QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| BISHOP'S STORTFORD CIVIC FEDERATION
|- and -
|EAST HERTFORDSHIRE DISTRICT COUNCIL
ANLEY TRUSTEES LIMITED
MAISON ANLEY PROPERTY NOMINEE LIMITED
Saira Kabir Sheikh (instructed by East Herts DC) for the Defendant
David Elvin QC (instructed by Hogan Lovells) for the Interested Parties
Hearing date: 11 February 2014
Crown Copyright ©
Mr Justice Cranston:
(a) The Council – Henderson agreement
"Depending on which option the Executive adopts, the Council would also transfer to Henderson the land surrounding [the building] which we also own. This includes the Waitrose and Causeway car parks. If this were to happen, [Henderson] has made a proposal that would allow the Council to strongly influence the future of the site. This supports the regeneration work already being carried out by the Bishop's Stortford 2020 board."
(b) The planning committee meets
"Despite the position in relation to land holding and tenancy arrangements, it is very important to set out here that these arrangements and previous decisions in relation to them should be given no weight in the planning application decision making process."
At several points the report underlined that only outline permission was involved and only the principle of development was at issue. The report identified the need for additional retail floorspace to prevent a decline in the town because of competition from neighbouring towns.
"As the principle of development on the site had already been established by a favourable vote in full Council, it is not easy for new Members to understand, or indeed the public, that the Council has a dual role: one as Landowner (completely separate) from the other, as Planning Authority. I was not, and could not, attempt to persuade the Committee to vote in favour of the two applications. I thought it would be helpful to outline that Council's consent for a mixed-use development for the area in question had already been established. I knew the debate would be controversial but aimed my comments at members of the Committee, not the public. I did say something along the lines that to renege on the agreement already reached in principle, would be "morally bankrupt", in the sense that the principle for mixed use development had been established by as vote in full council. For the Committee to vote against this principle would be to undermine the decision made by Full Council. It was in that context that I made the reference, and did not refer to detailed planning matters. I am content that most members of the Committee understood this even if it was not clear to the public who have not had the benefit of committee training."
In his statement Cllr Tindale also said that he anticipated that there would be difficulty with the committee, as emotions were running high, which was exactly what happened. He did not believe the views expressed in opposition were indicative of wider public opinion. There was much hostility at the meeting and very few of the public were brave enough to speak in favour of the development. In his view the majority of the committee were minded to refuse the development but, when it was put to the vote, it was approved. Cllr Tindale also informed the inquiry that he had attended the meeting at the request of the Leader of the Council and with the permission of the chair, Cllr Ashley.
"but this decision was taken in the full glare of public debate, members spoke and voted and the decision was made by the full Council at that time and I need not remind you, members, this is an outline proposal on the principle of development. So to renege upon that principal now, I would argue, is morally bankrupt. Not because it's some threat to Henderson, but because it would undermine the [Council]."
Cllr Tindale's second topic was that the town was losing out because of better retail facilities in neighbouring towns such as Harlow, Braintree and Stevenage. The development would also create jobs. His third topic was that, if Henderson withdrew, development would still take place, possibly housing.
(c) Ms Memoli's investigation
"I therefore conclude that although Councillor Tindale had no right to attend the Committee Meeting, the Members of the Committee Meeting listened to full arguments both for and against the Recommendations in the Accompanying Report. This is also indicated in the Minutes of the Meeting, which shows the Committee debated possible reasons for the refusal. The Committee made up its mind (collectively) on the planning merits, despite the fact that Councillor Tindale had addressed the Committee."
"Local authorities need to be vigilant when dealing with planning applications, which involve the Council's land, so that equal treatment is given to the process, or any other individual applying for planning permission … [It] was unwise on his part to attend and address the Planning Committee, and as such can reasonably be seen by members of the public and others, as bringing his office and that of his authority into disrepute in breach of paragraph 5 of the Council's Code of Conduct."
It seems that Ms Memoli was influenced in her approach by her understanding of an inquiry into Bournemouth Council's Planning department by Sir Michael Pitt and his recommendation that the executive and planning functions of a local authority be kept independent. Mr Elvin QC informed the court that the inquiry related to a local problem in Poole and to a situation where a number of members of a local authority's executive were also on the planning committee.
"The Committee made the decision collectively … The Committee listened to arguments for and against by those present and they themselves debated possible reasons for refusal, and upon not finding such reasons, many Councillors on the Committee voted for the recommendations in the Accompanying report, subject to certain matters to be considered for a section 106 agreement and other conditions."
(d) Henderson's additional documents
Ground 1: Cllr Tindale's intervention
"With regard to the speeches of the members which have been referred to, I should imagine that probably hardly any decision of a body like the London County Council dealing with these matters could stand if every statement which a member made in debate were to be taken as a ground of the decision. I should think there are probably few debates in which someone does not suggest as a ground for decision something which is not a proper ground; and to say that, because somebody in debate has put forward an improper ground, the decision ought to be set aside as being found on that particular ground is wrong:" at 490.
Ground 2: Unfairness and breach of Environmental Impact Regulations
"(1) Where the relevant planning authority, the Secretary of State or an inspector is dealing with an application or appeal in relation to which the applicant or appellant has submitted a statement which he refers to as an environmental statement for the purposes of these Regulations, and is of the opinion that the statement should contain additional information in order to be an environmental statement, they or he shall notify the applicant or appellant in writing accordingly, and the applicant or appellant shall provide that additional information; and such information provided by the applicant or appellant is referred to in these Regulations as "further information".
(2) Paragraphs (3) to (9) shall apply in relation to further information and any other information except in so far as the further information and any other information is provided for the purposes of an inquiry or hearing held under the Act and the request for the further information made pursuant to paragraph (1) stated that it was to be provided for such purposes."
Regulation 19(3) required the further information to be published in a local newspaper. Regulation 2 defined "any other information" mentioned in regulation 19(2) to mean any other substantive information relating to the environmental statement and provided by the applicant. Schedule 4, Part 1, paragraph 5 required to be included in environmental statements, a description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment.