England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		26th March 2010

1. THE DEPUTY: This is a renewed application for permission to challenge the grant of planning permission by the defendant, South Cambridgeshire District Council, on 9th July 2009 for an extension to Camgrain Storage Limited's grain storage facility at land adjacent to Wilbraham Chalk Pit, West Wratting, Cambridgeshire, near the claimant's home.
2. The planning permission is impugned on grounds of alleged failures to comply with the requirements of the Environmental Impact Assessment Regulations of 1999 and the EIA directive. Permission to apply for judicial review was refused on the papers by Mr George Bartlett QC, sitting as a Deputy High Court Judge.
3. Mr Lewis, for the defendant, and Mr McCracken QC for Camgrain, the interested party, invite me to dismiss the claim on the basis it is out of time and in any event not made promptly. They submit that the claim form filed on 7th October 2009, and near the end of the three month period, did not contain a detailed statement of grounds and a statement of facts relied on as required by CPR 54.6. Mr Drabble QC, for the claimants, refers me to section 5 of the claim form, where it is stated:

"An outline of grounds is set out in the attached pre-action protocol letter. Full statement of facts and grounds to follow."

and he refers to section 8, where it says:

"Statement of facts will be provided later. The defendant and interested party are fully aware of the facts, and the grounds as set out in the attached pre-action protocol letter sufficiently summarise the legal basis for the claim."

Mr Drabble submits that the effect of those words and the attachment is that the material facts and grounds, which were set out in the pre-action protocol letter, are expressly incorporated into the claim form.

4. In my view, a detailed statement of grounds and a statement of facts relied on should be set out in the body of the claim form. This was not done. However, I accept the claim as lodged specified with reference to the pre-action protocol letter a summary of the grounds and relevant facts, the particularisation of which was adequate. In the circumstances, I do not consider the claim form to be defective such that I should rule it was not a valid claim form properly submitted in time. Nothing I have said though should be taken to encourage a practice of completing sections 5 and 8 of the claim form by reference to a pre-action protocol letter or any other document.
5. Following the recent decision of the ECJ in Uniplex UK Ltd v NHS Business Services Authority, Mr Lewis and Mr McCracken do not persist with the submission that previously was available to them with regard to promptitude and was the position when the learned judge made his decision, save that Mr McCracken makes the point that Uniplex does not affect the considerations which have led the Court of Appeal to emphasise the importance of timeliness in judicial review of planning permissions. The screening opinion was made two and a half months before the decision that was challenged but I do not dismiss the claim on that ground in circumstances where there is an issue as to when the claimants as a matter of fact knew of the screening opinion. Accordingly, I do not reject the claim on the basis it is out of time and by reason of delay.
6. Turning then to the substantive challenge, this, says Mr Drabble, is a rural area faced with an application for a 300 per cent increase from 90,000 tonnes to 300,000 tonnes of grain storage. There will be environmental impacts, particularly landscape (60 large silos and a 3,000 square metre extension), traffic (substantial increase in HGV movements for the peak in flow at harvest time, 650 metres from the A11) and noise impacts. Mr Drabble says this is a very large grain storage proposal. It will have an urbanising industrialising effect on the immediate agricultural area. Mr Drabble submits what is in issue is whether the defendant adequately screened the likely effects of what it stated was major development when deciding that EIA was not required and thus that those effects were not significant.
7. The first three grounds of challenge all relate to inadequate screening. The screening, it is said, was inadequate (grounds 2 and 3) and Government advice irrationally applied in carrying out the screening exercise (ground 1).
8. The screening opinion of Ms Lorraine Casey, senior planning officer of the defendant, dated 17th April 2009 is at page 131 of claim bundle volume 1. It contains five paragraphs and then concludes with the sentence:

"In view of the above, the proposal is not considered to be EIA development."

Mr Drabble submits that the reasons given for the conclusion are inadequate. In summary, Mr Drabble makes four points. First, her analysis in paragraph 2 as to whether the size of the development meant that she should consider the scheme on the basis of guidance within paragraph A17 industrial estate, or A19 urban development project (or, perhaps better, urbanising development project) is irrational. Thus it provides no basis for her subsequent conclusion. Second, her paragraph 3 is irrelevant. Third, her paragraph 4 is fatally flawed. She stated that the likely effects would be in transport, landscape and noise but then notes that such assessments "are to be provided with the application". She did not take into account any of the assessments which were actually before her. Fourth, her conclusion is then stated in paragraph 5. There are no reasons stated in paragraph 5 for those conclusions. What she needed to do was assess whether or not this site was likely to have significant environmental effects. Simply reciting the criteria does not shed any light on her reasoning in relation to the specific impacts of transport, landscape and noise on this specific site and is as flawed as the vice identified in Mellor.

