Case No: CO/13901/2009
Neutral Citation Number: [2009] EWHC 3597 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham 
B4 6DS

Date: Wednesday, 16th December 2009

Before:

MR JUSTICE BEATSON
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Between:

	ZEB	Claimant	
	- and -		
	BIRMINGHAM DISTRICT COUNCIL 	Defendant	
	- and –		
	WARWICKSHIRE COUNTY COUNCIL	Interested Party	

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Mr Buley (instructed by Public law Solicitors) appeared on behalf of the Claimant.
Mr Dove QC (instructed by Birmingham City Council Legal Services) appeared on behalf of the Defendant.
Mr Young (instructed by Wragge & Co LLP) appeared on behalf of the Interested Party.
Mr Richards appeared at the Judgement Hand Down.

Hearing Date: 15th December 2009
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Judgment
Mr Justice Beatson:

1.	In these proceedings the claimant, a resident living near the Warwickshire County Cricket Club ground at Edgbaston, seeks permission to challenge the defendant’s decision on 4 September 2009 to grant outline planning permission for a new stand and ancillary media and visitor facilities, a museum, banqueting and exhibition facilities, five floodlighting columns and lights, and the erection of a mixed-use development consisting of residential, office, hotel, retail and food and drink accommodation.  The site is 9.7 hectares, of which 3 hectares, the pitch and stands, will remain as existing.  

2.	The application was lodged on 19 November.  Acknowledgments of Service by the defendant and Warwickshire County Cricket Club, the Interested Party, were filed on 7 December.  I have statements from; the claimant dated 17 November, Mr Turner, a senior planning officer with the defendants who undertook the screening option for this development, dated 7 December, and Mr Povey, the chief executive of the cricket club, dated 4 December.  The defendant and the interested party resist the application on a number of substantive grounds. They also question the standing of the claimant and allege that the application has not been made promptly.  If permission is granted, the interested party seeks expedition on the grounds that delay will adversely affect the future of Test cricket in the area if construction work does not, as scheduled, start in January 2010.

3.	In paragraphs 8 and 9 of Mr Povey’s statement, he says that if work cannot start in January, it is likely that it will not be able to start until September 2010 because of the timing of the cricket season. The first match at Edgbaston is scheduled to be on 9 April against Yorkshire. His evidence is that if work does not start until September, it will not be possible for it to be largely completed before the India Test, which is scheduled to be in July or August 2011. If that is so, his evidence is that the ground will lose the Test and the income from it, which he estimates would be some £600,000.  Beyond this, is he states there is a fear that Test cricket would be lost and the loss of income, for example, for an Ashes match is greater than for an India match.  In the light of the submissions made in the Interested Party’s Acknowledgment of Service and Mr Povey’s evidence, last week I ordered the application for permission to be listed for hearing yesterday.  

4.	I first set out the legislative framework.  The relevant regulations are the Town and Country (Environmental Impact Assessment) (England and Wales) Regulations 1999, 1999 SI 293.  These regulations implement Council Directive 85/337/EEC.  An environmental impact assessment development is defined in the interpretation provision, Regulation 2, as: 

“… development which is either - 

(a) Schedule 1 development; or

(b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location.”

Schedule 2 sets different thresholds for different types of development.  Urban development projects, including sports stadia, are listed in paragraph 10(a), and the threshold size is a size greater than 0.5 of a hectare.  

5.	Paragraph 4 of the regulation is headed “General provisions relating to screening”.  By paragraph 4(1): 

“Subject to paragraphs (3) and (4), the occurrence of an event mentioned in paragraph (2) shall determine for the purpose of these Regulations that development is EIA development.
(2) The events referred to in paragraph (1) are - 
(a) the submission by the applicant or appellant in relation to that development of a statement referred to by the applicant or appellant as an environmental statement for the purposes of these Regulations; or

(b) the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development.”

By paragraph 4(5): 

“Where a local planning authority or the Secretary of State has to decide … whether Schedule 2 development is EIA development the authority or Secretary of State shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development.”

Schedule 3 contains three paragraphs, the first dealing with the characteristics of the development, the second dealing with the location of the development and the third dealing with the characteristics of potential impact.  As far as the characteristics of the development are concerned, paragraph 1 provides that:

“The characteristics of development must be considered having regard, in particular, to - 
(a) the size of the development;

(b) the cumulation with other development;

(c) the use of natural resources;

(d) the production of waste;

(e) pollution and nuisances;

(f) the risk of accidents, having regard in particular to substances or technologies used.”

