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 WC2A 2LL
		22 June 2009

1. SIR THAYNE FORBES: This is an application by the claimant, Mr Catt, for the reference of a point of law to the European Court of Justice, and for permission to apply for appropriate relief by way of judicial review in respect of a planning consent granted by the defendant Council ("the Council") on 18 June 2008 to permit the interested party ("the Club") to continue playing football at Withdean Stadium, Brighton, until 30 June 2011.
2. On 21 May 2009, Sir Michael Harrison ordered an oral hearing of the application. He observed that he considered that the application "was weak", saying:

"The application for an ECJ reference seems to me to be a weak one but, as the claimant's complaint has been accepted and registered by the Commission, there should be an oral hearing before a decision on the application is made."

The background facts

3. The claimant, Mr Catt, lives at 15 Shepherds Croft, Brighton BN1 5JF, and his garden adjoins the western boundary of Withdean Stadium, which is owned by the Council. The Stadium used only to be used for athletics, but it has been used since 1998 both for athletics and by the Club for its professional football activities, in particular the playing of home matches. The Club has been granted a series of temporary planning consents to use the Stadium since 1999, and these have included an increase in the number of permitted seats at the Stadium.
4. Mr Catt's underlying concern is said to be that the use of Withdean Stadium by the Club and others materially interferes with the use and enjoyment of his home, and with many other homes. It is said that the use causes significant disturbance by way of noise, traffic congestion and light pollution.
5. The temporary permission which Mr Catt challenges in these proceedings was granted on 18 June 2008, and permits the Club to continue to use the stadium for matches and training for a further period up to June 2001, in addition to the other users of the site. To date, temporary planning permissions had been granted on five occasions, several with an increase in capacity. A short chronology of those permissions is as follows. In 1999 temporary permission was granted retrospectively for the use to continue until 30 June 2001. In November 2002 temporary permission was again granted retrospectively up to 30 June 2003. On this occasion the permission included the provision of another 960 seats. In October and November 2004, temporary planning consents were granted to allow the use to continue until 30 June 2005 and for the provision of 1,966 extra seats, resulting in an overall total of 9,002 seats. These grants for permission were quashed by consent by the High Court on 5 February 2005. It appears that the principal error had been the assumption that no Environmental Impact Assessment ("EIA") had been required.
6. In July 2005, temporary planning consent was granted, allowing the use to continue until 30 June 2008, and for the provision of 1,966 extra seats, again bringing the total seating 9,002. This consent was also challenged. However, on this occasion the challenge was unsuccessful, both in the Administrative Court and in the Court of Appeal. Those proceedings then went to the House of Lords by way of an application for permission to appeal, and in the event it was refused, essentially on the grounds that the matter had become academic (hereafter, I will refer to those proceedings collectively by the expression "Catt No 1").
7. In June 2008, the 2005 permission was continued to allow the use of the Stadium and the retention of the existing temporary facilities until 30 June 2011, together with the addition of a further small staff building and extended "Play for Success" facility (hereafter, "the additional matters"). This application was considered afresh, as required by the Town and Country Planning Act 1990, and is the permission that is the subject of the present proceedings. However, it is important to note that it is common ground that the additional matters to which I have just referred do not increase or materially alter the environmental concerns to which I referred earlier.
8. The Club has also sought planning consent for a football Stadium at Falmer, at the University of Sussex campus. This application had been treated as EIA development. Permission was granted on appeal, firstly in 2005 and then, after further legal challenges, re-decided in 2007. Development of that stadium is still awaited, although the latest information suggests that the project is now in a position to proceed.
9. As stated in the grounds, Mr Catt's claim is that the Council erred in law when carrying out its Environment Impact Assessment screening opinion, as required by the EIA Directive 85/337, and the 1999 EIA Regulations by:

"(1) relying upon mitigation measures that were complex and said to be inadequate; and

(2) failing to take into account cumulative impacts including other uses at the Stadium, particularly when those uses were causing significant disturbance."

10. I should say in passing that the second of these two matters, referred to as the second ground, does not seem to me to add very much by way of arguability to the principal ground, which is ground 1. The questions that it is suggested should be referred to the European Court of Justice for a preliminary ruling relate to the first of the two grounds of challenge identified above. The suggested drafting put forward on behalf of Mr Catt for those questions is set out in the grounds in the following terms:

"When determining whether or not a project is 'EIA development' for the purpose of the EIA Directive, 85/337/EC and, given that Article 5(3) of the Directive requires that information provided in an environmental statement should include, inter alia, a description of the measures envisaged to avoid, reduce and, if possible, remedy significant adverse effects whether:

(1) a decision-making authority must direct its mind to whether the development as described in the application would be likely to have significant environmental effects, or is it entitled to consider whether the development described in the application, subject to certain mitigation measures, would be likely to have significant environmental effects?

(2) If it is permissible for the decision-making authority to consider mitigation measures, can mitigation measures still be taken into account if their effect is uncertain or contentious, or if they would not be part of the project design itself (such as off-site measures)?"

11. As it seems to me, the question at the heart of the screening opinion carried out by the Council in this case was whether the continued use of the stadium by the Club for a further three years would be likely to have significant effect on the environment by virtue of its nature, site or location. Thus, in my view, it is clear that the right question for the purposes of that screening opinion was asked by the Council (see paragraphs 4.4 to 4.8 of the screening opinion).
12. I am satisfied that the critical question before the Council was identical to that before it in 2005. I am so satisfied even when one takes into account the matters alleged or raised in ground 2, referred to above. As indicated above, the additional matters to which I earlier refer related only to certain additional temporary accommodation, which did not give rise to additional capacity, and is not said by the claimant to give rise to any significant effects on the environment. Furthermore, and importantly, in 2007, when carrying out the screening opinion, the Council had the benefit of information as to the impact of the use of the stadium and the effectiveness of the conditions that had been imposed in 2005. I therefore agree with Mrs Townsend, who appeared on behalf of the Council, that it is of the utmost significance what approach was taken to the circumstances of the case by the Court of Appeal in 2007 in Catt No 1 because all the material circumstances, including, as it seems to me, the matter raised by way of challenge in ground 2, were the same in 2007 as they are today.
13. I am reinforced in that view by the terms of paragraph 18 of the judgment of Pill LJ in that case:

"Mr Upton's central submission is that the screening opinion was unlawful because it unlawfully relied on prospective mitigation measures when considering whether the development was likely to have significant effects on the environment. The correct approach is to consider the development described in the application, it is submitted, and not the development subject to proposed mitigation measures. Existing measures dealing with the additional traffic created by matches remained controversial and problematical, it is submitted, and the measures proposed to allow for the extension of seating were untried. Assumptions are made about the success of remedial measures. Past remedial measures do not necessarily deal with future problems. The Council also wrongly had regard to unspecified alternative transport proposals."

As it seems to me, it is clear that the overall factual circumstances to which the Court of Appeal's attention was being drawn in 2007 are the same as those with which the court is concerned today.

14. In my view, it is notable that neither the Administrative Court, nor the Court of Appeal, nor the House of Lords considered it necessary to refer Catt No 1 to the ECJ. Neither did any of the parties consider it necessary. Furthermore, no party or court concerned with any of the cases in which this issue has arisen previously have considered it necessary (see the cases of Lebus, Gillespie and Dicken).
15. As Mrs Townsend observed, it has been said repeatedly that each case depends on its own facts, and Pill LJ went so far as to say in Catt No 1:

"33 ... it would be ludicrous to ignore conditions imposed as to the frequency of football matches, the days on which they may be played and the music which may accompany them."

Pill LJ was dealing with the same argument on similar facts as this court is dealing with in the present application for judicial review.

