England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		28 July 2015

As Approved by the Court
1. MR JUSTICE OUSELEY: This is a renewed application for permission to apply for judicial review following its refusal on paper by Lewis J on 25 June 2015.
2. The two borough council claimants are the councils for the Mount Pleasant Sorting Office site which straddles their boundaries. The Royal Mail Group, the interested party, proposed a major mixed use development on the site. The Mayor of London exercised his powers under the Town and Country Planning Act 1990 to decide the matter himself rather than leaving it to the two borough councils in the usual way, so he became the planning decision maker. On 30 March 2015, he granted planning permission following the conclusion of an agreement under section 106 of the 1990 Act.
3. The decision to grant planning permission had been taken at a hearing on 3 October 2014, at which the borough councils had been able to explain the reasons why they, if they had been the planning authorities, would have refused to grant planning permission. Their challenge to the grant of permission raised many grounds. None were abandoned before me, but Mr Mould QC for them focussed his argument on two key grounds on the basis that they were both his better grounds and the likeliest to make a significant difference to any permission if they succeeded.
4. The first ground concerned the approach adopted by the Mayor of London to the policies and to the application of policies for maximising affordable housing on the development site. The second related to the way in which the section 106 agreement provided, or failed to provide, for the linkage between two parts of the development site as required by the Mayor of London in approving the proposal and, as it was submitted, required by the authority delegated to officers. As Mr Mould reminded me, the question at this stage is simply whether his grounds are arguable.
5. I turn first to the affordable housing issue. The relevant policies are the same whether or not it is the Mayor of London who is the decision maker or it is the local authorities. I can take for these purposes the Strategic Authority Plan which in policy 3.12 deals with the negotiation of affordable housing on individual private mixed use schemes. It says, in dealing with planning decisions and the development framework preparation:

"A. The maximum reasonable amount of affordable housing should be sought when negotiating on individual private residential and mixed use schemes, having regard to: ... (f) the specific circumstances of individual sites. B. Negotiations on sites should take account of their individual circumstances including development viability, the availability of public subsidy, the implications of phased development ..."

The supporting text gives guidance, as do other documents, as to how development viability is to be assessed for the purposes of maximising the reasonable amount of affordable housing on a mixed use scheme.

6. In paragraph 3.71, the plan developers should require the provider of the housing to identify the resources it is bringing to the scheme and:

" ... demonstrate that the proposed affordable housing makes optimum use of the resources applied in terms of policy 3.12 ... Developers should provide development appraisals to demonstrate that each scheme provides the maximum reasonable amount of affordable housing output. Boroughs should evaluate these appraisals rigorously, drawing on the GLA development control toolkit and other independent assessments which take account of the individual circumstances of a site, the availability of public subsidy, and other scheme requirements."

Mr Mould emphasises the words, "the maximum reasonable amount of affordable housing".

7. Crucial to his submission is the correctness of the approach to the meaning and application of that phrase in this case. Many aspects of the viability analysis were at issue, but the focus of his submission was the input of the site value. The lower the site value, and the less incentive required for a willing vendor to bring the site to the market for development, the greater the gap between that value and the finished development value and hence the greater the scope for affordable housing.
8. Various valuers of equal repute and distinction were engaged on all sides. Gerald Eve for Royal Mail Group proposed a value of £73 million. District Valuer Services initially retained by the councils were not very different, but fresh consultants, BPS, put forward a valuation which was approximately £24 million for the existing use value of the site, together with an incentive, making about £38 million. GVA, instructed by the GLA, considered £67 million to be the appropriate site value. The difference between them is marked and relevant to a difference of some significance, no doubt in relation to the affordable housing output. On the offer put forward by Gerald Eve for the interested party, reflecting the approach which GVA recommended to the GLA, some 166 of the residential units would be affordable. That is about 24 per cent. The two boroughs had an aim of achieving 50 per cent on sites in general.
9. The issue was the subject matter of very considerable discussion between the various valuers. It would not be right to say that it was at all times a round table discussion. This was a point of some grievance to the councils, that there came a point where they felt they were excluded from the discussions taking place between Gerald Eve and GVA, and indeed they were. The position of GVA was referred to in an appendix to an addendum to the officer's report to the Mayor for his October meeting. They said, and this is not at issue, that there had been considerable debate between the parties as to the value "it is reasonable to adopt for the base land value". DBS had agreed the figure by Gerald Eve, noting it to be at the bottom end of the range it considered appropriate. BPS had argued for significantly lower:

"We have reviewed the evidence adduced by the parties, discussed the considerations with each of the firms, and sought other evidence to seek to establish a reasonable figure. We have concluded that the appropriate value is less than that proposed by Gerald Eve and endorsed by DBS, but above that of BPS. The figure proposed by GVA has been adopted to establish the results in the modelling shown below."