6.	Regulation 5 provides: 

“A person who is minded to carry out development may request the relevant planning authority to adopt a screening opinion.

(2) A request for a screening opinion shall be accompanied by - 
(a) a plan sufficient to identify the land;

(a)(a) sufficient information to enable the relevant planning authority to identify any planning permission granted for the development in respect of which a subsequent application has been made.

(b) a brief description of the nature and purpose of the development and of its possible effects on the environment; and

(c) such other information or representations as the person making the request may wish to provide or make.”

By paragraph 5(3): 

“An authority receiving a request for a screening opinion shall, if they consider that they have not been provided with sufficient information to adopt an opinion, notify in writing the person making the request of the points on which they require additional information.”

By paragraph 5(4): 

“An authority shall adopt a screening opinion within three weeks beginning with the date of receipt of a request made pursuant to paragraph (1) or such longer period as may be agreed in writing with the person making the request.”

7.	In this application, the issue is whether the proposed development is an EIA development which is likely to have significant effects in the environment because of its nature, size or breadth in the light of the Schedule 2 thresholds or because the screening opinion says it is.  In fact, in the light of the size of the site, it is clear that the Schedule 2 threshold is met. In addition, as will be seen, in this case the developer, the Interested Party, requested that a screening opinion be adopted by the defendant.  It is clear on the authorities, to which I shall turn, that “significant” in these regulations and for these purposes is not a hard-edged concept and that review of decisions as to whether a development has such effects on the environment is on classical Wednesbury grounds.

8.	The material history of Warwickshire’s cricket ground at Edgbaston, which is one of the venues for international test matches, can be summarised as follows.  Test cricket has been played at Edgbaston since 1902.  In 1998, the England and Wales Cricket Board published a facility policy concerning grounds seeking to stage first-class matches.  That year, the interested party, the club, made an application for permanent flood lighting at the site.  The application was opposed by a number of residents’ groups, including the Edgbaston Liaison Action Group, which was re-formed as the Cannon Hill Neighbourhood Forum in 2005.  The claimant is a member of this group, which has supported this application.

9.	At the inquiry in 2000, the Inspector identified three issues arising from the club’s application.  These were the impact of the proposed development on the character and appearance of the area, the impact on residential immunity and the impact on the efficiency and safety of the highway system.  The last of these was thought not to be a ground for refusing the application, but the other two were.  The Inspector concluded that planning permission should be refused for the following reasons. The proposed floodlights were not a high-quality improvement to the country ground. Secondly, the visual impact of the lights would intrude on what the Inspector described as “sylvan urban landscape”. The lights would be unacceptably dominating for local residents as a result of their size and overbearing presence. The Inspector considered, however, that light intrusion in itself was a neutral factor. Thirdly, the noise and disturbance generated by additional traffic coming to the ground for evening matches would have an unacceptable effect which could not be outweighed by the identified mitigation measures.  

10.	In October 2000, the defendant adopted a planning framework for the cricket ground. On 1 December 2000 it issued supplementary guidance.  By that time, it was recognised that investment was required to maintain Edgbaston as a Test ground.  Moreover, the defendant’s unitary development plan recommended the ground for improvement, and the regional strategy supported the creation of outdoor sports stadia.  In February 2006, the England and Wales Cricket Board (“the ECB”) adopted a new facility policy.  That policy came into effect in April.  The policy was as to the way the Board would allocate major matches and about competition between venues seeking to host them.  

11.	The ECB has indicated to Warwickshire County Cricket Club that the facilities at Edgbaston have significant deficiencies in relation to media provisions, flood lighting, drainage and other matters.  Mr Povey’s witness statement (paragraph 28) states that, given Edgbaston’s deficiencies, the Board was generous in granting it the India Test for 2011 and that it did so only on the basis of a personal assurance by him that new facilities would be in place by then.  At any rate, after the new policy came into effect, the club put together the funding and the designs for the application which is the subject of these proceedings.  

