England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		5 March 2009

HHJ Michael Kay QC :

1. This is an application for judicial review of a grant of planning permission by the planning committee of the Defendant at its meeting on 15 January 2008. The applicant for planning permission was the Manaccan Parish Council. Conditional permission was granted by the Defendant for the construction of a new jetty and the formation of an access road to the jetty along the foreshore in the village of Helford in Cornwall. The development was described as one to regenerate the local economy of Helford by providing a combined disabled landing stage for the Helford Ferry and modern catch landing facilities for the members of the Cadgwith, Helford and District Fishermen's Society ("CHADFISH"). The Claimant's case is that the Defendant, contrary to s.70(2) of the Town and Country Planning Act 1990 ("the Act"), failed to have regard to a number of "material considerations". The Claimant submits that as a result the Defendant breached its legal duty and committed a number of errors of law which were manifestly prejudicial. The Claimant argues that the matters on which it relies were highly relevant to the consideration of the application for planning permission and could have affected the outcome of the decision.

The background

2. The Claimant is a company formed to represent the views of what is said to be the majority of the residents of Helford. It is said to be the incorporated representative of the Helford Village Society and has played an active part in making representations concerning the planning application. The Helford Village Society has approximately 150 members. There are just over 70 dwellings in the village of Helford and the Society claims that over 80% of these households are its members.
3. The village of Helford is situated on the south shore of the Helford Estuary, which is known as the Helford River. The Helford Estuary is part of the Fal and Helford Estuary complex in the Fal Bay on the south coast of Cornwall. The proposed development is situated at Helford Point and a length of shore to the east of the point ("the upper foreshore"). Helford Point is a small rocky outcrop that lies between two shallow inlets in the mid-reaches of the Helford Estuary.
4. The site of the proposed development is where a foot ferry, the only provision for crossing the Helford Estuary, crosses from Helford Point to Helford Passage on the opposite shore. Urban development is largely centred at this crossing point. The local economy includes a small fishing fleet of 14 vessels. One important aspect of the recreational and tourism environment is the coastal footpath, the route of the South West Way, which crosses the estuary at the ferry crossing.
5. The Fal and Helford Estuaries support a high diversity of habitats and species that are rare and threatened on a European scale. As a result the area has been selected as part of a network of European sites known as Special Areas of Conservation ("SAC"). It has also been designated as a Site of Special Scientific Interest ("SSSI") on the basis that it represents one of this country's best wildlife and geological sites and has been so notified to the Secretary of State under the Wildlife and Countryside Act 1981. SSSI status affords protection from development and other potentially harmful activities through planning legislation.
6. CHADFISH is one of the promoters of the proposed development. It is a non-profit-making organisation registered as a friendly society. It represents its members' interests at a local level in all fishing matters and related issues. In 2005 the fishing fleet based in the Helford Estuary consisted of 14 vessels and 30 full-time fishermen. It operates all year round. The vessels are largely under 10 metres and generally land their fish on a daily basis. The catch is transported from the vessels to the Helford foreshore by punts or dinghies. Vehicles are then driven across the mid and lower foreshore to land and transport the catch. This procedure involves a 300-metre drive over the foreshore. Over the course of time a rough track for these vehicles has been established. That track can be seen on a map of the planning application site and broader area, which is at page 500 of the bundle of documents. A significant part of that track lies to the south and east of the proposed development area ("the mid and lower foreshore"). It is said on behalf of CHADFISH that the current working practices involve difficult, arduous and sometimes dangerous procedures. CHADFISH has been considering for a number of years the feasibility of a larger jetty at Helford where its members could land their catch.
7. The other promoter of the development is Helford Property Limited which operates the Helford Ferry. There has been a ferry landing at the present location at Helford Point for several centuries. It provides a crossing of the Helford Estuary between the South West Coastal Footpath on the two shores of the estuary. It is said to be economically beneficial to Helford to bring ferry passengers through the village. The new catamaran ferry which is used on this route can transport wheelchairs but the existing jetty at Helford Point is inaccessible to wheelchair users. Thus it is said that the proposed development would provide much needed access to the coastal path for the disabled.

The application for planning permission

8. The Manaccan Parish Council submitted the application for planning permission to the Defendant on 22 September 2005. It did so as the prospective lessee of the site. The proposal was for the widening of the mid and lower part of the existing jetty to 4 metres in order to accommodate the landing activities of the fishermen. The other section of the jetty was to be widened to 2 metres for ferry passengers' use so as to provide access to the South West Coastal Footpath and Helford Village. The access-way to the new jetty was to be built along the upper foreshore on the east of Helford Point. It was to be constructed so as to provide access for vehicles, limited to those used by members of CHADFISH. The access-way was to be 3 metres wide and was to include a small raised area to provide car parking for six vehicles exclusively for the fishermen who were to use the jetty. The initial proposal was that the fishermen would reach this access-way via "the existing facilities." Those existing facilities can only have been the track that was already in use by fishermen along the mid and lower foreshore.
9. On 20 October 2005 an Environmental Impact Assessment was submitted in support of the application for planning permission. The Assessment recognised that the project had significant potential to cause an adverse effect on the local environment. However, it was considered by the authors of the Assessment that those risks might be reduced to an acceptable level by the implementation of appropriate control measures. As a result of the Helford Estuary's status as a SAC, it was subject to the provisions of the Habitats Directive, a European directive by which proposals within the area had to be considered for the effect they would have on nature conservation objectives. It was stated in the Assessment that mitigation and compensation for the adverse effects on the local environment caused by the development would be provided in part by the release of the existing access route for fishermen over the mid and lower foreshore from regular disturbance by their vehicles.
10. The authors of the Assessment stated that the new jetty would be owned by the Manaccan Parish Council and a management system would be put in place by them in conjunction with Helford Properties Limited and CHADFISH. Vehicular access along the existing track and the new access-way to the jetty was to be restricted to CHADFISH members only with the exception of the emergency services. The funding for repairs and maintenance of the development was to be agreed between the Parish Council, Helford Properties Limited and CHADFISH.
11. The Environmental Impact Assessment was required pursuant to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the Regulations"). There is no dispute that the proposed development at Helford is a Schedule 2 development as defined in the Regulations. Pursuant to Regulation 3(2) the Defendant was not in a position to grant planning permission unless it had first taken "the environmental information" into consideration. Environmental information is defined as the environmental statement, including any further information, any representations made by any body required by the Regulations to be invited to make representations and any representations duly made by any other person about the environmental effects of the development. Schedule 4 of the Regulations sets out the information that is to be included in environmental statements. The information described in Part 2 of Schedule 4 is compulsory. That compulsory information includes:

