England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		19th July 2012

JUDGE GILBART QC:

1. This claim relates to the grant of conditional planning permission on 16^th September 2011 by the First Defendant Halton Borough Council ("HBC") to a developer the Interested Party Prologis UK Ltd ("PUK"). That permission permitted the erection of a rail served storage and distribution warehouse and related development at a site called HBC Fields, Halebank Road, Halebank, Cheshire, which lies within the Unitary Borough of Halton. The application site is owned by HBC.
2. The application itself was for a total of 110,769 sq m of floorspace. The main building would have an internal height of at least 11 metres. Its dimensions would be about 430 metres long by 190 metres wide. The proposed buildings' footprint covered more than 100,000 sq metres, together with 1250 car parking spaces (including overflow). It would lie within structural landscaping (already permitted) and linked by a road to a nearby junction on the primary route network, as described below (also already permitted). It was also indicated that work to nearby railway sidings (which lie outside the site and as described below) would be carried out under Network Rail permitted development rights. The developer informed the Borough Council that the proposed occupier was the well known internet trading company, Amazon.
3. The Claimant is the Parish Council (" PC") for the parish of Halebank, in which the site sits. Halebank lies within an area bounded by the main Crewe/Liverpool railway line and A562/561 Widnes/Liverpool dual carriageway to the north, industrial and urban development to the east, and the rural village of Hale to the west, beyond which lies the urban residential area of Speke, and the eastern end of Liverpool John Lennon Airport. Halebank and its immediate neighbour Hale village lie in an area which is to a significant degree still an undeveloped agricultural landscape separating the two urban areas. The site consists largely of hitherto undeveloped land forming part of that gap, close to Halebank Village, but as I shall describe it has for some time been identified for development in the statutory Development Plan, provided certain criteria are met. Understandably, the proposed development of the site, both as a matter of principle, and by this scheme in particular, has excited some considerable opposition within the village, and is opposed by the PC.
4. This claim concerns the following issues:

(a) the way in which HBC dealt with the planning application, and in particular with whether it afforded the PC sufficient opportunity to participate in the decision making process

(b) whether the proposal accords with the relevant polices of the statutory Development Plan

(c) whether the conditions attached to the planning permission were lawful

(d) whether HBC could have resolved that an obligation under section 106 of the Town and Country Planning Act 1990 be entered into in respect of the development.

5. Two further issues have also arisen

(a) whether the decision by PC to institute these proceedings was lawfully reached, or was vitiated by the participation of members disqualified from doing so by reason of their having a personal interest, namely owning or occupying houses in areas which would be adversely affected by the presence of the new development;

(b) whether relief should be refused on the grounds that the PC failed to bring its claim promptly.

6. On 23^rd February 2012 HH Judge Waksman QC ordered that written submissions be made on the "tailpiece conditions" issue. On 21^st March 2012 I ordered a "rolled up hearing" on 28^th May 2012, and directed that there be an oral hearing of the Claimant's application for a protective costs order. On 3^rd April 2012 Simon J refused the Claimant's application to have the application for a protective costs order dealt with on paper. HH Judge Raynor QC made a protective costs order on 30^th April 2012. At the time that I made the order of 21^st March 2012 it appeared that the relevant documents had been disclosed, and the factual position was established, and what remained for argument were the legal issues. However as the hearing took place before me, some elements of the HBC case were shown to be unsubstantiated, or significantly changed. Mr Fraser QC, Counsel for HBC very properly drew my attention to these matters as the hearing developed. I shall refer to them below.
7. I shall deal with matters as follows

(a) Setting the scene

(i) The history of the site and environs, including the grant of relevant planning permissions

(ii) The statutory Development Plan and other documents- history, terms and status

(1) HBC Unitary Development Plan ("UDP"); history, policies and reasons and justification

(2) Supplementary Planning Document "3MG Mersey Multimodal Gateway" August 2009 (" SPD")

(3) Plan appearing on front page of "3MG Mersey Multimodal Gateway-3MG-Project Update-HBC Field " circulated in June 2011^[1];

(b) The Planning Application and the consultation process up to and including the Development Control Committee meeting on 30^th August 2011

(i) Events in summer 2011 before planning application and Environmental Statement submitted

(ii) The Planning Application

(iii) Events between submission and determination of application, including attempts to persuade HBC to postpone determination

(c) Issues on effectiveness of participation by PC

(i) European Union Directives and domestic subordinate legislation

(ii) Submissions of the parties

(iii) Discussion and conclusions

(d) Interpretation and application of Development Plan policy by HBC

(i) The planning officer's advice to the Committee

(ii) Submissions of the parties

(iii) Discussion and conclusions

(e) Issues relating to conditions, and to the absence of a section 106 obligation or agreement

(i) Submissions of the parties

(ii) Discussion and conclusions

(f) Issues on the institution of proceedings; validity and delay

(i) Submissions of the parties

(ii) Discussion and conclusions

(g) Overall conclusions

Topic A Setting the Scene

8. The site lies west of Widnes, and immediately south of the London to Liverpool main railway line, which abuts the western end of the northern boundary of the site. It is called site 253 in the UDP. Until that Plan was adopted, the site lay within the statutory Green Belt. To the north east of the site lies an area (called site 256 in the UDP) which lies between the railway line and the site. It consists of railway sidings for the most part, which were operated by Network Rail. To the north of the railway line lies a factory site known as Ditton Works and site No 242 in the UDP. East of site 256, Ditton Road crosses the railway line. East of that point, a site (known as 255) lies south of the railway to the north and was industrial land. It included a timber yard and the West Bank Dock estate. As at October 2004 it contained a 15 hectare intermodal rail depot reached from the sidings described above, and a 40 hectare freight terminal, also involving rail access from the sidings.
9. Immediately to the east of the site lies Halebank Village which lies between the site and the Hale Road Industrial estate, which separates it from site 255. To the south and west of the site, the area is essentially rural, as the site is in its current form. The site was described by the Council's consultants in their draft masterplan of October 2004 as

"26 hectares of predominantly greenfield land occupied by a number of agricultural tenant businesses."

10. Regional Planning Guidance for the North West (RPG 13; March 2003) contained a policy SD9 which stated that the Regional Transport Strategy should deliver "effective multi-modal solutions to the conveyance of goods, people and services, especially at major hubs." Policy T7 sought the provision of new strategically located intermodal interchanges to serve the North West. There were similar policies within the North West Regional Freight Strategy. The Regional Economic Strategy proposed a shortlist of 11 regional sites, later increased to 25, including Ditton, which is how the area described above is referred to. (I should add for completeness that the policy to identify intermodal sites had first emerged some years earlier).
11. That policy background led to a proposal by HBC of allocations in the Halton UDP, whose preparation began in 1999. It proposed what is now (in the adopted Plan of 2005) called the " Ditton Strategic Rail Freight Park" which covered Site 253, but also included the other areas 255 and 256 for development (as appears below). Unsurprisingly, given the fact that the proposal involved the deletion of a substantial piece of land from the defined Green Belt, the Inspector gave it careful consideration in his report and recommendations following the UDP inquiry in 2003. One question he asked, entirely properly in the context of national policy, was

" whether …….there are sufficiently exceptional circumstances to justify deletion of Site 253 from the Green Belt and its allocation in this UDP……"

12. He concluded that there were, but went on to recommend tests for its release (paragraphs 10.22.77 and 10.22.78). He rejected a suggested criterion that it was enough that development on Site 253 be capable of being used by Rail Freight , saying

" in view of the reasons for accepting the allocation of Site 253 this is not enough"

and recommending that the development had to be rail served, with adjacent dedicated rail sidings, and that it should require that the provision of sidings should be a condition of any planning permission.

13. The approved UDP , which it is agreed constitutes the relevant statutory Development Plan for the purposes of section 38(6) of the Planning and Compulsory Purchase Act 2004 ("PCPA 2004)") and section 70 of the Town and Country Planning Act 1990 (" TCPA 1990") therefore contains the following policy:

" E7 DITTON STRATEGIC RAIL FREIGHT PARK

1 A phased strategic intermodal rail freight park will be developed on land at Ditton, Widnes in accordance with an overall master plan to be approved as a Supplementary Planning Document. Within the defined park Sites 253, 255 and 256 are allocated for development. Development will be permitted provided it complies with all of the following (and in the case of Site 253 subject also to compliance with paragraph 2 below)

a. It is for use by businesses that would utilise the railway for the transportation of freight, and uses offering support services to them

b. ………

c. ………

d. …………

e. ………….

2 Development will not be permitted on (Site) 253……………..unless all the following also apply

a. It is part of a comprehensive proposal for a strategic rail freight park at Ditton in accordance with an agreed phasing plan

b. Development of the strategic intermodal rail freight park on the previously developed sites 255 and 256……….has already commenced in accordance with an agreed Phasing Plan set out in a Supplementary Planning Document.

c. …………………………………………….

d. A warehouse development proposal comes forward of larger than 25,000 square metres floorspace and of a sufficient size or character that would be incapable of being accommodated within the remaining areas in the defined Park

e. It is designed to be rail served, including the provision of dedicated rail sidings adjacent to it.

f. The layout of development incorporates measures actively to discourage the direct movement of goods vehicles from the site to the local road network in the Halebank area. In order to achieve this aim a road system shall be provided to connect Sites 253, 255 and 256 where they are divided by public highways or railway lines."

14. The policy is followed in the UDP by 11 paragraphs ( 3 to 13) of " Justification." Paragraph 11 states that the policy

" sets out safeguards needed to ensure that the development takes place in a comprehensive manner, including the development of the previously developed areas in advance of development of the greenfield areas. The greenfield site 253 should not be developed in isolation or before the other areas of the proposed Rail Freight park. It is considered to be the key to facilitating the reuse and regeneration of currently contaminated and unattractive previously used land in the immediate area that would otherwise remain as such. The provision of railway sidings will be required as part of any proposal for the development of Site 253. This requirement will be the subject of conditions of any planning permission for Site 253."

15. Paragraph 13 addresses, inter alia, the need for landscape buffer zones for site 253, and states that planning conditions and s 106 obligations will be used to ensure that environmental and amenity standards are protected.
16. As is apparent from Policy E7 of the UDP, there was to be an overall master plan to be approved as a Supplementary Planning Document. At the start of the hearing, HBC was contending that both such documents existed and had been approved by the Council. However by the end of the hearing HBC had accepted that their status was not as first claimed.

(1) "Supplementary Planning Document" (" SPD")

(i) This is dated August 2009. It is supplementary planning guidance. It describes itself (1.4) as being based on the UDP policies and "(1.6) in addition the SPD is

" based upon the contents of the "Ditton Strategic Rail Freight Park Masterplan and Landscape Strategy and Design Guide that were adopted by the Council in December 2004. Whilst this SPD is a stand alone document it nevertheless cross refers to the Masterplan and Design Guide and accordingly the three documents should be read together to get a full picture of the vision and requirements for the area."

In fact, as appears below, HBC conceded during the hearing that no Masterplan had ever been adopted.

(ii) The SPD makes many references to the Masterplan. It states at paragraph 5.1 that

" the…Masterplan sets the context for the main development framework of the SPD. The Masterplan describes the vision for the area………"

(iii) It identifies individual sites identified as Sites A to T for particular uses. The most appropriate use for Site 253 (called Site A) is identified as

" A warehouse development……..larger than 25,000 sq m that is designed to be rail served, including the provision of dedicated rail sidings to it, in accordance with (UDP) Policy E7."

Sites 255 and 256 are also identified for

" Businesses that would utilise the railway for the transportation of freight and uses offering support services to them in accordance with Policy E7."

(iv) The SPD contains no proposals map. The closest one gets to a plan of allocations is an A4 map with sites A- T being identified by small roundels, with the sites' boundaries being shown.

(v) It contains a Phasing chapter, which describes the phasing programme as

" necessary for the SPD to comply with Policy E7 of the Halton UDP."

It goes on;

"The phasing of development and infrastructure is as follows

(1) Development should commence on Site 255 in accordance with planning permissions granted for rail freight development.

(2) Design and planning permission for the rail-served warehouse on Site 253.

The phases of infrastructure are as follows but are not necessarily in sequential order

Design and planning permission for rail sidings on Site 256

Sludge main pipeline diversion on Site 253

Implementation of structural landscaping on Site 253, in accordance with the planning permission

Design and planning permission for road and link to primary route network to service Site 253

Construction of rail sidings of Site 256

Construction of link to primary road network to service Site 253."

17. I shall deal below with the interpretation of that document. Much confusion was caused at the hearing by a plan referred to as "The Masterplan" in various editions of a newsletter distributed by HBC from at least 2006 onwards. That plan , which appeared on the front of the latest relevant edition of June 2011 and was labelled "The Vision"(sic), showed an illustrative plan of large rail related distribution building on Site 253, described as being approximately one million square feet in size (or almost 100,000 m²). It also showed developments on Site 255 and 256. Indeed at one point HBC was relying on it to show that the PC had a good idea of what had been settled on as the general form of development. However it emerged during the hearing that there was no sign of that plan ever having been approved by HBC, and not even any idea of who had been responsible for drawing it up.
18. The "Masterplan" referred to in the SPD was not that document. The one referred to in the SPD was one drawn up in 2004. I was informed by HBC at a late stage of the hearing that that 2004 masterplan was never actually approved or adopted by HBC, despite the contentions to the contrary in the SPD. It was published in "Revised Final Draft" form on 27^th October 2004, and was drawn up by the well known Consultants, Messrs Atkins. It contained descriptions of the area, details of site uses and ownerships, relevant policies and public sector funding issues. It contained a "masterplan" which identified the proposed uses for the Park, including " Rail Related Development (Public Sector Led)" on Sites 253 and 256, and "Intensification of Existing Rail Related Development (Private Sector Led)" on Site 255. Various versions of that Plan exist. One (""3MG Mersey Multimodal Gateway Masterplan" (Drawing No 5013684/002/13)) of December 2007 was exhibited by HBC at page 100 its bundle.
19. Site 255 contains the former Connors' Rail terminal, recently purchased by Stobarts. Planning applications were made in 2007-8 to expand the warehouse and distribution facilities by 129,000 sq metres, and add a rail siding. That development has been commenced. Its rail access would be gained from the Ditton sidings, but they are currently operating at full capacity. A permission exists on Site 256 to build four new railway sidings on Site 256. It has not been commenced. Although other development has taken place to the east of Site 255 but encroaches on a small part of it (a Tesco distribution warehouse) Mr Fraser does not argue that that qualifies as development on Site 255 required as the "trigger" to enable Site 253 to be developed.

Topic B The Planning Application and the consultation process up to and including the Development Control Committee meeting on 30^th August 2011

20. During 2011, it became known that a developer (PUK) was interested in developing the site (i.e. Site 253). On 22^nd June 2011 HBC distributed a newsletter, which stated that a planning application would be made on the site. No timescale was given for the making of the application. It claimed that it had emerged from the "2006-7 Masterplan and layout" but as noted already that claim is not one supported before me at the hearing. It referred to a scheme of 111,612 square metres, with an illustrative "Masterplan" showing a rectangular building running east to west parallel to the railway line on its northern side. Road access was shown as taken north-northwestwards to the roundabout at the junction of the A 562 east-west dual carriageway and the A 5300 dual carriageway, which runs from that junction northwards to the junction of the M62 and M 57 motorways south east of Huyton.
21. Evidence before the court showed that on 10^th June 2011, the HBC Programmes Manager Ms Sally Macdonald, who works in the Employment, Economic Regeneration and Business Development Department of HBC advised her colleagues that if the permission were granted and PUK's prospective occupier entered into contracts, HBC would receive

" a return of £1.78 million."

Evidence from Ms Macdonald in her witness statement was that would not represent a profit, but a recoupment of money already spent on the project, or of money which it would spend on it.

22. An exhibition was held on 20^th June 2011, in Widnes. On 15^th July 2011, Ms Macdonald wrote to those who had attended the exhibition stating that the planning application would be submitted by PUK on 20^th July 2011.
23. The application itself was, as noted above, for a total of 110,769 sq m of development. The building would have an internal height of at least 11 metres. Its dimensions would be about 430 metres long by 190 metres wide. The proposed buildings' footprint covered more than 100,000 sq metres, together with 1250 car parking spaces (including overflow spaces). It would lie within structural landscaping (already permitted) and linked by road as described above (also already permitted). It was also indicated that work to the railway sidings (which lie outside the site) would be carried out under Network Rail permitted development rights.
24. Given the very substantial scale of the proposal, it required the submission of an Environmental Statement ("ES"). It ran to several hundred pages. It is unfortunate that in the Transport section of the ES, where Planning Policy is addressed, the UDP is misquoted, by omitting all reference to the condition precedent in Policy E7 (2)(a) and (b) and to the phasing policy in SPD (Claimant's second bundle pages 737 to 740). However other material put forward by the developers quoted Policy E7 accurately.
25. The application was sent to the PC on 21^st July 2011, the day after its July meeting on 20^th July 2011. Its response was invited within 21 days. The Council officers had originally anticipated on 9^th June 2011 that the application would be made on 20^th July 2011, and be considered at Committee on 12^th September 2011 (see Macdonald E mail of 9^th June 2011). The Council members were to have been briefed on the application on 16^th June 2011.
26. However, it has been stated by HBC in an open letter in connection with these proceedings that on 30^th June 2011, the Chief Executive of HBC had actually agreed to work to a Development Control Committee date of 30^th August 2011 for the determination of the application. It follows that as at the 9^th June 2011, a Committee date was anticipated of 12^th September 2011, allowing just under 8 weeks from the date of submission before it was determined. However the revised date gave a period of just under 6 weeks. Indeed, evidence from Ms Macdonald to the court showed that as at 9^th June 2011, HBC had informed PUK that the Committee would meet on 12^th September 2011. However she also describes what then happened

"On 20th June the Council Leader and Council Officers met with (PUK) and the (unsecured) Customer. Developments of this kind are very rare in the Borough and as such, high importance is placed on them and they are afforded priority status as there are few opportunities available to create this number of jobs. Developments of this kind are time critical particularly due to retail trading patterns but also in this case as work needs to be undertaken on the national Rail Network and obtaining rail possessions have to be programmed into the project well in advance. The Customer and (PUK) expressed concern over the tight construction programme and asked if the Council were in a position to bring forward the Planning decision. The Council Leader agreed he would discuss the matter with colleagues. Following which I asked the Planning Officers A Plant and G Henry to consider the timetable and ascertain if the planning process could be progressed more speedily. It was agreed it could and still comply with the planning process. Consultation with the Chairman of the Development Committee Cllr P Nolan took place on 29^th June and Cllr Nolan agreed that the Development Control Committee would be called on 30^th August 2011 and that Officers would work to a new timetable."

27. She then goes on to describe how an officer from Committee Services contacted members of the Committee to check their diaries. All officers were then told that the meeting was to be on 30^th August 2011. However, significantly Mrs Macdonald says this

"A meeting is formally called when the agenda is published. This was on 19^th August 2011 for 30^th August 2011."

28. There was in fact no Development Control Committee date scheduled for August 2011. The next scheduled dates were 12^th September 2011 and 10^th October 2011. In accordance with what Mrs Macdonald describes, it was not until 19^th August 2011 that notice was given that the meeting would be on 30^th August 2011. In other words the Chairman of the Development Control Committee had decided on 29^th June 2011 to hold a special meeting on 30^th August 2011. It follows that Council members and officers were aware of the fact that the application would be dealt with at the special meeting, some 9 weeks before it was held, 3 weeks before the planning application was made and over 7 weeks before informing the public, including those opposed to the proposal.
29. On 2^nd August 2011 purported formal notice was given that the application had been made, but the site notices had not been displayed as required. However the correct site notices were placed on 8^th August 2011, and the correct advertisements placed in local papers on 10^th August 2011. (Of course the PC had known of the application since receipt of the letter of 21^st July)
30. On 6^th August 2011 Mrs Julie Egan, the Clerk of the PC , had written to Mr Tim Gibbs MRTPI MRICS, the Divisional Manager (Policy and Development Services) who was identified as the officer dealing with the application (and had written the letter of 21^st July 2011). At that time she was unaware of the proposal to have a Committee meeting on 30^th August. She asked for an extension of the 21 day period given to the PC, and said that the window for consultation responses was " very narrow." She said that there were compelling reasons why the PC needed more time to consider the application and formulate its response to HBC. They were

(a) The PC, like many Councils, had no scheduled meeting in August

(b) It was a

"massive application for a development of over 1 million square feet with associated infrastructure"

proposing a

"highly intensive 24/7 industrial use in close proximity to housing"

accompanied by a very detailed Environmental Statement and other technical supporting documents, which

" necessitates detailed scrutiny and consideration."

(c) The PC was

"in the process of appointing professional planning consultants to help evaluate the application and specifically consider whether this application meets the very stringent pre-conditions set out in (the) UDP and the 3MG SPD with respect to potential development of Site 253"

(d) The PC had asked PUK to come to the September meeting of the PC, which request was under consideration.

(e) In the new spirit of localism, HBC's decision must be informed by a meaningful consultation process with the local elected body (the PC) and other stakeholders to offer informed and considered responses to

" an important and complex planning proposal."

(f) HBC ought to avoid giving the appearance that it had expedited an application on a site it owned, and was part of an overall development actively sponsored by HBC.

31. On 8^th August 2011 Mrs Egan informed Mr Gibbs (and various Councillors, including the Chairman and Vice Chairman of the Committee) that PUK had now agreed to come to the next meeting of the PC and answer questions. She asked that the application not be determined before that had taken place.
32. It is right to record that when this topic was first addressed at the hearing, it was thought that the new date of 30^th August 2011 was then known. It transpired during the hearing that it was not, and indeed had not yet been notified. Mr Gibbs responded on 9^th August 2011 by E mail. As I shall come to, it was also conceded at the hearing by HBC that no authority had been delegated to Mr Gibbs to deal with requests for an extension of the consultation period. He contended that

(a) The information about the development had been in the public domain for some time

(b) There had been a public exhibition attended by the PC on 27^th June 2011

(c) The news letter had been circulated in June 2011 (described above)

(d) The pre-application consultation undertaken by the applicant, combined with the materials sent with the formal consultation letter of 26^th July (sic- it had been sent on 21^st July) provided more than sufficient information for the PC to respond within the time given

(e) Other statutory consultees had already responded

(f) He therefore saw no reason to agree to the extension requested.

33. Mrs Egan repeated the request for deferment on 10^th August, but Mr Gibbs did not reply.
34. Meanwhile (still at a time when the PC thought that the Committee meeting was on 12th September 2011) Mrs Egan informed PUK that the earliest date when the whole PC could be present to meet PUK was 6^th September 2011. PUK now, by letter of 11^th August 2011 said that it considered that the PC had enough information to comment to the Planning Authority on the application.
35. The PC now considered the holding of a Parish Council meeting in the light of Mr Gibbs' response. Mrs Egan's evidence explains that of the five PC members, three were away for most of August, and she herself was away on a pre booked holiday with her children from 9^th to 24^th August. Given the fact that PC members are simply ordinary members of the public, elected to serve on the Council, it is unsurprising that the holding of a meeting in August presents difficulties (as I shall come to, the issue of Council policy on consultations in holiday periods is relevant on this issue). Mrs Egan's evidence is also that their Planning Consultant required more time to give advice. The vice chair, Councillor Woodward, describes in evidence that she was asked to contact the Chief Officer of the Cheshire Association of Local Councils (CHALC) for advice. CHALC advised Mrs Woodward to seek to hold a meeting, but raised the issue that there could be a question of the members having a pecuniary interest. That might arise from the fact that, as near neighbours of the proposed warehouse, the value of their properties could be affected. However a dispensation could be obtained from the Standards Committee of HBC pursuant to section 55 of the Local Government Act 2000. According to Mrs Woodward, she was told by the HBC Monitoring Officer Mr Mark Reaney on 18^th August 2011 that he could only consider the matter if each Parish Councillor wrote to him. Mrs Woodward said that she could do that on 19^th August, whereupon she was told that the application for a dispensation would have to go before a Standards' Board whose next meeting was on 7^th September 2011. However she goes on to say that Mr Reaney would contact the Democratic Services Manager and Parish Council Liaison Officer to see what could be done.
36. Mrs Lawley did not telephone on 18^th August 2011. She telephoned when Mrs Woodward was out on 19^th August 2011, and left a message to call her. Mrs Woodward was now in a dilemma as 3 days' notice had to be given of a PC meeting, and she was about to go on holiday. She did not respond to the message and left for her holiday on 20^th August. The evidence for HBC from Mr Reaney is to the effect that a Standards Board could have been arranged.
37. Meanwhile, the time before the Committee meeting on 30^th August was reducing. Mrs Egan, the Parish Council clerk, was on pre-booked holiday until 24^th August. On 19^th August 2011 the report of the Strategic Director, Policy and Resources, was issued. It had been written by the Area Planning Officer, Glen Henry. As will become apparent, the statutory consultation period for the application had not yet expired. At the time that report was written only three letters of objection are recorded as having been received. As appears below, that position had changed substantially by the date of the Development Control Committee meeting. As will also become apparent, that report failed to deal with the tests in Policy E7 of the UDP by anything other than passing reference. I set out the relevant parts below.
38. On 30^th August 2011 Mrs Egan made a request that the application be deferred until the Committee's next meeting to allow the PC to " properly consider it and forward you our views." She contended that it was unreasonable for HBC to proceed to a determination later that day, saying that

(a) No other parish council in the Borough had August meetings. The timetable for comments was

"uniquely untimely, inconvenient and unreasonable"

(b) The PC was unwilling to proceed with a meeting until such time as it received clarification on the question of councillors' interests

(c) The application was large and complex supported by an ES and other technical documentation. The PC needed professional advice before responding formally after a meeting, which was not possible given the

" extremely truncated consultation and determination period"

(d) There was a great deal of local opposition. It was important that this very substantial project should be considered to proper democratic scrutiny

(e) The HBC officers had failed to recognise the significance of the tests in the UDP , which set a sequential approach. It was disturbing that when the PC sought information from the developer which would have informed them on whether the tests had been met, the developer withdrew its agreement to attend a meeting

(f) It was unreasonable to impose the statutory minimum period for consultation

(g) It would be unreasonable not to defer the Committee meeting for one month.

