London, WC2A 2LL
B e f o r e :
| The Queen on the application of Sonia Burkett
|- and -
|London Borough of Hammersmith and Fulham
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Timothy Straker QC, Andrew Tabachnik (instructed by London Borough of Hammersmith and Fulham) for the Defendant
Robin Purchas QC, Joanna Clayton (instructed by Masons Solicitors ) for the Interested Party
Crown Copyright ©
Mr Justice Newman :
"A mixed use development comprising 1,803 residential units (1,303 private flats and 500 affordable dwellings in the form of flats and houses), an hotel, Class A1 retail, Class A3 restaurant, Class D community uses, health and fitness club, Class B1 offices, public open space and riverside walk together with associated car parking, landscaping and access road."
It is one of the largest current development sites in London. The application for outline planning permission proposed that design, external appearance and landscaping were to be reserved for later determination.
a) Planning Statement prepared by The Barton Willmore Planning Partnership.
b) Design Statement prepared by Broadway Malyan, Architects (TR.2).
c) Transport Study prepared by Alan Boreham Associates, Consulting Engineers (TR.3).
d) Report on Air Quality prepared by Alan Boreham Associates (TR.4).
e) Archaeological Study prepared by CgMs (TR.5).
f) Ecological Appraisal prepared by SGS Environment (TR.6).
g) Report on Trees prepared by Simon Jones Associates (TR.7).
h) Contamination Statement prepared by John Savage Associates (TR.8).
i) Landscape and Visual Appraisal prepared by The Barton Willmore Planning Partnership (TR.9).
Further updates were provided by letters dated 12 November 1998, 23 April 1999 and 6 July 1999, these updates took account of revisions to the proposal. These updates were placed on the statutory register in the normal way.
1. The environmental statement, which is required to be submitted under the regulations by the developer.
2. Any representations made by anybody required by the regulations to be invited to make representations or to be consulted;
3. Any representations made by any other person about the likely environmental effects of the proposed development.
Schedule 3 of the Regulations specifies the information which must be contained within the statement. It also identifies material which may be contained within the statement. The Regulations provide (regulation 21) a local authority with the power to require the developer to provide further information. The arguments in this case raise questions in connection with the true meaning and effect of the requirements in Schedule 3, the extent to which a local planning authority may reserve aspects of the development, which are capable of giving rise to environmental consequences and the flexibility which is available to a developer and local planning authority to consider and incorporate amendments to an application as submitted and supported by an environmental statement, without prejudicing the validity and effect of the latter.
Summary of the Grounds
Ground 2: Traffic in connection with stage 3 of the development was reserved by a condition to the planning permission. As a result the LPA were not in a position to carry out a proper assessment at the time required by the Regulations. Further, contamination from the site, including contamination by dust during the progress of the works, was not properly assessed in the statement, and in particular the adverse consequences from contamination upon adjoining residents were not assessed nor provided for by remedial measures.
Ground 3: Information supplied as a result of revisions to the original application and or further environmental information should have been given the same publicity as the Regulations required in connection with the original statement.
Ground 4: Regulation 4(2) provides:
"The Local Planning Authority or the Secretary of State or Inspector shall not grant planning permission pursuant to an application to which this Regulation applied unless they have first taken the environmental information into consideration and state in their decision that they have done so."
It has been common ground that according to whether one took the "decision", as the resolution for the grant of planning permission, or the grant of permission, the LPA had not stated in its "decision" that they had taken the environmental information into consideration. It was also common ground that the material before the court demonstrated that a great deal of environmental information had been taken into consideration prior to the resolution and the grant. It is also obvious that, at all material times, it has been open to the claimant to take the point that the decision lacked the required confirmatory statement. It is also obvious that, at all material times, until the production of the Skeleton Argument in connection with this hearing that the point had not occurred to anyone on behalf of the claimant. Notwithstanding these aspects of the matter I granted permission for the ground to be argued, since it gave rise to a discrete question of law and did not give rise to the need for an adjournment. Accordingly I shall consider the point in due course.
The Legal Framework
i) Where outline planning consent has been applied for it is at the outline consent stage that the planning authority must have sufficient details of the proposed development, sufficient details of any impact on the environment and sufficient details of any mitigation to enable it to comply with its regulation 4(2) obligation.
ii) The obligation under regulation 4(2) is an obligation which must be fulfilled at the stage permission is granted and not at the time reserved issues are considered.
iii) A planning authority will have failed to have complied with regulation 4(2) if it attempts to leave over questions which relate to the significance of the impact on the environment and the effectiveness of any mitigation.
iv) It is consistent with principle to leave the final details of, for example, a landscaping scheme to be clarified, either in the context of a reserved matter where outline planning consent has been granted or by virtue of a condition where full planning consent has been given. (I would add that, in my judgement, it is also permissible to utilise a Section 106 agreement to secure final details.)
v) In a case where a decision is taken by an Inspector it is permissible to leave the assessment of likely impact to a future occasion where the decision will be taken in relation to details by those who have the interest of the environment as one of their objectives, for example a local planning authority.
i) It is for the local planning authority to judge the adequacy of the information provided in the statement and to decide whether it is satisfied, given the nature of the project in question, that it has full knowledge of its likely significant effects on the environment. (See The Queen v Rochdale Metropolitan Borough Council ex-parte Tew & Others  3PLR 74, p95G. The Queen v Rochdale Metropolitan Borough Council ex-parte Milne  JPL 470, paragraphs 90 and 432.) This decision by the local planning authority will be subject to review by the courts on normal Wednesbury principles. (See for example R v Cornwall County Council ex-parte Hardy  Env LR 273 at paragraph 65).
ii) The content of a statement may give rise to a number of considerations and issues. Examples include: whether a description of the proposed development comprising information about the site and design and size or scale of the development, has been given, within the meaning of paragraph 1, Schedule 3 of the Regulations, and whether a description of the likely significant effects, direct and indirect, on the environment of the development, has been given by reference to the matters identified in paragraph 2(c) of Schedule 3. By way of further example the statement may fail to identify the significant adverse effects with respect to any of the required matters and fail to give a description of the measures envisaged to avoid, reduce or remedy those effects. In all these cases it will be a matter of judgment for the local planning authority to make an assessment of the material and to determine whether it has full and sufficient knowledge of the environmental factors to enable it to assess the environmental consequences and take them into consideration before granting planning permission. The judgment will be one of fact and degree to be considered in each case.
