BENCH DIVISION
B e f o r e :
|THE QUEEN ON THE APPLICATION OF|
|IPSWICH BOROUGH COUNCIL||Respondent|
|IPSWICH TOWN FOOTBALL CLUB||Interested Party|
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0207-421 4040/0207-404 1400
Fax No: 0207-831 8838
Official Shorthand Writers to the Court)
MR J LITTON (instructed by Ipswich Borough Council, The Civic Centre, Civic Drive, Ipswich, Suffolk IP1 2EE) appeared on behalf of the Respondent.
MR D ELVIN QC and MR J MAURICI (instructed by Ashurst Morris Crisp, Broadwalk House, 5 Appold Street, London EC2A 2HA) appeared on behalf of the Interested Party.
Crown Copyright ©
Friday, 17th August 2001
MR JUSTICE SULLIVAN: Introduction
"The Borough Council has considered the application in accordance with regulation 7(1) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ('the 1999 Regulations').
The development proposed falls within the description at paragraph 10b of Schedule 2 to the 1999 Regulations and meets the criteria in column 2 of the table in that Schedule. In the opinion of the Borough Council, having taken account of the criteria in Schedule 3 to the 1999 Regulations the development proposed would not be likely to have a significant effect on the environment by virtue of factors such as the development's nature, size or location.
Accordingly the Council adopts this Screening Opinion in accordance with regulation 5(4) of the 1999 regulations to the effect that the development for which planning permission is sought...is not EIA development and therefore an Environmental Statement is not required.
In accordance with Regulation 20(1) of the 1999 Regulations this screening opinion has been placed on Part 1 of the Planning Register."
"The floodlights are not part of the application and will be the subject of a further submission but it is likely that these would be angled off from the end blocks as opposed to being an integral part of the cross lattice steel work as at the south stand."
"The structure would be located parallel to the hostel at 3 Sir Alf Ramsey Way and approximately 7 metres away from the building."
"Proposals for the development of new indoor sport and leisure facilities, the extension of existing facilities and the conversion and change of use of buildings to sport and leisure uses will be acceptable providing;
(b) there is no significant loss of residential amenity enjoyed by residents of nearby properties."
"The consultation undertaken by the planning department goes far beyond what is necessary under the Regulations and is considered satisfactory."
"...it is acknowledged that the club have a tight timetable requiring the lower tier to be constructed during the closed season and the upper tier to be completed before the end of next season."
"The main planning issues in this case are design, materials, impact on the street scene and the impact on nearby housing."
"There will undoubtedly be a very close relationship to the hostel at 3 Sir Alf Ramsey Way. The turnstiles will be approximately 14 metres away, the upper concourse 11 metres away with the curved top most part of the structure angled 60 degrees from the eaves of the hostel at 12.5 metres away. This is very close, but generally it is within an area of contrasts."
"Generally, the 3 story hostel at no. 3 Sir Alf Ramsey Way screens off the remainder of the 2 storey terrace. Importantly, Alderman Terrace is orientated towards the park and therefore has a flank relationship to the proposed stand. The Britannia Stand is approximately 5 metres taller than the proposal and this is an existing relationship of a large building to Alderman Terrace. The old floodlights now removed were again, a much taller structure than the adjacent terrace. Therefore, there are existing stark contrasts of scale within the area."
"Substantial external environmental improvements will be made. The existing stand is an eyesore in the area. The associated paving, landscaping lighting improvements will generally upgrade the appearance of Sir Alf Ramsey Way."
"There are two issues in this case; the effect on the hostel at 3 Sir Alf Ramsey Way and the effects on the adjoining dwellings. Portman Road flats are approximately 60 metres away from the structure and are not considered to be unduly affected."
"The size and proximity of the structure will have a severe impact on light into these rooms. The proposal is therefore not acceptable unless significant alterations are carried out to provide more windows at the rear."
"Planning permission should not be granted until the issue of this hostel is resolved."
"With regard to the effect on other dwellings- according to the nationally adopted indicators, sunlight and daylight into specific rooms is not an issue because of the east west orientation of these dwellings. Front and rear windows would receive adequate sunlight/daylight generally, notwithstanding any over-shadowing by the Stand. None of these dwellings have windows facing south. The main issue, therefore, is the shading effect of the new stand. These judgments are made according to the situation at the equinox, March 31st, being an average between the high summer and low winter sun positions. The rear garden of 43 at that time will remain in shadow between 8 am and 3 pm. No. 42 will have approximately half of its rear garden clear by 3 pm. The rear garden of 41 would clear by approximately 1.30 pm. The rest of the terrace would be unaffected. The situation will improve substantially during the summer months when gardens are in use more. The planning standard is that no more than 75% of gardens should be in shade between 8 am and 4 pm at the equinox. The gardens of 41 and 42 would meet this standard. Regarding 43 this is IBC owned and the tenant is already seeking a move elsewhere..."
"The proposed ground capacity of just over 30,000 is still significantly less than the one-time maximum of c.38,000. Whilst crowd behaviour may not be as good as it was, it is not considered that problems of general nuisance are critical.
On balance, given the substantial improvements to the locality which would occur as a result of this proposal and the wider benefits of the new stand to the town and its sporting context, the proposals are considered to be acceptable in planning terms, provided an agreement can be reached over the Hostel. There is no escaping that this is a large building that will be a significant feature in the area, but it is not considered that any adverse effects on nearby residents are so significant as to warrant refusal of permission."
"There is no environmental impact assessment available that considers in a formal way the likely effect of the development on the human environment and on the natural environment. Your report acknowledges the likely overshadowing and loss of amenity to the gardens on Alderman Road but fails to make any reference to the impact of the development on the open space to the west side of Alderman Road that is such a valuable and cherished resource to the local community. Its amenity and the ecological balance could well be affected. Yet you have failed to consider this or to reassure the residents and users by insisting that an environmental impact assessment be carried out and published."
"RL17: The planning report states (b) that there should be no loss of residential amenity enjoyed by residents of nearby properties. This will obviously happen because of the size of the proposed structure and its nearness to residential dwellings. The loss of light and the Right to Light are enshrined in the law and the fact that these properties are at right angles to the ground doesn't mean the effect will be any less noticeable. The report is incorrect when it states that no properties in the terrace of Alderman Road have south-facing windows, because at least half of them have, and the effect of loss of sunlight and daylight will be significant. You will notice from your diagrams that on 21st December the complete section of the terraced area of Alderman Road is in shade for the whole day, apart from a couple of houses at the top and whose fronts, at 2.00 p.m. start to get some sunlight prior to sundown from 3.30 p.m. approximately. This will obviously mean that from the end of October to the end of March all of this section will receive no direct sunlight for five months. We all know that the weather as it is these days, it is just as likely to be sunny on December 25th as June 25th."
"To comply with European Union Legislation, all major developments that will have a potential impact on the environment must undergo an environmental assessment prior to Planning permission being granted."
"It has been noted that the Planning Department have assessed this application as a Schedule 3 and not Schedule 2 project. It obviously comes under Infrastructure Projects 10B as this proposed development is over 0.5 of a hectare. Under the circumstances set out previously in this report, the Council...have not done enough assessment or studies to suggest that the decision that 'this would not have a significant effect on the environment by virtue of factors such as the development nature, size or location' would fall outside Schedule 2.
In considering all other previous environmental statements, it must be remembered that large numbers of people, plus the extra pollution from motor vehicles that increased capacity brings could have serious consequences for the area known as Alderman Road Canal Local Nature Reserve (Policy NE18, site 3.3) also the environmental impact on the park itself and its wildlife of squirrels, ducks, geese, owls and various other birds most certainly needs to be assessed... The need for an Environmental Impact Study cannot be overstated as the damage that would be caused by this proposed development would be irreversible..."
Given the substantial environmental impact, the loss of light (both sunlight and daylight), the congestion, the noise and pollution and the lack of access to this proposed development will cause, we the residents request the Committee to take into consideration the following:
The policies of the Ipswich Local Plan state..."
"Hostel is for homeless people who will already be vulnerable - loss of daylight/sunlight and increased shadow will not be satisfactory particularly in the light of the vulnerable nature of the occupants."
"This has east/west aspect, therefore park aspect mainly."
"Up to 12 extra gardens would be affected at the December Solstice. But by 2 pm these gardens would be shadowed anyway by the existing dwellings. Exercise caution in applying too much weight to this situation at the Winter Solstice. This is the worst case, limited sunlight, limited use of gardens, and crucially 2 metres high fences/hedges would shadow the gardens anyway - see section drawings provided."
"Schedule 2 development - schedule 2 development is not generally EIA development unless the thresholds in Schedule 3 are exceeded. They are not in this case. I gave Power Stations as an example."