16. In short, I am satisfied that Catt No 1 is authority binding on me that prevents the claimant from achieving success in his most recent application for judicial review, and I reach that conclusion with regard to both grounds put forward by way of challenge.
17. Also, as Mrs Townsend pointed out, the approach of the ECJ itself, as considered by Pill LJ in Catt No 1, does not "lend itself to rules of thumb as to whether conditions or remedial measures may be taken into account or as to the extent to which their likely effect may be predicted ...", see paragraphs 26 and 27 of his judgment.
18. As it seems to me, it is clear that each case is fact-sensitive. Thus, in Lebus and in Gillespie, the particular facts of those cases justified the quashing of the planning permission in each case. They also concern, in contrast with the present case, prospective measures, rather than controls that had been tried and tested in relation to the very development under consideration. That distinction is an important one, because the development that was the subject of the screening opinion in this case was a continuation of an existing use, with no significant or other additional features making the environmental considerations more serious than those that were the subject matter of the 2005 permission.
19. It is therefore, in this overall context, that Mr Catt seeks the reference to the ECJ under Article 234 of the treaty establishing the EC, which is equivalent to Article 177 of the Treaty of Rome. It is common ground that the jurisdiction to make a reference arises where a domestic court considers it necessary to do so in order to resolve a dispute before it. There are therefore two stages to the decision to make a reference: first, whether it is necessary in order to enable the court to give judgment in the domestic proceedings; and second, whether the reference should be made in the unfettered discretion of the court.
20. In my view, the decision of the Court of Appeal in Catt No 1 demonstrates that a reference was not considered necessary at that time. Whilst it is possible, in principle, for things to have moved on such that a reference is now necessary where it was not before, no such facts have been or can be identified in this case that call for or require a different decision to that reached by the Court of Appeal.
21. Despite being pressed by me to do so, in my view Mr Upton was quite unable satisfactorily to identify any such fact in the circumstances of this case. Therefore, I agree with the submission made on behalf of both the Council and the Club that, since this court can, with complete confidence, decide the issue itself, the pre-condition to the exercise of discretion to refer a question of law to the ECJ simply does not arise in this case. I reject Mr Upton's submissions to the contrary.
22. Finally, I will briefly refer to some of the matters raised by the claimant in the course of argument. First, I turn to consider the significance of the European Commission's decision to open a complaint against the United Kingdom in response to a letter from Mr Catt's solicitors of 4 September 2007 and the reply from the European Commission dated 30 January 2008. Although these circumstances provided the reason for Sir Michael Harrison ordering this oral hearing of the application, I agree that very little weight should be given to the European Commission's response and its most recent letter of June 2009 for the reasons given in the defendant's detailed grounds of opposition at paragraphs 16 and 17, to which I refer and which I adopt, but do not quote.
23. The second matter is the decision not to refer the case to the ECJ by the House of Lords, and their explanatory letter of 21 October 2008. I agree with both Mrs Townsend and Mr Clay that this letter is wholly supportive of the defendant's stance. I also entirely agree that the letter does not purport to decide one way or the other whether the question of EU law is or is not "acte claire".
24. Third, I turn to the June 2006 Draft Ministerial Circular on EIA. Contrary to the submissions made on behalf of the claimant, in my view the interpretation of the Draft Circular does not suggest that "the Government" agrees with his advisers' interpretation of EU law. The Draft Circular states that "the extent to which proposed remedial measures may be taken into account for screening purposes depends on the facts in each case". As I observed above, each case is, in this respect, fact-sensitive.
25. I have therefore come to the firm conclusion that, because this court need not make any reference to the ECJ in order to determine a question of law determinative of the application for judicial review, there is no basis upon which to do so, and the application for such permission must therefore be dismissed. It follows from that conclusion and by a parity of reasoning that, for the reasons given above, the application for permission to apply for judicial review must also be refused.
26. Before concluding this judgment, I should say that, on behalf of the Club, Mr Clay made a number of submissions in support of his argument that these proceedings were little more than an attempt to re-run decided litigation, and/or a collateral attack upon a decision of a court of competent jurisdiction, binding upon this court, and therefore an abuse of process. He has supported that submission both orally and in writing. Whilst I acknowledge the force of those submissions, I have come to the conclusion that, in view of the earlier part of this decision, and in any event because of emergence, albeit very late in the day, of what is said to be a European point of law that requires a decision and/or clarification, it is not necessary or appropriate to come to a final conclusion upon that aspect of Mr Clay's submissions.