iii) Where the developer fails to address matters which must be included in the statement, the statement will not qualify as a statement providing environmental information for the purpose of regulation 4(2) but an authority is empowered to acquire the necessary information from the developer (regulation 21) and when it is received it is part of the information to be considered.
iv) The purpose of the Directive, as met by the Regulations, is to secure the establishment of procedures and processes whereby development which is likely to have significant effects on the environment will only be authorised after proper assessment of the likely significant effects.
v) A proper assessment must take account of information in the statement from the developer, any supplementary information obtained by the planning authority and any representations from members of the public concerned by the project.
vi) The objective of the Directive and the Regulations, namely the making of the requisite assessment before the grant of permission, is to be achieved through a dynamic process, which starts with the statement from the developer but it does not end with the statement. The statement can be supplemented by the authority, and the environmental information includes the representations from members of the public, where they have been provided.
vii) The democratic right of a member of the public to make representations must be meaningful and therefore the information which is made available must be sufficient to enable a member of the public:
a) to respond to the significant effects on the environment to which it is suggested the project may give rise;
b) to examine the project to see whether it is likely to give rise to significant effects which have not been identified.
viii) Where the developer has been required by notice under regulation 21 to provide further information, upon receipt by the planning authority, the information must be placed on Part 1 of the register (reg.21(5)).
ix) The Directive and Regulations do not preclude the grant of permission where likely significant effects, whether adverse or not, have been identified, so long as the information has been gathered, the likely significant effects identified, the public have had an opportunity to respond and the grant of permission has been made with all the available information being taken into account.
x) Where regulation 21 has not been employed but the planning authority has acquired environmental information, whether from the developer or elsewhere, the authority must consider whether it is obliged to make it available to the public to enable full and informed response.
xi) Where likely significant adverse effects are identified consideration must be given to remedial measures to avoid, reduce or remedy such adverse consequences. First consideration in this regard rests with the developer and the information will be subject to the same dynamic process of consideration by the planning authority and the public.
xii) The adequacy of the remedial measures is not governed by the terms of the Directive or the Regulations but is a matter for the judgment of the planning authority and its decision will be subject to review on Wednesbury principles. Schedule 3, paragraphs 1 and 2 of the Regulations stipulates that the statement must contain –
"…a description of the development proposed, comprising information about the site and design and size or scale of the development."
These words are identical to those used in Article 5(2) of the Directive. Article 2 of the Town and Country Planning (General Development Procedure) Order 1995 (S.1. 1995 No. 419) requires a site plan and a description of the proposed development where outline permission is sought. The provision of a description is not to be equated with the provision of such detail as would be required for detailed planning permission to be granted. The ambit of the requirement and the meaning of "description" are governed by the purpose of the Directive and the Regulations (see paragraphs 7(i) and 8(ii) above).
THE FACTS RELEVANT TO THE GROUNDS OF CHALLENGE
"The environmental statement should, of course, comprise all the information required by Schedule 3 of the Regulations. Whilst there may be other significant environmental effects for which information may be relevant or required after detailed examination of your application, some of the main areas where there are likely to be significant environmental effects as a result of your intensification of the use of the site are:-
a) the interaction between human beings and the soil as a result of its contamination, the details of which have yet to be defined and the appropriate remedial action determined;
b) the impact of this quantity of development on the River Thames and its environs of which part of the application site is designated in the Unitary Development Plan as an Area of Special Character and a Conservation Area, and which falls within the Thames Policy Area in the Strategic Planning Guidance for the River Thames; (RPG3B).
c) the effect on human beings of locating dwellings in proximity to a hazardous installation – namely the land to be retained by British Gas with its gas holders and other structures;
d) the impact of this quantity of development on the generation of traffic on the surrounding road network and thus on the human beings living nearby."
"7. ……....addressed all the important effects, and potential effects, that the development proposals would be likely to have. …… The Respondent [the authority] scrutinised and assessed the environmental statement and the individual reports through its own officers, within the specialised fields, and also through the use of outside consultants. Additionally the Respondent commissioned the Institute of Environmental Assessment (an independent, non-profit-making body, established to assist in the promotion of best practice in environmental assessment) to provide an independent assessment of the environmental statement.
"8. Following massive consultation and extensive publicity, and after revision to the planning application, which [were] a direct result of the concerns expressed by the Respondent or by consultees, the planning application was taken to Committee on the 15th of September 1999. The recommendation was, subject to there being no contrary direction from the Government Office for London, to resolve to authorise the Director of the Environment Department to grant outline planning permission upon the completion of a satisfactory section 106 agreement. The Committee resolved in these terms on the 15th of September 1999. On 24th of February 2000, the Government Office for London indicated that there was to be no contrary direction (Applicants' bundle – page 222). The s106 agreement was completed, and the planning permission issued, on the 12th of May 2000."
"parts well attempted but must as a whole be considered unsatisfactory because of omissions and inadequacies".
Grade (d) was accorded to:
"residuals associated with site run-off dust and spoil as a result of construction work" and "noise during construction period".
"In this case where D's have been scored in the review your officers are satisfied that through subsequent meetings and submissions the identified weaknesses have been satisfactorily overcome. Planning conditions will secure this where necessary. On this basis the omissions identified in the Environmental Statement do not warrant refusal [of] planning permission".
"Noise, Dust, Vibration
5.39a Noise and Vibration can be caused by a number of processes in connection with construction – delivery vehicles, pumps, generators, earthmoving and excavation machinery, and manual activity on site. Such noise can be intrusive and impact on adjoining properties. Dust can be caused by the moving of soil within the site and the use of building and construction materials, especially during long dry periods and windy conditions.
5.40a Construction work can, by its very nature, lead to mud on roads, particularly around access points to the scheme, resulting in nuisance to road users. Construction generally can also generate a considerable amount of waste ranging from packaging material and damaged goods whilst the activities of workers themselves can create waste.