Further on in GVA's addendum executive summary appendix, they said:

"We confirm that we are satisfied that the offer of 163 affordable units with the proposed split between affordable and intermediate tenure represents the maximum reasonably viable based on both current values and costs and on projected values and costs."

10. I interject that the difference between 163 and 166 appears to relate to whether the community infrastructure levy is applied or not. That too represented another ground and bone of contention, but not a key point.
11. The officer's report devotes a considerable amount of time to the differences between the applicant and the borough councils and GVA on affordable housing and financial viability. I note that in paragraph 222 the London Plan Policy 3.12, to which I have referred, is set out. It also explains the developer's incentive. The NPPF requires, to ensure viability, various matters to be taken into account so as to provide competitive returns to a willing developer to ensure that the development is deliverable. The report then sets out the affordable housing strategies of the two borough councils in the way that I have already described them to be.
12. At 228, it says before the Mayoral takeover, commenting on the perspective of the London plan, that it needed to be demonstrated that the provision of affordable housing was being maximised and "that a logical, transparent and accurate assessment of inputs and outputs for the development was being made". The report in paragraph 233 recognises that both councils were of the view that the scheme failed to provide the maximum reasonable amount of affordable housing.
13. It then comes to the appointment of GVA, pointing out that there was such disagreement between BPS and the applicant over various aspects of the viability information that GLA commissioned GVA to undertake an independent assessment of the applicant's financial viability assessment, drawing on the analysis undertaken by the two consultants commissioned by the councils to date.
14. The report noted the issues over which there were disagreements. Mr Mould drew attention to the way in which the first point which GVA was asked to address was phrased:

"Is the applicant's site value benchmark reasonable?"

Mr Mould's contention was that this was apt to mislead, because it did not reflect the language of policy 3.12 of the London plan, which emphasised that the target was the maximum reasonable output of affordable housing. The report then dealt with the process of discussion between consultants and the view formed by GLA. It then summarised the current offer and said in paragraph 247:

"Having considered the information submitted by the applicant and reviewed by the GLA consultant, officers are satisfied that the above affordable housing offer represents the maximum reasonable amount of affordable housing, taking into [account] the individual circumstances of the site and the need to encourage rather than restrain residential development. As stated above the GLA consultant has concluded that this is the maximum reasonably viable amount of affordable housing that can be achieved. On this basis, it has been established that the scheme is delivering the maximum reasonable amount of affordable housing in accordance with London Plan Policy 3.12."

This also accorded with the councils' strategies.

15. The next part of the officer's report explains the position of Islington and Camden councils on a number of issues. One of these is site value. It sets out in a way of which no complaint can be made exactly what the council's position is:

"The councils do however consider that at 200 per cent above existing use value, the base land value used by the applicant and level of return far exceeds typical inputs and prioritises land in accordance at the expense of affordable housing."

16. At paragraph 255, the report sets out the GLA consultants' response. It says that they challenge the suggested base land value assumptions of the applicant, and the sale and the lease back valuation that it has applied. The consultant observes that it is:

"Open to debate as to what discount a purchaser might make to take into account these enabling costs ... and/or to reflect a potential extended timetable for the scheme in the light of the enabling works, and has not suggested that the enabling costs be discounted from the base land value, contrary to the councils' view [I interject that Mr Mould accepts that the enabling costs should not be discounted from the base land value, but nonetheless the land value which his clients put forward remains significantly lower than the base land value put forward by GVA, with no difference in treatment of enabling costs]. Based on other land sales around London, the GLA consultant has suggested a base land value that is 11 per cent lower than the applicant's assumption. This is somewhat higher than the benchmark that the council's consultant considers to be appropriate. In conclusion, the adjusted base land value suggested by the GLA consultant is considered to be a reasonable site value benchmark for assessing the scheme. GLA officers are satisfied that it is appropriate and reasonable to rely on the conclusions given by the Mayor's own consultants in respect of this point."

Again, Mr Mould contends that this shows that the officers and the Mayor had taken their eyes off the relevant ball, which was the achievement of the maximum reasonable affordable housing output and instead had gone for what was a reasonable affordable housing outcome.

17. In my judgment, the report shows no error of law in terms of the approach adopted by the GLA. It is clear that the language itself cannot support Mr Mould's argument. The report refers in many places to the policy and to the requirement to maximise affordable housing. In my judgment the weight placed by Mr Mould on paragraph 255, and one or two other such references, simply cannot bear the weight that he seeks to put on it. It is in my judgment a clear misreading of the report in context. They were clearly examining reasonable inputs into the overall planning judgment of what were maximum reasonable affordable housing outputs.
18. In addition, I note what was set out in GVA's executive summary as an appendix. I put considerable weight on the conclusion of the officer's report at paragraph 247, rather than on the analysis step by step of Islington and Camden Councils' position, and it is also perfectly clear from GVA's then confidential report that they had asked themselves the right questions. For these purposes it is sufficient to note a few aspects of the confidential report of 5 August 2014. I shall have to return to this later, but at paragraph 5.20 the GVA report says:

"Our analysis of the evidence leads us to conclude that the current market value of the land is likely to be very significant, probably in excess of £100 million. However, in recognition of the fact that the enabling costs are particularly significant in this case, and there is likely to be a delay before the site for phases 3 and 4 can be transferred, we consider that the consideration paid on day one would be tempered. We do not consider that the value would be less than £67 million."