"Works to construct the upper tier of the stand shall not be commenced until a scheme of the reprovision of the Hostel at 3 Sir Alf Ramsey Way has been submitted and approved by the Local Planning Authority."
"The development would be obstructive and cause unacceptable loss of sunlight/daylight to the southern aspect of the Hostel."
The claimant's grounds
(1) The screening opinion dated 23rd March that the proposed development would not be likely to have a significant effect on the environment, and that therefore an EIA was not required, was erroneous in law.
(2) The proposed development contravened Policy H7 of the development plan, and the Council failed to consider the presumption against granting planning permission contrary to the development plan: see section 54A of the Town and Country Planning Act 1990.
(3) The proposed development infringed the claimant's rights under Article 8 and Article 1 of Protocol 1 to the European Convention on Human Rights because of the severity of overshadowing. The Council failed to consider the interference with the claimant's rights and the procedures adopted failed to provide the claimant with a fair determination under Article 6 of her civil rights. I will consider these grounds in turn.
(b) Urban development projects, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas".
"Where a local planning authority or the Secretary of State has to decide under these Regulations whether Schedule 2 development is EIA development the authority or Secretary of State shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development."
"The environmental sensitivity of geographical areas likely to be affected by development must be considered, having regard, in particular to -
(a) the existing land use;
(c) the absorption capacity of the natural environment, paying particular attention to the following areas..."
"In the light of these, the Secretary of State's view is that, in general, EIA will be needed for Schedule 2 developments in three main types of case:
(a) for major developments which are of more than local importance;
(b) for developments which are proposed for particularly environmentally sensitive or vulnerable locations; and
(c) for developments with unusually complex and potentially hazardous environmental effects."
"The number of cases of such development will be a very small proportion of the total number of Schedule 2 developments. It is emphasised that the basic test of the need for EIA in a particular case is the likelihood of significant effects on the environment. It should not be assumed, for example, that conformity with a development plan rules out the need for EIA. Nor is the amount of opposition or controversy to wich a development gives rise relevant to this determination, unless the substance of opponents' arguments reveals that there are likely to be significant effects on the environment."
"I was drawn to this conclusion for the following reasons;
(i) Whilst the application site exceeds 0.5 hectare, unusually, this application site area included extensive areas of highway outside the development itself, to incorporate proposed improved surfacing and landscaping works to Sir Alf Ramsey Way. The actual area of the new stand is in fact 0.34 hectare, in other words it is below the 0.5 hectare threshold given in the Regulations.
(ii) The capacity at the ground after development would be 8000 people less than the one time previous standing capacity.
(iii) I therefore concluded that the development itself was not of a size to merit EIA (category 1(a)) and that neither were there implications in relation to Category 1(b)-(f) of the selection criteria in Schedule 3.
(iv) The development is not located within an environmentally sensitive geographical area (Criteria 2 Schedule 3) and
(v) The effects of the potential impact were not of sufficient magnitude, or complexity, to warrant EIA (Criteria 3.Schedule 3).
8. Circular 02/99 confirms that the approach adopted as set out above is correct (see paragraph 33). The Circular gives advice on how to determine when EIA is required generally and under A18 reference is made to the fact that EIA is unlikely to be required for the redevelopment of land unless the new development is of a significantly greater scale than the previous use or the types of impact are markedly different. Further, A19 refers to 'greenfield' sites of 5 acres or 10,000 sq.m of new commercial floorspace, neither of which apply to the planning application/proposal in this case. I therefore concluded, having taken all of the above into account, that the proposal for the redevelopment of an existing stand at the football ground was not EIA development...
9. I took account of the fact that the existing floodlights were likely to be replaced in conjunction with the proposed redevelopment of the North Stand (albeit that this did not form part of the planning application). Any replacement floodlights will face into the stadium and away from neighbouring properties. I did not consider the replacement of the floodlights to be significant."
"The Regulations do not expressly impose upon either the local planning authority or the Secretary of State a general obligation to consider whether an application is a Schedule 2 application or not. Regulation 5 requires the planning authority to express an opinion only if so requested by the applicant and regulation 10 requires the Secretary of State to notify the applicant that an environmental statement is required if it 'appears' to him that the application is a Schedule 1 or Schedule 2 application, without imposing an express obligation to consider the matter. The prohibition upon the grant of planning permissions without an E.I.A. regulation in 4(2) applies expressly only to 'any Schedule 1 or Schedule 2 application'. But, since the question of whether an application is a Schedule 2 application is primarily entrusted by regulation 2(2) to the Secretary of State, it is not difficult, in order to make regulation 4(2) effective, to imply into that regulation an obligation upon the Secretary of State to consider the matter...