5.41a Although St George cannot be precise about the phasing of the development, certain basic measures to mitigate the above potential impacts can be identified at this stage, which will be implemented throughout the construction period of the scheme:
a) routes for the delivery of materials will be defined and agreed with the Local Authority:
b) access points for the construction phases will be agreed with the Local Authority:
c) adequate parking areas will be defined for construction workers:
d) restrictions of working hours on those parts of the scheme in close proximity to nearby residential properties;
e) the control of dust, through careful management of on-site activity taking account of weather conditions, the need to dampen down soil and limiting on-site vehicle speeds; and
f) the provision of wheel wash facilities on site.
5.42a St George is a "considerate contractor" and will follow the voluntary code of conduct which that implies. In addition, the activity on the construction site will be governed by statutory regulations, prevailing British Standards Environment Agency codes of practice and through the conditions placed on the development through the planning permission.
5.43a St George anticipate that it will be necessary to review potential impacts and mitigation on a phase by phase basis, with the local authority, and envisage a programme of notification to local residents in advance of unusual or disruptive activities. The effects of the construction phase are short-term and, given that they cease when the development is completed, are reversible.
a) Construction Period: excavation for foundations could mobilise residual contamination causing air pollution, groundwater pollution and recontamination of clean soils, both on and off-site. Deep piling work could mobilise contamination and result in pollution of the low level acquifer; and
b) Development occupation: a risk of exposure of occupants to residual contamination via ingestion and risk of explosion caused by emission of methane or other hydrocarbons."
The contamination report from John Savage Associates stated:
The excavation for foundations will be carefully controlled to avoid the exposure of large areas of residual contamination at the same time, with excavations damped down as required to avoid air pollution.
High level water will be pumped out of excavations and either cleaned prior to returning to the ground or tinkered off site to avoid the possibility of pollution of the shallow acquifer, foreshore and River Thames, and recontamination of "clean" soils.
Piling works will be designed to avoid the possibility of transfer of contamination to depth and to avoid further unnecessary disturbed of shallow groundwater. It is anticipated that continuous flight auger piles will be used, founded in the London Clay.
During site works suitable measures will be taken to ensure that operatives are protected from the effects of residual contamination including:
The provision of dust masks, protective clothing, footwear and gloves to all ground workers.
The provision of a basic decontamination unit including changing, hand washing and showering facilities.
The prohibition of eating, smoking and drinking in contaminated areas on site.
All work on site will be undertaken in accordance with the relevant Health and Safety Executives requirements."
The Description of the development and information about the design, size and scale.
i) the siting of all the proposed buildings;
ii) means of access to the development;
iii) the total quantum of floorspace across the development;
iv) the quantum of floorspace allocated to each of the proposed uses (according to their Use Class) within the whole scheme;
v) the distribution of each of these proposed uses;
vi) the number of residential units;
vii) the number of storey heights of each of the proposed buildings;
viii) the size and location of the public open space, which represented the major part of the landscaping of the site.
"……details of siting are hereby not approved for the whole of Stage 3. Such details shall be the subject of applications for approval of details in accordance with Condition 1, 2 and 4 of this permission."
The reason given for the condition is
"….in order that the siting and means of access to the development can be assessed in detail in relation to the ecological and historical environment of the former dock and Chelsea Creek area."
The evidence discloses the detail and full meaning and effect of this course of action.
"that the external appearance of the development does not have an adverse effect on the visual amenity of the surrounding area."
"Stage 2 of the development, as specified in unnumbered drawing entitled Staging Plan and dated April 1999, shall not commence until a station and passenger train service with a minimum of four trains per hour each way has been provided at Chelsea Harbour/Sands End on the West London Line or a Transport Impact Assessment has been submitted which demonstrates to the Council's reasonable satisfaction that Stage 2 of the development (or part of it) can proceed without causing adverse traffic conditions on the highway network or prejudicing the Council's policy of restraining the use of private cars particularly for journeys for work. Stage 3 of the development as specified in the same drawing, shall not commence before Stage 2 has been completed and occupied, and until a subsequent Transport Impact Assessment has been submitted which demonstrates to the Council's reasonable satisfaction that this part of the development can proceed without causing adverse traffic conditions on the highway network or prejudicing the Council's policy of restraining the use of private cares particularly for journeys for work. "
"6.2.2 The study that St George finally submitted (covering the full application for 1615 dwellings plus other land uses) is believed to be flawed by officers and the Council's transport consultants. Nevertheless officers do accept that the first stage of the proposal could be acceptable in traffic terms if the measures to improve public transport and discourage private care use as proposed in schedule 1 of this study are successfully implemented. But there will undoubtedly be adverse traffic conditions, particularly prior to the anticipated provision of a new railway station.
6.2.3 Officers do not accept that stages two and three can take place without the provision of a new station at the site or evidence that traffic generation in the area and from the site is at lower level than officers currently believe is likely. It is the officers' view that the first stage of this development, as proposed for 1015 homes, some of which would be specifically "car free", and other land uses, is at the very limit of what would be acceptable as far as traffic generation is concerned.
6.2.4 The applicants are willing to part-fund a station on the West London Line if such a proposal can be agreed wit the train operators and the railway line owners. The latest signs are encouraging and Council officers are pursuing this option with the appropriate bodies with vigour. A bid for funding to carry out infrastructure works which would increase the capacity of the line and enable new stations to be built, is being submitted t the Office for Passenger Rail Franchising and a decision is expected in the Autumn."
"6.2.5 The Council has been concerned for many years about the use of the local road network and the very large volumes of vehicle traffic in the area generally. The UDP policies for the highway network seek to ensure that Townmead Road and Imperial Road, which are classified as second tier local distributor roads, distribute traffic within the Sands end area.
"The UDP site policies also included a proposal that William Morris Way be extended through the site linking to Imperial Road/Townmead Road in order to fulfil the function of local distributor road, thereby relieving the stretch of Townmead Road between the Sainsburys Roundabout and Imperial Road of existing non-local traffic. Traffic calming was envisaged along Townmead Road. This proposal has been dropped form the current development because the new route would have seriously compromised the local park. It is now intended that there be no traffic route through the park. The consequence of this is that traffic on Townmead Road will not be relieved. It is also intended in order to achieve bus priority in Townmead that all other southbound traffic using Townmead Road will divert via Watermeadow Lane and the Sainsburys Roundabout. Any necessary traffic calming measures which can be incorporated within Town mead Road, Watermeadow Lane and William Morris Way will be able to be funded the monies proposed within the Section 106 Agreement."
