England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		17th March 2005

1. MR JUSTICE FORBES: This is an application made under section 288 of the Town and Country Planning Act 1990 (as amended) (hereafter the 1990 Act) whereby the claimants challenge the validity of a decision of the First Secretary of State (hereafter the Secretary of State) dated 12 February 2004, on an appeal made by the claimants pursuant to section 78 of the 1990 Act. The Secretary of State's decision was to the effect that he adopted the recommendation of his Inspector and dismissed the section 78 appeal made by the claimants.
2. The claimants' section 78 appeal was against the decision of Somerset County Council (hereafter the Council) to refuse an application for planning permission made by the claimants for peat production and removal and subsequent creation of waterfowl habitat on land at London Drove, Westhay Moor, near Glastonbury, Somerset. The claimants' section 78 appeal was recovered by the Secretary of State by direction dated 30 August 2002 because it raised issues that might affect a site of national importance, in particular, in relation to the Government's international obligations under EC Council Directives on the conservation of wild birds (Directive 79/409/EEC) and the Ramsar Convention.
3. The section 78 appeal was heard on 28 January, 8 July and 25 November 2003. The Inspector duly published his report on 6 December 2003. In paragraph 4 of the Inspector's report the appeal site is described as follows:

"The appeal site consists of an area of 1.69 hectares of land on the east side of London Drove on Westhay Moor. It is 1km north of the village of Westhay and 6 km to the north west of Glastonbury. The site is situated within the Westhay Moor Site of Special Scientific Interest (SSSI), which forms part of the Somerset Levels and Moors Special Protection Area (SPA) and Ramsar wetland of international importance. In addition, the Westhay Moor National Nature Reserve (NNR) surrounds the site. The site itself is a small area of unworked peat surrounded by worked out areas."

4. As I have already indicated, these proceedings are an application under section 288 of the 1990 Act. So far as material, that section provides as follows in section 288(1):

"If any person-

(a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds-

(i) that the order is not within the powers of this Act, or

(ii)that any of the relevant requirements have not been complied with in relation to that order; or

(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds-

(i) that the action is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section."

Then subsection (5):

"On any application under this section the High Court-

(a) may, subject to subsection (6), by interim order suspend the operation of the order or action, the validity of which is questioned by the application, until the final determination of the proceedings;

(b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action."

5. Although section 288 of the 1990 Act refers to an application being made to the High Court, an application under section 288 is very often and commonly referred to as an appeal. However, it is quite clear that the claimants do not properly understand the nature of an application under section 288 of the 1990 Act and the limited relief that can be afforded by the court in the event that the application or appeal is made out. The reason I make that observation at the outset of this judgment is that this hearing has been conducted by Mr Sweet, on behalf of both claimants, in a dignified and courteous manner, but on the basis that what he is seeking is a correction of what he regards as a serious injustice that has been caused to him and his wife as a result of their inability to harvest the peat on their land. This is very clear not only from what he has said, but from the final paragraph of his written skeleton argument which concludes as follows:

"The honourable court is respectfully asked to approve our application to harvest our peat and construct a waterfowl habitat in keeping with the surrounding land."

6. As I pointed out to Mr Sweet in the course of his submissions, I am not in a position to afford a remedy of that sort, even if I were minded to allow his application under section 288. However, for reasons which I am going to go on and make clear, this application must fail. The claimants have singularly failed to point to any error of law in the decision-making of the Inspector which has been adopted by the Secretary of State when making the decision to dismiss the section 78 appeal. What Mr Sweet has sought to do is to persuade this court of the general justice of his case, or, put another way, of the injustice which he claims that he and his wife have suffered as a result of not being able to harvest the peat on their land.
7. Mr Sweet has made it clear to me that the problems that he and his wife have encountered in this regard have been so significant that it has worried and distressed them very greatly and adversely affected their health. Nobody listening to Mr Sweet could fail but to feel sympathy for him on a human level, but that is a far cry from coming to the conclusion that he has made out any proper basis for impugning the decision-making of the Inspector in this case and consequently that of the Secretary of State.
8. I turn now to give further details of what has happened in this case. As I have already indicated, the Inspector published his report on 6 December 2003. He recommended that the appeal be dismissed. He did so on the basis that the environmental statement provided by the claimants was inadequate because it failed to provide sufficient information against which to assess fully the environmental effects of the proposed development. The Inspector held that the environmental assessment did not accord with the requirements of regulation 3 of the 1999 Environmental Impact Assessment Regulations (hereafter the 1999 Regulations) and the associated guidance to be found in paragraph 112 of Circular 2/99.
9. The Inspector further came to the conclusion that, irrespective of the shortcomings of the environmental assessment, the proposed development did not accord with the Development Plan or the policies contained in the Emerging Minerals Local Plan to which the Inspector, as he was entitled to, attached substantial weight. The Inspector considered that there were no material considerations which would suggest a different outcome. The Inspector went on to make it clear that he had taken into account all other matters that had been raised by the claimants, including their submission that compensation should be payable to them if they were prevented from extracting peat from their land. In the event, the Inspector concluded that that particular matter was not something which fell to him to decide or consider.
10. On 12 February 2004, the Secretary of State agreed with his Inspector's recommendations and dismissed the appeal. On 18 March the claimants issued a Part 8 claim form, refusing to accept the correctness of the Inspector's recommendations and the Secretary of State's decision. On 30 March 2004, English Nature, who were at that stage third defendants to the proceedings, applied to have the claim struck out as against them. On 10 June 2004, Somerset Wildlife Trust, who were then the fourth defendants to the original claim, also made application to have the claim struck out against them. The matter came before me on 27 October 2004, and having heard submissions on the matter from Mr Sweet and from counsel representing the parties, I made an order striking out the claimants' claim against English Nature and Somerset Wildlife Trust. On 8 November 2004, the claimants filed an appellant's notice seeking permission to appeal from my order of 27 October, but on 13 January 2005 Buxton LJ refused permission to appeal against my original order.
11. On behalf of the Council, Miss Boyd submitted that the claimants have failed to make out any case that the Secretary of State made a decision that did not fall within his powers under the 1990 Act, or that any of the relevant requirements of that Act have not been complied with. She submitted that the written submissions that have been produced by Mr Sweet were unclear in the way in which it was sought to say that the decision-making of the Inspector and/or the Secretary of State was flawed. Miss Boyd made what seems to me to be a very valid point, namely that the thrust of the claimants' case really is that they are extremely concerned with what they perceive as the injustices perpetrated by and the improper behaviour of English Nature and/or the Somerset Wildlife Trust; neither of whom remain parties to this action. Miss Boyd stressed that the claimants make a point of seeking compensation from both those parties. Not only is that so in the written submissions prepared by Mr Sweet, but it was also a prominent part of his oral submissions to me.
12. As Miss Boyd pointed out, an application under section 288 is plainly not the appropriate route for complaints and relief of this type. The procedure under section 288 is confined to correcting an unlawful process of decision-making, in this particular case, in relation to the Inspector's report and the Secretary of State's subsequent decision based on that report. The relief available would be limited to quashing the Secretary of State's decision. That much and no more. Plainly these proceedings are not proceedings capable of providing the sort of relief to which the claimants feel that they are entitled in order to put right what they perceive to be a serious injustice to them as the owners of the land in question and as those who are entitled, as they see it, to harvest the peat available on that land.
13. Having said that, in the course of the hearing before me it did emerge that the claimants sought to make a number of points with regard to the reasoning of the Inspector. In the early stages of his submissions, Mr Sweet drew attention to a number of what he regards to be errors in the Inspector's report, so far as concerns the Inspector's account of the various submissions made to him by the parties. As it seemed to me, those various criticisms were either not justified or, to the extent that there was any justification in them, they were not matters of any great consequence.
14. Furthermore, subject to what I have to say in just a moment, it did not seem to me that any of the mistakes which Mr Sweet had identified carried through into the Inspector's reasoning, as set out in that part of his report which sets out his conclusions. However, there was one matter, to which Mr Sweet referred, and with which it is appropriate for me to deal. That relates to the question of whether the Inspector was right to regard the harvesting of peat as an extraction of minerals. The reason why that may be of significance, so far as concerns the reasoning of the Inspector, is that his conclusion that the environmental assessment was inadequate was based, at least in part if not wholly, on his conclusion that the proposed development was a Schedule 2 development within the 1999 regulations. That in turn depends on whether the harvesting of the peat is properly to be regarded as extraction of minerals by fluvial dredging (see paragraph 2C of column one of Schedule 2).
15. Mr Sweet is adamant in his submission that peat is not a mineral. However, this point was raised on the last occasion before me and I gave some consideration to it, although not ruling conclusively on it. The argument put forward by the claimants is that there is a general misunderstanding as to not only what peat is but as to what they intend to do with regard to the peat on their land. It was Mr Sweet's submission that all he intends to do is to farm the peat as a sustainable crop. He emphasised that his harvesting of the peat will be similar to the harvesting of a normal crop.
16. As I indicated on the last occasion, Mr Sweet has evidence that shows that peat is laid down in the ordinary course of events in a measurable amount every year. His plan is to farm the peat by extraction in a manner and to an extent that it will be naturally regenerated as if it were a sustainable crop. He therefore emphatically rejects the suggestion that peat is a mineral. Not only that but he has made it clear that his view is that peat is not a substance which is in or under the land. It is a crop on the land.
17. However interesting Mr Sweet's arguments are about this aspect of the matter, he is faced with the problem that the expression mineral is defined, for the purposes of the 1990 Act, by section 336(1) as including all substances of a kind:

"ordinarily worked for removal by underground or surface working, except that it does not include peat cut for purposes other than sale;"

18. As it seems to me, and as I indicated on the last occasion, it seems plain that peat extracted for sale would normally qualify as a mineral within the definition contained in section 336(1). Although Mr Sweet has submitted that peat is not a substance which is in or under the land, I cannot accept that submission. It is quite clear that peat does form part of the land for the purposes of extraction, and as part of the land it is in the land. Furthermore, the type of extraction which is suitable for the extraction of peat, namely surface working, emphasises the fact that it is in or under the land.
19. In my view there is no doubt that where peat is extracted for the purposes of sale, then it is a mineral within the meaning of section 336(1) of the 1990 Act. It is nothing to the point that, as Mr Sweet pointed out, there can be other circumstances in which peat is extracted other than for the purposes of sale and thus would not constitute a mineral within section 336 of the 1990 Act. In this case it has never been suggested that the extraction of the peat, which was part of the proposed development, was for any purpose other than for sale. Clearly, therefore, the proposed development does involve the extraction of peat for sale and that means that, for the purposes of the 1990 Act, the peat is a mineral. Therefore, to the extent that the Inspector's conclusions are based on his finding that peat is a mineral, or is based on the proposition that peat is a mineral, his reasoning is unassailable. There is no substance in the point.
20. Another point made by Mr Sweet was that, in the light of the fully revised statement that was presented to the Inspector at the appeal, his conclusion that the claimants' environmental statement was wholly inadequate was not a rational or proper decision for the Inspector to reach. Mr Sweet's argument was, in short, that the fully revised environmental statement dealt with all the outstanding problems and matters of concern. There was therefore no proper or rational basis upon which the Inspector could come to the conclusion that the environmental assessment was inadequate.
21. I am afraid I cannot accept that submission. It is quite clear from paragraphs 37 to 39 of the Inspector's report that he was fully alive to the fact that there was a fully revised statement and that he took that into account as part of his overall judgment in the matter. I quote from his report as follows:

"37. Compared with the originally submitted Statement the fully revised Statement includes additional information on various matters. EX10A1 showing site boundaries and access in the Westhay Moor National Nature Reserve is new. New information on flora and fauna is included at EX11. New information on hydrology is included at Section 5 and EXs16-19. New information is included on archaeology at EX20, and, in addition, Section 7 with Exs28-30 includes more information on transport and highway matters.

38. From the responses to the formal consultation on the revised Environmental Statement, it is apparent that certain matters have been adequately dealt with. The information on geological impact is now satisfactory and the Highway Authority is satisfied that there will be no unacceptable transport and highway implications caused by the proposal. The revived statement also includes a letter from the Levels and Moors Archaeologist at EX27, which indicates that, subject to archaeological monitoring of the proposed extraction, there are no archaeological objections to permission being granted. Comments from the Countryside Agency. Mendip District Council, and the Environment Agency raise no objections to the proposal. Also, comments from the Council's Landscape Adviser, while suggesting that the Environmental Statement is inadequate, recognises that the impact of the proposal is primarily in respect of nature conservation.

39. However, the responses from the Somerset Wildlife Trust, the Campaign to Protect Rural England and English Nature maintain their positions regarding the inadequacy of the Environmental Statement. The views of the Somerset Wildlife Trust are further reinforced in subsequent correspondence with the appellants. These point to significant remaining inadequacies in the Environmental Statement with regard to such matters as, the impacts on nationally and internationally important bird populations, site hydrology and water quality issues and the stability of peat bulks during the extraction process. I see no reason to take a different view from those expressed by the organisations having a particular interest in nature conservation. "

22. In the light of that review of the position with regard to the environmental statement, as enlarged by the fully revised statement, the Inspector went on in paragraph 40 to come to the following conclusion:

"40. I sympathise with the appellants in their desire to realise the value of the peat on their land. However, the appeal site is within a highly sensitive area in nature conservation terms. The absence of any significant professional involvement in the preparation of the Environmental Statement has resulted in a document which is poorly presented and lacking in certain matters of fundamental importance in assessing the likely impact of the proposed development on the surrounding area. Consequently, for all the above reasons I conclude that the Environmental Statement is inadequate having regard to the 'Information for Inclusion in Environmental Statements' as set out in Schedule 4 of The Town & Country Planning (Environmental Impact Assessment) (England & Wales) Regulations 1999."