39. The Development Control Committee meeting took place that evening. The Minute records that the letter had been received. The Minute is silent on what if anything the Committee resolved to do about the request for deferment. Mr Andrew Plant, the principal Development Control officer states in his evidence that he informed the Committee of the exchanges with Mr Gibbs in early August. He recites that the Committee was informed of the latest letter but gives no evidence of any decision by the Committee. All he says is that it continued to consider the application. As Mr Fraser QC accepted, this means that of the three requests by the Parish Council

(a) The first (for an extension of the consultation period) was refused by an officer with no authority to do so;

(b) The second received no response;

(c) The third, which requested a deferment, was reported to the Committee. There is no evidence that any decision was taken about it, and if there were a decision to reject it, any reasoning at all to support it.

40. At that meeting the Planning Officer Mr Henry now spoke to a note which addressed a number of issues raised by objectors. By 30^th August 2011 another 546 letters of objection had been received (and were all individually signed copies of a distributed objection letter). The objections took 4 points. The first and second related to Policy E7:

(a) It argued that the conditions set out in Policy E7 and in the SPD for the development of the site had not been met, and in particular the conditions relating to the sequential phasing of development on the brownfield sites 255 and 256

(b) The development would not be part of the wider 3MG operation, and did not satisfy the requirement to be "part of a strategic rail freight park", having no direct road access to other parts of the 3MG operation, and there being no evidence that the activities and operations within it were related to the availability of rail access, thereby not being in accordance with Policy E7.

41. It should be noted that the account of those points of objection in the Council Minutes bears little relation to the terms of the letter. The Minutes state that, on those two points, the objectors were raising objections that, inter alia:

"It was considered that the Policy context as a whole needed reviewing in terms of the aims and principles of the Policy,"

and

" The lack of access via rail to the 3MG park."

It is concerning that the author of the Minutes could imagine that that is a fair summary. In fact Mr Henry had addressed the two issues raised; whether he did so in a way consistent with policy E7 and the SPD is a subject I shall return to.

42. In the context of this case, I need only refer to the parts of the speaking note dealing with the interpretation and application of policy E7. I do so below.
43. The Committee resolved that the Operational Director – Policy Planning and Transportation, in consultation with the Vice Chair, be granted delegated authority to approve the application, subject to receiving confirmation from a body called MEAS on obligations concerning the Habitats Regulations, and subject to conditions relating to 35 identified topics. The decision notice was issued on 16^th September 2011, including certain conditions. I deal with those conditions in issue in a later section of this judgement.
44. No agreement or obligation under s 106 TCPA 1990 was entered into. The advice given to the Committee in the written report was that the applicant PUK and the Council

"have committed (sic)to make substantial contributions by means of a Development Agreement. The position of the Council as landowner is considered to afford a significant degree of control in this regard."

45. In Mr Henry's speaking note it was argued, and was HBC's case before me, that no section 106 obligation could be entered into because HBC was the landowner. Mr Henry advised the Committee (my italics) that

" The Council is anxious to put on record the same conditions that would apply to any other landowner or developer and these will therefore be covered by a development agreement. The terms of that development agreement will therefore include requirements to construct the principle (sic) access road and rail connectivity to the site ;costs for off site highway works…………….off site landscaping and habitat creation………."

In fact, on 30^th June 2011, a meeting had taken place of the 3MG Executive Sub Board, a Committee of HBC, where the report of the Chief Executive, which described the development agreement, was made the subject of a resolution preventing disclosure pursuant to section 100A(4) of the Local Government Act 1972. No copy of that development agreement has actually been disclosed by HBC at any stage.

Topic C Issues on effectiveness of participation by PC

(i) European Union Directives and domestic subordinate legislation

(ii) Submissions of the parties

(iii) Discussion and conclusions

European Union Directives and domestic subordinate legislation

46. It is necessary to put this into the context of European Union Directives and domestic law. It is also necessary to refer to the HBC statement of community involvement issued pursuant to section 18 of the Planning and Compulsory Purchase Act 2004.
47. Because this is a development where environmental assessment was required Council Directive 85/337/EEC (The assessment of the effects of certain public and private projects on the environment), as amended by Directives 97/11/EC and 2003/35/EC. (There is now a consolidated Directive 2011/92/EU which came into effect in February 2012) Articles 4 and 6 are relevant

Article 4

1. Subject to Article 2 (3), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

2. Subject to Article 2 (3), for projects listed in Annex II, the Member States shall determine through:

(a) a case-by-case examination,

or

(b) thresholds or criteria set by the Member State

whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.

Member States may decide to apply both procedures referred to in (a) and (b).

3. When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account.

4. Member States shall ensure that the determination made by the competent authorities under paragraph 2 is made available to the public.`

Article 6

1. Member States shall take the measures necessary to ensure that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities are given an opportunity to express their opinion on the request for development consent. Member States shall designate the authorities to be consulted for this purpose in general terms or in each case when the request for consent is made. The information gathered pursuant to Article 5 shall be forwarded to these authorities. Detailed arrangements for consultation shall be laid down by the Member States.

2. The public shall be informed, whether by public notices or other appropriate means such as electronic media where available, of the following matters early in the environmental decision-making procedures referred to in Article 2(2) and, at the latest, as soon as information can reasonably be provided:

(a) the request for development consent;

(b) the fact that the project is subject to an environmental impact assessment procedure and, where relevant, the fact that Article 7 applies;

(c) details of the competent authorities responsible for taking the decision, those from which relevant information can be obtained, those to which comments or questions can be submitted, and details of the time schedule for transmitting comments or questions;

(d) the nature of possible decisions or, where there is one, the draft decision;

(e) an indication of the availability of the information gathered pursuant to Article 5;

(f) an indication of the times and places where and means by which the relevant information will be made available;

(g) details of the arrangements for public participation made pursuant to paragraph 5 of this Article.

3. Member States shall ensure that, within reasonable time-frames, the following is made available to the public concerned:

(a) any information gathered pursuant to Article 5;

(b) in accordance with national legislation, the main reports and advice issued to the competent authority or authorities at the time when the public concerned is informed in accordance with paragraph 2 of this Article;

(c) in accordance with the provisions of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information(9), information other than that referred to in paragraph 2 of this Article which is relevant for the decision in accordance with Article 8 and which only becomes available after the time the public concerned was informed in accordance with paragraph 2 of this Article.

4. The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken.

5. The detailed arrangements for informing the public (for example by bill posting within a certain radius or publication in local newspapers) and for consulting the public concerned (for example by written submissions or by way of a public inquiry) shall be determined by the Member States.

6. Reasonable time-frames for the different phases shall be provided, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively in environmental decision-making subject to the provisions of this Article."

48. In domestic law, I must refer to the Town and Country Planning (Development Management Procedure) England) Order 2010 No 2184 ("DMPO 2010") and the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 No 293 (EIA Regs). As this was an EIA application accompanied by an environmental statement, Articles 13 (1)- ((3) , 23, 28 and 29 of DMPO 2010 are relevant

13 Publicity for applications for planning permission

This section has no associated Explanatory Memorandum

(1) An application for planning permission shall be publicised by the local planning authority to which the application is made in the manner prescribed by this article.

(2) In the case of an application for planning permission for development which—

(a)is an EIA application accompanied by an environmental statement;

(b)does not accord with the provisions of the development plan in force in the area in which the land to which the application relates is situated; or

(c)……………………………………

the application shall be publicised in the manner specified in paragraph (3).

(3) An application falling within paragraph (2) ("a paragraph (2) application") shall be publicised in accordance with the requirements in `paragraph (7) and by giving requisite notice—

(a)by site display in at least one place on or near the land to which the application relates for not less than 21 days; and

(b) by publication of the notice in a newspaper circulating in the locality in which the land to which the application relates is situated.

23 Representations by parish council before determination of applicationThis section has no associated Explanatory Memorandum

(1) Where the council of a parish are given information in relation to an application pursuant to paragraph 8(1) of Schedule 1 to the 1990 Act (local planning authorities: distribution of functions), they shall, as soon as practicable, notify the local planning authority who are determining the application whether they propose to make any representations about the manner in which the application should be determined, and shall make any representations to that authority within 21 days of the notification to them of the application.

(2) A local planning authority shall not determine any application in respect of which a parish are required to be given information before—

(a) the council of the parish inform them that they do not propose to make any representations;

(b) representations are made by that council; or

(c) the period of 21 days mentioned in paragraph (1) has elapsed,

whichever shall first occur; and in determining the application the authority shall take into account any representations received from the council of the parish.

(3) The appropriate authority shall notify the council of the parish of—

(a) the terms of the decision on any such application; or

(b) where the application is referred to the Secretary of State—

(i) the date when it was so referred; and

(ii) when notified to the appropriate authority, the terms of the Secretary of State's decision.

(4) For the purposes of paragraph (3), the "appropriate authority" is—

(a)…………………………..

(b)…………………………….

(c)………………………………

(d) in any other case, the district planning authority.

28 Representations to be taken into account

This section has no associated Explanatory Memorandum

(1) A local planning authority shall, in determining an application for planning permission, take into account any representations made, where any notice of, or information about, the application has been—

(a) given by site display under article 11 or 13, within 21 days beginning with the date when the notice was first displayed by site display;

(b)………………………….

(c) published in a newspaper under article 11 or 13 or on a website under article 13, within the period of 14 days beginning with the date on which the notice or information was published,

and the representations and periods in this article are representations and periods prescribed for the purposes of section 71(2) (a) of the 1990 Act (consultations in connection with determinations under section 70).

(2) …………….

(3) …………………………..

29 Time periods for decisionThis section has no associated Explanatory Memorandum

(1) Subject to paragraph (7), where a valid application has been received by a local planning authority, they shall within the period specified or referred to in paragraph (2) give the applicant notice of their decision or determination or notice that the application has been referred to the Secretary of State.

(2) The period specified or referred to in this paragraph is—

(a)in relation to an application for major development, 13 weeks beginning with the day immediately following that on which the application is received by the local planning authority;

(b)in relation to an application for development which is not major development, 8 weeks beginning with the day immediately following that on which the application is received by the local planning authority; or

(c)in relation to any development, unless the applicant has already given notice of appeal to the Secretary of State, such extended period as may be agreed in writing between the applicant and the local planning authority.

(3) ………………………………

(4) ……………….

(5) 

(6) ………….

(7) Subject to paragraph (8), a local planning authority shall not determine an application for planning permission, where any notice of, or information about, the application has been—

(a) given by site display under article 11 or 13, before the end of the period of 21 days beginning with the date when the notice was first displayed by site display;

(b)…………………..

(c) published in a newspaper under article 11 or 13 or on a website under article 13, within the period of 14 days beginning with the date on which the notice or information was published,

and the periods in this paragraph are periods prescribed for the purposes of section 71(1) of the 1990 Act (consultations in connection with determinations under section 70).

(8) Where, under paragraph (7), more than one of the prescribed periods applies, the local planning authority shall not determine the application before the end of the later or latest of such periods."

49. By Regulation 13 of the EIA Regs the local planning authority must not determine a planning application in an EIA case until the expiry of 14 days from the date of service of the environmental statement, in this case on the PC.
50. HBC had also published in 2006 its statement of community involvement pursuant to section 18 of the Planning and Compulsory Purchase Act 2004. It includes these passages

(a) 1.0 "This document is the Halton Borough Council Statement of Community Involvement (SCI) and makes up the part of the LDF" (Local Development Framework) " that encourages the best possible involvement of the public when adopting new plans or determining planning applications.