"6.2.57 In conclusion, the traffic assessment provided in support of this development is considered to be unsatisfactory. Your officers consider that even the scale of the Stage One development proposed will have a significant effect on local highway and traffic conditions in the area ultimately increasing delays and congestion through the area. The public transport improvements currently proposed are barely sufficient to deal with the problems likely to be created by the Stage One development. Officers are however conscious that any development of this site would inevitably generate substantial additional traffic. Consequently highway and traffic problems for the local community and the South Fulham area generally are bound to be created by practically any conceivable development on this site. The potential long-term scale of these depends on the development quantum. Traffic disbenefits will have to be balanced against the regeneration of this site and any other planning or community benefits which may accrue. If Stage One is implemented, any further phases of development must be dependent on the provision of a station and further evaluation of the highway network in the light of success or otherwise of the infrastructure and planning obligations contained for Stage One "
Revisions to the Planning Application
i) a revised schedule of floorspace for each use type;
ii) the proposed massing of the development was refined including significant reductions in the heights of a number of buildings;
iii) the total number of residential units was confirmed as 1,665 (down from 1,803)
iv) the total number of affordable dwellings was increased;
v) staging was proposed in 3 stages.
i) the description of the site and surroundings was unchanged;
ii) the projected population growth was from 4,644 to 4,750;
iii) there was no change to nature conservation;
iv) the change to contamination was noted;
v) there was no change to cultural heritage
vi) the revisions served to reduce the visual impact.
It was therefore concluded that the overall environmental impact remained unchanged.
"…..local planning authority will need to be satisfied that the description of the proposed development in the outline planning permission is adequate, given that it will be able to impose conditions in respect of reserved matters so that matters of detail can be dealt with at a later stage".
The fallacy in the claimant's argument is that it assumes that unless design details, external appearance and landscaping are supplied at the permission stage an assessment of the environmental effects cannot take place. Where design parameters exist because of surrounding development and where the local planning authority has responsibility for the environment and the likely parameters of the reserved details can be assessed, it is open to the authority to reserve and protect the position by conditions. It has to be remembered that the Regulations require attention to be paid to "likely significant effects" not each and every likely effect. Again, as Sullivan J pointed out in Milne what may be regarded as significant by a resident will not necessarily be a significant environmental effect. The LPA was entitled to conclude on the basis of the environmental information it had received that sufficient "information" had been provided to enable it to make an assessment. It was entitled to conclude that the reservation of stage 3 siting for the purpose expressed in the condition could take place because the environmental effect to which it related had been assessed and no significant effect would flow from reservation. Further the revisions were not so radical in character as to oblige the LPA to regard the changes as having altered the "description" of the proposed development.
i) the size of the development;
ii) the national planning policies and the UDP;
iii) its own assessment of the local traffic;
iv) its own policy in connection with traffic, particularly the use of the car for travelling to work.
Within those parameters the authority was entitled to conclude, as it did, that the likely significant effects had been assessed and provided for and it remained only for the details to be worked out when it was known whether there would be train transportation.
"….would have been inclined to agree with Mr Straker that the breach of regulation 3 (as it became under the 1998 Regulations) could have been appropriately dealt with by way of a mandatory order".
i) there is compelling evidence that the failure to make the statement was an error and is not to be interpreted as an indication that the environmental information was not taken into account;
ii) on the contrary the material before the court demonstrates that it was taken into account at the relevant time;
iii) the requirements of the regulation 4(2) have been substantially complied with;
iv) no prejudice to any interested party, including the claimant, has been shown.
i) the point was taken at the last minute;
ii) the claimant can show no prejudice;
iii) there would be unconscionable prejudice sustained by the developer and the LPA.
In planning matters, in particular, it is essential that objections are raised timeously and as fully as possible.
MR JUSTICE NEWMAN: For the reasons given in the judgment, which is handed down, this application for judicial review fails.
MISS PETER: My Lord, there is an application for the defendant's costs.
MR JUSTICE NEWMAN: Sorry?
MISS PETER: There is an application for the defendant's costs.
MR JUSTICE NEWMAN: The defendant's costs?
MISS PETER: I understand the defendant is legally aided, but we ask that those costs are set-off against the costs that the defendant is liable for in respect of the House of Lords and Court of Appeal actions.
My Lord, there is a precedent for such a set-off. It is clearly established on the basis of the case of Lockley v National Blood Transfusion Service heard by the Court of Appeal. I can hand up a copy of it.
MR JUSTICE NEWMAN: Could you just hand that up to me? I cannot say that I have it in my mind.
Just run through the essence of this, please?
MISS PETER: My Lord, the relevant passage is found on page 5, where Scott LJ at the bottom of the page sets out the relevant principles, and at number 1 -- that is the fourth sentence from the bottom -- directions for set-off of costs:
"(1) A direction for the set-off of costs against damages or costs to which a legally aided person has become or becomes entitled in the action may be permissible.
(2) The set-off is no different from and no more extensive than the set-off available to or against parties who are not legally aided".
If I could refer you over the page to page 6, in the middle of the penultimate paragraph, Scott LJ states:
"A set-off of costs against costs, when all are incurred in the prosecution or defence of the same action, seems so natural and equitable as not to need any special justification".
MR JUSTICE NEWMAN: Just remind me what was the position in the House of Lords? What happened in the House of Lords, so far as costs were concerned?
MISS PETER: The House ordered that the defendant pay the claimant's costs in respect of the House of Lords and Court of Appeal and bear their own costs in respect of the previous High Court action, and an assessment has not yet taken place, so if that is in the process of occurring --
MR JUSTICE NEWMAN: The claimant was legally aided in the House of Lords?
MISS PETER: Has been throughout, my Lord.
My Lord, in our submission, it would be in the interests of justice to do this, considering it was simply a preliminary issue in the House of Lores and the claimant has now lost on the substantive merits of the case.
MR JUSTICE NEWMAN: I see.
Who is here for the claimant today?
MS SHEIKH: My Lord, I am. Mr McCracken apologises because he had a long standing commitment in the North East of the country, a planning enquiry.
My Lord, we have had no notice at all of this application.
MR JUSTICE NEWMAN: I see. You have had no notice at all. You, personally?
MS SHEIKH: Not at all, my Lord.
MR JUSTICE NEWMAN: Until you heard it now?