19. Their summary makes it clear that in paragraphs 5.23 to 5.25 they have been looking to maximise the affordable housing, and indeed in section 7 they addressed the issue under the heading "Has the maximum reasonable level of affordable housing been secured?", and they answer that in paragraph 7.4 by saying:

"We confirm that we are satisfied that the offer of about 166 affordable units represents the maximum reasonably viable based on both current values and costs and on projected values and costs."

It is not conceivable that the officers misread the report. It is not conceivable that they had adopted a different approach to the conclusion that the affordable housing offer was the maximum reasonable.

20. Mr Mould however submits that there is a further error of approach. He submits that the approach to the inputs to the valuation are evidence that the wrong approach has been adopted. He submits that where the question is, "Has the maximum reasonable affordable housing been achieved?", it is necessary for the developer or Local Authority to demonstrate that the figures used represent the most favourable reasonably to be adopted in terms of maximum output. He submits that where, as in this case, there are responsible consultants who have put forward different and significantly lower figures in relation to land value, it is necessary for the developer or Local Authority to show why that lower figure is not appropriate. If they fail to do that, then they have failed to demonstrate that the maximum reasonable affordable housing has been achieved. Here, there is no clear refutation of the BPS land valuation.
21. I do not accept that that is an arguably correct approach, or one which shows an error of law here. The question is always whether the planning decision maker has reached a lawful planning judgment over whether the maximum reasonable affordable housing has been achieved. This will potentially involve disagreement, reasonably, with those who contend otherwise. It will involve a variety of judgments as to the inputs to the overall financial viability appraisal.
22. But the question remains whether or not the judgment that has been reached is a rational or reasonable one. The fact that reasonable people may disagree about an input does not show an error, nor does it demand of the Authority or developer an explicit set of rebuttals demonstrating why their approach is to be preferred. These are matters of valuation and judgment.
23. Here the right questions were asked and a reasonable conclusion was reached on them, and notwithstanding the typical skill and succinctness of Mr Mould's contentions, unarguably the relevant questions were asked and reasonably answered. The question of whether maximum reasonable affordable housing has been achieved does not mean that the local authorities here or the GLA's judgment must be proved to be the only reasonable judgment that could be reached as to the maximum.
24. Mr Mould says BPS had pointed out that there is a substantial extra profit being made by the developer and GVA have not demonstrated why the value BPS put forward should not be adopted, but in reality they have. The GVA report gives reasons that are lawful and reasonable reasons as to why the BPS valuation is not accepted. They considered what BPS had done, they took the view that the existing use value, albeit reasonable at £24.4 million, was not an appropriate valuation to start with. They considered sale and lease back, and rejected that for reasons given. They came to the view that an approach based on comparables, much as adopted by Gerald Eve but without agreement entirely on the interpretation, as I see it, of all the comparables, was the right approach; see paragraph 5.19, which leads into 5.20 as I have referred to.
25. They then referred to the opinions of the councils appended to the BPS report, they referred to the Gerald Eve appraisal, and clearly accepted that an appraisal adopting 50 per cent affordable housing gives no residual land value. They reviewed the comparables put forward by the parties and had regard to other land schemes of a similar scale, all suggesting a significant price for the land. They considered the issue of enabling costs and concluded that the £67 million would not merely be the lowest figure, they thought it was preferable to the Gerald Eve figure.
26. In those circumstances, the approach as adopted by GVA and by Gerald Eve was to see what was the lowest land value they could sensibly adopt; they just disagreed with the view of BPS as to what is the lowest figure they could reasonably adopt. They were entitled to disagree, but it cannot be said that the outcome was unlawful.
27. Accordingly on this main point, I reject as arguable the submissions of Mr Mould.
28. The second contention was that the linkage between the Islington and Camden parts of the site was inadequate. This was considered in paragraphs 207 to 209 of the officer's report in particular. The feature of that to which I need draw attention is that the report considered a link afforded by a bar on the commencement of the Phoenix Place Scheme until a binding contract was in place for the delivery of the enabling works. The Phoenix Place Scheme would carry some of the costs of the enabling works on the Calthorpe Street site and its viability was affected by that.
29. Accordingly, although the issue was to be discussed further and resolved through a planning application, it seems to me plain that it was flagged up at an early stage and that the linkage between the two parts of the site might be effected by the obligation in relation to the enabling works providing the financial incentive for the completion of the profit generating works. That is in effect what the section 106 agreement has achieved in clause 1.1, 1.2 and 1.4, and accordingly it seems to me quite unarguable but that the terms of the recommendation in paragraph 4 at the start of the officer's report, that a link should be secure in ensuring that the sites do not come forward in isolation and the wider master plan objectives come forward in a timely manner, has been achieved within the scope of the delegating authority which that same paragraph granted to the assistant director.
30. That argument in my view is also not arguable and for those reasons therefore I refuse permission to apply for judicial review.
31. MR JUSTICE OUSELEY: There then remains the question of costs. This is bound up with the question of Aarhus. It is apparently established that a Local Authority is entitled to benefit, and two local authorities are entitled doubly to benefit, from such protection as is afforded if this is a Aarhus claim. The question is, is it? Mr Mould.