"2. A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects.

3. The data required to identify and assess the main effects which the development is likely to have on the environment."

12. Pursuant to the Regulations, on 6 February 2006 the Defendant wrote to the Manaccan Parish Council requiring further environmental information. The letter notes that there were concerns expressed about the proposed development by English Nature and the Environment Agency. An environmental statement (dated January 2007) was duly submitted. It comprised a revised Environmental Impact Assessment, a planning statement and a flood-risk assessment.
13. On 2 March 2007 Natural England (the successor to English Nature) commented in writing on the proposed development. The letter notes that Natural England had been involved in discussions with the applicant regarding the design and siting of the proposed development since 2005. In the letter Natural England expressed its opinion that the proposal was likely to have a significant effect on the Fal and Helford SAC and as such an appropriate assessment was to be undertaken by the Defendant. Natural England was to be further consulted once the appropriate assessment had been carried out. Natural England advised that:

"The proposal will result in the loss of part of the Lower Fal and Helford SSSI. In order to compensate for this loss it is imperative that vehicular access to the shore is controlled so that the trackway is only accessed from the slipway at the Shipwrights' Arms and that vehicles stay to the northern part of the foreshore beyond the pilchard cellars. This must be included as a planning condition."

14. This requirement from Natural England echoed an earlier concern expressed in a letter of 22 December 2005 by the Environment Agency. The Environment Agency was concerned that if the parking arrangements for the proposed development were inadequate, the fishermen using the jetty would continue to drive across the mid and lower foreshore. As a result, the suggested restoration of the mid and lower foreshore would not occur. Thus, it is clear that both Natural England and the Environment Agency considered it vital that the environmental damage necessarily caused by the proposed development would be offset and mitigated by the environmental benefit to be derived from taking the mid and lower foreshore out of use.
15. English Nature had also written to the Defendant on 19 December 2005. It stated that the proposed development would result in the loss of 640 square metres of the Lower Fal and Helford SSSI. English Nature had advised that the loss of habitat was to be compensated for by reducing vehicular movement on the mid and lower foreshore which then impacted on 570 square metres.
16. Natural England's suggestion was that the access route for the new roadway to the jetty be located on a slipway by the side of a public house known as the Shipwrights' Arms. There are photographs of the slipway by the side of the Shipwrights' Arms in the bundle of documents. Those photographs show that there is a narrow road which is a public right of way leading to the Shipwrights' Arms. By the side of the Shipwrights' Arms there is a slipway leading on to the foreshore. That access route to the foreshore is considerably closer to the proposed new jetty at Helford Point than the traditional means of access used by the members of CHADFISH along the mid and lower foreshore. If access to the new roadway could be limited to that slipway, then it was considered that the envisaged benefit of the restoration of the mid and lower foreshore could be achieved. The difficulty in the proposal is that the slipway is not a public right of way and forms part of the property in the ownership of the Shipwrights' Arms. There is correspondence in the bundle of documents culminating in a letter from solicitors acting for the owners of the Shipwrights' Arms indicating that no right of vehicular access will be granted to the Manaccan Parish Council (page 571).
17. The Planning Officer's report to the Planning Committee of the Defendant, which first met on 17 July 2007, is a lengthy document running to some 45 pages. At the outset the Officer noted that the site is in an extremely sensitive location within the Cornwall Area of Outstanding Natural Beauty and there were constraints as a result of the site's designation as a SAC and SSSI.
18. On 17 July 2007 the Defendant's Planning Committee resolved to grant planning permission. I need not consider that decision in any more detail. The reason is that that decision was vitiated by bias because a proponent of the development sat on the Committee. As a result, the application had to be submitted to a new panel of the Planning Committee.
19. The new panel had before it the Officer's first report and a further report running to some 18 pages. It also had an Appropriate Assessment which was carried out by the Defendant in consultation with Natural England as required by the Habitats Regulations 1994. That was completed on 16 October 2007. As part of that assessment it was recorded that:

"It is estimated that approximately 460 square metres of SAC habitat will be lost in total. As a result of the cessation of vehicle movements on the mid and lower shore, an area of 570 square metres of degraded habitat will suffer no further disturbance and have the potential to recover."

20. On 15 January 2008 the Defendant's Planning Committee again resolved to grant planning permission. A notice of planning permission was issued on 17 January 2008. There were a number of conditions attached to the grant of planning permission. These included several conditions, such as those numbered 3, 4 and 7, which were phrased so as to prevent the commencement of the development until certain matters had been complied with. The condition on which attention is focused in this case is numbered 13. It states:

"The access road alongside the foreshore shall only be accessed from the slipway at the Shipwrights' Arms and vehicles shall only be parked in the car parking area as indicated on the approved plans.