MS SHEIKH: This is the first I heard of any question of setting off costs against a judgment in the House of Lords or Court of Appeal. My Lord, I am not, therefore, in a position to deal with this and, in any event, it raises issues of complicated matters relating to the Legal Services proceedings and I would not attempt that in the absence of my leader.
MR JUSTICE NEWMAN: No. It is a bit of a burden for you, is it not?
MISS PETER: I do apologise for not speaking to my learned friend beforehand.
MR JUSTICE NEWMAN: It would have helped, I am bound to say. If somebody could have drawn the other side's attention to Lockley yesterday, they could have been forearmed with it.
I do not think it is necessary to await the return of Mr McCracken. It does not seem to me we need go down that route. At least at this stage, why do we not give you time to look at the case of Lockley and think about the matter?
MR PURCHAS: My Lord, I did not have an order of costs against me in the House of Lords, so I am not affected by this. Whether there is opportunity for me to make my application for that to be resolved and then the time allowed thereafter, and whether that would be a possible way forward, if your Lordship wished to use the time now and come back and deal with it all?
MR JUSTICE NEWMAN: I see. What is the nature of your application?
MR PURCHAS: My application is a limited order for costs, my Lord. I have taken the view and my client accepts in this case there is not a Bolton situation where we had a sufficient separate interest to justify a second set of costs, but I would ask for an order for costs for the evidence that we prepared and also for the part 18 request which was served on us and to which we had to reply. My Lord, I can elaborate on that.
MR JUSTICE NEWMAN: I see. How long do you think you need to look at Lockley and think about this? If I was to say come back at 12.30, would that be all right?
MS SHEIKH: My Lord, that would not be sufficient for me at all, I have to admit. I really need to take this back and consider it and attempt to contact my leader as well. I would simply say immediately this would appear to be going behind the Community Legal Services Regulations 2000 and the method that is adopted for assessing costs. That is my preliminary submission, but I need time and have to study the Legal Services Commission Rules. It would certainly take me longer than 12.30.
MR JUSTICE NEWMAN: Are you really telling me you do not want to do it?
MS SHEIKH: I am not in a position, my Lord.
MR JUSTICE NEWMAN: 2 o'clock, or any time?
MS SHEIKH: If I had had notice of this, I would have put in all the time to deal with it today, but there was not even a hint of such an application. It has come as a complete surprise to me and I have not had an opportunity preliminarily to discuss it with my leader.
MR JUSTICE NEWMAN: I am sensitive to that. Let me think.
MISS PETER: The principle here is a very simple one and relies on the ordinary principles of set-off, which are well established and the case is clear. These apply to legally aided cases and in our submission that is the end of the matter.
MR JUSTICE NEWMAN: I know, but I think the best thing to do, Mr Purchas, is that I should hear your application.
MR PURCHAS: Yes, my Lord.
MR JUSTICE NEWMAN: Then at least you will not have to come back.
MR PURCHAS: I would be very grateful.
MR JUSTICE NEWMAN: In the meantime, I will ponder how much longer I need give to Miss Sheikh.
MR PURCHAS: My Lord, I am very grateful for that.
MR JUSTICE NEWMAN: Does Miss Sheikh have any notice?
MR PURCHAS: Yes -- would have had last night, but certainly she did this morning.
MR JUSTICE NEWMAN: You are in a position to deal with this one?
MS SHEIKH: My Lord, yes.
MR JUSTICE NEWMAN: All right.
MR PURCHAS: My Lord, as I said to your Lordship, we accept here while we have been joined as a party, we do not come as we see it within the principle of Bolton, but it is our submission that this is a case where it would be proper for our costs of the evidence to be awarded to us, albeit that may be somewhat theoretical, bearing in mind the claimant is a publicly assisted party.
I should tell your Lordship that Richards J in the High Court in refusing permission gave us costs of preparing the evidence of prejudice, but only of prejudice. Of course, he was satisfied there was a case on the merits, at least for the purposes of giving permission.
My Lord, the way we put it is this way, that in the light of your Lordship's judgment, and indeed the way the case was argued, it was very much focussed on detailed questions of evidence relating to the way the authority dealt with the application and permission, and indeed the environment statement -- we actually have a decision letter to deal with, and whether there is some other matter of that kind, and if one takes your Lordship's judgment at page 6, your Lordship has very conveniently set out a summary of what your Lordship respectfully, I would submit, accurately described as the wide ranging nature of the case.
Your Lordship will recall that it included detailed matters relating to design, landscaping and external appearance. Also the question of stage 3 and its particular relationship to the rest of what was in the application -- the change in the application -- your Lordship will recall, among other things, the views on the claimant's house. Traffic figured large and contamination -- marked, at all levels -- including, your Lordship will recall, the question of dust, and I will come back to that in a moment, if I may.
Then ground 3: as far as the revisions are concerned, again the challenge being made as to the changes in the application, and finally on grounds of the question of prejudice. I will not take your Lordship to the skeleton, but very much the same points were adumbrated in the skeleton.
My Lord, the evidence we adduced consisted of three witness statements: two of them in bundle 2; and then bundle 4 contains the third -- all from John Herron. Does your Lordship need the references?
MR JUSTICE NEWMAN: No, I remember.
MR PURCHAS: I am obliged. Then, following the third witness statement was a part 18 request in November, and your Lordship has the response to that in bundle 5 dealing with matters relating particularly to evidence in paragraphs 4 and 5.
MR JUSTICE NEWMAN: I must say, if it is necessary for me to know the detail of part 18, it is not in my mind at all.
MR PURCHAS: I do not think the detail matters. If it does, may I assist your Lordship? May I deal with the principle at this stage and we will see where we go?
I just need to touch briefly on the background in this way. In form 86A and a supporting witness statement of Miss Grigg of the first three witness statements in April 2000, there were only parts of the environment statement produced and, for example, the passage your Lordship quotes in your Lordship's judgment about the dust and relating to contamination was not in there.
That is not a criticism, but it is an example of the evidence that we produce and on which your Lordship, and indeed if I may say so the claimants and all parties, rely.
It did not include a number of matters. I will not go into the detail of them. For instance, the application was not included, which your Lordship recognises is of some importance.
Mr Herron's first witness statement, which was of some substance, dealt with prejudice. It also dealt with missing areas of fact and explanation of fact, including production of the application, the relevant plans, the missing part of the report to the Committee, and completing the environment statement. By that, I mean the statement, not the technical appendices. That was the first witness statement and preceded Mr (inaudible) on behalf of the defendant, which was produced on 20th June, some nine days before a permission hearing Mr Richards J.
The second witness statement is relatively short, but dealt with an update on prejudice and also dealt with the detail affecting stage 3. Your Lordship will recall in your Lordship's judgment your Lordship summarised that evidence of the linkage between stage 3, if your Lordship recalls the relevance that --
MR JUSTICE NEWMAN: Yes.
MR PURCHAS: -- and other fixed parameters of the application.
My Lord, two days before the first hearing before Richards J, there were two witness statements produced from the claimant. The one from Susan Green does not touch on this application, but there was one from Mr Burkett, who has since sadly died, dealing with dust, particularly germane to the point I made a moment ago.
Next, so far as evidence is concerned, a week or so -- just under a week before the House of Lords hearing, there was a witness statement from Susan Green, a third, which dealt with certain matters relating to contamination and particularly the photographs with comments on them.
Following that, and following permission being granted, on 12th September 2002 -- and that is within the time allowed for the other parties to file evidence -- this is under the old rules, order 53, as it was -- Mr Herron's third witness statement was filed and that dealt with, as your Lordship may recall, and indeed it was very much used in the submissions, both the changes in the application.
MR JUSTICE NEWMAN: Yes.
MISS PETER: Your Lordship will remember it filled in all the details. It dealt with the photographs, questions of contamination and provided the factual matrix for the hearing.
That was followed up with specific requests in November, the part 18. Your Lordship has the response to that, and particularly replies 4 and 5. That is at page 94.
What I would submit is that evidence was clearly necessary -- I do not think I put it other than that -- necessary for a proper consideration of this matter by the court.
Of course, it could have been filed by the authority, it could have been filed by the claimant, but the fact that we incurred the costs of providing that necessary evidence should not mean that we should be denied what are proper costs of this application to the court, triggered by the grounds sought to be explored in detailed fashion by the claimant.
So, my respectful submission, in this situation is it is appropriate for an award of costs to be made. I should add also we dealt with prejudice, which your Lordship relied on at paragraph 43, particularly on ground 4.
I think it is paragraph 43.
MR JUSTICE NEWMAN: Yes.
What are we talking about in terms of amount? Is there any estimate you can give me?
MR PURCHAS: My Lord, I am afraid I have not come with that figure, but it was carefully prepared, and I hope in a clear fashion, in an application that was of considerable complexity.
MR JUSTICE NEWMAN: How do you define the suggested order by reference to evidence?
MR PURCHAS: Preparation of the evidence filed on behalf of the interested party.
MR JUSTICE NEWMAN: After a particular date?
MR PURCHAS: We can actually identify the three witness statements, because that is the evidence of John Herron.
MR JUSTICE NEWMAN: The three witness statements of Mr Herron. They can be easily identified.
MR PURCHAS: And in responding to the part 18 request, again I give your Lordship the date of that. It is in bundle 5 and your Lordship has that.
MR JUSTICE NEWMAN: I see. There we are.
MR PURCHAS: My Lord, I can go into the detail.
MR JUSTICE NEWMAN: No. Let us see what Miss Sheikh has to say about this one.
MS SHEIKH: My Lord, I resist the application. In my respectful submission, the principles of Bolton and Berkeley still apply and the interested party should not normally be entitled to any set of second costs. I would rely on the case of Berkeley.
MR JUSTICE NEWMAN: Do you have it there?
MS SHEIKH: I have it, yes.
MR JUSTICE NEWMAN: Could you hand it up?
MS SHEIKH: Yes.
My Lord, Berkeley says that the interested party for a second set of costs would have to demonstrate a separate issue. My learned friend says there is no separate issue in this case.
MR JUSTICE NEWMAN: Where do you find that?
MS SHEIKH: My Lord, that is in the actual decision and it is --
MR JUSTICE NEWMAN: Nourse LJ, is it?
MS SHEIKH: That is right, my Lord. It is page 5 of 6 of this printout and it is about halfway down the big paragraph, which says:
"I am nevertheless unable to conclude that they have been able to demonstrate a separate issue, not covered by the Secretary of State, on which they were entitled to be heard".
My Lord, this is derived from the case of Bolton.
MR JUSTICE NEWMAN: Just forgive me if I look at this.
MS SHEIKH: Certainly, my Lord.
Do sit down in the meantime.
MR JUSTICE NEWMAN: Thank you.
I have looked through Berkeley now. Do I need to look at Bolton?
MS SHEIKH: My Lord, no. I am going to rely on the same paragraph that is already cited in Berkeley, on page 4 of 5, right towards of bottom of it, where it says that in planning appeals there would not be two costs normally unless there is a separate issue that has been identified.
My Lord, have you had the opportunity to look at that paragraph?
MR JUSTICE NEWMAN: Yes, I have.
MS SHEIKH: In that respect, this particular matter goes on and talks about the assistance that the interested party was able to provide to the Council and in the case of Berkeley, the learned judge determined that, although the Club was able to assist throughout and provide all sorts of helpful material to the court, it was merely assistance and that was not enough to warrant further costs.
My Lord, that is on page 5 of this judgment.
MR JUSTICE NEWMAN: Yes. I have read that.
MS SHEIKH: In that situation, I would say that any assistance provided by the interested party in this case amounts to the same, assistance -- evidence that was put forward to assist in reaching the determination that your Lordship did reach -- and it could have been filed by the local authority and in any event it was merely in the form of help. It was useful and helpful, but cannot be classified as a separate issue for which any costs should be made.
That would fall outside the principles established by Bolton in the House of Lords and Berkeley on the costs and, that in --
MR JUSTICE NEWMAN: That is your submission?
MS SHEIKH: Yes, my Lord.
MR JUSTICE NEWMAN: Thank you very much indeed.
Mr Purchas, what basis do you say there is for the court, if you are not identifying a separate issue?
MR PURCHAS: May I deal with that point? I am very grateful to Miss Clayton for producing this.
There are plainly material differences in the principle which do not apply to this situation. May I just deal with those very briefly?
This is not a situation first of all of a set of costs, which is a principle which has gone back through the Crown Office years ago and through to the Administrative Court today. The costs I seek have not been paid, or would not be paid, to the defendant because he has not prepared this evidence. This is additional cost. There is no question of the principle of a second set of costs being awarded here.
