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
		16 December 2015

1. MR JUSTICE MITTING: On 30 May 2012, China Gateway International (CGI) Limited ("CGI") applied for planning permission for an extensive development on two sites on the western fringe of Dover. As originally submitted, the application was for: (a) outline planning permission for: one, the construction of 521 residential units and a 90 apartment retirement "village" on land at Farthingloe; two, the construction of 31 residential units and a hotel and conference centre at Western Heights; three, the provision of pedestrian access and landscaping work between the two sites; (b) full planning permission for: one, the conversion of existing buildings on both sites for a variety of purposes; two, the conversion of the Drop Redoubt at Western Heights into a visitor centre and museum.
2. The Farthingloe site lies in a long, dry valley between the A20 and the B2001 to the west of Western Heights. It comprises 155 hectares of agricultural and scrubland. All of it lies within the Kent Downs area of outstanding natural beauty, which runs westward from the western limits of Dover.
3. Western Heights is a prominent hilltop to the west of Dover on which a series of fortifications were built before and during the Napoleonic wars to protect the western flank of Dover. They include the citadel, now used as an immigration detention centre, and the Drop Redoubt and adjacent bowl. They are acknowledged to be the largest, or one of the largest, and best surviving examples of early 19th century fortifications in England. The site is a scheduled moment. The surviving fortifications are in a poor state of repair and are on the English Heritage at risk register.
4. CGI and Highcliffe Investments Limited ("Highcliffe") own the Farthingloe site between them. CGI owns that part of the Western Heights upon which it is proposed to build 31 residential units and to convert an existing building to provide nine more. Dover District Council owns the site of the proposed hotel and conference centre. Historic England are the custodians of the Drop Redoubt. CGI does not intend to carry out any part of the development itself, but to sell the land which it owns to developers with the benefit of planning permission and thereby make a profit for its shareholders. The easternmost edge of the Farthingloe site is 340 metres from the westernmost fortification and about one and a half kilometres from the Drop Redoubt.
5. The application was and is controversial. The Council for the Protection of Rural England Kent Branch ("CPRE") and others objected to the application and made extensive representations to Dover District Council, as local planning authority, against it. Despite that, on 13 June 2013, the local planning committee resolved to approve the grant of planning permission for the development, subject to the completion of an agreement under section 106 of the Town and Country Planning Act 1990 between CGI and other interested parties and Dover District Council. An agreement was concluded, pursuant to which CGI and Highcliffe agreed to make a total payment of £8,132,499 to contribute to a variety of purposes, of which one, of £5 million, is in issue. It is described as a "heritage contribution" and is to be expended on the refurbishment of the Drop Redoubt and its conversion to a visitor centre and museum. It will not cover the whole cost of either. Smaller payments of £825,000, to help create a countryside access area between the two sites, and £27,000, to provide a paved footpath connecting them, were also agreed.
6. On 18 December 2014, the planning committee approved a revised scheme, including the section 106 agreement. The revision is not material to the issues which arise in this case and I therefore need not set them out.
7. Notification of the grant of planning permission was given on 1 April 2015. CPRE applied for permission to apply for judicial review in time on 10 August 2015. Dove J ordered a rolled up hearing of their application, which I have conducted in the course of the last two days. I have received extensive written submissions and heard one and a bit days of oral argument. One of the issues raised is of importance beyond the facts of this case and is clearly arguable; ground one of the four pleaded grounds of challenge. I therefore grant permission to apply for judicial review and do not propose to limit it to the first ground only. I will put back consideration of an application to amend the statement of facts and grounds to add a fifth ground of challenge to the end of this judgment.
8. Ground one
9. CPRE contend that the heritage contribution of £5 million was and is unlawful and so should have been disregarded by the planning committee when determining CGI's application for planning permission. The relevant parts of paragraphs 115 and 116 the National Planning Policy Framework state:

i. "115. Great weight should be given to conserving landscape and scenic beauty in ... Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to landscape and scenic beauty ...

ii. 116. Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated that they are in the public interest. Consideration of such applications should include an assessment of:

iii. The need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;

iv. The cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way; and

v. Any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated."