(b) 1.1 "……this SCI outlines the best practice of when to consult, who to consult and how to consult. At the time of writing this document (HBC) consultation practice currently surpasses government guidance so this document formalises and enhances current practice… Once adopted the Council will be required to comply with the guidance set out in this document.

(c) 1.2 "………………….It gives a level of certainty to key stakeholders and the general public as to how they can be involved in each stage of the plan making and development process."

(d) 1.5 "…………….the SCI sets out the standards by which the Council is committed to achieving in involving all stakeholders in the local planning process."

(e) 2.0 Under the heading "Vision" it states that" the Council will

(iii) use the correct consultation method to suit the situation and achieve consensus

(vii) Enable a greater level of participation in decision making for local people."

(f) Under the heading " Standards of Good Practice" it states

5.0 "The Cabinet Office has disseminated a code of good practice on consultation. Where possible (HBC) will use this guidance for their consultation. These criteria are summarised below

Consultation should be undertaken widely throughout the process……..

5.1 Further information on the consultation criteria can be found at the Cabinet Office website (address given)"

(g) Under the Heading " Planning Applications", appears

"10.1 ……….It is vital that …..discussion and consultation is held in an open and impartial manner. …………….This section of the SCI will detail how the Council intends to consult on all planning applications…………………..

10.2 Developments may take several forms and will require varying levels of public consultation according to the size and scale of the proposal.

10.4 Tier 2 development" (of which the development in question was one) are defined as "those major developments which are likely to require wider community involvement ………………….

(An accompanying table shows that consultation with Parish Councils was

appropriate on a Tier 2 application).

(h) Under the heading " Further Information" appears

"Pre-Application

11.2 any developer wishing to undertake consultation before applying for planning permission…………………………Upon undertaking the consultation exercise the Council would request that developers bear the following in mind…………….Before consultation begins you should inform in advance Councillors, Parish Councils and neighbouring individuals."

"Development Control Process

11.5 Where required Statutory consultees are consulted on planning applications and given 21 days to respond………"

(i) In section 16, "target groups" include statutory bodies, and PC is listed as a "specific consultation body" in Appendix C.

51. The Cabinet Office Code of Practice on Consultation, referred to in the HBC Statement of Community Involvement, was published in June 2008. It contains 7 "Consultation Criteria." The second reads

"Duration of consultation exercises: Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible."

That is repeated at section 2, which includes paragraph 2.1

"If a consultation exercise is to take place over a period when consultees are less able to respond, e.g. over the summer or Christmas break, or if the policy under consideration is particularly complex, consideration should be given to the feasibility of allowing a longer period for the consultation."

Submissions of the Parties

52. Mr Kolinsky submits as follows

(a) The courts have stressed that where there is a site where the planning authority has an interest, it must be particularly scrupulous in the way it deals with any planning application ; see R v Teesside DC ex p Wm Morrison Supermarkets [1998] JPL 23@44 per Sedley J.

(b) The EU Directive is of direct effect. The fact that the UK has enacted the DMPO 2010 with its specified time periods, does not deprive Article 6 of effect where the periods prescribed (which are minima, but not more than that) are insufficient to provide adequate consultation. Specific reference was made to the terms of Article 6(6).

(c) The Court of Appeal decision in R(Majed) v Camden LBC [2009] EWCA Civ 1029 (Sullivan LJ) shows that a legitimate expectation arising from the SCI can be relied on, even though the statutory timetable has been complied with.

(d) The practice of HBC was to consult the Parish Council. That is also its policy in the SCI. The effect of R v N and E Devon Health Authority ex p Coughlan [2001] QB 213 @108 is that adequate time must be given for the response by a consultee, and the response conscientiously taken into account.

(e) HBC had in its SCI adopted the Cabinet Office guidance. It claimed in pre application correspondence (i.e. before the application for judicial review) that it had followed the Cabinet Office Guidance. It failed to follow the guidance in

(i) insisting on consultation during August (school holidays) when it knew that there would be no PC meetings

(ii) making no allowance for the fact that it was a large complex development.

(f) HBC failed to have any regard to what was expected of it by the SCI in dealing with consultations.

(g) HBC had discretion as to when the planning application should be scheduled for determination. That discretion should be exercised in a manner consistent with the objectives of ensuring effective participation of the public and stakeholders and consistently with the principles of fairness.

(h) The failure to allow the PC effective participation was unlawful, because

(i) HBC failed to facilitate effective public participation in accordance with the obligations under Article 6 of the Directive

(ii) HBC failed allow the PC an effective opportunity to participate in the planning application, contrary to the legitimate expectation created by the SCI that it would be given a fair opportunity to participate in the planning process

(i) It was perverse of HBC to deny the PC an effective opportunity to participate in the decision making process, by declining to defer the Committee meeting when doing so would have involved no breach of the 13 week "limit" derived from the 2010 regulations.

53. For HBC , Mr Vincent Fraser QC submitted that

(a) The proposed development would be of great benefit to the area and generate 1000 jobs. It was a time critical development opportunity . The end user had wanted to move into the premises by October 2012. The Council would not be making a profit from the development;

(b) In fact 4 of the 5 members of the PC had objected to the proposal, and sent in letters accordingly. The 4 members have a long history of opposing the application;

(c) The PC could have held a meeting. Some members were away, but at locations (Wales, Blackpool and the Lake District) whence they could have travelled back for a meeting;

(d) There was nothing improper or unreasonable in an earlier Committee date being arranged.

(e) Mr Gibbs considered the matter on 9^th and 10^th August 2011 and declined to extend the consultation period (this submission was made before it became clear that Mr Gibbs had no authority to deal with the request)

(f) The request of the PC of 30^th August 2011 was "considered in full by the ……Committee before it considered the application."

(g) Planning law is contained in a comprehensive statutory code; see Pioneer Aggregates Ltd v Secretary of State for the Environment [1985] 1 AC 132@141 B-C per Lord Scarman, and Henry Boot Homes Ltd v Bassetlaw DC [2003] 1 P & CR 372@ paragraphs 46-8;

(h) The relevant measures for public consultation (including time-frames) are left to member states by Article 6 of the EIA Directive. No one suggests- least of all the PC- that the requirements of the EIA Directive have been transposed incorrectly into the DMPO 2010 or the EIA Regs;

(i) Article 23 of the DMPO 2010 only applies if the parish council has asked to be notified- see Town and Country Planning Act 1990 Schedule 1 paragraph 8(1);

(j) Even if Article 23 applied, the parish council must give notice within 21 days of the notification of the application. The planning authority could determine the application within 21 days- see DMPO 2010 Article 23(2) ;

(k) It is therefore considered that 21 days is adequate for a parish council to make representations;

(l) Circular 9/95 advises authorities that there is no obligation to delay consideration until comments have been received from consultees, and that authorities should adhere to deadlines for consultation so far as reasonably practicable;

(m) Article 28(1) of DMPO 2010 requires a planning authority to consider representations received within the periods set out of 21 days from service of notice on relevant owners and occupiers and 14 days from advertisement in a newspaper. However HBC accepted that its practice was to consider any representations made before determination;

(n) The period in Article 29(2(a), i.e. 13 weeks, is to provide for a right of appeal in the event of non-determination. It is not part of the provisions dealing with consultation;

(o) It is entirely a matter for the discretion of the planning authority whether to delay its decision beyond the statutory minimum period. In exercising its discretion it may conclude that the specified periods comply with the purpose of ensuring effective public participation in the process and it should take into account the importance of expeditious determination of planning applications;

(p) It follows from the above that HBC complied with the statutory code;

(q) The PC has not identified what period it says it should have had to make representations;

(r) HBC was entitled to consider that the PC had sufficient time to make representations (this submission was made before the absence of authority for Mr Gibb's E mail was established). Further the PC could have submitted representations after the date of the Committee meeting. HBC would have taken them into account before issuing the notice on 16^th September 2011;

(s) The arguments advanced on the interpretation of Policy E7 could have been prepared expeditiously;

(t) The proposal had been in the public domain earlier, and reference was made to the newsletter which had been distributed, and to the exhibition;

(u) The consultation exercise complied with the SCI. Nothing in the SCI commits HBC to allow longer periods for consultation. The Cabinet Office guidance only provides for consideration to be given for a longer consultation period. HBC considered it three times and rejected it (a submission made before Mr Gibbs' lack of authority was conceded). It is not accepted that the development was particularly complex;

(v) There is no practice identified which could give rise to any legitimate expectation in this case.

Discussion

54. Before turning to the legal submissions made to me, it is sensible to start with some basic facts, and then some basic objectives.
55. However it is put, this was a major proposal involving the construction of a distribution warehouse of a scale found in only a very few locations, on a large greenfield site next to a small settlement, and in what had been Green Belt, to be served by both road and rail, and on a site to whose development the relevant Development Plan policy applied important threshold tests. The Environmental Statement consisted of no fewer than 974 pages, including technical data. In that context, I cannot attribute much realism to HBC's submission that it was "not particularly complex." It may not have been complex if compared to some of the very largest proposals for development (a new airport terminal or runway, a new settlement, or in terms of environmental effects a major piece of infrastructure like a large quarry or port project) but it was very substantial indeed when compared to the vast majority of development projects. Even those of us whose professional life is or was spent grappling with such projects would have found that this one required some study and reflection if one were to comment properly upon it. Lay people such as members of the Parish Council would have required it too, unassisted (unlike the HBC members) by professional advice.
56. It is essential to the Town and Country Planning system in this country that such projects are the subject of public consultation. Indeed as an EIA development, the responses by consultees are part of the environmental information which was to be taken into account. Consultation serves much less purpose if it is not informed by a proper understanding of the issues involved. HBC's adopted SCI is itself (and properly so) committed to the principle of effective consultation. I shall consider the status and effect of what it said below.
57. The proposal was also on a site owned by the planning authority, who would receive a return if the development went ahead. Its interest in the outcome was not altered simply because that return would not amount to a profit. It followed that it was especially important that the process was conducted and seen to be a fair one.
58. Against that background, the way in which this application was handled was on any view unusual. One must start with a dash of realism. Representations by consultees are considered by a local planning authority even if received after the end of the statutory consultation period: as HBC says is also its practice. That will be especially likely in periods affected by holidays, and in cases where the scale of the proposal and of its accompanying ES is so substantial that time for reflection is required. So anyone being informed of the application on 21^st July 2011 would have been able to think that the next Committee meeting was, as stated in the schedule, to be on 12th September 2011. It is a remarkable fact that by that date in July, a decision had been made, as a result of a meeting by officers with the developer and its customer, that a new committee date had already been fixed on an earlier date, but that HBC took no steps to warn any consultee that the date of the meeting had been brought forward, even though officers and the Chairman of the Development Control Committee had known of the change for at least 3 weeks. That is especially remarkable given the fact that it was a known holiday period. Notice of the Committee meeting was not given until 4 weeks after the application had been notified. The exchanges with Mr Gibbs in early August demonstrate that the PC had genuine concerns about the time for consultation, raised promptly. It is now conceded by HBC that Mr Gibbs had no authority to decide whether the consultation period could be extended, but whether or not he did, it is still most unfortunate that there was omitted from his E mail of 9^th August 2011 any intimation to the PC that, so far as the making of representation was concerned, it did not have almost 5 weeks left before the Committee date, but as HBC knew, just 3 weeks. I have no evidence that the conduct by HBC officers in June to August 2011 by HBC was part of any plan to keep the PC or others in the dark, or to constrain their ability to make representations, but that was plainly the potential and actual effect.
59. The Committee, notwithstanding the submissions made to me for HBC, is not recorded in the Minutes as giving any actual consideration at all to the third request by the PC for a deferment, and Mr Plant's evidence for HBC does not describe any. It is therefore impossible to accept Mr Fraser QC's submission that "HBC was entitled to consider that the PC had sufficient time to make representations." I have no actual evidence that the Committee ever did anything more than have the letter put before it, and Mr Gibb's unauthorised response of 9^th August 2010, and that, in the event, the Committee proceeded to determine the application. Beyond knowing that it had the exchanges between the PC and Mr Gibbs before it, I have no evidence that the Committee considered that, nor why. I must record my surprise that, if the Committee did discuss the PC request, and did have reasons for rejecting it, that no evidence to that effect was filed by HBC.
60. This is therefore not a case where the Court is being asked to consider the merits or adequacy of the reasons given for HBC declining to grant an extension. It gave none at all. I must therefore consider whether, on the facts put before me, there was either

(i) a breach of Article 6 of the Directive, or

(ii) a failure to conduct its consultation process in the manner which it said it would (i.e. a matter of legitimate expectation).

