QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
sitting as a Deputy High Court Judge
| (1) SANDRA SAN VICENTE
(2) GERALD CARDEN
|- and -
|(1) SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT
(2) UTTLESFORD DISTRICT COUNCIL
(3) TAYLOR WIMPEY UK LIMITED
Richard Kimblin (instructed by Treasury Solicitor) for the First Defendant
Stephen Whale (instructed by Berwin Leighton Paisner) for the Third Defendant
Hearing dates: 23 November 2012
Crown Copyright ©
Philip Mott QC :
"Incorrect decision of the Planning Inspectorate ref APP/C1570/A/11/2164898/NWF decision [sic] to allow outline planning permission on land south of Ongar Road, Gt Dunmow, Essex CM6 1EX.
The planning inspector mislead himself on the definition he applied to sustainability and [was] wrong to identify a sufficient benefit in housing to compensate for the harm of building on the countryside, and outside development limits."
"That the benefits arising from the proposed development do not outweigh the harm that would be caused by its conflict with local planning policies for the protection of the countryside.
That due consideration was not given to the NPPF [National Planning Policy Framework] and Localism and the fact that a Planning Inspector (J Head) had rejected a similar planning application in the Great Dunmow area, ref APP/C1570/A/11/2146338."
i) The developer, Taylor Wimpey UK Limited, seeks to be joined as Third Defendant. This is not resisted and I order that they be so joined.
ii) The Claimants seek a protective costs order, that any costs ordered to be paid by them should be limited to the total sum of £5,000 and that any costs recovered by them should be without uplift (they being funded by a conditional fee agreement). This application was considered on paper by Collins J on 11 October 2012, but he declined to decide it on the material supplied. For administrative reasons it was not considered further before this hearing. The order is resisted by the First and Third Defendants, but for pragmatic reasons it was agreed by all parties represented before me that there should be an interim order in those terms limited to the conclusion of these applications. Any protective costs order thereafter should be subject to argument.
iii) The Third Defendant seeks summary judgment on the claim, which the First Defendant supports. The Claimants accept that the original Grounds are not sustainable, as they go to the merits of the decision, but seek to amend their claim as set out below.
iv) The Claimants apply for permission to amend their claim by substituting new grounds. The Amended Statement of Grounds and submissions in support set out three new Grounds. Ms Graham Paul, appearing on behalf of the Claimants on these applications, does not seek permission on Amended Ground 3, but puts forward Amended Grounds 1 and 2.
i) The First Defendant's decision was unlawful by reason of procedural unfairness, namely the failure to ensure that all parties were notified of the hearing in accordance with the Town & Country Planning (Hearings Procedure) (England) Rules 2000 and having discovered a complete absence of notification of concerned residents, his failure to re-start the inquiry with a new Inspector.
ii) The First Defendant's decision was unlawful for failure to comply with the requirements of the 2011 EIA [Environmental Impact Assessment] Regulations, namely in the way the project was screened not to have significant environmental effects such that EIA was not required.
Permission to Amend – Principles
(2) If his statement of case has been served, a party may amend it only –
(a) with the written consent of all the other parties; or
(b) with the permission of the court
(2) The power of the court to give permission under this rule is subject to –
(c) rule 17.4 (amendments of statement of case after the end of a relevant limitation period).
(1) This rule applies where –
(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and
(b) a period of limitation has expired under –
(i) the Limitation Act 1980; or
(ii) … ; or
(iii) any other enactment which allows such an amendment, or under which such an amendment is allowed.
(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings."
"Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party caused by the amendment can be compensated for in costs, and the public interest in the administration of justice is not significantly harmed."
Merits – Amended Ground 1
"1. The site lies outside the development limit where in accordance with Uttlesford Local Plan Policy S7 the countryside is to be protected for its own sake, the countryside will be protected from development unless it needs to be there or is appropriate to a rural area. The proposal would involve the erection of market housing which is not an appropriate form of development in the countryside, does not need to be there and would not protect the character of the countryside. The level of development proposed would be harmful to the character of the area. It therefore fails to comply with Policy S7 of the Uttlesford Local Plan."