10. Section 70(2) of the Town and Country Planning Act 1990 requires a local planning authority, when dealing with an application for planning permission, to "have regard to the provisions of the development plan ... and any other material considerations."
11. The development plan for Dover district contains no provision for housing on either site. CGI's application was for a major development. Dover District Council were therefore obliged by section 70 and by the National Planning Policy Framework to refuse planning permission unless satisfied that circumstances were exceptional and in the public interest. They did so decide. An essential justification for their decision was the obligation entered into by CGI and Highcliffe to make the heritage contribution of £5 million. Without it, and the beneficial results thought likely to flow from it, planning permission would have had to have been refused. It was therefore obviously a material consideration for the purpose of section 70(2). If it was unlawful, it could not have been material, and an essential support for the decision actually made would therefore have been removed.
12. As at June 2013 and December 2014, and 1 April 2015, the lawfulness of a planning obligation under section 106 was determined by regulation 122 of the Community Infrastructure Levy Regulations 2010, SI number 948, which provides:

i. "122. Limitation on use of planning obligations

(2) This regulation applies where a relevant determination is made which results in planning permission being granted for development.

(3) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is --

(a) necessary to make the development acceptable in planning terms;

(b) directly related to the development; and

(c) fairly and reasonably related in scale and kind to the development.

(4) In this regulation --

i. 'planning obligation' means a planning obligation under section 106 of TCPA 1990 ... ; and

ii. 'relevant determination' means a determination made on or after 6th April 2010 --

(a) Under section 70 ... TCPA 1990 of an application for planning permission."

13. Mr Westaway for CPRE submits that in a case in which the planning obligation under a section 106 agreement is to make a payment of money for a specified purpose, "development" in relation 122(2) has a qualified meaning. It means that part of the development for which planning permission is sought which funds the contribution. On the facts of this case, it is the development of the Farthingloe site which will fund the heritage contribution. Therefore, he submits, it is unlawful and should have been disregarded.
14. Mr Cameron QC for Dover District Council submits that "development" in regulation 122(2) has the same meaning as in regulation 122(1). It is the development in respect of which a "relevant determination", the grant of planning permission under section 70, is made. Planning permission in this case was granted for a composite development of the Farthingloe and Western Heights sites, and access land in between. The lawfulness of the planning obligation to fund the heritage contribution must therefore be judged by reference to the development for which planning permission was granted; in other words the whole development, not just or mainly the Farthingloe site.
15. Mr Cameron is right. It would be unusual for the same word "development" in the same regulation to have a different meaning. Further, the approach to construction proposed by Mr Westaway would not chime with the development in case law prior to 2010 of the approach now found in the regulation. Planning law has always recognised the possibility that an application for planning permission may be for a development which includes a number of elements, a composite development. In such a case, the advantages of one element can properly be balanced against the disadvantages of another, as Lord Collins explained at paragraphs 58 and 70 of his judgment in Sainsbury's Supermarkets Limited v Wolverhampton City Council [2010] UKSC 20:

i. "58. The ratio of the decision in Monahan [a reference to R v Westminster City Council, ex parte Monahan [1990] 1 QB 87] is that where there are composite or related developments (related in the sense that they can and should properly be considered in combination), the local authority may balance the desirable financial consequences for one part of the scheme against the undesirable aspects of another part. In R v Plymouth City Council, ex parte Plymouth and South Devon Co-operative Society [1993] 67 P & CR 78, at 88, Hoffmann LJ observed that the Monahan decision concerned what was treated as a single composite development, and held that there was a sufficient nexus between the office development and the Opera House improvements to entitle the planning authority to say that the desirability of the latter fairly and reasonably related to the former, because of (1) the financial dependency of the one part of the development on the other and (2) their physical proximity.

ii. ...

iii. 70. What can be derived from the decisions in the planning context, and in particular the Tesco case, can be stated shortly. First, the question of what is a material (or relevant) consideration is a question of law, but the weight to be given to it is a matter for the decision maker. Second, financial viability may be material if it relates to the development. Third, financial dependency of part of a composite development on another part may be a relevant consideration, in the sense that the fact that the proposed development will finance other relevant planning benefits may be material ... There must be a real connection between the benefits and the development."