12.	During this period, there were exchanges between the club and planning officials.  A number of reports commissioned by or on behalf of the club regarding the development of the ground were provided to the defendant.  These included a tree survey in May 2008, an ecology appraisal in June 2008, an archaeological assessment the same month and in July 2008 flood scoping and a ground study.  The ground study concluded that there was a moderate risk identified of contamination and that further investigation was needed to fully investigate the risks.  The study referred to ground conditions identified from a previous ground investigation at the ground, which had found that conditions largely corresponded to the geological map.  This study was undertaken by Mott McDonald for, directly or indirectly, the club.  

13.	There were exchanges between the club’s consultants and the defendant and there are internal emails before me by the defendant’s officers commenting on these reports and appraisals.  Those internal emails are in September and October 2008.  On 5 September, Dr Hodder was critical of the sources used in the archaeological report and of the report itself and stated that a watching brief in relation to archaeology might not be adequate.  On 29 September another officer, Nicola Farrin, an ecology officer, queried the ecology report on bats. She stated that she said she hoped further surveys that had been recommended in the June appraisal had taken place and that the mitigation proposal suggested was defective in being generic rather than case-specific and specific to the proposals.  I observe the fact that the planning ecology officer reported to the planning committee in April 2009 after the screening opinion had been given. I shall return to this factor.

14.	On 23 October, the club applied to the defendant for a screening opinion pursuant to paragraph 5(5) of the 1999 Rules.  The defendant produced a screening opinion, and on 6 November 2008 placed it on its planning register.  The opinion concluded that, while the development fell within Schedule 2 paragraph 10(b) of the 1999 Regulations because of the size of the site, the club’s proposal to redevelop the ground did not require an environmental statement and an environmental impact assessment, because there would not be likely to be significant environmental effects of the development justifying the provision of the assessment.  The material parts of this opinion state: 

“Decision: an environmental impact assessment is not needed.  Justification: schedule 1 test, not schedule 1 development.  Schedule 2 test, 10(b) urban development project exceeding 0.5 HA.  Sensitive area test: no “sensitive area” designations at site or within near vicinity.  Threshold and criteria test: see below.  Environmental effect test: with respect to paragraph 33 and annex B of circular 02 99: this major development would not be of more than local significance in terms of its environmental effects (including taking into account the limited number of high spectator number cricket matches per year, a limited number of occasions when floodlights would be in use, and in conjunction with the development underway opposite to the south of Edgbaston Mill.  The site location is not particularly environmentally sensitive or vulnerable.  The development would not have unusually complex and potentially hazardous environmental effects … Stand: the new stand would have a very similar footprint to those it would replace.  It would be taller and provide more floor space, but not to a significant degree.  The ground’s total seating capacity would increase by 19 per cent from 21,000 spectators to 25,000.  However, there are typically only five to ten days per year when the ground is filled to capacity.

Floodlights: permanent floodlights would introduce five structures of significant height.  However, the impact of their scale alone on the locality is a matter of amenity and character, not environmental impact.

With respect to the impact of nighttime illumination, the club has used temporary floodlights for at least a decade, and the Inspector for the 2000 appeal found there would be a neutral effect from permanent lighting.  The effect of the proposal upon light pollution and ecology will be assessed by the applicant in his specialist technical report, and assessed by the council.

Mixed use development: the commercial floor space, residential and parking developments are proposed on land consisting of the 12 Pershaw Road properties … and tarmac car parking, informal grass area and a practice wicket area.  Therefore, the increase in the scale of the development would be significant.  In terms of environment, though, I consider likely effect would not be significant.  In particular, traffic generation will be considered by the transport assessment.  It is noted that traffic movements in the area are high, eg the very busy Pershaw, Bristol and Edgbaston Roads, and so the percentage increase in local traffic the development would generate may not be significant.  The site has good public transport links (bus) and is accessible by foot and bicycle for a large population in surrounding residential areas …

Annex A18 also considers whether the types of impact of the new development are of a markedly different nature, or if there is contamination.  The types of (environmental) impact from each of the three application elements would not be of a markedly different nature to the existing situation.  A baseline ground assessment has been carried out noting the presence of the Elan aqueduct and the adjacent sewage pipe, variable and potentially contaminated main ground, and a potential for hazardous ground gases.  A site-specific intrusive ground investigation is recommended.  The council’s regulatory services will advise in due course on the planning application, along with any necessary conditions to attach to any consent.  On the basis of the information submitted thus far, there do not appear to be any unusual or significant land matters which require EIA.  The application will be considered by Severn Trent Water, the council’s drainage engineer, and the Environment Agency with respect to all drainage matters …”