Reason: to accord with the terms of the application and the proposals in the environmental statements and to protect the inter-tidal habitat."

21. The reasons for approval are stated to be:

"This is clearly an important project for the future of the fishermen and will provide both a safe and hygienic tidal landing stage … The new jetty provides a vital link in the national coastal path for people of all abilities and car-free access to both sides of the river. Synergy between tourism and the fishing industry can provide a much needed economic future for Helford which in turn will support local businesses. Whilst the proposal will result in a temporary disturbance and some permanent habitat loss, such loss can be compensated by the imposition of appropriate conditions.

Taking into account the Environmental Impact Assessment, the measures to prevent, reduce and mitigate likely significant effects, the completion of a satisfactory Appropriate Assessment, consultation with sponsors, the objections and recommendations from the public and Helford Village Society, it is considered on balance the scheme is supported as there is no significant conflict with development plan policy, emerging local plan policy, statements of Government advice or other material considerations as set out in the report to the Planning Committee on 17 July 2007."

22. There is also a section of the grant headed "Relevant planning policies". There is extensive reference in that section to regional planning guidance notes, the Cornwall Structure Plan of 2004 and the draft Kerrier District Local Plan of 2004.

Grounds of challenge

23. The Claimant alleges that there was a failure by the members of the Planning Committee to take into account eight matters amounting to "material considerations." They are:

i) use of the foreshore and condition 13;

ii) disabilities;

iii) regeneration and employment;

iv) flooding;

v) alternative sites;

vi) health and safety;

vii) process; and

viii) the manner in which the permission is expressed.

Use of the foreshore and condition 13

24. This was the principal point taken by the Claimant.

Claimant's submissions

25. The expectation of those enjoined by statute to have regard to conservation issues was that the van route used over the mid and lower foreshore would cease once the proposed development of the jetty and upper foreshore had been constructed. Although a part of the natural habitat would be lost as a result of the development it was considered that an equivalent area would be gained by taking the mid and lower foreshore out of use. The wording of an appropriate condition and the Secretary of State's policy as regards planning conditions (circular 11/95) were material considerations in the grant of planning permission. There was a failure to expose for consideration and therefore for the members of the planning committee to consider whether, and if so in what form, a condition could be imposed so as to achieve the vital objective sought by the conservation bodies. The members of the Planning Committee were not put in a position to be able to make a judgment as to whether that objective was going to be achieved. That is because there was no reference in the material before the Planning Committee to the relevant parts of circular 11/95 or as to the problems of implementation and the effectiveness of condition 13 so as to achieve the offset of the loss of one area of foreshore by the gain of an equivalent area. It is not enough for the Defendant to say that the relevant material shows there was concern and reference to the point, because in his report the Officer simply says that the matter can all be dealt with and is properly dealt with by condition 13. The Officer does not go on to mention or discuss the consequences, effectiveness or accordance with policy of that condition as formulated. As a result there were two significant difficulties which were not considered, namely (a) fishermen and other members of the public could still lawfully gain access by vehicle to the mid and lower foreshore even with condition 13 in place and (b) access via the slipway next to the Shipwrights' Arms was not in the control of the applicant for planning permission and had been refused by the owner of the slipway.

Defendant's submissions

26. The Defendant submits that there was no material consideration which the members of the Planning Committee failed to take into account. There was no need for the Planning Committee to consider phrasing condition 13 so as to prevent the development commencing prior to securing access via the slipway next to the Shipwrights' Arms. This was because the anticipated cost of the development was in the region of £1,000,000 and if the proposers of the scheme (the local parish council, CHADFISH and Helford Properties), were not prepared to carry out the development in the absence of the required access, then no other developer was likely to come forward. The members of the Planning Committee knew that the owner of the Shipwrights' Arms would not grant rights of access and it is fanciful to suggest that there should have been consideration as to whether development would be commenced and/or completed without the access-way having been secured. The Defendant was not in a position to impose any conditions to prevent fishermen or members of the public from having access to the mid and lower foreshore because it was not in the control of the parish council. However the members of the Planning Committee were entitled to assume that the members of CHADFISH would want to use only the new jetty facility to land their catch. Accordingly if there were breaches of condition 13, there could be enforcement proceedings by way of prosecution or injunction against the Parish Council. In addition, if a fisherman breached condition 13 he could be barred from using the jetty. There was no unlawfulness in the wording of condition 13 because it is negative in form and, even if the owner of the Shipwrights' Arms was not prepared to grant access via the slipway, it does not mean that the grant of planning permission is irrational in a Wednesbury sense. In considering what form condition 13 should take, the effect of provisions in circular 11/95 was referred to, even if the circular was not mentioned by name. There was nothing uncertain in the phrasing of condition 13, and any practical difficulties in its enforcement did not render it unlawful or unreasonable. The practical difficulties of enforcement were in any event exaggerated because the members of CHADFISH, having proposed this development, would be very likely to use the jetty and abide by its conditions of use. Although condition 13 relates to land which is not in the Parish Council's control, there is nothing preventing the Defendant from imposing that type of condition.