23. As it seems to me, that was a conclusion that the Inspector was fully entitled to reach on the information that he had before him and it was a conclusion which the Secretary of State was entitled to accept and adopt when reaching the decision that he did. In my view there is no possible basis upon which it can be said that the conclusion reached by the Inspector in paragraph 40 of his report, and as accepted and approved by the Secretary of State, is in any way irrational or Wednesbury unreasonable, or flawed in any other respect. Therefore, this particular point again is in my view, on analysis, one without any substance to it.
24. The conclusion I have reached therefore, with regard to the first main conclusion reached by the Inspector as forming the basis for recommending dismissal of the appeal, namely that the environmental statement was inadequate, is one that is not flawed in any respect as suggested by the claimants.
25. As to the second main basis upon which the Inspector recommended dismissal of the appeal, namely that the proposed development did not accord with the policies of the Development Plan and the Emerging Minerals Local Plan, and that therefore this was a factor which weighed heavily against allowing the appeal, the claimants have not, so far as I can ascertain, managed to advance any argument or grounds of challenge to that part of the Inspector's reasoning. Despite my efforts to try and assist Mr Sweet to identify any matter upon which he wished to rely in relation to that part of the Inspector's report, he was unable to identify any.
26. Accordingly, as it seems to me, and as I indicated earlier in this judgment, the real thrust of these proceedings has been for the claimants to express their despair and sense of injustice at not being able to work their land in the way that they would wish to work it. They feel a great sense of injustice as a result of being prevented from harvesting their peat, and this has been the driving force behind their attempts to challenge the decision-making of the Secretary of State and his Inspector in this case. On analysis, very little of those various matters upon which Mr Sweet has relied, for the purposes of demonstrating the injustice which he says he and his wife have suffered, actually translate into appropriate grounds to support an application under section 288 of the 1990 Act.
27. Doing the best I can, I have sought to identify the main matters which, as it seemed to me, were ones upon which the claimants could rely for the purposes of section 288. To the extent that I have been able to identify matters of that type, I have decided that there is no substance in them for the reasons that I have given earlier in this judgment. Accordingly, for all those reasons, this application is dismissed.
28. MISS OLLEY: My Lord, I am grateful. I have an application for the Secretary of State's costs which have been reduced in accordance with the course of action taken by the Secretary of State. Has a copy found its way to your Lordship?
29. MR JUSTICE FORBES: Yes, I have seen a copy. Mr Sweet, there is an application for costs because the claim has been dismissed. There is also going to be an application that I assess those costs summarily, that is to say here and now.
30. THE APPLICANT: Can we pay our own costs, my Lord?
31. MR JUSTICE FORBES: Sorry?
32. THE APPLICANT: Can you make a judgment for everyone to pay their own costs?
33. MR JUSTICE FORBES: First of all, is there anything you want? That is presumably what you would wish to say on the application for costs itself?
34. THE APPLICANT: As we have to pay someone else's costs it will only cause an extra burden and more mental torture.
35. MR JUSTICE FORBES: On the last occasion I did explain to you that the usual consequence of losing an action, or a claim, is that you will have to pay the other party's costs. That is the normal order. You have to tell me why you should be treated any differently, if you wish me to treat you any differently.
36. THE APPLICANT: We couldn't afford to have a lawyer to represent us. Why should we have to pay someone else's costs?
37. MR JUSTICE FORBES: Is there anything else you want to say on that aspect of the matter?
38. THE APPLICANT: Only that it will only cause us more distress.
39. MISS BOYD: I hope it does not overly complicate matters but a schedule was served by the local planning authority on 15th March by way of fax to Mr Sweet.
40. MR JUSTICE FORBES: Yes, I have seen that.
41. THE APPLICANT: On 15 March my fax was not working.
42. MR JUSTICE FORBES: You have not seen any of these schedules of costs then?
43. THE APPLICANT: I have not had time to look at it.
44. MR JUSTICE FORBES: I am not going to make any summary assessment. Mr Sweet has not seen the schedules and not had a chance to consider them, even though, if I may say so, both schedules do seem to be very reasonable. It is not appropriate to make an order for summary assessment. I cannot expect a litigant in person to be able to deal with this just there and then.
45. MISS OLLEY: My Lord, I understand he has had a chance to see these schedules. Perhaps I ought to make clear the reason why we make an application for costs is because the party who has successfully defended the litigation is entitled to their costs.
46. MR JUSTICE FORBES: I thought I just said that.
47. MISS OLLEY: Any claims brought does occasion costs to the public purse. These are exceptionally reasonable costs.
48. MR JUSTICE FORBES: I have also just said that too. I did not say "exceptionally" reasonable. I have little doubt that if Mr Sweet gives careful thought to them he will realise that they are reasonable. I think it is not really appropriate for me to say more than that at this stage. He needs a chance to look at them. Mr Sweet, I am afraid I cannot see any proper reason for making an order other than the usual order in these cases, and that is that the claimants are to pay the defendants' costs of these proceedings, such costs to be assessed on a detailed basis, if not agreed. That is the order that I make.