If no reasonable Secretary of State could have considered that the club's application was a Schedule 2 application, the judge would of course have been entitled to rule that no E.I.A. could have been required. But [Counsel for the Secretary of State] does not so contend. It is arguable that the development was an 'urban development project' within paragraph 10(b) of Schedule 2 and the conflicting evidence on the potential effect on the river is enough in itself to show that it was arguably likely to have significant effects on the environment. In those circumstances, individuals affected by the development had a directly enforceable right to have the need for an E.I.A. considered before the grant of planning permission by the Secretary of State and not afterwards by a judge."
"That would be contrary, not merely to the structure of the regulations, but to the statutory Town and Country Planning framework of which they are but a part. Under the regulations it is for the local planning authority, or the Secretary of State, to decide whether a proposed development falls within the descriptions of the development set out in Schedules 1 and 2, and in the case of the latter whether it would be likely to have significant effects on the environment: see the speech of Lord Hoffmann at 429H to 430A in Berkeley. The local planning authority's or the Secretary of State's decision is subject to review on Wednesbury grounds. Regulation 4(2) requires the local planning authority or the Secretary of State to take the environmental information (which includes the environmental statement) into consideration before granting planning permission. Against this background the regulations plainly envisage that the local planning authority or the Secretary of State will also consider the adequacy of the environmental information, including any document or documents which purport to be an environmental statement."
"The question whether such information does provide a sufficient 'description of the development proposed' for the purposes of the assessment regulations is, in any event, not a question of primary fact, which the court would be well equipped to answer. It is pre-eminently a question of planning judgment, highly dependent on a detailed knowledge of the locality, of local planning policies and the essential characteristics of the various kinds of development project that have to be assessed."
"The decision whether any particular development is or is not within the scheduled descriptions is exclusively for the planning authority in question, subject only to Wednesbury challenge. Questions of classification are essentially questions of fact and degree, not of law. I reject [counsel's] submission that only one possible view was open to [the Council]. I accordingly decline now to take the decision myself. Even less am I persuaded that this court is entitled upon judicial review to act effectively as an appeal court and to reach its own decision so as to ensure that our EC treaty obligations are properly discharged."
"In the present case, the primary decision maker either has, or has ready access to, a relevant body of expertise and experience. However, the Court in which proceedings are taken also has considerable experience, particularly in its Class 1 jurisdiction, of making judgments of this character. Indeed, in a Class 1 case, i.e. if an unsuccessful applicant brings an appeal to the Court, the Court may have to make the very same judgment, because the Court itself must take into account s90(1)(c3) of the EPA Act. The nature of the judgment, which may be entitled to significant weight in another judicial review context, is not of such significance in the present context."
"The Secretary of State may make a screening direction irrespective of whether he has received a request to do so."
"The Secretary of State may direct that particular development of a description mentioned in Column 1 of the table in Schedule 2 is EIA development in spite of the fact that none of the conditions contained in sub-paragraphs (a) and (b) of the definition of 'Schedule 2 development' is satisfied in relation to that development."
"That ignores the fact that the environmental statement does not have to describe every environmental effect, however minor, but only the 'main effects' or 'likely significant effects'. It is not difficult to see why this should be so. An environmental statement that attempted to describe every environmental effect of the kind of major projects where assessment is required would be so voluminous that there would be a real danger of the public during consultation, and the local planning authority in determining the application, 'losing the wood for the trees'. What is 'significant' has to be considered in the context of the kinds of development that are included in Schedules 1 and 2. Details of landscaping in an application for outline planning permission may be 'significant' from the point of view of neighbouring householders, and thus subject to reserved matters of approval, but they are not likely to have 'a significant effect on the environment' in the context of the assessment regulations."
"The protection of residential areas from the introduction of commercial and industrial uses causing unreasonable levels of traffic, noise, air pollution and general activity is viewed as a key objective of the Plan."
"Non-residential uses in residential areas will be permitted where the proposed use:-
(b) is compatible with the size and scale of housing in the surrounding area and would not have an adverse effect on that area relating to noise, vibration, smell, safety, illumination, health, traffic generation and general activity caused by excessive numbers of people calling at the premises throughout the day and night."