Conclusions

27. The development site and the adjacent mid to lower foreshore is an area of great interest to, and concern for, those involved, whether by statute or otherwise, in the preservation of the local habitat. The proposed development necessarily involved significant environmental damage. From the outset, in the planning application, it was envisaged that, as mitigation and compensation for the environmental damage, there would be restoration of the natural habitat of the mid to lower foreshore. That would be achieved by the release of the access route over the mid and lower foreshore from regular disturbance by traffic and in particular that caused by the local fishermen. In the Environmental Impact Assessment, at paragraph 4.3.4.9.1, this point was made as follows:

"As a result of the cessation of vehicle movements onto the mid and lower shore at Helford Point an area of degraded habitat will suffer no further disturbance and it is predicted that the biotope type of the surrounding shore will re-colonise and recover the area of habitat although this may take in the order of ten years for full recovery."

The total predicted area of habitat to be restored and biotope recovered was 570m² comprising the track on the mid and lower foreshore that fishermen drive on to reach their punts and their turning areas for their vehicles.

28. In their letter of 19 December 2005 English Nature referred to the issue of mitigation and compensation for the loss of habitat at the development site and expressed the view that in order to ensure the mitigation was achieved, the new road to the jetty should only be accessed from the slipway at the Shipwrights' Arms. English Nature indicated that this requirement should be included as a planning condition. In their letter of 2 March 2007 Natural England reiterated the point, saying that it was "imperative" that vehicular access to the shore at the development site was controlled so that the new road was only accessed from the slipway at the Shipwrights' Arms and that vehicles stay to the northern part of the foreshore. They too indicated that this must be included as a planning condition.
29. In the Appropriate Assessment carried out by the Defendant the point raised by the conservation bodies was addressed. At paragraph 5.4 of the Appropriate Assessment record dated 16 October 2007 it is said that approximately 460m² of special area conservation habitat would be lost as a result of the development. However, it was noted that "as a result of the cessation [my emphasis] of vehicle movements on the mid and lower shore, an area of 570m² of degraded habitat will suffer no further disturbance and have the potential to recover."
30. It is obvious therefore, and not in dispute in these proceedings, that amongst the material considerations for the members of the Planning Committee of the Defendant were the means of access to the new road leading to the jetty and the means or mechanism by which the mid to lower foreshore could be taken out of use, so that the required mitigation and compensation for the loss of habitat could be achieved.
31. Section 70 of the Act provides that where an application is made to a local planning authority for planning permission, it may grant planning permission either unconditionally or subject to such conditions as it thinks fit. The Act affords considerable discretion as to the range and width of conditions that a planning authority can impose subject to the restraints summarised in the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759 at page 772A-C. Once granted, planning permission enures for the benefit of the relevant land and it is not, save in unusual circumstances, personalised so as to apply only to the applicant for the permission – see Pioneer Aggregates (UK) Limited v Secretary of State for the Environment [1985] AC 132 at page 141F-H.
32. Section 70 subsection 2 of the Act provides that in dealing with an application for planning permission the local planning authority shall have regard to the provisions of the development plan so far as material and to "any other material considerations". Caselaw establishes that the question of whether something is a material consideration for a planning authority to have regard to is a question of law. However, the weight to be given to any particular material consideration is a question of planning judgment which is a matter for the planning authority. Provided that the planning authority has regard to all material considerations, and provided it does not act irrationally or unreasonably in the Wednesbury sense, the planning authority can give whatever degree of weight (if any) it considers appropriate to the relevant material considerations – Tesco Stores page 780F-H.
33. One of the material considerations that the local planning authority must take into account is a relevant Government policy. If the policy is a lawful one, in that it does not go beyond indicating the weight which should be given to relevant considerations, then the local planning authority must have regard to its terms. If it is going to depart from the terms of the policy it must give clear reasons for doing so. Therefore it is essential that the policy is properly understood and considered by the determining body – see Gransden & Co. Limited v Secretary of State for the Environment [1987] 54 P and CR 87 at page 94.
34. In this case there was a relevant Government policy concerning the use of conditions in planning permission – circular 11/95. Paragraph 26 of the circular provides that a condition should not be imposed if it cannot be enforced and it is useful to consider what means are available to secure compliance with a proposed condition. Paragraph 27 cautions against the use of a condition where in practice it would be impossible to detect a contravention. Paragraph 28 refers to the position where doubt is raised as to whether a person carrying out the development can reasonably be expected to comply with a condition. The typical example given is where a condition is imposed requiring the carrying out of works on land which is not in the control of the applicant. It is suggested that such difficulties can be avoided by framing a condition so as to require that the development authorised by the permission should not commence until the works have been constructed. Paragraph 38 suggests that it is unreasonable to impose a condition worded in a positive form which developers would be unable to comply with themselves or which they could comply with only with the consent or authorisation of a third party. Paragraph 39 suggests that it might be possible to achieve the desired result in such circumstances by wording the condition in a negative form, prohibiting development until the specified action has been taken. Paragraph 40 provides that it is the policy of the Secretary of State that such a condition should only be imposed if there are at least reasonable prospects of the action being performed within the time limit imposed by the permission. In the end-note there is reference to the decision in British Railways Board v Secretary of State for the Environment and Hounslow London Borough Council [1994] JPL 32. It was decided in that case that the mere fact that a desirable condition, worded in a negative form, appeared to have no reasonable prospect of fulfilment did not mean that planning permission should necessarily be refused. The circular nevertheless states that despite that decision it remains possible for the Secretary of State to maintain as a matter of policy that there should be at least reasonable prospects of the action in question being performed within the time limit imposed by the permission. In this context the decision in Davenport v The London Borough of Hammersmith & Fulham [1999] JPL 1122 makes it plain that there is nothing in s.70 of the Act that prevents a local planning authority from imposing a condition over land which is not in the applicant's control.
35. In order to assess whether the Defendant in this case properly took into account the material considerations I have identified, it is necessary to look at the raft of material that was prepared for the consideration of the members of the Planning Committee and what was exposed for consideration in that material. The bulk of this material lies in the Officer's Reports to the Planning Committee. There may well have been an oral presentation and discussion at the planning meeting and the knowledge of local councillors as members of the Planning Committee may have been utilised. However there is no record before me of what was said at the planning meeting and any reference to the local knowledge of councillors would be purely speculative.