32. MR MOULD: My Lord, can I begin by saying that I do not seek to disturb the order made by Lewis J.
33. MR JUSTICE OUSELEY: Yes.
34. MR MOULD: Which as your Lordship recalls was that --
35. MR JUSTICE OUSELEY: Two times ten.
36. MR MOULD: Two times ten. But also in terms of the costs of what he said made, he awarded some £12,000 for the acknowledgement of service for the Mayor and then I think the balance of the 20,000 to the interested party.
37. MR JUSTICE OUSELEY: I forget by how much there's headroom if it's not an Aarhus claim. I don't know how much more if it's not an Aarhus claim --
38. MR MOULD: No, I don't know whether that's --
39. MR CORNER: Well, my Lord, our claim --
40. MR JUSTICE OUSELEY: It might be --
41. MR CORNER: I'm so sorry, I didn't mean to interrupt either you or Mr Mould. My Lord, our claim for the costs of the acknowledgement of service was in the total of £20,000, so the application of Aarhus clearly, even at the level of the AOS, deprives us of a substantial sum.
42. MR JUSTICE OUSELEY: Yes.
43. Yes, Mr Mould.
44. MR MOULD: My Lord, we've set out our submissions on the question of Aarhus in paragraphs 33 to 35 and 45. I have a spare copy of it.
45. MR JUSTICE OUSELEY: Sorry, it's in your reply?
46. MR MOULD: Yes, the last page. I might begin actually by reminding the court of the Mitcham case, which I drew attention to in the first paragraph of my skeleton on the claim, which of course established very clearly that the community's need for affordable housing is as much a material planning consideration as the community's need for housing generally, and that is a pretty clear pointer, given that human beings and their needs for accommodation and an appropriate environment in which to live, work and play and so forth is a pretty central feature of matters relating to the environment generally, that this is an Aarhus claim, but I won't rest there.
47. We've set out the nature of the claim in paragraph 33 of the reply and we suggest that it would be wholly artificial to suggest that because the issues relate to a component of the planning regime for the delivery of housing, including affordable housing, that is to say issues going to the balance between the economics of delivery and the benefits of maximising that delivery, that it takes it outside the scope of the Convention.
48. MR JUSTICE OUSELEY: Is that the right question? The question is not what the issue in the case is, but what is the decision challenged, isn't it?
49. MR MOULD: Well, the decision challenged, of course, is a planning decision in relation to a scheme which embraces a very wide range of subject matters, including matters such as environmental benefits, open space, and so on and so forth.
50. MR JUSTICE OUSELEY: I mean I noted, well, I started wondering, it's not very helpful, this sort of rather leaves a lot up in the air comment about the word "environmental" under Aarhus is arguably broad enough to catch most, if not all, planning matters, which doesn't really help one very much at all.
51. MR MOULD: This is the Venn decision.
52. MR JUSTICE OUSELEY: Yes.
53. MR MOULD: Yes.
54. MR JUSTICE OUSELEY: But the question seemed to me, and I thought of that and I thought well, is valuation an environmental matter (Inaudible). An Aarhus claim is a claim for judicial review, which this undoubtedly is, of a decision, which this undoubtedly is, all or part of which is subject to the UNECE Convention.
55. MR MOULD: Yes.
56. MR JUSTICE OUSELEY: So you apparently only have to establish that part of the decision --
57. MR MOULD: Has that reach.
58. MR JUSTICE OUSELEY: -- has that quality.
59. MR MOULD: Yes.
60. MR JUSTICE OUSELEY: In which case a claim can be about the most refined matter without one needing to examine, so it doesn't matter whether you're arguing about greater crested newts or you're arguing about face values, so long as it's on a planning permission, a planning decision that falls within Aarhus, it's an Aarhus claim. That's the way it seemed to me.
61. MR MOULD: Yes. Well, I would respectfully --
62. MR JUSTICE OUSELEY: So why is all or part of the decision an environmental decision in Aarhus?
63. MR MOULD: Why?
64. MR JUSTICE OUSELEY: Yes, that's the question, it seems to me.
65. MR MOULD: Well the decision is a decision as to the development of land, which engaged -- if we can just turn to --
66. MR JUSTICE OUSELEY: I'm just trying to turn to Venn, if I can find it.
67. MR MOULD: Before your Lordship does that, it might be helpful just to see what the decision actually -- how far it extended, because we can see that from the terms of the planning permission. If your Lordship finds volume 1, at tab 5, the beginning of page 227, where you have the planning permissions. The decision was to grant planning permission for a comprehensive development scheme and you can see that it involves amongst other things residential, office, retail community floor space, an energy centre, waste and storage areas, recycling bins, parking, hard and soft landscaping to provide open space, and so on.
68. When one then turns to the subject matter of the conditions, that also is quite illuminating. We can see if we turn to page 229 that the conditions involved the regulation of amongst other things archaeology, contamination. Page 231, water supply, sustainable drainage. At paragraph 6 there was a need to provide an environmental management plan to deal with construction.
69. MR JUSTICE OUSELEY: Did this have a --
70. MR MOULD: An environmental statement?
71. MR JUSTICE OUSELEY: Yes.
72. MR MOULD: Yes. Noise in various shapes and forms, ground or sound insulation. Air quality on page 235. Various objectives were set out to deal with exposure to air quality impacts. Waste management strategy, 239. Landscaping, page 240. And as I recall there was --
73. MR JUSTICE OUSELEY: Conservation area consent as well.
74. MR MOULD: Yes. So this is -- and of course there was also a conservation area issue here, so there was a conservation area consent which had to do with the regulation and impact on the historic environment. So this is a planning decision which involved considerations of a very wide range of environmental matters.
75. Your Lordship posed the question, is this a case where an environmental statement was required, and that prompts me just to draw attention to the way in which the domestic Environmental Impact Assessment Regulations 2011 characterise information for inclusion within an environmental statement, and I think I have provided an extract for the court, I don't know if that's found its way to your Lordship. I have a spare copy here. Schedule 4, information for inclusion in environmental statements, if you just note paragraph 3:

"A description of the aspects of the environment likely to be significantly affected by the development including in particular population."

76. Which would obviously include where people live as well as where they work and so forth.

"flora, fauna, soil, water, air, climatic factors, including the architectural and archaeological heritage, landscape and interrelationship between such factors."

77. Many of which were evident in the subject matter of the planning permission that I showed your Lordship a moment ago. It would be curious indeed if that, which was as a matter of domestic law to be brought into account in reaching a decision to which the judicial review claim relates and which had to deal with the environment in that way, that nevertheless the claim fell outside the very wide ambit of the Aarhus Convention.
78. And then from that, going to where your Lordship was going to go, which was to go to Venn, which is at tab 4. Sullivan J, if I can pick up the point in his judgment at paragraph 11 on page 2332 of the report, under the heading "Article 9(3)" which of course relates to Article 9(3) of the Convention itself, he says at paragraph 11:

"In his skeleton argument the Secretary of State accepted that 'environmental information' is given a broad definition in Article 2.3, and further accepted that since administrative matters likely to affect 'the state of the land' are classed as 'environmental' under Aarhus the definition of 'environmental' in the Convention is arguably broad enough to catch most, if not all, planning matters. The Judge's conclusion that environmental matters are given a broad meaning in Aarhus (see paragraph 15 of the judgment) is supported by the decision of the Court of Justice of the European Union in ... ('the Brown Bear case')."

79. If I just go over the page to paragraph 50 of that CJEU judgment in that case:

"It follows that, in so far as concerns a species protected by European Union law, and in particular the Habitats Directive, it is for the national court, in order to ensure effective judicial protection in the fields covered by European Union environmental law, to interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) of the Aarhus convention."