61. As to the issue of the breach of the Directive, the central issue raised in argument is whether the duty in Article 6 that

"1. Member States shall take the measures necessary to ensure that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities are given an opportunity to express their opinion on the request for development consent,

and that

4. The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken.

and that

6. Reasonable time-frames for the different phases shall be provided, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively in environmental decision-making subject to the provisions of this Article"

can be breached even where domestic regulations have been produced with whose timescales for the minimum period of consultation the Council complied ?

62. In my judgement the answer to that question depends on whether, in the particular circumstances of a particular development, the consultation has been such as to permit "early and effective opportunities to participate," as per Article 6(4). It is not enough that some comment or opinion could be expressed: the Article anticipates that the maker has had sufficient opportunity to be able to make an informed comment or opinion. If not, then it could not be said to be an "effective" opportunity to participate or to make a comment of utility for consideration when the authority makes its decision.
63. I therefore decline to regard the setting of the consultation period in the domestic regulations as conclusive on the issue of adequacy. If the circumstances prevented the consultation from being effective, then there could be a breach of Article 6. Mr Fraser accepted that the local planning authority had the power to extend the period (or to put it another way, postpone the Committee meeting). The rationale of that power can only be based in the concept that in some cases circumstances may be considered to require longer periods for representations to be made.
64. But even if I am wrong about the effect of Article 6, HBC was under a duty to address arguments raised before it about the extension of consultation periods. It was not entitled to assume that because it had expected in advance that a period of 21 days would be enough, therefore it must still be so regarded when it had now received evidence to the contrary. Mr Gibbs had no authority to write as he did on 9^th August 2011, and it was incumbent on the Committee to consider the matter anyway.
65. I turn now to consider the SCI. It is plain that if the Cabinet Office document is incorporated, then HBC was holding out as its policy that

" If a consultation exercise is to take place over a period when consultees are less able to respond, e.g. over the summer or Christmas break, or if the policy under consideration is particularly complex, consideration should be given to the feasibility of allowing a longer period for the consultation."

66. I can see no reason for including the reference to the Cabinet Office document unless it was being incorporated. It follows that HBC policy was that if consultees were less able to respond (NB not unable), or if the proposal under consideration were particularly complex, consideration would be given to the feasibility of allowing a longer period. I accept that it does not follow that it must be granted, but there is a clear policy held out that such circumstances will be regarded as potentially justifying an extension, and will be considered. The PC put forward arguments that it needed advice from Planning Consultants, and that members of the Council were or would be on holiday. However there is nothing whatever in the papers which shows that the Committee ever addressed the questions raised in its own adopted policy. That was a breach of a legitimate expectation.
67. But that is not the end of the matter. Mr Fraser contends that as a matter of fact

(a) The members of the Parish Council could have met;

(b) The proposal was well known;

(c) The point on the interpretation of the UDP was a straightforward one requiring little time being spent on drawing representations.

He submits that therefore no prejudice was caused, and the time permitted was adequate.

68. I do not accept his point about the meeting. While I am prepared to accept that members could have met, had some returned from holidays to do so (although whether it would be reasonable to expect that to occur is another matter), the unchallenged fact that some were on holiday must mean that the ability of the Council members to be able to consider the application was constrained. Getting to grips with an Environmental Statement of almost 1000 pages and achieving an understanding of a scheme of this size and scale is not a matter for holiday reading. The public consultation by the developer would have assisted the PC, as would the newsletter, but no-one could fairly claim that that meant that the full Environmental Statement and any supporting material did not have to be read and considered. It is true that, in the event, points are not being taken in the judicial review proceedings on matters of environmental impact, but that does not overcome the difficulty that the material had to be considered in the period in question.
69. As to the interpretation of the UDP, I agree with Mr Fraser that the issue of interpretation could be shortly addressed. However it too was not a subject to be addressed without some reflection, and as the dealings with that aspect of the case by HBC demonstrate (see below), first thoughts could well be misleading.
70. I reject Mr Fraser's point that later representations would have been entertained by HBC. The terms of its resolution showed that the decision had been taken, subject only to dealing with some issues that did not go to questions of principle.
71. I am therefore of the view that this consultation was not conducted fairly or effectively. Those who disagreed with the proposal were put at a considerable disadvantage, and (knowingly or otherwise) not informed that they had even less time to have their comments made than they had anticipated. When they asked for more time, their requests were dismissed without authorised consideration, and when put to the Committee were rejected without any known consideration, let alone reasons, despite the terms of HBC's own adopted policy. It amounted to a breach of Article 6 and was in any event contrary to the legitimate expectation the PC had as to the conduct of the consultation process.

Topic D Interpretation and application of Development Plan policy by HBC

(i) The planning officer's advice to the Committee

(ii) Submissions of the parties

(iii) Discussion and conclusions

72. The first report (which was written) was that put forward on 19^th August. It is a substantial document running to 26 pages. It dealt with Policy E7 as follows

"SITE/LOCATION

The site is approximately 32 ha …….and identified as Site 253 with surrounding land contained within the Potential Extent (sic) of the DSRFP^[2] as defined by the Halton (UDP)……………………………

(UDP)DESIGNATION, KEY POLICIES AND SUSTAINABILITY OBJECTIVES

The site lies within an area designated as a Regional Investment Site for the development of the Ditton Strategic Rail Freight Park in the (UDP). ………………….Policies………E7 Ditton Strategic Rail Freight Park……….(is) considered to be of relevance……………….Supplementary Planning Documents relating to 3MG Mersey Multimodal Gateway……………..(is) also of relevance.

OBSERVATIONS AND ISSUES

The proposed development site forms the western area of the ……..(DSFRP) as defined by the (UDP)…………

Policy Implications

The site is identified in the (UDP) on the proposals map and by Policy S 20 as within an area identified as a Regional Investment Site for the development of Ditton Strategic Rail Freight Park."

After referring to the UDP Inquiry Inspector's report it went on to describe a "detailed planning policy framework" including a "Masterplan and Supplementary Planning Document covering the 3MG area. It then continued

" UDP Policy E7 supports the phased development of a strategic intermodal rail freight park identifying a core area of three key sites for development subject to clearly defined criteria. These can be summarised as follows

• It is for use by businesses which utilise rail and support services

• High quality development suited to companies of regional and national distribution importance giving rise to new employment

• ………………………………………………………….

• It would not prejudice wider rail improvements

• Demonstration that it would not have a significant adverse impact on the local transport networks and trunk road network

• Detailed Policy Tests in relation to Site 253.

A detailed Rail Report…………………..describes how the rail sidings proposed as part of the application for the ……site and describes how this will relate to and function along side the rail reception sidings that have already been approved."

At a later stage it continued

" Policy considerations have been subject to detailed assessment by the Councils Local Development Framework Principle (sic) Officer who has confirmed that …………..the proposal has had good regard to the site specific polices of the UDP and will therefore assist in achieving the aims of E7 in particular………………..

……..The application proposals are considered to be a natural progression of a lengthy planning process which resulted in the allocation of the site through the UDP process and the subsequent and emerging planning policy documents and statements. The proposals are considered to accord with the planning policy framework both current and emerging for the Borough, at a regional and at a national level and it is not considered that objections could be sustained on policy grounds."

After considering various aspects of the development and its impacts, the Report concluded as follows

" Policy E7 locates the site within the DSRFP, a phased strategic inter-modal freight park to be used by businesses of national or regional distribution importance deigned to have the capability to utilise the railway for the transportation of freight or provide supporting services. Development within the DSFRP is required to demonstrate that it will create employment opportunities for local residents and contribute to urban regeneration without adverse impact on the environment, the amenity of the local population or local transport, trunk and rail networks. In addition Policy E7 sets down a range of respective policies specific to Site 253 intended to ensure the proper planning and character of the development and to minimise the impact of the development on local communities, the environment and the surrounding road network. ……………………………………………………………………………………………………………………………………………………………………………….The applicant and the Council have committed to make substantial contributions by means of a Development Agreement. The position of the landowner is considered to afford a significant degree of control in this regard. The proposals are considered to accord with local and national policy and the application is therefore recommended for approval."

73. It will be noted, perhaps surprisingly, that the report never addressed the tests set in Policy E7. In the light of the substantial number of objections which took the point about the terms of E7, Mr Henry now prepared a speaking note, which he read to the Committee meeting.
74. Having recited the two points of objection noted above at paragraph 40, he continued

" …….In this regard it is considered that we need to review the policy context as a whole in terms of the aims and principles of the wider policy context and the application proposals have been assessed on that basis. The policy tests in the UDP must themselves be considered in (the) context of the adopted Supplementary Planning Document and the phasing plan contained within that document. That SPD was adopted by the Council in 2009, is considered to provide allowance for flexibility in phasing and has not been challenged. Planning permission is in place for dedicated rail sidings to serve the whole of the 3MG Park and the site is linked to the wider park by the highway network. The application contains a dedicated siding within the site and workable proposals for rail connectivity……………….operational connectivity is subject to procedures and agreement by Network Rail ……….……………………

Rail related development is considered to have commenced on Site 255 through development of the O'Connors Rail Terminal. The Council is currently considering a planning application by Stobarts for the remainder of site 255 relating to approximately 33 ha of warehouse provision. That application is in outline but …………….must be viewed as commitment to ongoing development on that site.

It is against that backdrop that the development has been considered to accord with the development plan and planning p[policy at a local and national level."

75. The Minutes, as noted above, misstate the objections made. They also record a summary of Mr Henry's contribution, and that of a Mr Holmes who spoke on behalf of the Applicant, and argued, inter alia, that the proposal was in accordance with adopted policy, and tied in with existing planning permissions for road and rail connections.
76. The Notice of Approval records that the decision to grant permission

"had been taken having regard to the relevant policies and proposals in the Halton (UDP) and to further material planning considerations"

and

"In particular the development would make a significant contribution to the sustainable growth and regeneration of the area, creating significant employment opportunities and encouraging transportation of goods by rail through the ongoing development and expansion of the DSFRP in accordance with Policy E7……………of the Halton (UDP)….."

77. For the Claimant PC, Mr Kolinsky argues that

(a) The statutory development plan for the purposes of section 38(6) of PCPA 2004 and section 70 of TCPA 1990 is the UDP. It follows that a planning application must be determined in accordance with it unless material considerations indicate otherwise (section 38(6) PCPA 2004)

(b) The SPD is a material consideration, but it cannot have the status of the development plan, and one cannot use it to interpret the Development Plan.

(c) A local planning authority must proceed on a proper understanding of the development plan: see Lord Reed in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 at paragraphs 17- 23, citing Gransden and Co v Secretary of State for the Environment [1985] 54 P & CR 86 @94 per Woolf J and Horsham DC v Secretary of State for the Environment [1991] 63 P & CR 219 @225-6 per Nolan LJ. A failure by a decision maker to interpret policy properly makes the decision open to challenge, citing City of Edinburgh Council v Secretary of State for Scotland [1998] SC (HL 33, [1997] 1 WLR 1447 at 44 /1459 per Lord Clyde. Policy statements must be interpreted objectively in accordance with the language used, and always in its proper context.

(d) Interpretation is not a matter for the planning authority which can only be challenged on the basis of reasonableness, but is a matter for the court. However judgements on application of the policy to factual situations can often be a matter for the judgement of the local planning authority- see Tesco v Dundee at paragraphs 20 and 23.

(e) The SPD cannot be used to interpret the UDP policy;

(f) The UDP requires that development at Site 253 meets the following criteria among others

(i) Is part of a strategic inter-modal freight park (UDP E7 (1))

(ii) Is for use by a business which would utilise the railway for the transportation of freight (UDP E7 (1)(a))

(iii) Is only permitted once all the requirements in UDP E7 (2) also apply, including:

(1) It is part of a comprehensive proposal for a strategic freight park at Ditton in accordance with an agreed phasing plan (UDP E7(2))

(2) Development of the strategic intermodal freight park on the previously developed sites 255 and 256 has already commenced in accordance with an agreed phasing plan set out in a Supplementary Planning Document (E7 (2)(b))

(3) It is designed to be rail served, including the provision of dedicated rail sidings adjacent to it (E7 (2)(e))

(4) The layout incorporates measures actively to discourage the direct movement of goods vehicles from the site to the local road network in the Halebank area. In order to achieve this aim a road system shall be provided to connect Sites 253, 255 and 256 where they are divided by public highways or railway lines (UDP E7(2)(f)).