36. In the initial Officer's Report there is reference at paragraphs 23 and 30 to the views expressed by English Nature and Natural England. The Officer's response is that the issues can be dealt with by suitable planning conditions. There is also reference in the report at paragraphs 128 and 131 to the access to the new development being located via the slipway of the Shipwrights' Arms. The Officer's response is that this is a private matter between the applicants and any freeholders, but he does indicate that the application site needed to be amended to include that access point.
37. The point was revisited in the shorter report prepared by the Officer for the January 2008 planning meeting. The Officer referred at paragraph 14 to the Appropriate Assessment that had been completed. That assessment at paragraph 5.4 referred to the benefits to be derived as a result of the development from the cessation of vehicle movements on the mid and lower foreshore so that the presently degraded habitat would suffer no further disturbance and have the potential to recover. The Officer merely commented that the assessment had concluded that subject to the imposition of conditions, the project would not adversely affect the integrity of the Fal and Helford SAC.
38. At paragraph 17 there is reference to correspondence from Ashfords, a firm of solicitors who now act for the Claimant. Ashfords had stated that the owners of the Shipwrights' Arms had refused the use of the slipway as access to the proposed development. They therefore requested that a condition be imposed that no development should commence until the applicants demonstrated that they had secured the necessary access rights along the slipway. It was Ashfords' comment that in the light of the refusal of access via the slipway the proposed project was effectively dead. In an oblique reference to the provisions of circular 11/95 Ashfords commented that in terms of planning policy advice, a planning condition ought not to be imposed if there is no realistic prospect of it ever being satisfied. Ashfords had also noted that representatives of the Claimant had met with Natural England, who had confirmed that unless access over the riverbed adjacent to the proposed development was effectively precluded as a means of access to the new road to the jetty, then the proposal was unacceptable. The Officer's response is that condition 13, which was in the form subsequently approved as a condition by the Planning Committee, was enforceable and dealt with these objections. The Officer noted that he had added an informative in respect of a need to ensure that there was a legal right of access before work was commenced. He pointed out that even if the fishermen did not currently have a right of vehicular access, they could obtain such a right at a future date.
39. In my judgment the material, and in particular the content of the Officer's reports to which I have referred, do not indicate that the members of the Planning Committee had proper regard to material considerations relating to the application. According to Natural England and paragraph 5.4 of the Appropriate Assessment record, if the development is to proceed, it is critical that the equivalent area of foreshore adjacent to the development site should cease to be used, so as to compensate for what is lost to the natural habitat by the creation of the new jetty and road leading to it. The material before the Planning Committee, and in particular those sections of the Officer's reports to which I have referred, do not properly address or expose for consideration the difficulties and the complexities in achieving the critical objective of taking out of use the mid to lower foreshore. It is apparent that the Officer considered condition 13 to be the simple answer to the problem. The Planning Committee adopted that approach and granted planning permission on the basis of condition 13. As was accepted on behalf of the Defendant in argument, the planning permission, whether by condition 13 or otherwise, cannot and does not affect the access to the mid and lower foreshore available to any fisherman or other member of the public. Thus, leaving aside the question of whether access to the new road would ever be permitted by the owners of the Shipwrights' Arms via the adjacent slipway, the vital mitigation and compensation for the inevitable damage to the habitat at the development site rests on mere hope and trust. Even if access were granted via the slipway next to the Shipwrights' Arms, there is nothing to stop any existing fisherman or any new fisherman, or indeed any other member of the public, from continuing to drive vehicles on to the mid and lower foreshore irrespective of whether he or she intended to drive onto the upper foreshore. There is nothing in the material before me to suggest that the Planning Committee had regard to this material consideration. If, as was the case, it was necessary to speculate and make assumptions about what fishermen or others might do if the new development went ahead (even with access via the slipway), then that is something which ought to have been exposed for consideration in the Officer's Report.
40. The ability to enforce condition 13 by way of enforcement notice or injunction does not resolve the point. First, if enforcement of condition 13 was thought to be a material consideration as to whether the objective of taking out of use the mid and lower foreshore was to be achieved, then that point should have been exposed for consideration by the Planning Committee. There is no indication in the material that the ability to enforce condition 13 was considered by the Planning Committee in this context. Secondly, enforcement of condition 13 would not of itself prevent use of the mid and lower foreshore and would not therefore achieve the conservation objective.
41. The Claimant also argued that the wording and effect of condition 13, taken together with the Officer's Report, indicated that the Planning Committee did not have proper regard to the provisions of circular 11/95. In particular, it is said that the condition should have been expressed so as to require that the development should not commence until the access via the slipway next to the Shipwrights' Arms had been secured. Secondly, it is said that having regard to the stance taken by the owners of the Shipwrights' Arms, there were no reasonable prospects of the access being secured within the time limit imposed by the permission. I am not persuaded by those submissions.
42. In my judgment these issues were sufficiently exposed for consideration in the Officer's Report. The option of rewording condition 13 so as to prevent the commencement of the development until the access via the slipway adjacent to the Shipwrights' Arms had been secured was referred to in paragraph 17 of the Officer's second report. The Officer's suggestion was to add an informative in respect of the need to ensure there is a legal right of access before work is commenced. Although an informative is of no legal effect, in my judgment the material clearly indicates that the relevant options and arguments, and therefore the relevant material consideration, were taken into account by the Planning Committee. There was no need expressly to refer to the provisions of circular 11/95 if the material indicates that the effect of those provisions was referred to. In my judgment the material at paragraph 17, including the objections raised by Ashfords, demonstrates that the effect of the relevant provisions in circular 11/95 was brought to the attention of the Planning Committee. Further, it cannot be disputed that the problem over access and the refusal by the owner of the Shipwrights' Arms to grant access, both being material considerations, were referred to in the Officer's Report. The fact that the Officer recommended an informative in respect of the need to ensure access indicates that proper regard was had to the material consideration. It was a matter for the decision makers as to whether the issue should be dealt with by way of a condition of the planning permission or by way of informative, and there is no provision of circular 11/95 to render that approach unlawful. The Officer drew the Planning Committee's attention to the possibility that even if there was not a current right of vehicular access to the new development, it could be obtained at some future date. It seems to me, therefore, that the issue that arose in the British Railways Board case, and which is further raised in the end-note to circular 11/95, was exposed for consideration by the Planning Committee.
43. For the reasons given above at paragraphs 39-40, this challenge to the Defendant's planning decision succeeds. A number of other points were argued and for the sake of completeness, and in case there is an appeal, I shall deal with those briefly.