"Policy H7 - is reflected in RL17 which requires that development proposals must not result in a significant loss of residential amenity. That requirement is met in this case. Moreover, the locality is a mixed residential and commercial area - this is reflected in the allocation in the Local Plan of the football stadium as a playing field facility. Policy H7 relates to primarily residential areas."
"Given that this area already has a substantial commercial use then Policy H7 would not be directly relevant."
"The special meeting was held in public. The agenda was available to members and to the public beforehand. In deciding whether there has been a breach of article 6(1) the procedures have to be looked at in their entirety, including the earlier opportunities to make representations during the consultation process and the subsequent right to seek relief by way of judicial review if the Council errs in law. A 'fair' hearing does not necessarily require an oral hearing, much less does it require that there should be an opportunity to cross-examine. Whether a particular procedure is 'fair' will depend upon all the circumstances, including the nature of the claimant's interest, the seriousness of the matter for him and the nature of any matters in dispute. As indicated above, the claimants' interest in this matter is remote and on the evidence it could not be said that the consequences of the decision to grant planning permission will be significant, much less serious for them."
"Given the nature of their interest and the nature of the points in issue, the opportunity to make detailed representations during the public consultation process and to address the committee, I am satisfied that even if article 6(1) did entitle the claimants to a fair and public hearing, the procedures adopted by the County Council when looked at in totality did afford them just that opportunity."
MR LITTON: My Lord, I would ask for a costs order in favour of the defendants. I understand that the claimant is in receipt of legal aid, and therefore I think the appropriate order is that the claimant pay the defendant's costs, but that those costs should be assessed if not agreed.
MR JUSTICE SULLIVAN: You seek a legal aid order; is that what you are asking for?
MR LITTON: Yes, legal aid order.
MISS SHARPSTON QC: My Lord, I believe your Lordship does have the certificate, the legal aid certificate. It should be with the court.
MR JUSTICE SULLIVAN: It may well be with the court. Yes. Yes, the associate is nodding it is.
MISS SHARPSTON QC: It is indeed legally aided. Therefore, it is legal aid assessment, my Lord.
MR JUSTICE SULLIVAN: Right. Shall we just deal with things in order. Miss Sharpston, so far as the Council's application for costs is concerned, can you object to that on the normal legal aid basis?
MISS SHARPSTON QC: On the normal legal aid basis, of course, my Lord, I cannot. If I anticipate that my learned friend is going to make an application on behalf of the developers, such an application I would resist on Bolton grounds, and obviously Berkeley.
MR JUSTICE SULLIVAN: I can appreciate that. It seems to me to be entirely academic, quite frankly, but if Mr Elvin wants to make his academic application, by all means let him.
Would you like to make an entirely academic application for costs at 1.15, or do you think it is not a good idea?
MR ELVIN QC: My Lord, I am afraid I am instructed to apply simply to keep the matter open because, as your Lordship knows, post the decision of the Court of Appeal in Gunn, the matters have to be dealt with by application to the costs judge.
My Lord, it is a simple case on Bolton grounds. We had a specific interest and specific substantial evidence, both on the factual lead-up to the decisions of the authority, Mr Roberts' and Mr Sheeptan's(?) evidence, and indeed in order to protect our position on delay and prejudice. Had the matter had to be argued, in fact as you will have seen from the local authority's skeleton, the human rights issue was going to be left to us to argue and we had our discrete points on prejudice.
In my submission, this is one of the cases where two sets would be appropriate. In Berkeley there was no separate issue on the part of the football club. There was no additional matter other than as the Secretary of State raised.
Those are my submissions.
MR JUSTICE SULLIVAN: Yes, thank you very much. Miss Sharpston, I will not trouble you on that. Thank you very much.
In my judgment, the appropriate order is that the Council should have its costs, subject to the usual legal aid order. There should be no order so far as the Club's costs are concerned. I understand that it did have a specific interest. It is quite understandable that it was here, but looking at the matter in the round, I do take the view that quite frankly (a) it is entirely academic, and (b) there is an element of David and Goliath here. I am afraid Goliath can have its new stadium but not its costs.
MISS SHARPSTON QC: My Lord, I do have an application for permission. I wonder if your Lordship wishes to hear that application now or later. I am entirely in your Lordship's hands. How long is it going to take me, my Lord?
MR JUSTICE SULLIVAN: Yes. That really is the rather rude question that I would want to ask you, but if you are -- yes.