(iv) No development has started on site 256, and the development on Site 255 was permitted before the policy was coined. Only an outline application had been made on Site 255. The development on Site 255 is not part of a comprehensive proposal within the meaning of the policy. It follows that the proposal is not in accordance with the Development Plan

(v) The proposal includes no road connection complying with UDP E7(2)(f).

78. Mr Fraser QC for HBC submitted that

(a) The interpretation of UDP policy was not a point taken by the claimant PC in its letters before action.

(b) The claim only referred to alleged breaches of policies E7(2)(a) and (b)

(c) Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 does not prevent a purposive construction being adopted of a development plan policy.

(d) The phasing had been described in what he at first called the "masterplan" which was the document whose provenance later turned out to be entirely unknown. However he went on to submit that the SPD set out the relevant position. However while the " Masterplan" was adopted for consultation purposes in December 2004 , no-one could trace what had happened to it thereafter. He accepted that it showed broad uses, but not proposed buildings.

(e) The effect of Chapters 9 and 10 of the SPD and its plan 5 (the one entitled "Key Development Opportunities" amounted to a comprehensive proposal as required by the UDP E7(2);

(f) Therefore the grant of permission for development on Site 253 satisfies the requirements of E7 (2)(a);

(g) The phasing required by E7(2)(b) is provided by the Chapter 10 of the SPD;

(h) Site 255 has been developed in part as a rail hub. There has been commencement within Site 255 so as to comply with the policy.

(i) The SPD does not require that Site 256 is developed before permission is granted on Site 253. It was accepted that development had not commenced on Site 256. The railway sidings could not be provided on Site 256 without some development of railway sidings within Site 253. As properly interpreted, Policy E7 did not require that development commenced on Site 256 before permission was granted on Site 253. The policy test is passed if development of the strategic intermodal freight park has started on either Site 255 or Site 256.

(j) The lie of the land prevents direct road access between Sites 255, 256 and 253. The road system already permitted, which will serve the application site, provides a direct link to the primary road network and avoids any introduction of traffic onto local roads.

Discussion

79. The starting point must be the status of the development plan. The statutory development plan for the purposes of section 38(6) of PCPA 2004 and section 70 of TCPA 1990 is the UDP. It follows that a planning application must be determined in accordance with it unless material considerations indicate otherwise (section 38(6) PCPA 2004)
80. I accept Mr Kolinsky's submission (which was not challenged by Mr Fraser) that a local planning authority must proceed on a proper understanding of the development plan: see Lord Reed in the very recent (March 2012) decision in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 at paragraphs 17- 23. That decision has restored the effect of the clear line on interpretation in authorities such as Gransden and Co v Secretary of State for the Environment [1985] 54 P & CR 86 @94 per Woolf J and Horsham DC v Secretary of State for the Environment [1991] 63 P & CR 219 @225-6 per Nolan LJ, before that was supplanted by the alternative and now discarded approach in R v Derbyshire CC ex p Woods [1997] JPL 958@967 per Brooke LJ. A failure by a decision maker to interpret policy properly makes the decision open to challenge – see City of Edinburgh Council v Secretary of State for Scotland [1998] SC (HL 33, [1997] 1 WLR 1447 at 44 /1459 per Lord Clyde. Policy statements must be interpreted objectively in accordance with the language used, and always in its proper context. But as Tesco Stores Ltd v Dundee City Council makes plain, the application to the facts before it is a matter for the decision making authority. However one must be careful. It is impermissible to use SPD to change the effect of properly interpreted Development Plan policy, and one cannot use SPD to alter its meaning. Mr Fraser accepted that the SPD is a material consideration, but also that it cannot have the status of the development plan, and one cannot use it to interpret the Development Plan.
81. In my judgement the critical questions on interpretation are

(a) Is there a comprehensive proposal for a strategic rail freight park of which the proposed development of Site 253 would form part ?

(b) Does the UDP permit Site 253 to be granted permission before development of the specified kind has started on both Sites 255 and 256, or on one or the other ?

82. On the first question, in my judgement the embarrassing confusions at HBC about plans and the adoption of the "masterplan" should not distract one from the main issue. The SPD does contain proposals for the allocation of sites to uses within the area covered by E7. It also cross refers to the "masterplan" (the one published in draft). It may very well be that HBC could have taken more care, and replaced some of the less considered publicity for the project with some rather more careful planning work, but one cannot fairly conclude that there is not a comprehensive proposal of which this proposal forms part. What SPD does not do is to propose actual developments, unlike the unauthorised plan appearing in the Newsletter, but I do not consider that that amounts to an approach inconsistent with the UDP.
83. But on the second question, the ingenious attempt to argue that development of either Site 256 or Site 255 suffices to satisfy the precondition is not one which I can accept. The UDP policy refers to development on sites (plural) 253 and 256 as required for the pre condition to be met, and paragraph 11 of the reasons and explanation shows that the previously developed areas (again note the plural) are to be developed before the greenfield Site 253. That is not simply a matter of the choice of conjunction. As the terms of the Inspector's report and of the UDP itself show, the rationale of the policy, and an important one in planning terms, is that all the brownfield sites must have come forward before one uses the greenfield site. However I do accept on the evidence put before me that development had started on Site 255 within the meaning of the UDP policy.
84. If HBC had approached this issue on the basis that although the Development Plan required that development on Site 256 had commenced, there were good reasons why it was not necessary to insist on that, then the case would be very different. But HBC has stated quite firmly on the planning decision notice that the scheme has been granted permission on the basis that it was in accordance with the development plan. Further, the account given in the Minutes of the objection on this ground that "the objectors were urging that (a) "the policy context as a whole needed reviewing in terms of the aims and principles of the Policy," reveals that there was at the very least considerable confusion in the Committee's mind about the policy.
85. I suspect that one reason why this has come about is that the hasty way in which HBC dealt with the application also affected the ability of the professional planning officers to grapple with the policies in a more considered fashion, and then give considered advice to the Committee. By the time the written report was prepared, almost no representations had been received, and the arguments about the meaning of the UDP were not addressed within that report. Indeed the original report's failure to address the E7 policy tests for release (save by noting the existence of unspecified tests) could fairly be described as a serious omission. By the 30^th August Mr Henry was having to deal with the substantial volume of objections on that very issue. He then made the basic error of thinking that one could use the SPD to interpret the UDP. It was accepted at the hearing by Mr Fraser that such an approach was impermissible. The fact that he sought to rely on a development at Site 256 which had been permitted but not commenced, and that the Committee considered that the proposal accorded with the Development Plan, demonstrates neatly that the policy was misunderstood, and certainly applied in a way which is not consistent with its correct interpretation.
86. I should add for completeness that I think there is nothing in the PC point about the road. The policy requirement seeks to prevent access being taken via the local road network, and wants a connection between sites 253, 255 and 256. It does not specify a direct connection. The effect of the road link to the primary road network enables traffic to pass to Site 255 without encountering the local road network.
87. Given the fact that development had occurred on Site 255, it follows that the effect of what the UDP required would be met if some development had been started on Site 256 which complied with Policy E7(1). This proposal involves linkage between the railway sidings within Site 253 and the railway sidings to be provided on Site 256. It is also part of the comprehensive development of the SRF area, in accordance with the adopted SPD, and the masterplan to which it refers, albeit that the latter had not proceeded through all its stages. It follows in my judgement that, provided that this development would function as part of the strategic rail freight park, and provided that it would satisfy the test in policy E7(2)(b), the other tests in Policy E7 are met.
88. I shall return in due course to consider whether this failure by HBC justifies me in the exercise of my discretion to quash the consent.

Topic E Issues relating to conditions, and to the absence of a section 106 obligation or agreement

(i) Facts

(ii) Submissions of the parties

(iii) Discussion and conclusions

Facts

89. The permission contained a number of conditions. They included the following

(a) Condition 30: " No part of the development shall be brought into use until a scheme of noise attenuation and mitigation has been implemented with details submitted to and agreed in writing by the Local Planning Authority. Unless the Local Planning Authority agree to any variation, such scheme shall be designed to ensure that noise emitted from the site shall be mitigated and attenuated in line with BS 4142 methodology and principles in relation to properties to the south west of the site on Halegate Road including (named properties)…………..Such a scheme as is agreed and implemented shall be so maintained."

(b) Condition 31; " No part of the use hereby approved shall be commenced until a scheme of off-site works has been carried out and made available to provide vehicular access to and aggress from the site via the A 562/A 5300 ……..junction, unless otherwise agreed by the Local Planning Authority. That scheme shall be in accordance with earlier permissions (numbers given) unless otherwise agreed by the Local Planning Authority."

(c) Condition 32; " No part of the building hereby approved shall be brought into use, or other such timings as may be agreed by the Local Planning Authority, until the dedicated rail siding has been constructed within the application site in accordance with the approved Plans P003 Rev A or such other scheme as is agreed in writing by the Local Planning Authority. The rail sidings shall thereafter be retained unless otherwise agreed with the Local Planning Authority."

90. The Committee was advised that (see Minutes page 206-7) as the Council owned the land it could not enter into an agreement for planning obligations under section 106 of the Town and Country Planning Act 1990. It was then advised that the matters which would have been covered by a section 106 agreement would be dealt with instead by a development agreement made between HBC and the developer. It would include

" requirements to construct the principle (sic) access road and rail connectivity to the site, costs for highway works including cycle and pedestrian linkage, off site landscaping and habitat creation and management for ground nesting birds"

Submissions of the parties

91. Mr Kolinsky submitted for the PC that

(a) Conditions 30-32 contain " tailpiece" conditions by which HBC and the developer or subsequent occupier or owner could agree to vary the standards required, by informal agreement outside the scope for planning control. That would offend the principles set out in R (Midcounties Co-operative Ltd) v Wyre Forest DC [2009} EWHC 964 (Admin) per Ouseley J, and R(Waverley) v Wealden DC [2011] EWHC 2083 per Rabinder Singh QC sitting as a deputy High Court Judge (as he then was);

(b) A development agreement is not available to the public for scrutiny as a section 106 obligation must be. The UDP expected that section 106 obligations would be made;

(c) It was wrong to say that an obligation could not be entered into by HBC. Even if PUK had no interest at the time of the consideration of the application, HBC could have resolved to grant permission, provided that PUK took an interest in the land, and then entered in to an agreement.

92. Mr Fraser submitted that

(a) Negative conditions have long been held to be lawful, citing Grampian Regional Council v City of Aberdeen [1984] SC 9HL) 58 [1984] 47 P & CR 633. Conditions 30-32 are " Grampian" conditions;

(b) The Midcounties Co-Op v Wyre Forest DC decision does not establish that all tailpiece conditions are unacceptable. The tailpiece condition struck down there related to the amount of floorspace permitted. These conditions do not affect the nature or extent of the development permitted- see R(Yorkcourt Properties Ltd v Wakefield MBC [2010] EWHC 2394 (Admin) (per HHJ Waksman QC sitting as a deputy High Court Judge);

(c) None of the "tailpieces" are unlawful, but in any event each can be excised from the condition;

(d) Only a person with an interest in land can enter into an obligation under section 106, and it must be enforceable see section 106(3). HBC was entitled to rely on the development agreement.

Discussion and Conclusions

93. As to the conditions, there can be no doubt that negative " Grampian" conditions are widely used. They have a particular role to play where steps have to be taken, or activities controlled, outside the application site, or where another authority (such as the Highway Authority or the Environment Agency) have jurisdiction. However there is also nothing wrong in principle with conditions framed in negative form even where such circumstances do not arise.
94. Two tailpiece conditions in Midcounties Co-Op v Wyre Forest DC were challenged, one unsuccessfully and the other not;

(a) The first related to the limits placed on retail floorspace in an outline permission for a new superstore. The condition defined the maximum amounts of floorspace permitted and continued " unless otherwise agreed in writing with the Local Planning Authority." Ouseley J held (see paragraph 70) that the effect of the tailpiece was to enable development to take place

" which could be very different in scale or impact from that applied for, assessed or permitted, and it enables it to be created by means wholly outside any statutory process"

(b) The second related to a " tailpiece" which qualified a condition identifying the drawings in accordance with which the development was to be carried out. It added

" unless other minor variations are agreed in writing after the date of this permission and before implementation with the Local Planning Authority"

95. In the case of the first condition, Ouseley J held (see paragraph 70) that the effect of the tailpiece was to enable development to take place

" which could be very different in scale or impact from that applied for, assessed or permitted, and it enables it to be created by means wholly outside any statutory process"

96. In the case of the second condition, Ouseley J referred to Henry Boot Homes ltd v Bassetlaw DC [2002] EWCA Civ 2003 [2003] 1 P & CR 23 @ paragraphs 51-54. He concluded that

79. I do not regard this tailpiece as unlawful. Its clear scope is to enable "minor variations" to an obligation otherwise to develop "in strict accordance" with plans and drawings. Both those parts of the condition operate to limit the flexibility which the tailpiece provides.