9. This development is agreed to be schedule 2, paragraph 10 development. Thus, says Mr Drabble, the starting point is whether or not there is likely to be significant environmental effects. Instead, the starting point adopted by the defendant's planning officer was to examine the size of the development and then consider whether the size of the facility meant it fell within paragraph A17, industrial estate, or paragraph A19, urban development project, of circular 02/99. Mr Drabble says this is wrong. He submits the logical starting point would be to first consider whether a development is in fact an industrial estate development project (paragraph 10(a) of schedule 2, EIA regulations) or an urban development project (paragraph 10(b) within the regulations). He says there is no such discussion anywhere in the screening opinion or the planning officer's reasons. There is then no discussion as to whether the guidance in paragraph A17 or A19 better fits this development. The only factor considered is size, yet one cannot use the size of a development to distinguish between whether it is an industrial estate or an urban development project. Thus, Mr Drabble submits, the reason given is not a rational reason to distinguish between paragraph A17 and A19 and is not defended as such by the defendant or interested party.
10. Mr Drabble submits that this error is compounded because the planning officer stated that the smaller guidance limit for urban development project in circular 02/99 applied, particularly to previously undeveloped sites and thus she should consider the larger size threshold for industrial estates. This is wrong, submits Mr Drabble, for two reasons: first, again the size limit given in the guidance is not a reason to distinguish between whether something is an industrial estate or an urban development project; second, the majority of this site is undeveloped agricultural land, so there is no reason to distinguish on this basis.
11. I do not accept that these criticisms provide the claimants with an arguable case on the present challenge. Even if the defendant's planning officer adopted a rather rough and ready approach, as Mr Lewis concedes she did, in considering the application proposal against the paragraph A17 threshold, she nevertheless concluded that the proposed development would not be likely to have a significant effect on the environment. Mr Lewis and Mr McCracken argue that the development could, as a matter of law, only be regarded as schedule 2(10)(a) industrial estate development, which is covered in circular 02/99 by paragraph A17.
12. Whether this is correct nor not, in my view there was nothing wrong in the planning officer taking the view that it was appropriate to judge the application proposal against the higher threshold in paragraph A17 rather than paragraph A19 and nothing irrational about her conclusion. In any event, as Mr McCracken observed, it is accepted by Mr Drabble that it does not in fact matter whether the proposal falls within paragraph 10(a) or 10(b) of Schedule 2. What matters is whether the development is likely to have a significant effect. In saying this, I have not overlooked Mr Drabble's point that whether the development was A17 or A19 appears to have mattered to the planning officer and, he says, affected her approach to the critical issue.
13. I reject Mr Drabble's criticism of the planning officer's reasoning as considering the threshold criteria in A17 as an "end point". The screening opinion, core bundle page 130, states that:

"In the opinion of the Local Planning Authority, having taken into account the criteria in Schedule 3 to the 1999 Regulations, the proposed development would not be likely to have significant effects on the environment for the purposes of the 1999 Regulations by virtue of factors such as its nature, size and location."

And, in the reasons supporting that decision, core bundle page 131, the planning officer says in the fifth paragraph, having regard to the selection criteria in Schedule 3 to the Regulations, particularly noting the size of the development, cumulation with the existing development and potential impact, that it is her view in the exercise of her judgment that this major development will not have more than local importance, will not be proposed for a particularly environmentally sensitive or vulnerable location and will not have unusually complex and potentially hazardous environmental effects. In the third paragraph, she had noted the development was not within an environmentally sensitive area.

14. In my view, there was nothing arguably irrational about that decision and the planning officer's reasons for reaching it were adequate. She concluded on the basis of the information before her that the development was not likely to have significant effects on the environment. The fact that transport, landscape and noise assessments were not provided with the application and would be considered in due course does not undermine the screening opinion.
15. The fourth ground of challenge to the decision, that there was a failure to reconsider the screening opinion, does not now arise for consideration, in the light of my conclusion that proper consideration had been given by the defendant to the issue of EIA. In my judgment, the challenge to the decision is not arguable and the application for permission is accordingly refused.
16. That leaves the application for protective costs.
17. Mr Drabble I want to be sure that I have correctly understood what order you are asking for in the present circumstances where I have refused your application for permission. Can I ask you to look at paragraph 42 of your skeleton argument of 17th March 2009? It is page 8 and, picking it up eight lines in, do you see the words near the end of the line, "Overall --
18. MR DRABBLE: I have not got there yet, my Lord, I am afraid.
19. THE DEPUTY: Take your time. It is page 8, the last page of your skeleton, and that of Sasha Blackmore, of 17th March 2010. Paragraph 42, eight lines in, near the end of the line:

"Overall if at the end of the present hearing a PCO and permission is still refused, the maximum costs should be in the region of £1000-£2000 recognising these circumstances, and including that it is understood that opponents will choose... [et cetera]."