If one looks at Berkeley, and I confess I have not had the opportunity to on this occasion -- I make it clear I have seen this decision before, so I am not disadvantaged, but I have not re-read it on this point -- it does not look as if Mr Hicks in being of assistance actually provided any additional evidence. Certainly, it was the Secretary of State's decision letter that contained all that is necessary, or there was, I think, the environmental assessment point. Certainly, there was no application recorded on the decision, so far as I have been able to look at, seeking costs of the production of evidence. That does not seem to be the case.
What happened there was slightly bizarre, I think, in the court below. The Secretary of State did not get his costs, I think, but in any event, the question of an application for the preparation of additional evidence was not before the Court of Appeal.
May I ask your Lordship just to look at page 4 of 5 to see what it was that Mr Hicks was providing?
MR JUSTICE NEWMAN: Yes.
MR PURCHAS: It reads:
"Mr Hicks submits that the Club qualifies for orders for costs here and below within those principles. He has made a number of points. In regard to the environmental assessment question, he has said that the Club, having been throughout represented and fully involved at the public inquiry, was uniquely able to assist the judge as to the information available at the inquiry, in order to help him decide whether, in the absence of an environmental statement, there had, as has since been held, been sufficient information available to take its place".
That looks as if certainly there is nothing to the contrary. Mr Hicks' submissions are referred to.
He made a similar point in regard to the policy question:
"His third principal point is that it was recognised ahead of the hearing before the judge that the Secretary of State was unlikely to argue the question whether there had been an urban development project".
That is a separate submission.
So far as I can detect, there is no suggestion by Mr Hicks that the Club had actually put in additional evidence. So essentially the differences I make, to summarise the position, are: first, this is not a second set of costs. It is not recovering costs which have already been awarded.
Secondly, the issue considered in Bolton and Berkeley was about representation, essentially -- the case presented -- and, my Lord, that is different from this situation.
I would invite your Lordship to approach it in the normal way, having regard to the overriding objective and at your Lordship's discretion.
MR JUSTICE NEWMAN: Thank you very much.
MR PURCHAS: Unless I can assist your Lordship further?
MR JUSTICE NEWMAN: No. Thank you very much indeed.
As to the costs in this matter, the Secretary of State asks for his costs and there can be no doubt that he is entitled to the whole of his costs to be assessed. But as to that, there is an outstanding question, which has yet to be resolved, namely the extent to which there should be any set-off. That is a matter to which I shall return.
I also have an application for some costs to be awarded to the developer. Mr Purchas limits his application to the costs of the preparation of the evidence filed on behalf of the developer (who was the interested party) of the evidence being contained in three witness statements for an executive of the company, John Herron.
This application is resisted on a principal ground by Miss Sheikh, who appears for the claimant, who is legally aided. She submits that, according to the case of Berkeley -- that is Berkeley v Secretary of State for the Environment and Fulham Football Club (transcript 12th February 1998) in the Court of Appeal, Nourse LJ dealt in similar circumstances in a planning case with the costs of the interested party, namely a football club. Nourse LJ cited the House of Lords decision in Bolton and Metropolitan District Council v Secretary of State for the Environment  1 WLR 1116 and stated that the particular paragraph which he cited satisfactorily set out the essence of their Lordships' decision:
"Although costs are in the court's discretion, in planning appeals, where the Secretary of State succeeds in defending his decision he will normally be entitled to the whole of his costs and should not be required to share them by apportionment. The developer will not normally be entitled to his costs unless he demonstrates a separate issue, not covered by the Secretary of State, on which he was entitled to be heard, or has an interest requiring separate representation. A second set of costs is more likely to be awarded at first instance than in the Court of Appeal or the House of Lords, and an award of a third set of costs will rarely be justified".
Mr Purchas QC, for the developer, submits that what he is asking for here is really outside that principle, as stated in the Berkeley case, and the facts in Berkeley are to be distinguished from the facts here.
In my judgment, it is the first part of the citation which is important. It seems to me that the focus of attention on this application should be to that; namely, that the Secretary of State will normally be entitled to the whole of his costs and should not be required to share them by apportionment.
What in effect Mr Purchas submits in this case is that the evidence of Mr Herron was evidence which was put in by the developer because of the wide ranging issues which this application gave rise to, and he accepts that it is evidence which could have been put in by the Secretary of State.
Thus, in effect, he submits that this was necessary evidence in the case, the costs for which have been incurred by the developer, and they have not been incurred by the Secretary of State, who is going to succeed. The Secretary of State has succeeded and will have an order for all his costs. Therefore, this aspect of the matter, relevant as it was and of assistance to the court, should be met by the court, exercising its discretion, to cover that aspect of the preparation for the case.
As I indicated in my judgment, that touches on what the Court of Appeal were referring to, namely a question of apportionment. In effect, what is being said, as I understand it, is that there is no separate issue which can be identified, in accordance with the Bolton principle, but what can be identified is a step taken by the developer which has had the effect of assisting the Secretary of State to succeed in this case without him having to incur the costs which he could have incurred.
That seems to me to get very close to an apportionment argument, but there has been no argument advanced so far as to apportionment, having regard to the authorities which bind me to throw open the door on this occasion to the developer to recover costs of any sort in these circumstances from the unsuccessful claimant. For all those reasons, I do not exercise my discretion.
MR PURCHAS: My Lord, may I just say your Lordship said "Secretary of State". That should obviously be the London Borough.
MR JUSTICE NEWMAN: It is the London Borough, indeed.
MR PURCHAS: It is the London Borough of Hammersmith.
MR JUSTICE NEWMAN: Thank you very much, Mr Purchas.
As to your difficulty, what I would suggest really is why do you not take time and make some submissions in writing?
MS SHEIKH: In writing?
MR JUSTICE NEWMAN: Prepare some submissions in writing. You must submit them to me.
If you want to avoid incurring further costs by attending, I am content, with your agreement, to deal with the application on the papers to save any further costs being incurred. But if you do not want that course, you must let the court and my clerk know and it will have to come back. So that may be the way forward.
I do not know if you want to put anything in writing?
MISS PETER: I would have asked for an opportunity to respond.