MISS SHARPSTON QC: Well, my Lord, I may be able to take it more quickly. What we had done, in the light of the indications your Lordship had given yesterday, was that we had roughed out what is erroneously labeled "draft grounds of appeal". It would be more aptly called issues which would form the basis of the application for permission.
MR JUSTICE SULLIVAN: Yes.
MISS SHARPSTON QC: I have been annotating those as your Lordship has given judgment today.
MR JUSTICE SULLIVAN: Right.
MISS SHARPSTON QC: May I hand up a copy which I have only partially annotated and then go through. And I aplogise to my learned friends. I am going to have to give them the annotations as we go along.
My Lord, this is not necessarily taking it in the order in which your Lordship dealt with the points in the judgment. The first issue is indeed the issue of whether your Lordship is right in saying that this is not a matter of jurisdictional fact, saying you are limited to the grounds of Wednesbury unreasonableness. And there I would merely add in the impact on your Lordship's analysis of the passages in Kriefeld(?) and the Dutch Dykes Case to which I took your Lordship.
There is, in my submission, an important point which is one of real public interest as to the view your Lordship took in your judgment as to whether a significant environmental impact requires that more than a limited number of people should be affected by the proposed development. My Lord, we have overnight seen whether we could turn up any case which was in that direction, as indicated by your Lordship. We have not found ECJ authority that goes in that direction, and indeed very informally we understand that the Commission does also take the view that there is no point of principle that such a general limitation on the Directive is not the way that the Commission would see its application. Of course, that is an entirely informal contact, and I merely mention it because it does highlight the importance of saying what the scope of Article 2(1) of the Directive is, which is in fact the issue to which your Lordship's judgment goes.
The human rights point is perhaps too broadly expressed in my point three with the analysis by planning committee of the human rights issues. I would perhaps add as a gloss to that that I may be in error, but I did not take a note of your Lordship indicating matters of proportionality in relation to that.
The fourth point is really a sub-point of the third, because of course the Human Rights Act, the ECHR, confers individual rights, and this is here a balance between individual rights and community interest and how that balance is to be struck.
Then the fifth point is the negative screening opinion point. What is the unlawful act: incorrect determination that an EIA is not required or subsequent resolution? Your Lordship's judgment just now, your Lordship has stated in terms that where there is a discrete challenge to a screening opinion, that challenge should be made promptly so that any error may be remedied promptly. My Lord, I would submit that that is very important from the planning perspective. With the greatest respect to your Lordship, it would be right for that matter to be considered further because it does -- in all EIA cases it does have significant consequences for third parties seeking to mount a challenge.
In the centre one could add what one might call the Berkeley point within that: is there a finite period -- your Lordship has been against us on the promptness issue. Is there a finite period to the extent of just applying the promptness requirement of the Supreme Court Act, or does promptness override, so that even if normally we would have been in time on our challenge, as your Lordship has just held on the particular facts of this case your Lordship felt that we had not acted promptly.
Then there is the Article 6 point, that is the determination that we should challenge the screening opinion.
I have added -- and I aplogise for the manuscript, my Lord -- but the point your Lordship raised in relation to the route of challenge to a screening opinion via Regulation 4(7). We would obviously -- we would say that does not provide a legal guarantee of challenge to third parties. It does not match the developers' rights. That raises the question of whether that route of challenge identified by your Lordship satisfies the need for effective protection of directly effective environmental rights as conferred on third parties by the Directive.
Now, your Lordship will understand that these points that have been raised are very much points relating to the interpretation of EC law in relation to the proper interpretation obviously of the Directive and the way in which that has been transposed into national law and your Lordship's construction of the -- of that transposition and the way in which it is then applied to the individual case.
Of course in a sense it is your Lordship's judgment that has identified these points, which I would submit a number of them are quite clearly points that are referrable points within the meaning of what used to be Article 177 of the EC treaty, and is now, under the renumbering, Article 234. And of course in that sense if -- either I seek permission from your Lordship; if your Lordship does not give it, then the Court of Appeal becomes the final court for the reference points in there.
Because we anticipate that of course the Club would want a speedy resolution of this, if there were to be any appeal, my submission would be that actually the saving of time and the expediency lies in favour of your Lordship granting permission, because that would enable the matter to be dealt with most swiftly. In that connection, I would in fact request if your Lordship -- in any event I would request an expedited transcript so that we may have the full benefit of your Lordship's reasoning. Indeed, I am unaware, of course, whether your Lordship is going to be taking a vacation immediately following --
MR JUSTICE SULLIVAN: Absolutely, as from 4.15.