80. Obviously that was a case concerning fauna, but the principle in my submission is of general application, and certainly that was the way in which the Court of Appeal applied it.
81. If you then turn on to paragraph 15, and I just invite your Lordship to read through from 15 to 17, one can see how Sullivan J --
82. MR JUSTICE OUSELEY: I've read his reasoning on that.
83. MR MOULD: Yes. My Lord, in my submission --
84. MR JUSTICE OUSELEY: That's fine so far as it goes, but it doesn't go as far as saying all planning decisions are Aarhus.
85. MR MOULD: No, but it says that in the domestic context the realisation of the environmental considerations that are at the root of Aarhus is through the planning system.
86. MR JUSTICE OUSELEY: Well, that's why he was against drawing a sharp distinction between planning decisions and environmental decisions, because it was being suggested that one was a very narrow area. As I read Venn that was one of the arguments being put forward by I think Mr Eadie, that there was a very narrow line of cases which fell within Aarhus which were environmental.
87. MR MOULD: And then --
88. MR JUSTICE OUSELEY: It may have been some other (Inaudible), but anyway it's designed to knock that argument on the head, but it doesn't go as far as saying that effectively there isn't a distinction, and the question is whether this case falls within those planning cases that are not environmental. Certainly I would have thought it difficult to say that if you looked at the argument one would say that was environmental, but that's not the issue.
89. MR MOULD: Well, my Lord, I've sought to address -- if the issue is what is the subject matter of the decision.
90. MR JUSTICE OUSELEY: Yes.
91. MR MOULD: Which it is.
92. MR JUSTICE OUSELEY: Yes.
93. MR MOULD: Then I've shown your Lordship that --
94. MR JUSTICE OUSELEY: No, I mean I accept that point. What I'm saying is if one looks simply at the basis of the claim, I think that might be a bit more difficult.
95. MR MOULD: Yes.
96. MR JUSTICE OUSELEY: But I see your argument as to why it wouldn't be, but it's getting a little more refined, but I think that's the wrong line.
97. MR MOULD: Well, I'm happy to change.
98. The only other thing I need to show you before I give way is Mr Corner very kindly set out the definition in the Convention of environmental information in paragraph 77 of his skeleton argument.
99. MR JUSTICE OUSELEY: Yes.
100. MR MOULD: I think he's taken this from --
101. MR CORNER: It's from Lang J.
102. MR MOULD: Lang J's judgment. You see that it means, "any information in written, visual, oral, electronic or any other material form on," and then those three categories are set out, the state of elements of the environment, and they're described, factors such as energy, noise and radiation, environmental agreements, policies, legislation, plans and programmes, et cetera, and then (c):

"The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures referred to in subparagraph (b) above."