Just before giving my decision on the protective costs application, let me, if it will assist, indicate my provisional view and my provisional view is that I am not persuaded that the claimants fall within the Corner House criteria, in particular because I do not consider the case to be one of general public importance. But, as you submit, this is an environmental claim, where the mandatory requirements of article 10a of the directive apply, so that costs should not be prohibitively expensive. Then, applying the guidance of the Court of Appeal in Corner House, the costs should be no more than £1,000 for the acknowledgment of service. That being so, provisionally I was going to substitute £1,000 for £4,000 in relation to the acknowledgment of service and make no further order as to costs.

20. MR DRABBLE: Yes. Well, my Lord, unless I am told from in front that that is wrong, that is where I got to too.
21. THE DEPUTY: I just wanted to run it past you.
22. MR DRABBLE: Well, either via the article 10A route or the guidance in Corner House, even without regard to 10A --
23. THE DEPUTY: Even combining the two, I suppose.
24. MR DRABBLE: Well, I think that is right.
25. THE DEPUTY: One can have the direct effect and then one can say what figure should it be and there is some guidance in Corner House, even though one has not said it is a Corner House case in terms of general public importance.
26. MR DRABBLE: Yes. Certainly I was about to submit that something went wrong in Mr Bartlett's consideration of it, because of the --
27. THE DEPUTY: Well, I do not think, for a certain reason, that it was brought to his attention. I do not think he actually dealt with the application.
28. MR DRABBLE: I suspect that is right. He did not treat it on the basis that we were entitled to a degree of protection but, of course, we were in the course of making a PCO application.
29. THE DEPUTY: I will hear from Mr Lewis, but that is my preliminary view. Anything you wish to say further on that?
30. MR DRABBLE: Unless I am told to, no.
31. THE DEPUTY: I do not think you are.
32. MR DRABBLE: Good.
33. THE DEPUTY: Mr Lewis, you have heard what I said.
34. MR LEWIS: Yes, my Lord. What I do have to say in relation to that is that, first of all, the very recent case of Garner v Elmbridge Borough Council, which concerned the proposed redevelopment of Hampton Court -- or a site, forgive me, opposite Hampton Court -- does make the point that Corner House is more than five years old and that prices have risen since then. I have actually got a copy of Garner at court, which I will ask be handed up for your Lordship's assistance.
35. THE DEPUTY: I do not know, it may be that that is why Mr Drabble said 1,000 to 2,000. I said 1,000. I do not know. (handed)
36. MR LEWIS: And the reason I have brought that --
37. THE DEPUTY: Well, it is very recent, is it not, 3rd March of this year.
38. MR LEWIS: Yes, my Lord, and I am afraid I did not have the transcript before and that is why I have not provided -- albeit it is another one of Mr Buxton's cases. But, towards the back of that, my Lord, there is a discussion on costs.
39. THE DEPUTY: I see Mr George Bartlett QC was sitting as a deputy in this case.
40. MR LEWIS: Yes, my Lord, and apparently he indicated that he would be minded to grant a protective costs application in that case, having regard to its apparent public importance, but he nevertheless refused permission on the merits, ultimately, and this was a renewed application to reconsider the PCO before Nicol J. He did not find that the proposal was a matter of sufficient public significance to warrant the making of a PCO and also that there was inadequate particulars as to the means of the applicant. But, when there came to be a discussion at the end, Mr Buxton --
41. THE DEPUTY: This was not a case where the EC directive had direct --
42. MR LEWIS: Well, it was prayed-in-aid, my Lord. That appears in paragraph 15.
43. THE DEPUTY: I mean, I have not had full submissions from you or Mr McCracken on that, really it would be from you as the defendant, and I have had submissions from Mr Drabble, but in any effect the PCO on the basis of my decision or the cost cap has limited effect, because of my decision.
44. MR LEWIS: Yes, my Lord, but -- thank you for raising that point about article 10A, it was in there and, ultimately, my Lord, what happened, if your Lordship comes to about paragraph 59, which is the discussion on costs, I think it is a similar sort of situation as to what happened here, the case went over, so it was actually Mr Buxton on his own addressing Nicol J and he says about his experience in these situations, where the court has come to an oral hearing, and in one case he has in mind in the Divisional Court, if they did not apply a full cap -- sorry, that is in response to a request from Mr Ranatunga for the local planning authority, at paragraph 56 and 57, asking for costs of £3,000, albeit for an oral consideration of the PCO application, and what was said by Nicol J --
45. THE DEPUTY: I am treating this application as being the first application.
46. MR LEWIS: Yes, my Lord, I understood that, and that is why your Lordship had mentioned the figure of a £1,000, I had assumed.
47. THE DEPUTY: Absolutely.
48. MR LEWIS: In effect the purpose of my submission, my Lord, is to urge your Lordship to bump that up a bit. That is in light of what appears from paragraphs 63, in particular, of the costs discussion here, where Nicol J said:

"In the Corner House case given in 2005, the Court of Appeal indicated that they would not expect the costs of a paper refusal ... to exceed £1,000 and an oral hearing to exceed £2,500. Bearing in mind that was a decision of five years ago, bearing in mind also that the application that I have considered had features both of paper submissions and oral hearing, I consider that the sum of £3,000 [which was what had been asked for] is reasonable and proportionate, and that is the sum that I will summarily assess..."

And he says that should include VAT.

49. THE DEPUTY: Well, that, he says, "I have considered had features both of paper submissions and an oral hearing".
50. MR LEWIS: Yes, my Lord.
51. THE DEPUTY: And I am treating this on the basis of the written submissions on the basis of the first time round.
52. MR LEWIS: Again, my Lord, accepting that point, but your Lordship did mention the figure of £1,000. In a way, my Lord, I could cut this short and make a bid for £2,000, but --
53. THE DEPUTY: Well, I am not taking bids, but I do hear what you say and that is very helpful. You are saying there should be an increase on the thousand by reference to the time that has passed since Corner House.
54. MR LEWIS: Yes. I will just double check that I have accent to what I will not characterise as a bid, but in urging on your Lordship --
55. THE DEPUTY: I quite understand the point you are making.
56. MR LEWIS: Well, I am obliged for that, my Lord. Also, and I hope it is not too much laying of the ground for this, I have given to my learned friends copies of Jackson LJ's report on civil justice costs, where it is quite clear from his consideration that he had before him both the Aarhus Convention, which is some years old now, and it follows article 10A and, more significantly, the Commission v Ireland, on which your Lordship has been addressed, and nevertheless, in making the recommendations he did, one of which I have referred your Lordship to already in one of my skeleton arguments, which is disapproval of CFA agreements, he also said -- and if I can hand this up as well, just so your Lordship has it. (handed)
57. THE DEPUTY: Mr Drabble has seen Garner and what you are handing up, has he?
58. MR LEWIS: Yes, my Lord.
59. THE DEPUTY: Yes, thank you very much. Which paragraph is this?
60. MR LEWIS: It is paragraph 4.5 -- sorry, my Lord, to introduce it properly, the reference to Commission v Ireland appears at the top of page 303 in paragraph 1.5.
61. THE DEPUTY: Yes.
62. MR LEWIS: And reference there to the Aarhus Convention, so clear in context that Jackson LJ in his final report of December 2009 had both Aarhus and Commission v Ireland in front of him, so he had the context for environmental challenges, and what he recommends on page 311 in his paragraph 4.5 is a proposed rule for various claims, including judicial review claims, and that is taking onboard the point in Commission v Ireland. He says:

"If this recommendation is accepted, the proposed rule set out in chapter 19 should be adapted so as to include judicial review cases."

And he rehearses it, the rule will read as follows:

"Costs ordered against the claimant in any claim for personal injuries [et cetera] ... or judicial review shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances..."

and including the financial resources of all the parties to the proceedings and their conduct in connection with the dispute to which the proceedings relate. That is just to set the context indicating that that is the recommendation which Jackson LJ has made, having considered the costs applications of environmental challenges and in the aftermath of Commission v Ireland. So, my Lord, to substantiate my request that your Lordship should consider increasing the order for costs to £2,000, I would ask your Lordship to go to my original acknowledgment of service on behalf of the local planning authority, in which I set out various features of the case.