"The circumstances of this reconvened Hearing are unusual.
We consider it most important that the parameters for the new Hearing are clearly understood by all parties.
The intention is to clearly establish the rules to be followed at the reconvened Hearing so that the procedure remains fair to all.
The second paragraph of your letter [the letter of 4 May 2012 from the Planning Inspectorate] states that the intention is "to enable any interested parties to be able to listen to all the evidence and to be given the opportunity to comment at the Hearing".
Can the Inspector confirm that the oral evidence presented by both parties at the original Hearing remains part of the evidence on which he will take his decision?"
"it would not be in the interest of openness, fairness, and impartiality if the appeal decision in this case was based on proceedings which took place without the public being present. Therefore, in principle, it will be necessary to re-run the Hearing in the same form as the event which took place on 11 and 12 April, and the same agenda will apply. However, the procedure to be adopted will be dependent on the nature and extent of public attendance, and the Inspector will discuss the details with all those present at the start of the resumed event. In common with normal procedure, the main parties should rely on the case provided in their statements, and the Inspector will not expect new material to be put forward."
"Whether the site is an appropriate location for housing development, having regard to the policy of restraint outside the settlement area, and to the following specific points: 1) the effect on the character and appearance of the countryside, 2) whether the proposal represents a sustainable form of development in respect of accessibility to local facilities and public transport, 3) the effect on road safety and the free flow of traffic, and 4) whether any harm is outweighed by the need for housing in the area"
No objection was taken at the time, nor is any taken now, to this formulation of the main issues on the appeal.
"In the event he went through the agenda, described each issue, and described the case made by each side seeking confirmation from both sides that his description of the facts of the matter was correct. He did not allow the arguments to be played out in full. Residents were not given the opportunity, for example, to query housing numbers about which there had been very considerable discussion at the first hearing."
"The Inspector will open the hearing by explaining what the appeal is about. He or she will then go through some routine points, including asking who wants to speak.
The Inspector will usually give a summary of the appellant's and the LPA's cases, and say which topics will be discussed at the hearing. The Inspector leads the discussion. Hearings give everyone concerned the chance to give their views. Although hearings are informal, they must be orderly so that everyone involved can have a fair hearing."
Merits – Amended Ground 2
"Where a local planning authority or the Secretary of State has to decide under these Regulations whether Schedule 2 development is EIA development the authority or Secretary of State shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development."
"In the light of these, the Secretary of State's view is that, in general, EIA will be needed for Schedule 2 developments in three main types of case:
(a) for major developments which are of more than local importance;
(b) for developments which are proposed for particularly environmentally sensitive or vulnerable locations; and
(c) for developments with unusually complex and potentially hazardous environmental effects."
"The number of cases of such development will be a very small proportion of the total number of Schedule 2 developments."
i) Question 1 is whether it "will cause physical changes in the locality (topography, land use, changes in waterbodies, etc)". The answer is "Yes", there will be a visual impact, but it is not likely to be significant (the form says "Yes" to whether it is likely to result in a significant effect, but the explanation makes it clear that the intended answer was "No").
ii) Question 2 is whether it will "use natural resources such as land … especially any resources which are non-renewable or in short supply". The answer is "Yes", it will use land resources, but these would be "limited and of low impact" so not likely to be significant.
iii) Question 20 is whether the project is "located in a previously undeveloped area where there will be a loss of greenfield land". The answer is "Yes", but not likely to have significant impact as it will be localised.
iv) Question 27 is whether there are "other factors which should be considered, such as consequential development which could lead to environmental effects, or the potential for cumulative impacts with other existing or planned activities in the locality". The answer is "No".
Prejudice to the Defendants