27. Accordingly therefore, for all those reasons, these applications are refused.
28. MRS TOWNSEND: My Lord, I am very grateful for that judgment. I rise to make an application for costs. Your Lordship knows that there are unusual rules in the judicial review court which are particular to applications for judicial review. An application was made for the costs of the acknowledgment of service by the defendant within that acknowledgment of service. It is now standard practice to award those costs where permission is refused following Mount Cook.
29. SIR THAYNE FORBES: What are the costs of the acknowledgment of service?
30. MRS TOWNSEND: My Lord, I am in the most embarrassing situation of having very little in the way of instructions at all in relation to this case, and I cannot give an answer to that.
31. SIR THAYNE FORBES: It is probably in the detailed grounds of opposition.
32. MRS TOWNSEND: I do not believe it was.
33. MR UPTON: I might be able to assist my learned friend, we certainly have not seen a schedule of costs from the defendant in any of the documents that have been submitted. So I do not think there is anything.
34. SIR THAYNE FORBES: There is an application for costs. I am looking at page 37. But whereas in cases involving the Treasury Solicitor there is always a clear indication of what the costs are and how they have been calculated, that does not appear to be the case here, and you do not know?
35. MRS TOWNSEND: I am in difficulties. I have only been very recently instructed and I did not draft the acknowledgment of service. But the absence of a sum would not prevent your Lordship coming to a sensible view as to the sort of sum that it might be -- if in doubt erring on the lighter side so that no injustice is done. But my submission needs to be developed a little because the hearing today has not been the classic oral hearing of an application for permission for judicial review. It has been the hearing of a particular application which was totally without merit, and I do also therefore make an application for the costs of today's hearing on the usual basis, that costs should follow the event, the application having been unsuccessful. Sir Michael Harrison did not order an oral hearing of the application for permission to apply for judicial review. He made an order that there should be a hearing of the --
36. SIR THAYNE FORBES: I could have caused you a great deal of inconvenience by just deciding the permission on the ECJ reference and not going on and dealing with the JR. What would you be saying then?
37. MRS TOWNSEND: I would not for a minute suggest that your Lordship do that. The reason for that reference in my submissions was simply to distinguish the hearing we have had here today from the usual permission hearing on a judicial review. As your Lordship knows, generally speaking, the costs of the defendant in a permission hearing on a judicial review are not granted unless the defendant can show exceptional circumstances; whereas here, I submit that this was an application the defendant did not need to make, chose to make, and has wholly and completely failed in, and as a result of that I am entitled to the usual order for costs. Given the funding situation, of course it would not be enforceable without there having been an assessment of the degree to which the defendant can contribute to the costs. Your Lordship knows the usual order and it is in your Lordship's discretion.
38. I do not think I can make my application better by elaborating further, but I do say, in principle, I am entitled to an order, subject to your Lordship's discretion in awarding it.
39. SIR THAYNE FORBES: Very well. Yes, are you going to say something, Mr Clay?
40. MR CLAY: My Lord, I was only going to add my own application to that of my learned friend on behalf of the defendant. I am conscious of the normal rule in Bolton, but for a number of reasons --
41. SIR THAYNE FORBES: Why did you need to be here?
42. MR CLAY: I was just about to say --
43. SIR THAYNE FORBES: It is very nice to see you.
44. MR CLAY: I am very grateful for that, my Lord, but I needed to be here for a number of reasons. The first is, and I was intending to invite your Lordship to consider a recent decision of Timothy Corner QC, sitting as a Deputy Judge of the High Court, where he was dealing with a case where the importance of the matter to the defendant was such that in that case -- it was a gypsy family who were likely to lose their homes if the application had succeeded. In this case, if the application had succeeded, its ultimate conclusion would be either that the club would have been forced out, at a time when it is extremely vulnerable, and that is made out in Mr Perry's witness statement --
45. SIR THAYNE FORBES: Not by the grant of permission.
46. MR CLAY: The refusal of permission in this case is not simply academic. If it was simply academic, then its objective would be thrown out a long time ago. The whole purpose of this is to cause either the club to cease its activities at Withdean, or to constrain them very significantly. Either of those, even if it is academic, the threat of that is something which with -- the development is actually on site now. They are actually building the stadium. That means that those who are funding the process might be deeply concerned at the prospect of the revenue stream of the club drying up, and the club not being able to play. So it was vital that we were here.
47. Secondly, the position is, and I do not in any way criticise my learned friend, there was no skeleton argument until today, and we were obliged to put in our own skeleton argument and to take steps to be here to protect our position. In those circumstances, it was, in my submission, essential that the interested party was represented here today, and on that basis I seek our costs.