MISS SHARPSTON QC: Well, my Lord --
MR JUSTICE SULLIVAN: You will not see me for dust until 1st October.
MISS SHARPSTON QC: My Lord, I am delighted for your Lordship. May I perhaps in that case request that there would be authority for Smith Bernal to release the draft transcript to us and to the other parties, obviously on terms that it is not otherwise published or released, precisely so that we should be able, in your Lordship's well-deserved absence on vacation, we should be able to take this matter further forward.
MR JUSTICE SULLIVAN: Right.
MISS SHARPSTON QC: My Lord, those are my submissions.
MR JUSTICE SULLIVAN: Thank you very much. Mr Litton, Mr Elvin, I do not need to trouble you on that. Thank you very much.
I am quite satisfied that permission should not be granted to appeal in this case. I do not think that there is any real prospect of success, nor do I consider that it raises wider issues, notwithstanding the careful submissions just now of Miss Sharpston. In brief, the question of whether the court should consider the matter as one of jurisdictional fact or on a Wednesbury basis, whilst certainly of interest is of no relevance for present purposes since whichever way it is approached, in my judgment the Council was right.
So far as point two is concerned, there cannot be any doubt from Schedule 3 that the number of people affected is a relevant factor.
So far as point three is concerned, it seems to me, for the reasons given in the judgment, that there really is no force in the human rights point. There is no question of inclusion that simply because a limited number of people are affected human rights are not engaged. I appreciate these grounds were prepared before the judgment was given, but it is apparent from the judgment that it proceeded on the basis that although there might be doubts about the matter, assuming human rights were engaged under Article 6 and 8, were they then broken on the facts of -- whether they infringed on the facts of this case.
So far as time is concerned, again, it might be interesting if the application for planning permission had been challenged promptly but the screening opinion had not to see whether my views about leave for promptness in challenging screening opinions were right. But since neither was challenged promptly in the present case, in addition to delay there is very substantial prejudice. It seems to me that that point, too, is of academic interest.
So far as the additional point under seven, there is no suggestion, at least on my part, that the opportunity to ask the Secretary of State to look at the matter again is the sole answer. It is part of the picture. There is an opportunity to have somebody else look at the merits. Beyond that, it does not seem to me the judgment establishes any -- indeed, one is really left with the impression that the judgment very largely turns upon the particular facts of this case.
There does not seem to me to be another relevant factor. No stay is being sought. For obvious reasons, if no stay is sought, by the time this matter comes to the Court of Appeal the first tier of the new stand will not simply be one third or half built; it will jolly well be almost completely built, if not with spectators in it cheering on their club.
In all of those circumstances, it seems to me that in reality further challenge would be pointless. So for all of those reasons, I refuse to grant permission.
I am perfectly happy to say that Smith Bernal can release the unapproved transcript -- provided the "unapproved" is put in big capital letters -- in my absence. This shorthand writer has prepared transcripts for me before. I suspect there will be very, very few amendments that I would have to make, so it will be almost as perfect as any transcript can be. But still put "unapproved" on the front of it. There is no need for an expedited transcript in my judgment. I do not see the point of that. But certainly when the transcript has been prepared, then Smith Bernal can release it on an unapproved basis. Any more?
MR ELVIN QC: My Lord, I am sorry to weary you.
MR JUSTICE SULLIVAN: That is all right.
MR ELVIN QC: My Lord, since there is, at least from what I was told yesterday, a high prospect of the application for permission being renewed to the Court of Appeal, as your Lordship is well aware of the difficulties of the circumstances of delay and prejudice, I would ask your Lordship to make an order under Part 52 to abridge time for applying for permission. We have been presented this morning with what are called draft grounds of appeal and they plainly are. I have put my learned friend on notice of such an application yesterday so she is aware of it.
Given those draft grounds have clearly been thought through overnight, I would ask your Lordship to abridge time for filing an appeal and serving to 4.00 pm next Monday.
MR JUSTICE SULLIVAN: Mr Elvin, it seems to me that it would not be right, if the claimants do want to ask for permission to appeal to the Court of Appeal, for the claimants to have to make their pitch, if you like, or the Court of Appeal to have to consider it actually without a transcript. That is why I have been checking with the shorthand writer.
MR ELVIN QC: So be it.