15.	Following this, the club made its application for the proposed development.  The application was registered on 11 October 2008.  On 11 December 2008, the planning committee discussed the proposal and decided to visit the site.  The report to the planning committee stated that the proposal was a Schedule 2 development within the 1999 Regulations and a screening opinion was required to see whether an environmental survey statement is required.  The visit took place on 8 January 2009.  The matter came back to the committee on 15 January.  On 2 April there were two meetings: one of the planning committee and, in the evening, a public meeting at the ground.  Information on various aspects of the proposal was put before the committee at these meetings.  For example, for the meeting on 2 April, the reports and appraisals commissioned by the club on the topics I have referred to and the views of other public authorities (the Environment Agency, the police, utilities, Centro and others) were summarised in the report to the committee.  

16.	Under “environmental matters”, the report dealt with drainage, ecology, trees and landscape, and archaeology.  It was said that, in the light of the screening opinion, an environmental statement was not required.  I do not, for the purposes of this application, set out at length the matters dealt with in the report for the committee.  In view of the concentration at the oral hearing on the position in relation to ecology, however, I do refer to what is said about ecology.  The planning ecologist is stated to have made the following observation: 

“The bat survey indicates the buildings associated with the cricket ground do not currently support roosting bats, and demolition of these structures should not result in adverse impact.  Additional nocturnal surveys should be completed before demolition takes place, to be secured by condition.  The potential for the residential properties on Pershaw Road to support roosting bats is unresolved, partly because not all buildings were inspected internally.  Again, additional survey work should be carried out at the first available opportunity … 

These mitigation measures should help to limit any adverse impact on the two pipistrelle bat species recorded using the [river corridor] in August 2008.  There is also the potential for slower flying bat species to use [the corridor], though the planning ecologist considers they would be unlikely to fly north from Cannon Hill Park because of the reduction in vegetation north of the Edgbaston Road.”

The report states that the ecology report makes a number of recommendations which would be secured by condition, including use of native species in landscaping, corridors and stepping stones for wildlife, bat bricks in new buildings, ecologically sensitive management of landscape and clearance of vegetation outside of the bird breeding centre unless otherwise agreed by a qualified ecologist.  These state the landscaping issue should be addressed as part of a landscape masterplan. 

17.	At a further meeting of the planning committee on 8 April, the committee deferred a decision on the proposal because it considered that there needed to be further work on the highway matters and because of concern about the intensity of the development.  The matter came back to the committee on 14 May.  At this stage, the proposed floor space for the mixed use development had been reduced.  In the light of the reports prepared for the committee at its April and May meetings and the representations made at the public meeting, the members of the planning committee decided to refer the application to central government, to the Department for Communities and Local Government for that department to determine.  The committee resolved on 14 May that the Department for Communities and Local Government should be advised that the defendant was minded to approve the application, subject to conditions and a section 106 obligation.  On 4 June, the Department for Communities and Local Government declined to intervene, and the matter came back to the defendant, which granted outline planning permission on 4 September subject, as it had indicated, to a number of conditions and a section 106 agreement. 
 
18.	I have referred to the meeting on 2 April, and the event on 28 October.  There was also a consultation event on 11 February 2009 and a meeting of the Residents’ Liaison Group on 29 October 2009 after the grant of planning permission.  The summary Grounds of Resistance and evidence on behalf of the defendant and Interested Party state that Cannon Hill Neighbourhood Forum has either declined to attend or not responded to the invitation.