48. SIR THAYNE FORBES: Very well. Anything else?
49. MR CLAY: My Lord, no, unless it would assist your Lordship to look at the authority that I referred to involving Mr Corner, but I think the principle is a clear one, that if the court considers effectively that it is unthinkable --
50. SIR THAYNE FORBES: Bolton does no more than state that, in the normal case, costs of the interested party are not normally refundable. It does not provide an absolute bar to them.
51. MR CLAY: That is right, my Lord. I suppose the third point is, whilst Mrs Townsend has taken very much the lion's share of the argument --
52. SIR THAYNE FORBES: That is usually the case.
53. MRS TOWNSEND: And I was enormously grateful for the skillful way in which she has done that. I hope that you will consider that in fact some of the submissions that were made, and provision of the skeleton argument and indeed my submissions in relation to abuse of process were not entirely unhelpful today.
54. SIR THAYNE FORBES: I do not need to see the authority. Thank you very much, Mr Clay. Well, Mr Upton?
55. MR UPTON: My Lord, obviously there are two applications. Can I deal with them in the sequence in which they were made. The costs of the defendant planning authority, I acknowledge that, in principle, they would be able to apply for the costs for preparing their acknowledgment of service as set out in the Mount Cook decision. Of course, we have no way of knowing what that sum is, and obviously there will have to be some mechanism to deal with it.
56. SIR THAYNE FORBES: I think I can help you to this extent, I am not going to pluck a figure out of the air because that does not seem to me to be right in principle at all. If, for whatever reason, the defendant fails to give any indication or information with regard to the amount of costs involved in filing and serving the acknowledgment of service, well, the defendant has left the court unequipped to deal with the application, and it is as simple as that. What about an overall order, which would of course then embrace the costs of preparing the acknowledgment of service?
57. MR UPTON: In terms of the proceedings to date, I would say that the application is subsidiary to the judicial review permission. They have turned out to be one and the same thing, and quite clearly from your judgment that is the way it should be considered. The same arguments have essentially been made on both in order to seek permission for judicial review in the normal way. It happens to have turned into a European point, but essentially it is the same matter, and I would say the same approach should be taken. This has been explored in the authorities. The rules expect some payment of costs at the permission stage, but only of a minimal amount and related to the written response. Although other parties are entitled to appear at the oral hearing, and I suppose it is a renewal to some extent, they are not expected to recover their costs against the claimant. It is not part of the framework, as is indeed now underlined by the Aarhus Convention and the need to try and keep costs proportionate and in a reasonable manner if people are to have access on environmental matters.
58. So I will say that there should not be a departure here from the normal approach of the oral part of judicial review proceedings, where it has turned out to be essentially the same matter. I do not think I can assist further in terms of the defendant's costs. I obviously have further things to say on the interested party.
59. Regarding that, clearly I would say Bolton is the normal starting point, and everyone knows that expectation. Clearly, Mr Clay and his clients were entitled to be here and to be heard, but they do so on the understanding that they would normally cover their own costs. I would say that that again should be followed in this case. They clearly knew what the defendant was saying, and I would say that the response that the defendant put in both the acknowledgment of service and then the response to the European point is utterly clear, and obviously has been persuasive in the event. Therefore, there was no mystery about what the defendant would be saying, as indeed they have said.
60. In terms of needing to be here, it is slightly overstated to say that we are seeking to stop the use; we are seeking to have it decided in a proper manner, and even if you had been minded to grant permission, this matter then has to continue on. Even if we were ultimately successful, the local planning authority needs to reconsider its position. The idea that they would stop playing has never been on the cards. It has to be related to a proper decision. So I do say that there is nothing about that interest in this case that goes beyond the normal interest anyone has in a planning permission being upheld. So one comes back again to Bolton principles. So I would say, although it is very nice to see Mr Clay here, he has not needed to add to anything that has been said, and his clients were well aware of the court's approach, which I would say should apply here. I do not think there is anything else I need to say.
61. SIR THAYNE FORBES: I have come to the conclusion that this is not an appropriate case in which to make an order for costs against the claimant, either in favour of the defendant or interested party. So the order that I make is that the applications are refused, and there will be no order as to costs save for legal aid taxation, to use the old expression, of the claimant's costs. No doubt, the correct expression will be substituted in the order. I think that completes everything.