MR JUSTICE NEWMAN: I was going to give you that, but I was wondering whether you should go first. Why do you not go first by 10.30 tomorrow morning?
MISS PETER: Yes, my Lord.
MR JUSTICE NEWMAN: So you must serve your short, as I imagine, submission by 10.30 tomorrow morning and then you can respond the next morning. Tomorrow is Friday, so Monday morning.
MS SHEIKH: I am grateful, my Lord.
MR JUSTICE NEWMAN: Then, if you want to say anything in reply, Miss Peter, will you do it by -- I do not know how committed you are to court next week, but could you do it by Tuesday?
MISS PETER: My Lord, unfortunately I do not think I would be able to. May I ask by Thursday?
MR JUSTICE NEWMAN: What about by Wednesday?
MISS PETER: All right. Wednesday, my Lord.
MR JUSTICE NEWMAN: Wednesday, close of business?
MS SHEIKH: My Lord, in that case, may I extend the time to Tuesday morning, because I am going to be in court the whole of tomorrow?
MR JUSTICE NEWMAN: All right. You can have Tuesday morning and you can have Thursday morning.
MISS PETER: My Lord, yes.
MR JUSTICE NEWMAN: Could you agree between you, if you can, whether you want me to deal with it on the papers? Otherwise, we will have to have you back.
MS SHEIKH: My Lord, yes.
MR JUSTICE NEWMAN: Thank you very much. Any other applications?
MS SHEIKH: I do have an application for leave to appeal, my Lord.
MR JUSTICE NEWMAN: Yes. Would you like to develop that?
MS SHEIKH: Yes.
My Lord, obviously the nature of such an application is that I would have to submit that your Lordship has erred in law, but I hope to be as deferential as I should be.
MR JUSTICE NEWMAN: You do not have to worry about that.
MS SHEIKH: My Lord, we seek the grant of leave on four grounds.
MR JUSTICE NEWMAN: Four?
MS SHEIKH: The first is that the learned judge has erred in law and in principle in that he failed to address, in accordance with the requirements of the legislation transposing the directive, the issue of the consequences of the acceptance by the London Borough of Hammersmith and Fulham of the criticisms made in the report by the Institute of Environmental Assessors.
MR JUSTICE NEWMAN: Goodness me.
MS SHEIKH: My Lord. That is your Lordship --
MR JUSTICE NEWMAN: Is that Mr McCracken, or is that you?
MS SHEIKH: On directions from my leader, my Lord.
MR JUSTICE NEWMAN: I think I know what you mean.
What is the next one?
MS SHEIKH: My Lord, the next is that the learned judge failed to apply principles laid down by the House of Lords in Berkeley as to the importance of the opportunity for public participation. That is in relation to the same point.
MR JUSTICE NEWMAN: Right.
MS SHEIKH: That public participation would have to be based on the material that is published in the developer's environmental statement. If that was not there, then the opportunity for public participation was not there either.
MR JUSTICE NEWMAN: Right.
MS SHEIKH: On the same point, that the learned judge wrongly considered that the private meetings with the Council could remedy the deficiencies accepted by the Council in the environmental statement and the officer had conceded that the report was bad. That is the Committee report that was referred to earlier.
MR JUSTICE NEWMAN: Thank you. Those are the four?
MS SHEIKH: No. That is all part of the first ground relating --
MR JUSTICE NEWMAN: I see.
MS SHEIKH: Traffic, my Lord.
MR JUSTICE NEWMAN: Traffic, yes.
MS SHEIKH: This is ground 2. In respect of traffic, the learned judge erred in law and in principle in that he regarded it, or treated it, as permissible in law for the local authority to reject in its entirety the relevant section of the environmental statement and as an alternative to carry out its own assessment as an alternative.
That we say is an error of law and principle and that is referred to in paragraph 35 of your judgment.
MR JUSTICE NEWMAN: Yes.
MS SHEIKH: The third ground is that the learned judge failed to appreciate that the issue before him in respect of the neighbours or the residential neighbours was not whether precautions were in fact necessary but whether the issue should have been examined. That is paragraphs 36 and 37 of your judgment.
MR JUSTICE NEWMAN: Yes.
MS SHEIKH: The fourth ground is that, in failing to hold that the regulation 4(2) -- that was the regulation requiring the statement by the local authority -- by failing to hold that that regulation statement is integral to the method of transposition of the directive adopted by the legislation in this country, that was an error also of law and of principle.
MR JUSTICE NEWMAN: Yes.
MS SHEIKH: In relation to that point, in applying the principle of substantial compliance where the directive had been transposed directly was an error in law. The doctrine of substantial compliance cannot apply in that situation -- only where there is not a correct transposition, and the learned judge erred in failing to appreciate that he had no discretion to withhold a quashing order as it was not de minimus in relation to regulation 4(2) and the reason for that is the failure to comply with a requirement which is integral to the transport (inaudible) cannot be _de minimis_, and for those reasons --
MR JUSTICE NEWMAN: You seek permission?
MS SHEIKH: Yes.
MR JUSTICE NEWMAN: Thank you very much.
Anybody want to say anything about that?
MISS PETER: No, my Lord.
MR JUSTICE NEWMAN: Thank you very much.
So far as permission is concerned, I will not recite the catalogue of grounds that have been submitted to the court. Suffice it to say that in my judgment permission ought to be refused.
None of the matters in my judgment is either likely to succeed, nor do they raise any other point of importance. Thank you very much indeed.
MS SHEIKH: Thank you.
MR JUSTICE NEWMAN: Right.
MISS PETER: My Lord, one final point is that, although I understand there was some discussion about whether permission was to be granted, it is not formally granted in the judgment. So it is open to you to refuse permission for judicial review and we would invite you, on the grounds it would appear from the judgment that the whole application was misconceived in the first place.
MR JUSTICE NEWMAN: You are right.
MISS PETER: Permission was not granted by either the House of Lords or --
MR JUSTICE NEWMAN: Except it had been remitted to the High Court for substantive issues to be determined without it being clear. The House of Lords did not make it clear whether they were saying permission or not.
MISS PETER: No. They simply said the substantive issues --
MR JUSTICE NEWMAN: I do not think we need dwell on that. I will treat it as a case, -- having regard to the House of Lords judgment, which merits permission, but the application has failed. Thank you very much.
I will look forward to hearing from you both.