49. THE APPLICANT: Is there any other way it can be done, my Lord?
50. MR JUSTICE FORBES: It would be open to you to speak to the lawyers representing the County Council and the Secretary of State and see whether they can accommodate you in some way or other both as to the amount and as to how you pay it.
51. THE APPLICANT: Can we pay so much a month?
52. MR JUSTICE FORBES: Maybe, it is not for me to say, but all I will say is that my experience suggests that public authorities, including Central Government authorities, are not unreasonable in the way that they deal with sensible requests.
53. MISS OLLEY: I have heard what your Lordship has to say and I beg your leave to make the point that if this matter goes to detailed assessment it may not be proportionate and it may well exceed the costs.
54. MR JUSTICE FORBES: I realise that. If it were counsel standing up in front of me instead of a litigant in person I would be able to take a more robust line on how the matter should be approached.
55. MISS OLLEY: May I make a suggestion that your Lordship rises to allow Mr Sweet to focus his mind.
56. MR JUSTICE FORBES: Yes, I am certainly prepared to do that. Mr Sweet, what I am going to do is I am going to rise for a short time to enable you to speak to the lawyers representing the parties to see whether you can agree something with regard to the costs. Do not feel that by giving you that opportunity I am putting you under any pressure to agree something. If you feel at a disadvantage and if you feel you want time to go away and reflect on the matter then you must. I will not prevent you having that time. This is not intended to put pressure on you. It is merely intended to give you an opportunity to see whether you can agree something.
57. THE APPLICANT: I would rather have time to think about it.
58. MR JUSTICE FORBES: I am afraid that it would not be right if he wants time to think about it. Your suggestion is a very sensible and helpful one.
59. MISS OLLEY: Perhaps a better way would be to set a short timetable to write any submissions --
60. MR JUSTICE FORBES: I would rather leave it to your solicitor's good sense as to how the matter is dealt with. It is plainly in nobody's interests in the final analysis to go for a detailed assessment. I can see that. Making Mr Sweet accept that is just not possible in a way that would make me confident that he would feel that he has not had any pressure put on him to agree to something. I do not want a situation to arise in which Mr Sweet can feel he has been placed under pressure to agree to something that he subsequently regrets. I quite agree that it would not be in anybody's interests to go to a detailed assessment on this case. With that in mind I hope that good sense will prevail and enable the matter to be agreed at a subsequent stage.
61. MISS BOYD: Just a point of clarification in the order your Lordship made on costs, so that I understand: "the defendants" that refers to the first and second defendants' costs.
62. MR JUSTICE FORBES: The first and second defendants' costs. Mr Sweet, is there anything else? If you wish to appeal against my judgment you need first to ask my permission to do so. I am not inviting you to do so. I am merely telling you that so that you know that is what you have to do. I suspect you probably know it already.
63. THE APPLICANT: Is there any means of getting some sort of justice, my Lord.
64. MR JUSTICE FORBES: Means of getting some sort of justice.
65. THE APPLICANT: We are only looking for fair play.
66. MR JUSTICE FORBES: Within the limits of what I have had to deal with today I hope that is exactly what you have got. I can understand you may not approve of it. I can do no more, I am afraid, Mr Sweet, than say to you what I said on the last occasion: you must, in your own best interests and in the interests of your wife, go and get professional advice. That is the only way in which I feel you are likely to get anything that satisfies you that you have received justice.
67. THE APPLICANT: Is there any point in taking the matter to the European Court of Human Rights?
68. MR JUSTICE FORBES: It is not for me to advise you about that. What I suggest is that you raise that as a point with somebody who can advise you. Make that as a starting point. Go into your local Citizens Advice Bureau, or some such organisation, to get some help and guidance. You could certainly raise that as a possibility.
69. THE APPLICANT: Thank you.
70. MR JUSTICE FORBES: Do I understand then that you are not making any application to me for permission to appeal. I do not want there to be any doubt about it.
71. THE APPLICANT: I do not think I know what to say. I need to think about it.
72. MR JUSTICE FORBES: The time will not allow that. The time limits are quite strict. What I am going to do is to refuse you permission to appeal so at least that formality is out of the way. If you want to take the matter any further you simply have to go to the Court of Appeal. I will formally refuse permission to appeal. If you need to explain it to anybody then you have my permission to say that I refused you permission without you asking me for permission in the first place. It is merely to enable you to go to the Court of Appeal without any technical hitches, if you decide that is where you want to go.
73. What I am going to do, Mr Sweet, is to refuse permission to appeal on the grounds that there is no reasonable prospect of success. I really do mean that, Mr Sweet. It is not just filling in a form. The formality of the refusal of permission to appeal has been completed. You will be able to reflect on the matter and decide whether you want to take it any further.