80. Although there is a marked trend in judicial decisions in planning cases away from private law concepts, and Henry Boot reflects that, the starting point for the analysis in Lever (Finance) and the basis of the decision in Henry Boot means that scope exists, albeit extremely limited, to make immaterial variations, and cannot be regarded as unlawful. Henry Boot recognises the existence of some extremely limited scope to make minor variations without explaining its origin.

81. In my judgment, this scope covers at least those circumstances in which the change is immaterial in the sense that no reasonable local planning authority could refuse it, or could take enforcement proceedings lawfully in respect of its implementation. I do not exclude other jurisprudential bases. Mr Harris instances circumstances where the provisions of a 278 Highways Act 1980 agreement might require minor adjustments to permitted road works, but this simply illustrates the usefulness of the existence of such an extremely limited power without providing its jurisprudential source. This, in my judgment, can only lie in the application of public law principles to the actions of the local planning authority or to a proper understanding of what a planning permission means, as found by Lord Denning in the Lever (Finance) case.

82. Even if the language of the tailpiece to condition 4 is not precisely the language of Henry Boot, it is sufficiently close for it to be clear that its reach, properly interpreted, is lawful. If unlawful advantage is taken of it by actions which go beyond its lawful reach that itself is remediable. Otherwise it is appropriate to construe the condition so as to save it. No definition of "minor" is necessary, any more than it is of other phrases of perhaps uncertain reach. It is commonplace for words of uncertain reach in the abstract to be made certain through judgment and application in planning, as in public law generally. This tailpiece is not unlawful."

97. Henry Boot is a case concerned with whether or not a planning permission had been implemented in accordance with its conditions. It is principally concerned with whether a local planning authority could waive the need to comply with a condition. However in his judgement Keene LJ (who had unrivalled experience in matters relating to Planning Law) said this at paragraphs 46-52

46. It seems to me that all these arguments are interrelated, at least to some extent. If, as Mr Lowe, Q.C., submits on behalf of the respondent, we now have a comprehensive code of planning control and the local planning authority does not have the power to waive in an informal way the need for compliance with a condition, the circumstances in which a legitimate expectation of the type suggested here will arise on the part of a developer because of the conduct of the authority will be very exceptional.

47. It has long been recognised at the highest level that planning law is contained in a comprehensive code. In 1984, in Pioneer Aggregates Ltd v Secretary of State for the Environment [1985] 1 A.C. 132, Lord Scarman, with whom the rest of the House of Lords agreed, emphasised that fact and said at page 141 B.C.:

"... if the statute law covers the situation, it will be an impermissible exercise of the judicial function to go beyond the statutory provision by applying such principles merely because they may appear to achieve a fairer solution to the problem being considered. "

48. The House of Lords was there dealing with the statutory code contained in the Town and Country Planning Act 1971. Since that time, as Sullivan J noted in the present case (para. 137), the code has become even more comprehensive. Of particular relevance for present purposes is the introduction by section 49 of the Housing and Planning Act 1986 of what is now section 73 of the 1990 Act. That provides a statutory mechanism by which a person can, in effect, seek a variation in a condition on a planning permission or the discharge of such a condition. It does so by providing for an application:

"for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted " (section 73(1))

49. Thus it is the case that (to use the language of Pioneer Aggregates) "statute law covers the situation" when a developer wishes to vary or discharge one or more conditions on a permission. As Sullivan J commented, this, together with the power to appeal against a condition in the first place or to obtain retrospective permission under section 73A, builds in a considerable degree of flexibility to the statutory code (see paras 137 – 140 of his judgment). I would add that the reality is that developers of experience, such as the appellant, also generally seek to negotiate the form of conditions with the local planning authority before any permission is granted.

50. But the section 73 procedure has an additional importance. Because it operates by means of providing for an application to be made for "planning permission" without certain conditions previously imposed, it imports (as Mr Holgate accepts) the safeguards for third parties and the public generally which apply to applications for planning permission under the Act. Thus, although it is right that an application seeking approval under a condition does not attract the statutory provisions concerning publicity and consultation, an application under section 73 to vary or discharge such an existing condition does. Such an application has to be entered on the planning register, available to the public. Indeed, it can be called in by the Secretary of State for his own determination. The statutory procedure ensures that a condition requiring matters to be dealt with before development begins cannot be varied or discharged without an opportunity for the public to be informed and to object or make other representation. So the public is engaged in that statutory process.

51. In those circumstances, the scope for such variation or discharge to be achieved by some other non-statutory method, bypassing the statutory safeguards for the public, must be extremely limited. Such a change is not simply a matter for bilateral agreement between the developer and the local planning authority. The public is entitled to be involved. As Dyson J said in the first instance decision in R v Leicester City Council, ex parte Powergen United Kingdom plc [1999] 4 PLR 91 at 101 G - H:

"... section 73 is the provision that parliament has enacted to deal with situations where a developer wishes to develop land without compliance with conditions previously attached to a planning permission. What is required in such circumstances is that the developer apply for planning permission. I do not accept that the provisions of section 73 can be side-stepped by persuading a local planning authority, still less an authorised officer, to vary or waive a condition under the guise of the exercise of a general management discretion in the implementation of planning permissions."

The reasoning of Dyson J was endorsed when that case went to the Court of Appeal: see [2001] 81 P& CR 47, at paras. 21, 47 and 48. Moreover, it is entirely in harmony with the House of Lords' decision in R v East Sussex County Council, ex parte Reprotech (Pebsham) Limited [2002] UKHL 8, [2002] 4 All ER 58, where the issue concerned the process of determining whether development requiring planning permission was involved. At para. 29, Lord Hoffmann said:

"It is, I think, clear from this brief summary that a determination is not simply a matter between the applicant and the planning authority in which they are free to agree on whatever procedure they please. It is also a matter which concerns the general public interest and which requires other planning authorities, the Secretary of State on behalf of the national interest and the public itself to be able to participate."

52. That is very much the nature of town and country planning law. Even more than many areas of public law which concern an individual and a public body, planning law is likely to have to reflect the fact that third parties and the public generally may have interests in any decision. I agree with what was said by Sullivan J in the present case at para 140:

"... It is important at all times to remember the public nature of Town and Country Planning. It is not a matter for private agreement between developers and Local Planning Authorities."

98. In R(Warley) v Wealden DC [2011] EWHC 2083 (Admin) permission was granted for lighting at a tennis court at the Wadhurst Tennis Club in the East Sussex Weald with a condition 2 reading

"The court lighting hereby approved shall only be on when the courts are in use for playing and/or coaching tennis during the months of September to April inclusive and they shall not be operated after 21:00 hours or before 08:00 hours on any day without the prior consent in writing of the Local Planning Authority."

99. Mr Rabinder Singh QC (as he then was) sitting as a deputy High Court Judge, having cited the judgement of Ouseley J at paragraphs 66 and 70 of the Mid Counties Cooperative v Wyre Forest decision went on at paragraphs 88-91

88. "Eventually and in the result, Ouseley J concluded in the circumstances of that case that the tailpiece was to be excised from condition number 6.

89. Very much the same it seems to me, accepting the claimant's argument on this point, can be said about the present case. Paraphrasing what Ouseley J said in my own words, it seems to me that tailpieces of the kind in question in both cases offend against the rule of law. This is because the public, and not only the parties to the particular planning permission concerned, are entitled to know in public documents what planning permission relates to a given development, and what therefore is permitted and what is not.

90. The tailpiece in question leaves wholly uncertain for example who is to grant the variation, according to what criteria which may be non-existent or at least unpublished and secret. On the face of it at least there is nothing to stop, it would seem, an application being made to vary the temporal limitations in condition 2 to such an extent that "any" day could become each and every day, or perhaps each and every day over a sustained period of time.

91. For all those reasons, it seems to me, the tailpiece was unlawful. But it is common ground before me that if I came to that conclusion, then it would be possible to delete the tailpiece from condition 2 without having to quash condition 2 in its entirety, still less for this reason having to quash the planning permission as a whole. "

100. I do not find myself able to follow the approach of Mr Rabinder Singh QC in that first instance decision. Nothing about the condition in that case altered the nature of the development applied for, nor affected the principle of the opening hours being controlled. The condition set out the regime that was to apply, and permitted small scale relaxations to be made on an occasional basis. I do not consider that that approach risks any significant infraction of the rule of law. I prefer to test the tailpiece conditions here against the approach in Henry Boot and in MidCounties Cooperative v Wyre Forest DC.
101. To my mind, in the instant case the matters of importance about these conditions is that they related to the execution of works required to effect noise attenuation, road access and rail access. All of those are matters of significance which could have a permanent effect on the control of potential environmental impacts, and of the way in which the developed warehouse would function in land use terms. There is a strong public interest to be protected of the public being able to comment on matters which affect it. In my judgement they offend against the principles adumbrated in Henry Boot by Keene LJ and applied in MidCounties Cooperative v Wyre Forest DC by Ouseley J .
102. It was however common ground that the offending parts of the conditions were capable of being excised.
103. As to the issue of section 106 agreement, I consider that HBC was quite entitled to decide whether or not to enter into an obligation under section 106 of TCPA 1990 . The section reads, so far as is relevant

"106 Planning obligations.E+W

(1) Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section and sections 106A and 106B as "a planning obligation"), enforceable to the extent mentioned in subsection (3)—

(a) restricting the development or use of the land in any specified way;

(b) requiring specified operations or activities to be carried out in, on, under or over the land;

(c) requiring the land to be used in any specified way; or

(d) requiring a sum or sums to be paid to the authority…… on a specified date or dates or periodically.

(2) A planning obligation may—

(a) be unconditional or subject to conditions;

(b) impose any restriction or requirement mentioned in subsection (1)(a) to (c) either indefinitely or for such period or periods as may be specified; and

(c) if it requires a sum or sums to be paid, require the payment of a specified amount or an amount determined in accordance with the instrument by which the obligation is entered into and, if it requires the payment of periodical sums, require them to be paid indefinitely or for a specified period.

(3) Subject to subsection (4) a planning obligation is enforceable by the authority identified in accordance with subsection (9)(d)—

(a) against the person entering into the obligation; and

(b) against any person deriving title from that person.

(4)……………….

(5) A restriction or requirement imposed under a planning obligation is enforceable by injunction.

(6) Without prejudice to subsection (5), if there is a breach of a requirement in a planning obligation to carry out any operations in, on, under or over the land to which the obligation relates, the authority by whom the obligation is enforceable may—

(a) enter the land and carry out the operations; and

(b) recover from the person or persons against whom the obligation is enforceable any expenses reasonably incurred by them in doing so.

(7)…………………………………...

(8)………………….

(9) A planning obligation may not be entered into except by an instrument executed as a deed which—

(a) states that the obligation is a planning obligation for the purposes of this section;

(b) identifies the land in which the person entering into the obligation is interested;

(c) identifies the person entering into the obligation and states what his interest in the land is; and

(d) identifies the local planning authority by whom the obligation is enforceable………

(10) A copy of any such instrument shall be given to the local planning authority so identified ………………….

(11) A planning obligation shall be a local land charge and for the purposes of the Local Land Charges Act 1975 the authority by whom the obligation is enforceable shall be treated as the originating authority as respects such a charge.

(12) …………………

(13) ………………………….."

104. As Mr Fraser points out, the section is written that an agreement will be made with the Local Planning Authority, or an obligation entered into, enforceable as if it had been agreed. The section is written on the assumption that the agreement is made by the Local Planning Authority with a person interested in the land, or that, in the absence of an agreement, that such a person enters into an obligation, in both cases enforceable by the authority.
105. Here the view of HBC, which is unchallenged, was that at the time the Committee considered the application, no other person was interested in the land. It may be that another local planning authority would have wanted to find a way of creating a legal situation where a section 106 obligation could be entered into, but in my judgement it cannot be regarded as unlawful for HBC to decide that, in the absence of being able to enter into a section 106 agreement, it would follow a different route.
106. I accept that the development agreement route does not provide the same transparency as the section 106 route, for a section 106 agreement would have to be kept on the register. The 3MG Executive Sub-Board of HBC has decided to make none of the development agreement available for inspection, by resolution of 30th June 2011 identifying the whole agreement as exempt under section 100A (4) and Schedule 12A paragraph 3 of the Local Government Act 1972(as amended., i.e. that it contained

"information relating to the financial or business affairs of any particular person (including the authority holding that information). (Sched 12A Part 1 paragraph 3)"

107. But a redacted version of the development agreement, which identified the provisions dealing with the controls which would have been in a section 106 obligation, could have been made available. However the legality of that resolution is not before me, and its validity has not been challenged by the PC in these proceedings. That lack of the ability to inspect the Development Agreement is not enough for me to conclude that the HBC approach to the use of section 106 obligations was unlawful. If any works involving development are required which are not included within the application for planning permission, then other permissions are likely to be required, unless it could be carried out subject to permitted development rights.
108. The challenge relating to the section 106 agreement therefore fails, while the arguments relating to the legality of the tailpiece conditions succeed. I shall consider the effect below on the granting of relief.