103. Well, here we're dealing with a measure that would clearly fall within paragraph (b), because it's a planning permission which is supported by a planning obligation, or an agreement which includes a series of planning obligations, and its purpose and effect is to affect, to use the language of the Convention, or to regulate, using more conventional language, the matters that are set out in paragraph (c), and also it has effect in relation to the matters, those elements of the environment that are set out in paragraph (a), as I've shown your Lordship by reference to the conditions.
104. So for those reasons I would submit that this is very plainly -- the subject matter of the decision in this case falls within the ambit of Aarhus.
105. MR JUSTICE OUSELEY: That may slightly differ from Lang J, which is to focus on the grounds of claim.
106. Right, okay, thank you.
107. MISS SHEIKH: My Lord, the matter only arises for the Mayor if there is an application for leave to appeal and it goes up to the Court of Appeal, otherwise we have our costs for the acknowledgement of service.
108. MR JUSTICE OUSELEY: Right, so you're not asking for more, it's Mr Corner who wants some more?
109. MISS SHEIKH: It's Mr Corner, but I ought to address the matter just in case it does go any further, because then it will become a live issue for the Mayor.
110. The issue, as my Lord has identified, is the provisions in the White Book seem to apply to a claim which could just be a claim about anything that raises any environmental issues, but that's certainly not the way that it's dealt with in the case law, that's not the way it's dealt with by Lang J.
111. MR JUSTICE OUSELEY: Did she address 45.41 in its terms?
112. MISS SHEIKH: My Lord, she doesn't address that, but I don't know if my Lord has the High Court, Lang J's decision.
113. MR JUSTICE OUSELEY: I only have the Westlaw case analysis.
114. MR CORNER: My Lord, I brought along some spare copies, but I have made --
115. MR JUSTICE OUSELEY: Is that a transcript?
116. SECOND MISS SHEIKH: Yes, it is, it's in the JPL, it's a JPL report, but the spare, I'm afraid, that I have is marked, does anybody mind? Nobody can read my writing anyway, so if you don't mind, my Lord, here it is.
117. MISS SHEIKH: I think the paragraphs have been referred to anyway.
118. MR JUSTICE OUSELEY: Thank you very much. Paragraph?
119. MISS SHEIKH: My Lord, on the very front page, so it's paragraph 1, under the actual summary of the order, the summary makes the point that there's a distinction between pure planning issues and environmental issues, and not every planning decision will engage environmental issues falling within the Aarhus Convention. My Lord, it does go on to say that some of the issues in the claimant's claim were purely planning issues, not environmental issues.
120. My Lord, over the page, in fact over several pages, paragraph 15 onwards, Lang J talks about the distinction again between pure planning issues and environmental issues, and then goes on in 16 and 17 to consider what are environmental issues and what are planning issues.
121. My Lord, this element of Lang J's judgment was not challenged or questioned in the Court of Appeal, so that was -- the Court of Appeal disagreed on an issue relating to whether section 288 claims or judicial reviews were covered by the Convention.
122. My Lord, in my submission, in order for this to mean anything it must relate to the decision that's been challenged, and in this case the decision that's been challenged is the decision relating to affordable housing. The decision that's been challenged is not all of the elements of the outcome that the Mayor has granted permission. The issue that's been challenged, the decision that's been challenged, the omission, related to affordable housing, and, my Lord, in my submission that is a pure planning issue.
123. MR JUSTICE OUSELEY: The question of whether there should be affordable housing is a pure planning issue.
124. MISS SHEIKH: It is a pure planning issues. The issue particularly for my Lord --
125. MR JUSTICE OUSELEY: What do you say about Mr Mould's argument on that, that if the community needs air and space, it needs housing too?
126. MISS SHEIKH: Well, my Lord, the issue here was relating to the valuation of the inputs.
127. MR JUSTICE OUSELEY: Okay. How do you deal with the decision as the focus, not the grounds of claim? I appreciate Lang J doesn't deal with it.
128. MISS SHEIKH: No, Lang J doesn't deal with it, and as I say the Court of Appeal doesn't depart from that analysis. My Lord, it's the way that it's read in 45.41 in the White Book, it says an Aarhus Convention claim means a claim for judicial review of a decision, act or omission, all or part of which is subject to the Aarhus Convention. My Lord, it depends on how "claim" is read. The decision has to be related to the claim, is what I say, that's how I deal with that point.
129. MR JUSTICE OUSELEY: Yes, but it can't be right that you look at the grounds of claim. I mean, supposing the issue was financial viability of development.
130. MISS SHEIKH: Yes.
131. MR JUSTICE OUSELEY: Could it afford to retain a batcave.
132. MISS SHEIKH: Retain a batcave, yes.
133. MR JUSTICE OUSELEY: And the batcave was crucial to the financial viability, says Gerald Eve and BPS say, "No, you can have a viable development without the batcave."
134. MISS SHEIKH: My Lord, undoubtedly it is a very wide way of dealing with it, but in that case every decision that relates to planning issues must encompass the Aarhus claim.
135. MR JUSTICE OUSELEY: Do you want to add anything?
136. MR CORNER: My Lord, I'm not sure that I can really add anything to what Miss Sheikh has said.
137. MR JUSTICE OUSELEY: No.
138. MR CORNER: I simply say -- except this, just two very short points, which do no more than point up her submissions. One is if one is looking at issues, my Lord, I would strongly suggest that the issue in this case, the issues subject to the challenge, do not fall within the definition of environment, or environmental, and, my Lord, if "environmental" were to have the wide meaning contended for by Mr Mould, then that would mean that every single planning case would fall within Aarhus.
139. Secondly, as far as rule 41 is concerned, again, my Lord, if the interpretation put forward arguendo by your Lordship were adopted, I find it impossible to see how any planning case would be -- impossible to avoid the conclusion that all planning cases would be covered by Aarhus, which I simply don't accept was ever the intention of the rule making committee, and certainly that's not how the courts, either Lang J or the Court of Appeal, have taken.
140. My Lord, other than that, I adopt the submissions Miss Sheikh has made. Well, I adopt her submissions and add what I've just said, I'm not differing from them in any way. Thank you.
141. MR JUSTICE OUSELEY: I have refused permission to apply for judicial review. The question of the costs of the acknowledgement of service arise.
142. Lewis J in his paper refusal allowed for debate as to whether this was an Aarhus claim on the basis of which he made his order to be revisited at this stage. Mr Mould contends that the protection of CPR part 45.41 applies. Miss Sheikh for the Mayor of London and Mr Corner for the interested party contend that it does not. Mr Mould submits that although the issue was one of the lawfulness of the approach to policy on affordable housing which turned on the lawfulness of the approach adopted to the assessment of the base site value of the application site, nonetheless this falls within the scope of the provision even if one examines it simply as a matter of the nature of the claim. After all, this goes to the provision of housing of a particular sort which is necessary for the accommodation of people. Tenure and price is a relevant planning consideration and has been for many years, affecting one of the most basic requirements for human beings; that is, accommodation in which they can live.
143. Indeed, he goes further and says that if one looks at the decision, the decision in question was within, or at least partly within, the Aarhus Convention. He referred to the range of uses covered by the permission, which included an energy centre, waste and storage areas, open space, as well as the residential, retail and community floor space. Many of the conditions related to environmental matters, from water supply, to sound insulation, to waste disposal, to air quality and the like, not forgetting the biodiversity green/brown roofs.
144. Miss Sheikh and Mr Corner point to the distinction which Lang J drew at first instance in Venn v Secretary of State for Communities and Local Government [2013] EWHC 3546 (Admin) [2014] JPL 447. She drew a distinction between what she described as pure planning decisions and environmental decisions, focussing rather on the nature of the claim.
145. I was also referred to what Sullivan LJ said in that case on appeal at [2014] EWCA Civ 1539 [2015] 1 WLR 2328. In paragraph 11, he referred to what Mr Eadie QC for the Secretary of State had said accepted, which was that the definition of environmental in the Aarhus Convention is:

"... arguably broad enough to catch most if not all planning matters."