63. THE DEPUTY: This is your summary grounds for contesting the claim.
64. MR LEWIS: Summary grounds, my Lord, page 12, as I was saying, where I have there set out various features of the case, which would justify a fuller award certainly than the £1,000 your Lordship has in mind and, as I have said, I would contend respectfully --
65. THE DEPUTY: Sorry, which paragraph?
66. MR LEWIS: Page 12, paragraph 42 and following, my Lord.
67. THE DEPUTY: Yes, I have read all this. Let me just cast my eye over it.
68. MR LEWIS: I am obliged my Lord. It is about five lines in, where it begins "In case objection were made to this claim for costs on the basis that the above summary grounds are longer than necessary, the court is invited to note the following". The statement of facts and grounds running to 101 paragraphs.
69. THE DEPUTY: Yes. I am reading it all. (pause) Yes, I have read that.
70. MR LEWIS: And so it is on that basis, my Lord, I would invite your Lordship to exercise your Lordship's discretion to award £2,000 of costs to the Local Planning Authority in the circumstances.
71. THE DEPUTY: Thank you very much. Mr Drabble?
72. MR DRABBLE: My Lord, essentially the argument is that the £1,000 guidance should be updated in line with inflation. My Lord, we resist that. There are countervailing indications. In particular, the Sullivan report recommended a maximum of £500 at this stage. I am not asking for that.
73. THE DEPUTY: Remind me of the date of that.
74. MR DRABBLE: Well, it post dates Corner House. It is referred to in our letter -- it is 2008.
75. THE DEPUTY: Thank you very much.
76. MR DRABBLE: It is referred to in Mr Buxton's letter of 30th October 2009. So we say, looking at it in the round, the right figure remains £1,000 and obviously Corner House was not concerned with directly effective considerations arising from article 10A, not that that really helps on quantum, but it was not. So we urge your Lordship to stay with £1,000.
77. THE DEPUTY: Thank you very much. I will give a short judgment on the application for protective costs.
Ruling
78. In section 7 of the claim form, dated 7th October 2009, the claimants applied for a protective costs order and requested a stay. The interested party filed an acknowledgment of service on 26th October 2009 and the defendant did so on 18th November 2009. Both defendant and interested party opposed the application for a protective costs order.
79. The application for permission was considered by the Deputy Judge on the papers on 9th December 2009. However, it appears that the PCO application was not brought to his attention. He refused permission and ordered the claimants to pay the defendant's costs assessed at £4,000.
80. The claimant's grounds for renewing the application for permission asked the court to determine the PCO application prior to the oral hearing for permission. This was not done. Instead, the application for the PCO has come before me for consideration for the first time at the same time as the application for renewal of the application for permission. There was not sufficient time at the conclusion of the renewal hearing to consider the application for PCO. However, I have had the benefit of written submissions from Mr Drabble, Mr Lewis and Mr McCracken, which I have considered.
81. I am not persuaded that the claimants fall within the Corner House criteria, in particular because I do not consider the case to be one of general public importance, despite the interest of the parish council and the Highways Authority. The effects of the development are limited to a relatively small area and principally affect the claimants, so it is not one where the public interest requires that the issues should be resolved. However, this, submits Mr Drabble, is an environmental claim, where the mandatory requirements of article 10a of Directive 85/337 EEC as amended apply, so that the costs should not be prohibitively expensive.
82. I have not heard full argument on this point but in my view the claimants do have directly effective rights under EC law. In the light of my decision refusing permission, the effect of this is of course limited. Following the guidance of the Court of Appeal in Corner House, I have to assess what the proportion of costs in relation to the paper application for permission should be.
83. This morning, I have heard further short submissions made by Mr Drabble and by Mr Lewis with regard to the appropriate sum. Mr Lewis in summary invites me to increase the sum of £1,000 which is referred to by the Court of Appeal in the Corner House decision as being the sum that the paper application for permission should not exceed in terms of costs on the basis that that decision was five years ago and he has referred me in particular to the more recent decision of Nicol J in Garner, which was given on 3rd March of this year, and to the relevant parts of the final version of the Jackson report in chapter 30 relating to judicial review. Mr Drabble has referred me to the Sullivan report, which was in 2008, and invites me not to exceed the sum that the Court of Appeal referred to in Corner House.
84. I am of the view, following the guidance of the Court of Appeal in Corner House, that proportionate costs in relation to the paper application for permission should not exceed £1,000. Accordingly, I would substitute the figure of a £1,000 for the figure of £4,000 and order that the claimants pay the defendant's costs assessed at £1,000. I will make no further order as to costs.
85. MR DRABBLE: My Lord, just one further matter. I do not know whether your Lordship would be willing to order an expedited transcript, which the case may just be of some significance --
86. THE DEPUTY: Yes, if that would assist and if it can be done, I will certainly do it.
87. MR DRABBLE: I am very grateful.
88. THE DEPUTY: I thank counsel and those instructing you very much for your assistance in this matter.