Disabilities

44. Condition 7 of the planning permission provided that before the development was brought into use, the approved scheme indicating the provision to be made for disabled people to gain access to the development should be implemented. The approved scheme is the development scheme as a whole. The Claimant's argument rested on objections that had been raised prior to the grant of planning permission. It was suggested that the development could only be accessed via the slipway next to the Shipwrights' Arms and the foreshore and that it was not possible for wheelchair users to traverse the coastal pathway from Helford Point to and from Helford Village. It was also suggested that there were no specific disabled facilities elsewhere on the Helford River, including the other ferry points.
45. It is not in dispute that the existing jetty at Helford Point cannot be used by those who are disabled and rely upon wheelchairs. The construction of the new jetty provides for the first time the benefit of wheelchair access and therefore provisions are made to meet the requirements of the Disabled Discrimination Act. It was not the intention of the application to improve the gradients on the foreshore at Helford Point or to provide general access to Helford for wheelchair users. The intention was to make the jetty accessible to wheelchair users where no such previous access had been possible. I am not persuaded by the Claimant's argument that there should have been exposed for further consideration the provisions for disabled access at other points on the Helford Estuary, nor as to the means of access to and from the proposed development for wheelchair users into Helford Village. There is nothing to indicate on the plans that the gradients were such that wheelchair access could not be achieved to and from Helford Village. Further, the legitimate objective of introducing disability facilities at Helford Point could not be materially affected by whether other ferry points had failed up till now to introduce such facilities.

Regeneration and employment

46. The Claimant's case is that one of the suggested benefits of the proposed development is the regeneration of Helford and the opportunity to create new employment but there was no proper consideration as to whether, and if so, what, regeneration would occur. In particular, the Claimant draws attention to an alleged paradox between on the one hand paragraph 66 and 122 of the Officer's first Report and paragraph 173 of that report. In the earlier paragraphs the Officer's response to objections that the proposed development will not regenerate the Helford economy is that there is no need on planning grounds for such justification. However, at paragraph 173, in the course of commenting on the effect on visual impact of the proposed development, the Officer refers to a balance to be measured involving an improvement to the economic viability of the Helford fishing industry.
47. When one reads the material as a whole, including paragraphs 15, 18, 43, 45-47, 168 and 183 of the first report, it is plain that the Officer was not referring to a general regeneration of the Helford economy. The importance of the proposed development was to the future viability and health of its local fishing industry. The point which the Officer was entitled to make at paragraph 122 of his first report is that there was no requirement of planning permission that the applicants had to show that the local economy in general would be regenerated. There is no contradiction between that stance and one which takes into account as a material consideration the benefits to the local fishing industry when considering the impact the development would have on the locality.

Flooding

48. PPS 25 relates to development and flood-risk and is dated December 2006. Pursuant to that policy statement, local planning authorities are required to consult the Environment Agency on all applications for development in flood-risk areas. The Environment Agency has statutory responsibilities for flood management and defence and supports the planning system by providing information and advice on flooding issues (paras. 30-31 of PPS 25). As appears in its letter of 9 March 2007, the Environment Agency initially objected to the planning application for the proposed development on flood-risk grounds. In particular, it was concerned with the risk to flooding and safety factors in relation to the proposed car park for fishermen. Once it had been demonstrated that it was not viable to increase the level of the car park, the Environment Agency was persuaded to withdraw its objection, provided a suitable condition was imposed. Its suggestion for such a condition is set out in its letter of 25 June 2007 to the Defendant. In that letter it reiterated that it could not confirm that the proposal was safe with respect to flood-risk due to the proposed levels in the car parking area. The Claimant argues that the question of viability was not properly reported to the members of the Planning Committee and they were not referred to PPS 25. It is therefore argued that the Planning Committee was not presented with a full picture of the issue and therefore did not have regard to material considerations.
49. In my judgment there is no basis whatsoever in the Claimant's argument. At paragraph 140-142 of the Officer's first report the approach of the Environment Agency as to flooding risk is properly and fully recorded and includes the warning given by the Environment Agency that it could not confirm that the levels in the car parking area were such as to render it safe with respect to flood-risk.

Alternative sites

50. The Claimant alleges that in the Officer's Reports two possible alternative sites are dismissed, at least in part, on the basis that the applicant had no control over the relevant land. This, argues the Claimant, is to be contrasted with the contradictory approach to ownership of land demonstrated when access via the slipway next to the Shipwrights' Arms is being considered. The Claimant argues that the members of the Planning Committee ought to have been asked to weigh in the balance whether alternative sites would better provide for the objectives of the proposed development.
51. Arguments as to the proper consideration of alternative sites are to be examined in the light of the decision in R (Mount Cook Land Ltd & anr) v Westminster City Council [2003] EWCA Civ 1346 at paragraphs 30 and 32. It is only in exceptional circumstances that alternative proposals for sites would amount to a material consideration, and there must be at least a likelihood or real possibility that they would become available for development if the application were to be refused. Notwithstanding that authority, it is plain in my judgment that there was sufficient consideration of alternative sites. At a number of points in the Officer's first Report there is consideration of the two proposed alternative sites (paragraphs 20, 56, 155, 162 and page 378). Those paragraphs refer to the more detailed consideration of the alternative sites set out in the Environmental Impact Assessments at pages 132, 153-4 and 311 of the bundle of documents. It is clear that the alternative sites were rejected for a number of reasons, not just that they were not in the ownership or control of the applicants. It is plain that insofar as the availability of alternative sites was a material consideration for the Planning Committee, it had proper regard to the point.

Health and Safety

52. The Claimant argues that one of the reasons for the approval of the development was that it would provide a safe tidal landing stage. One of the points raised by Ashfords on behalf of the Claimant in its objections to the application was that it believed there was an overall health and safety problem. The Claimant argues that health and safety was a material consideration, but there is no exposure for consideration of that point in the material before the Planning Committee.
53. In my judgment this objection is without foundation. At paragraph 17 of the Officer's first report it is stated that the Council's Environmental Health Officer had no observations to make on the proposals. At paragraph 17 of the Officer's second report he responds to the objection advanced by Ashfords to the effect that the Environment Agency had raised no objections on health and safety grounds, subject to its suggested condition and, further, the Health and Safety Executive had been consulted on the previous application but had declined to comment because the proposal did not meet the consultation criteria. It is difficult to see what further steps could have been taken. In any event, insofar as health and safety issues were a material consideration, it is plain that proper regard was had to them.

Process

54. The Claimant argues that the environmental statements before the Planning Committee did not comply with the mandatory provisions as to what they were to include, as set out in Part 2 of Schedule 4 to the Regulations. Alleged deficiencies were drawn to the attention of the Defendant in a letter from S J Berwin dated 7 March 2007 and an attachment to that letter, being comments on the Environmental Impact Assessment by EPR, an independent firm of experts. The deficiencies were said to involve the paucity of information as to traffic and the safety effects of the development, whether during the construction process or in the subsequent operation of the development. It is said that there was no examination in the assessment as to the effect on traffic in the vicinity of the Shipwrights' Arms.
55. The decision of Mr Justice Sullivan in R v Rochdale Metropolitan Borough Council ex parte Milne [2001] Env LR 22 at paragraphs 106-110 establishes that the question as to whether the information in an assessment is sufficient for the purposes of the Regulations is one for the local planning authority to decide, subject to review on Wednesbury grounds.
56. In The Queen on the application of Blewett v Derbyshire County Council [2003] EWHC 2775 (Admin), at paragraph 68, Mr Justice Sullivan commented on the tendency of claimants opposed to the grant of planning permission to focus upon perceived deficiencies in environmental statements. He stated:

"Unless it can be said that the deficiencies are so serious that the document cannot be described as, in substance, an environmental statement for the purposes of the Regulations, such an approach is in my judgment misconceived. It is important that decisions on EIA applications are made on the basis of 'full information', but the Regulations are not based on the premise that the environmental statement will necessarily contain the full information. The process is designed to identify any deficiencies in the environmental statement so that the local planning authority has the full picture, so far as it can be ascertained, when it comes to consider the 'environmental information' of which the environmental statement will be but a part."

57. Having regard to the decisions of Mr Justice Sullivan referred to above, in my judgment the Claimant does not meet the high standard which is required to challenge the sufficiency of the environmental statements. This is because there is considerable reference to the effects of traffic, at least during the constructional phase of the development, in the environmental assessment. These can be found at paragraphs 4.2.1, 5.1.1, 5.1.7, 5.1.9 and 5.1.10. These references, taken together with the other environmental information available to the Defendant (as defined in paragraph 2 of the Regulations), are more than sufficient to meet the allegations advanced on behalf of the Claimant. The Claimant has been unable to point to some element of environmental harm that should have been dealt with in the environmental statement or in the environmental information generally but which has not been covered.

The manner in which the planning permission is expressed

58. The planning permission has a section entitled "Relevant planning policies". Reference is there made to a long series of regional planning guidance notes, the Cornwall Structural Plan of 2004 and the Draft Kerrier District Local Plan of 2004, as well as the Draft Regional Spatial Strategy for the South West 2006-2026. Other than a series of letters and numbers, there is no mention of what these policies contain or to what aspects of the application they relate. In R (The Midcounties Co-operative Ltd) v The Forest of Dean District Council [2007] EWHC 1714 (Admin) Mr Justice Collins referred to the requirements set out in Article 22 of the Town and Country Planning (General Development Procedure) Order 1995 concerning the inclusion in any notice of a grant of planning permission of a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission. In paragraph 25 of his decision Mr Justice Collins noted that the requirement to give summary reasons for a grant of permission would principally be for the benefit of interested members of the public. In paragraph 29 of the decision he went on to say:

"Article 22(1) requires a summary of the policies. That is not the same as a list of the policies. The purpose behind the requirement for a summary is I believe to enable the reader to see the relevance of the policy. All that is needed is an indication of what the policy deals with insofar as it is material to the permission in question."

59. It is argued by the Claimant and conceded by the Defendant that the list of relevant planning policies in the notice of grant of planning permission fails to comply with the Article 22 obligations, as explained in the Midcounties case. There is no explanation of what the policies are or how they are relevant to the decision to grant planning permission.
60. The Defendant argues that if there is no substantial defect in the way the application was considered, then there can be no harm suffered by the Claimant or any objectors if the grant of planning permission was to be allowed to stand. It is said that there would be no benefit in quashing the grant of planning permission if it can be reissued with an appropriate summary of the relevant planning policies. The Claimant says in reply that such an approach is impossible because a planning committee reissuing the grant in February 2009 cannot be put back into the position of the Planning Committee in January 2008. It will therefore be unable to reconstruct what was relevant about the planning policies to the grant of planning permission over a year previously. Also it is said that the expression of reasons and policies assists the members of a planning committee in coming to their decision.
61. In The Queen on the application of Jacqueline Tratt v Horsham District Council [2007] EWHC 1485 (Admin) Mr Justice Collins dealt with the grant of an application for planning permission which did not include a proper summary of the reasons for the grant. There was also in that case a failure to include a summary of the relevant policies. However, the point was not taken by either of the parties. Mr Justice Collins reiterated his view that there needed to be a summary of the policies, albeit the summary need be no more than a few words identifying the relevant aspect of any policy. Mr Justice Collins referred at paragraph 22 of his judgment to the decision of Mr Justice Sullivan in R (Wall) v Brighton and Hove City Council [2005] 1 P & CR 566, [2004] EWHC 2582 (Admin), in which the question of the exercise of the court's discretion in circumstances where insufficient reasons had been given for the grant of planning permission was considered. Mr Justice Sullivan had suggested that if it was apparent that the permission had been properly considered and properly granted, it would generally speaking be wrong to quash it merely because there was a defect in the reasons. What the court could do in such a case would be to direct that proper reasons should be given so that those who looked at the planning register would be able to see why a particular permission had been granted. Mr Justice Collins went on to consider in what manner he should exercise his discretion in that case. He concluded, in accordance with the decision of Mr Justice Sullivan in Wall, that little had to be shown in the way of a prospect of a fresh decision on the application for planning permission to justify an order to quash the grant.
62. It seems to me worthy of note that in the Tratt case the claimant did not even take the point, in support of her argument that the grant of planning permission should be quashed, that the summary of relevant policies was defective. In this case the Defendant argues that it can be directed by the court to provide a proper summary of the relevant policies and indeed, at my suggestion, offered an undertaking to the court to prepare a proper summary of the policies. The Defendant argues that the Claimant has suffered no prejudice as a result of the defects in the list. It is said that the summary of policies does not assist anyone, because even if there were a proper summary of the policies, any objector who was formulating an application to quash the grant of planning permission would still have to consider the actual policies to see whether there were any errors in the process of reasoning of the Planning Committee.
63. In my judgment there is considerable force in the Defendant's arguments. If this were the only ground of the Claimant's application to quash the grant of planning permission, I would exercise my discretion against the grant of such an order. The Claimant has been unable to point to any matter of substance to suggest that the presence of an appropriate summary of relevant planning policies would lead to the prospect of a fresh decision on the grant of planning permission. The defect is purely a technical one and I am not satisfied that there is any prejudice here to the Claimant, having regard to the wealth of material and reasons for the grant which it has been able to examine.

Relief

64. On the limited grounds set out in paragraphs 39-40, this application for judicial review succeeds. Subject to any further argument, I will issue a quashing order in respect of the planning permission for construction of an access road and jetty under reference BA05/01335/F granted by the Defendant and set out in its notice of 17 January 2008.

Postscript

65. The parties' representatives have now had sight of the draft judgement in order to take instructions on it and to make further submissions on costs and permission to appeal. I have received and considered written submissions from Mr Green on behalf of the Defendant dated 27^th February and 3^rd March 2009 and from Mr Straker QC on behalf of the Claimant dated 4^th March 2009. It is accepted that the correct relief to grant is the quashing order I refer to in paragraph 64 above.

Permission to appeal

66. I am not persuaded by the short submissions of Mr Green that there should be permission to appeal. His submissions do not deal with the point that the question of usage of the mid and lower foreshore if the development were to proceed was not properly identified and exposed for consideration by the members of the planning committee. Even if those opposed to the scheme did not identify this issue, it was vital that the officer's report did so in order that the planning committee could have regard to it as a material consideration. I do not see any real prospects of success on an appeal.

Costs

67. The Claimant, as the successful party, is entitled to a costs order. However, there is force in Mr Green's submission that the Claimant only succeeded on one aspect of one of the eight grounds of challenge it raised on the application. It is also correct to say that the Judge who on paper granted permission to apply for judicial review expressed the view that a number of the grounds of challenge appeared to be weak. Those grounds were nevertheless pursued in the hearing at not inconsiderable length. The ground of challenge on which the Claimant succeeded was not one which was clearly identified in its grounds for the application or in the skeleton argument. It emerged in full clarity in the course of argument at the hearing. Having regard to CPR 44.3(4) and (5) and to reflect the Defendant's success on almost all of the issues, in my judgement the Claimant should be awarded 50% of its costs which will be subject to a detailed assessment unless otherwise agreed.