19.	By early October 2009, both the defendant and the club were aware of the intention of the claimant or others to challenge the decision.  A Letter before Claim was sent on behalf of the claimant to the defendant on 19 October.  The claimant was not able to apply to the Legal Services Commission for funding until it received a response to the letter before complaint.  On 23 October, and again on 27 October, the defendant asked to be given until 9 November to respond to the Letter before Claim.  On 30 October, consent was given on behalf of the claimant, provided that no point was taken on delay.  The defendant responded to the letter before claim on 5 November.  The club responded on 13 November complaining inter alia of delay by the claimant.  The application to the LSC was made once the defendant’s response had come. The LSC agreed to fund the proceedings on 13 November, and, as I have stated, proceedings were instituted on 19 November.  This was 11 weeks after the grant of planning permission, some six months after the defendant’s planning committee had recommended that planning permission be granted, some ten months after the claimant was sent a copy of the screening opinion in January 2009, and 12 months after the screening opinion was posted on the defendant’s planning register.  It is clear from, for example, R (Goodman) v Lewisham LBC [2003] EWCA 140 that the question of whether a schedule 2 development is also an EIA development is a question to which the Wednesbury principles apply (see also R (Jones) v Mansfield District Council & Anr [2003] EWCA 1048) at paragraphs 38 to 39 per Dyson LJ, and paragraph 60 per Carnwath LJ)  So the issue here is whether it is arguable that the Wednesbury principles have been violated by the defendant either because the defendant took into account irrelevant considerations, or because it did not consider relevant considerations, or because it reached a decision which, in Wednesbury terms, is unreasonable, or, in Lord Diplock’s reformulation, irrational.  

20.	The issue is whether the claimant has raised an arguable case that the defendant fell into public law error in concluding in the screening opinion that the development was not likely to have significant effects on the environment because of its nature, size and location.  

21.	Three grounds are advanced.  The first is that the failure in the screening opinion to make findings as to whether there are significant environmental effects and for the defendant to satisfy itself that it had sufficient information to make decisions about these was a public law error and reviewable. Secondly, it is submitted that the screening opinion’s treatment of floodlighting erred in distinguishing environmental impact from amenity and character. Thirdly, it is submitted that the floodlighting provision erred in not addressing impact on the character and appearance of the ground and the area.

22.	I take each in turn.  First, the ground referred to in the written grounds as “future reports”, but by Mr Buley in oral submissions as a failure to make findings as to whether there were significant environmental effects, and sub-arguments based on that.  The argument is put that the screening opinion does not address or mention archaeology; that on ecological impact on the bats it only addresses the impact of the lighting and gives no conclusions.  It does not address the impact on habitats if they are demolished, but simply says that will be assessed in the future.  Moreover, it does not say that the defendant has satisfied itself that the impact would not be significant.  Mr Buley relied in particular on the judgment of Laws LJ in R (Gillespie) v First Secretary of State [2003] EWCA Civ 400, where at paragraph 46 he said of prospective remedial measures that, unless they were “plainly established and plainly uncontroversial”, they would not suffice.  He thought that “There is little likelihood of such a state of affairs in relation to a development of any complexity”, and if: 

“… prospective remedial measures are not plainly established and not plainly uncontroversial, then, as it seems to me, the case calls for an EIA.”

It is also said that the screening opinion does not ask whether the traffic effects are likely to constitute a significant effect on the environment and that there is no conclusion in relation to contamination as to whether the effects would be significant.  

23.	The issue is whether the writer of the opinion, Mr Turner, has reached a conclusion.  If one looks at the decision which have I set out earlier in this judgment it is clear that, in the section headed “Justification”, he has identified the test correctly.  The question is whether he is required, or arguably required, for these purposes to reach a separate conclusion in relation to each sub-category and to state that separate conclusion in relation to each sub-category.  He has, as I have stated, addressed himself to the correct test, aiding himself by reference to the relevant Circular, 02/99.  He had the information in the pre-application reports and assessment submitted by the club, though those refer to further studies. 

24.	In the light of all the information available to the defendant and what the reports said, in particular the ground survey, about previous testing of the site, I do not consider that it was arguably perverse of the defendant to conclude that it had sufficient information to make a decision.  The mere fact that further survey work is needed does not arguably show perversity; see R (Catt) v Brighton and Hove City Council [2007] EWCA Civ 298 at 34, where Pill LJ referred to the question there is sufficient information to make a prediction as a question of planning judgment: 

“…there will be cases where the likely effectiveness of conditions or proposed remedial or ameliorative measures can be predicted with confidence.  There may also be cases where the nature, size and location of the development are such that the likely effectiveness of such measures is not crucial to forming the opinion.  It is not sufficient for a party to point to an uncertainty arising from the implementation of the development, or the need for a planning condition, and conclude that an EIA is necessarily required.  An assessment, which almost inevitably involves a degree of prediction, is required as to the effect of the particular proposal on the environment, and a planning judgment made.”