Topic F Issues on the institution of proceedings; validity and delay

(i) Submissions of the parties

(ii) Discussion and conclusions

Submissions of the parties

109. Mr Fraser argues that four members of the PC have a pecuniary interest in the development the subject of these proceedings, on the basis that the development could affect their well being and/or financial position. He contends that the decision to institute proceedings was unlawful. At the hearing he argued that the decision of the PC to take proceedings offended s 94 of the Local Government Act 1972, but did not submit that that rendered the decision unlawful. I invited further written submissions on whether a failure to declare the interest alleged in this case would have the effect of vitiating the decision to conduct these proceedings.
110. Mr Fraser has now submitted that:

(a) The relevant statutory provisions are sections 50-67 of the Local Government Act 2000, and the Local Authorities (Model Code of Conduct) Order 2007 No 11;

(b) 4 of the 5 Parish Councillors at Halebank would have had an interest because they live close to the scheme and thus land in which they have a beneficial interest would be affected (Model Code paragraph 8(1)(a)(ix)) , and the proposed development might reasonably be considered to affect the members' well being and financial position to a great extent than the majority of the other council taxpayers in the area (paragraph 8(1)(b));

(c) A personal interest had to be declared, and a member must with draw unless a dispensation had been obtained from the standards committee (paragraphs 9 and 12(1));

(d) In R(Richardson) v N Yorkshire CC [2003] EWCA Civ 1860 [2004] 2 All ER 31 the Court upheld a decision that a member of the Council should be excluded from the relevant Committee hearing when his house lay approximately 250m from the nearest point of the proposed extraction. He objected to the new development in that case both in his capacity as the elected representative of the inhabitants of Littlethorpe and in his personal capacity. Although a member of the council, he was not and was not a member of the planning committee. The interests in this case are very similar;

(e) Any direct pecuniary or proprietary interest disqualifies a member from participation- see R v Secretary of State for the Environment ex parte Kirkstall Valley Campaign Limited[1996] JPL 142;

(f) The decision was thus vitiated.

111. On the issue of delay Mr Fraser submitted that

(a) the claim was not made promptly, which CPR 54.5(1) requires. CPR 54 complies with the principles of legal certainty in an ECHR context- see Lam v UK 41671/98, applied in Hardy v Pembrokeshire CC [2006] EWCA Civ 240 [2006] Env LR 659 @paragraphs 13-18. The decision by the Court of the European Union in Uniplex (UK) Ltd v NHS Business Services Authority C-406/08 [2010] 2 CMLR 1255 does not affect that principle. Even if it applies to challenges to planning permissions on Directive grounds, it does not apply to challenges on domestic law grounds, and would not prevent exclusion of a remedy on the grounds of delay- see R (Berky) v Newport CC [2012] EWCA Civ 378;

(b) It is not enough that the claim was submitted within 3 months: see Finn-Kelcey v Milton Keynes BC [2008] EWCA Civ 1067, [2009] Env LR 299 @paragraph 21.

(c) That is especially important in cases of challenges to planning permissions (Finn-Kelcey paragraph 22)

(d) The delay is unexplained;

(e) The claim was made on 13^th December 2011, 3 days before the expiry of the 3 month period from the date of the permission, and more than 3 months after the date of the Committee meeting;

(f) It is appreciated that the PC had changed its solicitor to one who undertakes litigation, but nothing in this case justifies the lengthy delay. Counsel had been instructed by the PC before 17^th October 2011.

(g) Although it is accepted that the developer has announced that it will not go ahead with this permission but has said that it will make another application this year, that is not relevant to the delay issue.

112. Mr Kolinsky submitted that

(a) Context matters, and the court must be cognisant of the realities of local government: see Pill LJ in R(Lewis) v Redcar and Cleveland BC [2009] 1 WLR 83 @ paragraphs 70-1 and R(Ortona) v Secretary of State for Local Government [2009] EWCA Civ 863.

(b) Unlike the Richardson case what is under attack here is the decision to institute proceedings;

(c) The PC was not deciding to permit or refuse permission to a development but was acting in a consultative role;

(d) The whole parish will feel the effects of the development. There is no evidence that the particular members will be worse affected;

(e) The HBC stance implies that , the more serious the effects on a parish, the more likely it is that the resulting effect on the interests of its members will disqualify the Parish Council from taking any decision;

(f) The taking of a decision to institute proceedings does not affect their personal interests;

(g) There is no evidence that any of them were affected by any personal interest in the taking of the decision;

(h) No reasonable member of the public would consider that the councillors' relationship to the decision to issue proceedings would prejudice their judgement;

(i) No challenge has been made by way of judicial review to the decision of the PC to take proceedings. The presumption of validity applies; see De Smith's Judicial Review Sixth Edition paragraph 4-061. It follows that the decision to issue and conduct proceedings remains valid unless successfully challenged. HBC has taken no steps to do so.

113. On delay he submitted that

(a) If a challenge is made on the grounds that the environmental impact assessment directive was not applied, the three months period cannot be shortened: see Uniplex (cited above) , R(Buglife) v Medway Council and others [2011] EWHC 1746 @paragraphs 61-2 and R(U) v Broads Authority and Environment Agency [2011] EWHC 1824 Admin at paragraphs 44-47

(b) A claimant is not to be criticised for delay where it has been making reasonable enquiries of the authority of the basis for the decision under challenge (R(Macrae) v Hertfordshire CC [2012] EWCA Civ 457), which is what happened here.

Discussion and Conclusions

114. I accept Mr Kolinsky's submission that the decision of the PC stands unless and until impugned by a court, even if the HBC arguments on members' interests are sound. Mr Fraser has cited no authority against that proposition. I therefore have no power to decline relief on the basis argued by HBC.
115. I also consider it important to consider the context in which this issue arises. The relevance of the interests of a member of a Council may cover a wide spectrum, running from decisions by a planning authority to exercise compulsory purchase powers, or enter into a contract, or grant or refuse planning permission, down to very simple neighbourhood issues. The smaller a Council area gets, the more likely it is that its members will be affected in some way by a decision, and in planning cases, especially so the larger the development. In this case this was not a decision to grant or withhold some consent, nor to bestow or withhold contractual rights, but to make comment for consideration. However the application for development upon which the PC had the right to express a view was one which had the potential to have a very substantial effect on the whole Parish. The implication of the HBC argument is that members of a Parish Council such as Halebank, which is a small community affected by a very large proposed development, should be unable to take decisions, including the right to decide to make representations as a Parish Council, because they would be more seriously affected personally than they would be in the case of a less substantial development. The effect of that is that the requirement to consult statutory authorities in the form of Parish Councils will be frustrated.
116. Whether or not that means that they were interests which should have been declared, and disqualified members from voting, is unclear. However given my conclusions on the question of the issue of proceedings, I shall not reach a concluded view. I note also that a new code is likely to be issued pursuant to the Localism Act 2011 when it is in force.
117. I should add in postscript that no suggestion is made by HBC that the PC should not have made representations on the original consultation. Indeed a large part of HBC's case has been to argue that the PC was consulted and that HBC wanted to receive its views. It argued strongly before me that the PC could and should have made representations even though the issue of the question of members' interests had not been resolved. It should be noted that while HBC argued in the summary grounds of resistance to the claim that it required the PC to prove that the proceedings were properly authorised, it nowhere asserted at that stage of the proceedings that it had no authority to do so. Yet once the rolled up hearing had been ordered, HBC then wished to argue at the hearing that the PC had no right to reach any decision with regard to the development, including a decision to issue a claim to uphold its right to be consulted effectively. While legally not a contradictory stance, it was not an attractive one.
118. As to delay, this is not one of those cases where the effect of waiting for the proceedings to be issued has caused any significant prejudice, given the developer's stated intention not to implement this permission, but to apply for another. I am also of the view that the PC gave ample notice at an early stage of an impending claim for judicial review. It did so on 17^th October 2011, although not on the issues of the misinterpretation of UDP policy E7 or on the tailpiece conditions. The original solicitors ceased trading, and the matter was transferred to another firm. There were requests for information between the PC and HBC by a correspondence starting on 17^th October 2011, which ended with an HBC response on 9^th December 2011 to a letter sent on 25^th November 2011. PUK's solicitors were aware throughout of the impending challenge.
119. In my judgement the PC acted with reasonable promptness. I accept and agree that it was not until the claim was made that the points were taken about the UDP and the tailpiece conditions. The former however is a point of substance, where I have concluded that HBC did misinterpret the policy. It was also one known since the representations made at the planning application stage. In the latter case, the conditions were unlawful, but it is conceded that they can have the offending parts removed.

Topic G Overall conclusions

120. I have concluded that

(a) HBC deprived the PC of the opportunity to participate effectively in consultation. The failure to provide that opportunity amounted to a breach of Article 6 of the EIA Directive;

(b) HBC also acted in breach of a legitimate expectation held out by it to the PC in its Statement of Community Involvement;

(c) HBC has misinterpreted Development Plan policy;

(d) The "tailpiece" conditions it applied were unlawful, although the illegality can be cured by excision of the offending parts;

(e) The claims by PC relating to the absence of a section 106 agreement and the provision of a roadlink are not sustainable;

(f) The claim by HBC that the proceedings were issued without authority has not been substantiated, and it has taken no steps to challenge that decision;

(g) The claim should not fail on the grounds of delay.

121. One question therefore remains. Should I exercise my discretion to grant the relief claimed and quash the permission, or limit myself to making an order relating to the conditions ?
122. There are two arguments which support a refusal to quash the permission

(a) While the PC complain of the constraints placed on consultation, there is no topic, apart from the question of the UDP, where any issue has been identified where the PC wanted to say more at the time but was unable to do so;

(b) As to the UDP, the essential difference between what the UDP prescribed and what the SPD addressed in its phasing policy, is whether the erection of railway sidings on Site 256 has to be commenced before permission is granted on Site 256. The permission requires the construction of the rail siding within the site before the development is brought into use, and the use of the railway network to serve the site will be achieved by the development agreement.

123. In my judgement those arguments should fail because

(a) The overall impression given of the conduct of the consultation by HBC is of an authority so determined to see this application for very substantial and potentially intrusive development permitted, that it brushed aside any argument that a longer period for consultation was required. It also conducted itself in such a way that it failed to inform anyone outside the authority, apart from the developer and its customer, that the actual time for consultation had been substantially reduced. I regard it as unusual in the extreme that a responsible local planning authority would consider that the bare minimum was enough time to address a proposal of this scale and complexity.

(b) The haste with which HBC insisted that the application be dealt with can be gauged from the unfortunate way in which the PC's requests for more time were dealt with, as identified above;

(c) The preconditions in the UDP policy are designed to address important objectives of not releasing what had been Green Belt land, and is still greenfield land, unless the case was made for it, and in a sequential process. If that is to be set aside, the Council should follow the procedures for dealing with departure applications, and address whether there are reasons to depart from the statutory development plan. In the case of the emphasis placed in the UDP on the development of both Sites 255 and 256 proceeding first , and of the need for the development of Site 253 to be part of the strategic rail park, the only mechanism for achieving the rail linkage actually being used lies within the development agreement, which HBC has decided to keep from public inspection.

(d) The site is owned by the Council, which whether it does so by way of profit, or of recoupment of outlay, will receive a substantial sum from the developer.

124. I therefore consider that I should exercise my discretion in favour of the grant of relief. I grant permission to apply for judicial review, and quash the permission.
125. I must add in conclusion that nothing in this judgement should be read as indicating any view on the planning merits of the scheme, nor how HBC should determine any future application for planning permission.

Costs

126. There was a protective order made in this case by HH Judge Raynor QC on 30^th April 2012, varied by me by consent on 30^th May 2012. I am satisfied from the material put before me that the Claimant's costs exceed the reciprocal cap. Accordingly I order that the Defendant pay the Claimant's summarily assessed costs of £ 30,000 including VAT, within a period of 2 months of today's date.

Application for permission to appeal

127. I asked for any application for permission to appeal to be submitted in writing. I have received none.

Note 1   Defendant’s bundle page 130    [Back]

Note 2   Ditton Strategic Rail Freight Park    [Back]