146. Sullivan LJ then explains how so much environmental law is given effect in the United Kingdom through the Planning Act and planning policies. He endorses the view that the Convention is intended to be broad, and he upheld Lang J's judgment that the section 288 application in that case, which related to the erection of a new house in the applicant's garden, affecting the loss of green space and the enjoyment of the home of a neighbour, was within the Aarhus Convention. It raised environmental concerns as it was seen by the Royal Horticultural Society as a form of development pejoratively known as "garden grabbing".
147. In my judgment, the question of whether Aarhus cost protection applies is firstly answered by reference to the terms of CPR 45.41. 45.41(2) deals with what is an Aarhus Convention claim. It is:

"A claim for judicial review of a decision, act or omission all or part of which is subject to the [Aarhus Convention] including a claim which proceeds on the basis that the decision, act or omission, or part of it, is so subject."

148. It is to be noted that the question of whether a claim is an Aarhus Convention claim is to be determined not by the grounds upon which a claim is brought, but by the decision which is challenged. In my judgment, the decision which is challenged here is at least in part, for the broader reasons at least given by Mr Mould, subject to the Aarhus Convention. Indeed, I would accept that the question of whether housing in general should be permitted, or affordable housing in particular, falls within the scope of the Aarhus Convention. It does not seem to me therefore that there is any value in analysing the precise nature of the claim which is brought. That is not what CPR 45.41 focuses on.
149. So, although it may seem surprising that an issue which turns on valuation but is related to housing, and that housing is part of a larger development, should be an Aarhus claim, in my judgment, on analysis of the language of CPR 45.41, it plainly is. If the Rule Committee meant instead of the decision that one should focus on the nature of the claim rather than the decision struck at, it would lead to some very odd results, where a decision which was undoubtedly covered by Aarhus would not receive costs protection because some peculiar financial point was being made about it. That is not the intention. The intention is to protect the decision and not the nature of the claim.
150. Mr Corner raises the spectre that this may mean that all planning cases are subject to Aarhus. That may or may not be the case, but it is at least something which the Court of Appeal accepted on Mr Eadie's submission as arguably the position.
151. So I am not persuaded by the fears that Mr Corner may raise. In my judgment the costs orders must follow on the basis that this is an Aarhus claim.
152. MR CORNER: My Lord, I would, had you held that it were not, have sought to persuade you to grant our costs of appearing today, but given that you have held that Aarhus applies, there is no point in my asking to do so.
153. MR JUSTICE OUSELEY: Well, if you want to go further -- well, not if you want to go further, if Mr Mould goes further, you may be able to argue the point there. If you want to get it on the record, just so it's noted, that you do not concede that you weren't entitled to your costs, that's fine.
154. MR CORNER: No, that's my point, my Lord.
155. MR JUSTICE OUSELEY: Of course.
156. MR CORNER: If this matter were to go further I would wish to raise again the Aarhus point --
157. MR JUSTICE OUSELEY: And you would wish to challenge Aarhus and ask for costs.
158. MR CORNER: -- and also to ask for my costs, indeed, yes. Thank you very much.
159. MR MOULD: My Lord, as people are getting things on the record, can I just get something on the record as well. I won't trouble your Lordship very much longer. It's really this: first of all I suppose I ought to say that we would have resisted Mr --
160. MR JUSTICE OUSELEY: Of course you would.
161. MR MOULD: So that's on the record.
162. MR CORNER: Would you?
163. MR MOULD: But the more serious point is this: your Lordship will recall that under paragraph 45.44(3):

"In any proceedings to determine whether the claim is an Aarhus Convention claim ... (b) if the court holds that the claim is an Aarhus Convention claim, it will normally order the defendant to pay the claimant's costs of those proceedings on an indemnity basis."

164. Now, I don't ask the court to make an order to that effect today, but what I do say is that in the event that this is taken any further on that point, then I reserve my position.
165. MR JUSTICE OUSELEY: Very well. The record is burgeoning with points (Overspeaking) on the record, but I understand why you want to ...
166. MR CORNER: Can I just --
167. MR JUSTICE OUSELEY: This in terrorem record noting.
168. Right, okay. Thank you very much. Do you want Venn first instance back?
169. MR CORNER: Thank you very much, my Lord.
170. MR JUSTICE OUSELEY: For your mobile library.
171. MR CORNER: Thank you.
172. MR JUSTICE OUSELEY: I'm grateful to you all for your assistance. Thank you very much.
173. MISS SHEIKH: Thank you, my Lord.
174. MR CORNER: Thank you.