Pill LJ referred to the decision in R (Jones) v Mansfield District Council [2003] EWCA Civ 1408, and in particular the judgment of Dyson LJ at paragraph 38.  Dyson LJ stated that “significance” is not a hard-edged concept, and the assessment of what is significant involves the exercise of judgment.  His Lordship recognised and stated that reliance on conditions and mitigation measures could not be a surrogate for EIA procedures, so that an authority cannot conclude that the development is unlikely to have significant effects on the environment, simply because all such effects are likely to be eliminated by measures to be carried out by the developer pursuant to conditions and undertakings. However, the question whether it is likely to have a significant effect is one of degree which calls for the exercise of judgment. Accordingly, remedial measures contemplated by conditions and undertakings “can be taken into account to a certain extent” because of the non-hard-edged status of the concept of “significance”.

25.	It is important to remember what the purpose of a screening opinion is.  It is to ascertain whether a development proposal requires an environmental assessment under the Directive.  Detailed reports are not required.  What is required is an initial assessment of an intended proposal. One sees this from the terms of the Regulations, in particular paragraph 5(2)(a)(a). That refers to sufficient information to identify any planning permission granted for development for which a subsequent application is made.  In relation to the nature and purpose of the development, paragraph 5(2)(b) states that a “brief description” is required.  Although an authority is empowered to call for further information, the default position, (see paragraph 5(4)), is that an authority is required to adopt a screening opinion within three weeks of a request.  That default position gives some indication of the level of detail and the investigation required of the authority.

26.	So in this case, it is said that the vice is that there was no conclusion on each of the topics of each of the reports.  Mr Dove QC, on behalf of the defendant, submitted that it is not for this court at this stage to get into the substance of the reports; that the matter is a matter of Wednesbury review, and he understandably emphasised perversity.  I have, however, stated that Wednesbury review includes the relevant and irrelevant considerations aspect, and the proper and improper purposes aspect, and to that extent I look at what was in the reports.  It is important to remember that what is challenged here is the planning permission.  As far as contamination is concerned, the nature of the site was known to the defendant; there had been previous applications.  It is not a landfill site and is not one previously used for heavy industry.  The Mott MacDonald report, to which I have referred, referred to earlier ground investigations at this site and the information gained from those investigations.  It also referred to the moderate character of the impact predicted.  One cannot from this say that it is arguable that the conclusion that there were no unusual or significant land matters requiring an EIA is one that was arguably perverse, or which took account of an irrelevant consideration, or failed to take account of a relevant consideration.

27.	I turn to ecology.  The criticism is that, in the light of Ms Farrin’s comments, failure to address ecology in more detail in the screening opinion was arguably perverse.  The screening opinion makes only a glancing reference to ecology. However, one has to have regard to all the information available to the defendant, in particular that there was no evidence of bat roosts where they had investigated. The proposal was for additional surveys for bats -- a proposal which is not unusually dealt with in conditions. There was no evidence that specific rather than generic mitigation proposals were not realistic. The condition which was proposed and envisaged in relation to ecology, now seen as condition B22, is that no demolition shall take place until additional bat surveys have been undertaken by a suitably qualified ecologist. It is required that survey reports shall be accompanied by a strategy which provides full details for measures for bat mitigation and enhancement. There is no evidence that these requirements would not deal with the situation.  Moreover, although Ms Farrin made her negative comments in September 2008, by April 2009 a planning ecologist -- it is not clear whether it is her -- reported that the concerns had been addressed.  

28.	As far as traffic is concerned, the defendant was entitled to take account of existing traffic levels.  Although the use of “may not be significant” is not an altogether happy use of the language, this is a situation where it is apposite to bear in mind what Elias J, as he then was, stated in R (Anderson) v York City Council [2005] EWHC 1531. He stated that a screening opinion is a document by a planning officer, not a statute, and should be read accordingly.  Secondly, the correct test is set out at the outset under the justification for the decision.

29.	As far as archaeology is concerned, here again it was proposed to deal with this by condition.  There were further reports before the committee before planning permission was given, and the planning archaeologist raised no objections subject to conditions to address sampling analysis and dating of deposits.  So although Mr Buley said things did not move on after the screening assessment, it would appear that they did, insofar as the council’s officials’ attitudes to the material before them were concerned.

30.	I therefore conclude that no arguable ground is raised by the first ground, the “future reports” ground.

31.	As far as ground two is concerned, Mr Dove submitted that the reading of the passage in the screening opinion about floodlights was unreasonable and unnecessarily forensic given the history of this site in relation to floodlighting, the awareness of Mr Turner of the 2000 planning application and what the Inspector said, and again in the light of the comments of Elias J in R (Anderson) v York City Council.  

32.	Mr Buley submitted that the defendant made a basic error in drawing a distinction between environmental impact and amenity or character.  Mr Turner’s evidence, however, is that no such distinction was being made, and while again the language could have been different, the reading of the relevant paragraph to say that, despite the height, it is the impact in this case which counts for these purposes, is a legitimate reading of a document such as this. 

33.	Finally, there is ground three. This is that the defendant failed to assess the impact of floodlighting on the character and appearance of the area.  By the time the council made its decision, the members of the committee had a series and sequence of reports before them which had information about the impact and effect of the floodlights.  They also had before them the representations made to them at the meetings and by the public about this.  This ground is, as Mr Dove submitted, really a disagreement on the merits.  In the light of the number of reports to the various committees which identified and summarised the previous application for floodlighting and the consultations, it is not in my judgment arguable that the defendant failed to address the impact of the floodlighting on the character and appearance of the area.  The reasons for approving the planning permission state in terms that it was the decision maker’s view that: 

“The new stand and floodlighting would not have unacceptable effects on residence amenities and local character.”

Accordingly, I do not consider that ground three raises an arguable ground for review.

34.	That suffices to dispose of this application.  However, the defendant and the interested party raised issues about standing, delay and prejudice.  I would not have refused permission because of the claimant’s standing.  I consider that he falls within a class of person who certainly at this stage could not be said to have an insufficient interest in this matter.  As far as delay, the claimant was entitled to wait until planning permission was granted (see R (Burkett) v Hammersmith & Fullham [2002] 1 WLR 1593 and R (Catt) v Brighton and Hove) [2007] EWCA Civ 298.  Time runs from then.  But the claimant knew the position of the defendant from the time the screening opinion was available to him on 30 January 2009, and certainly by 14 May when the committee made its recommendation.  Mr Buley informed me at the hearing that the claimant did not know that development work was to start in January 2010 and may not thus have appreciated the need for particular celerity.  Moreover, the defendant and the Independent Person asked for extra time to respond to the Letter before Claim and were given it on the understanding that no point would be taken on delay.  That is significant, because until the defendant responded the claimant was not able to seek funding from the Legal Services Commission.
 
35.	I do not, however, accept the claimant’s submission that this is not a case where particular promptness is required.  Although this is not a wind farm development, the need for promptness is manifest and well-recognised in the context of planning.  What is important is the circumstances of the particular case, not the type of case.  That is seen from the judgment of Keene LJ in Finn-Kelcey v Milton Keynes Council [2008] EWCA Civ 1057, to which I will return.  In this case, the claimant knew the defendant’s position at the latest in May, when the committee made its recommendation.  In Finn-Kelcey, at paragraph 34, Keene LJ referred to the six-week period required for statutory appeals as of some relevance. In paragraph 25 he stated that the question of what is prompt depends on all the relevant circumstances: 

“Knowledge of a resolution to grant permission will often be relevant to whether a person has acted promptly, even though time does not formally run until the grant of permission.”

See also the Catt case at paragraph 52.

36.	It is also of relevance, where there is an issue about promptness and delay, to consider that strength of the case.  Keene LJ, at paragraph 29 of the Finn-Kelcey case, stated that where there has been delay: 

“If there is a strong case for saying that the permission was ultra vires, then this court might in the circumstances be willing to grant permission to proceed.  But, given the delay, it requires a much clearer-cut case than would otherwise have been necessary.”

I did consider delay before considering arguability, and so I have not had to form an opinion on this. I have concluded that the case does not raise an arguable point.  But had I considered there was an arguable case it certainly would have been relevant in considering the effect of any delay to consider whether the case is a clear-cut one.