MR JUSTICE SULLIVAN: She tells me that she thinks Tuesday or Wednesday she should be able to get an unapproved transcript to the parties. My own feeling, therefore, is that what I ought to do -- when did you say you want --
MR ELVIN QC: I was suggesting 4.00 pm Monday, given that --
MR JUSTICE SULLIVAN: This is Monday after this weekend?
MR ELVIN QC: Yes.
MR JUSTICE SULLIVAN: Right. Well, I do not think, with due respect --
MR ELVIN QC: I understand what your Lordship thinks.
MR JUSTICE SULLIVAN: I do not think that is entirely reasonable, notwithstanding the need for urgency. What I am going to say, I think, subject to anything Miss Sharpston may say to me, given what she has said about the need for urgency, and she obviously appreciates that from the claimant's point of view as much as you do from yours, because as we speak the building is going up, I would have thought if I limited time for appeal to a week from today, seven days, that means you would have the transcript, so would the Court of Appeal. The Court of Appeal would have the advantage of your grounds and my transcript, even on an unapproved basis. That must be better. Is that sensible?
MISS SHARPSTON QC: My Lord, that is certainly better, but my difficulty is, as your Lordship knows, we are legally aided, and we would need -- we would clearly need to write an opinion for the legal aid board. That could only sensibly be based on having the transcript. This is indeed why I asked for expedition of the transcript because I was very much in mind of my learned friend's difficulties. My Lord, my own suggestion would be that within seven days of the transcript is of course a schedule that we ought to be able to meet because I appreciate the need for urgency.
My Lord, may I just add this one point. There has never been any suggestion on the part of the claimants that we should apply for a stay because the objection is not to the first tier of the stand. And so, my Lord, that -- I merely say that.
MR JUSTICE SULLIVAN: Yes. The application for expedition of the transcript is pretty much academic because it is going to come so quickly anyway, Monday, Tuesday, or Wednesday.
MISS SHARPSTON QC: My Lord, I am must grateful to the shorthand writer.
MR JUSTICE SULLIVAN: Mr Elvin, I would have thought seven days from receipt of the transcript, that speeds things up.
MR ELVIN QC: My Lord, it means that, if your Lordship will --
MR JUSTICE SULLIVAN: Yes, of course.
MR ELVIN QC: My Lord, it means we will be into September before we can ask the Court of Appeal to list this for an early hearing. We cannot obviously do that until the application is made. My Lord, by the time -- I appreciate it may help my client's case in one respect but in another it will not, because one must look on the basis that there is at least a shadow of a possibility the Court of Appeal might disagree with the view your Lordship has reached. What my learned friend said is, quite frankly, a ridiculous assessment of the situation, because it is not the fact that the claimant is complaining about the upper tier, but we have planning permission which we have implemented. As your Lordship will well know, the powers of the local authority to enforce against new development which is not permitted must be discharged in the public interest, not just simply because my learned friend says we were not worried about the upper tier.
My Lord, I am genuinely concerned and submit to your Lordship that my learned friend could not be at this stage more freshly acquainted with the papers and the facts, and I do not see frankly why, given the circumstances, she cannot turn round an opinion overnight having seen your Lordship's transcript, and knowing full well both from the summary last night and the detail this morning what your Lordship's views are.
In my respectful submission, I would ask for an order for abridgement no later than seven days from today, given that that will encompass two to two-and-a-half days when the transcript will have been available.
MR JUSTICE SULLIVAN: Bearing in mind the practicalities of persuading the legal aid fund to give you money, if you want to challenge the decision without actually having the decision to show them to cover the opinion, I think that the sensible thing to do is to abridge time to seven days from receipt of the transcript.
MISS SHARPSTON QC: I am grateful, my Lord.
MR JUSTICE SULLIVAN: Now, anymore or can we go to lunch?
MR ELVIN QC: My Lord, I am sorry. I know your Lordship has just ruled on this point. My Lord, your Lordship may have actually extended the time.
MR JUSTICE SULLIVAN: Oh, have I?
MR ELVIN QC: Because it is 14 days. If for some reason -- I wonder if your Lordship would fix a backstop date for the date your Lordship intends to abridge.
MR JUSTICE SULLIVAN: Yes, I am happy to do that.
MR ELVIN QC: For certainty's purposes.
MISS SHARPSTON QC: My Lord, I have no difficulty with that, of course.
MR JUSTICE SULLIVAN: Right. Seven days from receipt of this transcript, but in any event no later than 14 days from today.
MISS SHARPSTON QC: I am obliged.