37.	I have also referred to Mr Povey’s evidence about the prejudice from delay to the interested party; that is, that there is serious prejudice.  I accept that the claimant needed to secure support from the Forum, although that process could have been started earlier. However, given the request by the defendant and Interested Party for extra time to respond to the Letter before Claim, and the need to get that response as a prerequisite to funding, I would have been reluctant to refuse permission in this case solely because of a lack of promptness or delay.  In the circumstances, I have not had to do that. This application is refused for the substantive reasons I have given. 

Order:  Application refused.

PJD

Mr Richards:  My Lord, so far as the defendant is concerned, the defendant asks for its costs of the acknowledgment of service.  As I understand it, that position was agreed between the advocates yesterday, in the eventuality that --

Mr Justice Beatson:  The claimant would have got its costs if it had won?

Mr Richards:  No, this is for the moment confined to acknowledging service.

Mr Justice Beatson:  Acknowledging service, yes, well if that is agreed, we are in difficulty here in that you are of course standing in for Mr Buley as well.

Mr Richards:  Yes.

Mr Justice Beatson:  So it depends who you are --

Mr Richards:  As I understood the difficulty, the email that I have tells me that if permission is refused, it is agreed that costs be dealt with by written submissions.

Mr Justice Beatson:  Yes.

Mr Richards:  And agreed that legal aid taxation would be applied to the claimant’s costs.

Mr Justice Beatson:  Yes.

Mr Richards:  But as I understand it, it is the cost of the acknowledgment of service rather than anything else.  So perhaps --

Mr Justice Beatson:  Well, let me ask Mr Wallace, although I am not going to turn him into a solicitor advocate; he can either indicate dissent or he can indicate that that is what was agreed.  Right, so at this stage I will say that the defendant is entitled to the costs of -- did it provide me with what they were?

Mr Richards:  No, it did not.

Mr Justice Beatson:  It did not.

Mr Richards:  I checked the acknowledgment of service this morning.

Mr Justice Beatson:  That is unusual.

Mr Richards:  It is unusual.  My learned friends are not here to face the brik-bats.

Mr Justice Beatson:  I do not suppose Mr Dove has to condescend to such things.

Mr Richards:  No.  It may be that that is why they took the precaution of agreeing, or of attempting to agree, yesterday that costs be dealt with by written submissions.

Mr Justice Beatson:  Yes.

Mr Richards:  Leaving me to persuade your Lordship that, unusually, that is the way that it should be dealt with.

Mr Justice Beatson:  Because we took so long yesterday, I said people did not have to come, and it seemed to me simpler -- in many cases in the Administrative Court we deal with costs by written submission.  We have Christmas coming up; the reality is that after next Tuesday, they are not going to be dealt with until the New Year.

Mr Richards:  Yes.

Mr Justice Beatson:  So I would say that if I got submissions by 4 January, and each party can make submissions.  If you make submissions perhaps before Christmas, then any submissions in response by 4 January, then I will deal with it as soon as I get back.  Does that seem unreasonable, Mr Richards?

Mr Richards:  No, my Lord.  I am sure that they will be delighted with that.

Mr Justice Beatson:  I am content to say that the defendant shall have the costs of its acknowledgment of service, but I cannot make an order now because I do not know what they were.  So the written submissions, if not agreed, had better make representations about those.

Mr Richards:  The other matter is that I am quite sure that your Lordship will order legal aid taxation for the claimant’s costs.

Mr Justice Beatson:  Absolutely, no question.

Mr Richards:  The other matter that the claimant has asked me to raise, so I do so, is whether or not there can be an expedited copy of the transcript?

Mr Justice Beatson:  My clerk can hear that; I have a feeling that has to do with the financial arrangement between the shorthand writers.  Let me just see, if we want an expedited transcript, what are we going to get?

Clerk of the Court:  If you order a transcript from Merrill Legal Solutions, who are contracted -- 

Mr Justice Beatson:  The problem is that this is all digital; it is modern; and that means it is not done here.

Mr Richards:  Right.

Mr Justice Beatson:  I think the claimant had better go to the office, and do whatever you can to get it, and I will do whatever I can to expedite it.  I will send the message to the office that this is an appropriate case for expedition, because clearly if anything else is going to happen, it better happen quickly.  Is that it?

Mr Richards:  Yes, I think so, my Lord.

Mr Justice Beatson:  Good.  Well, thank you very much for coming.

(an unrelated matter in relation to general court procedures is discussed for three minutes until the end of the tape, not a part of this case so not transcribed)