16. Mr Westaway accepts that whether an application for planning permission was for a development which could properly be described as composite was a matter for the judgment of the local planning authority and is reviewable only on standard public law grounds. His acceptance of that proposition is correct. The critical question in this case is therefore whether the local planning authority did treat the development as a composite development and were entitled to do so. I have no doubt on the facts that they did treat it as a composite development. The planning officers sought legal advice on the issue, as it happens, from Mr Cameron. In paragraph 2.388 of their advice to the planning committee for its meeting on 13 June 2013 they summarised his view:

i. "The following important conclusions are reached ...

ii. The application now demonstrates how the various elements of the proposal are connected or linked in one scheme. The overall purpose of the scheme is to achieve regeneration objectives through stimulating tourist activity and economic regeneration. A linkage is proposed between the two main development areas at Farthingloe and Western Heights by the countryside access area (CAA) which would in itself also contribute to the tourism/generation objectives ...

iii. The principle is established that it is material for the financial viability of one part of a scheme to fund another part of a scheme, provided there is a real connection between the contribution and the development proposed. In this case the payment to restore the heritage asset arising from development primarily at Farthingloe is an essential part of the regeneration/tourism scheme objective. As such the contribution is a material consideration.

iv. Accepting that the proposals can be considered as a composite whole, as detailed above, it is open to the council to conclude that the heritage payment is necessary to make the development acceptable in planning terms in that the benefits to be derived are necessary to outweigh harm to the scheduled monument and to the area of outstanding natural beauty. In taking this view, the council would need to form a judgment on the prospects of restoration taking place if the funds are made available ...

v. As the restoration of the heritage assets funded by the heritage payment forms part of the overall regeneration scheme, and each element of the development forms part of a composite whole, it is open to the council to form the view that the payment is directly related to the development.

vi. The scale of the contribution is related to the scale of the works required to the heritage assets as part of the comprehensive scheme and therefore it is open to the council to view that the heritage payment is reasonably related in scale and kind to the development proposed.

vii. 2.389. Taking into account this legal advice, and subject to the predetermination matters outlined elsewhere in this report relating to further reinforcing the linkages between Farthingloe and Western Heights, clarifying the scope/nature of the CAA and creating certainty around the delivery of the heritage benefits, it is considered that the heritage payment would comply with regulation 122 (CIL regs) and as such could constitute a reason for granting planning permission."

17. Seven of the nine councillors making up the planning committee on 13 June 2013 spoke at the meeting, six in favour and one against. The minutes of the meeting demonstrate that all seven understood the scheme to be a composite development whose merits and demerits should be judged as a whole.
18. Mr Cameron's advice was correct. The development could properly be treated as a composite scheme. In public law terms, the decision to do so is not therefore open to challenge. Treated as a composite development, the questions posed by regulation 122 answer themselves. The heritage contribution was necessary to make the development acceptable in planning terms. Without it, the advantage which went a considerable way to balancing the disadvantage of development on an area of outstanding natural beauty could not be achieved. It was directly related to the development. It was to be expended on a part of the development for which planning permission was given, the restoration of the Drop Redoubt and the creation of a visitor centre and museum. It was fairly and reasonably related in scale and kind to that part of the development -- at least that sum was required to fund it -- and also to the development as a whole, which was understood, rightly, by all to be a major scheme.
19. Ground one, therefore, fails.

Ground two

20. Mr Westaway submits that inadequate reasons were given to justify the decision of the local planning authority that exceptional circumstances justified departing from the statement made in National Planning Policy Framework paragraph 116 that planning permission in an area of outstanding natural beauty should be refused for major developments. Regulation 24(1)(c) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, SI number 1824, provides:

i. "(1) Where an EIA application is determined by a local planning authority, the authority shall ...

ii. (c) make available for public inspection at the place where the appropriate register (or relevant section of that register) is kept a statement containing --

(i) the content of the decision and any conditions attached to it;

iii. (ii) the main reasons and considerations on which the decision is based including, if relevant, information about the participation of the public;

iv. (iii) a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development; and

v. (iv) information regarding the right to challenge the validity of the decision and the procedures for doing so."

21. This was not done. Nevertheless, the reasons for the decision can readily be discerned from the minutes of the meeting on 13 June 2013. The six councillors who spoke in support of the development are noted to have said the following:

i. "Councillors G Cowan, RS Walkden and P Walker spoke in favour of the proposals, stating that the application offered a rare opportunity for regeneration and investment and should be grasped. Its approval would encourage developers to invest in Dover and act as the catalyst for further regeneration of the town. Moreover it would assist in safeguarding the town's heritage assets and revive the Western Heights area of the town as a tourism destination. Dover lacked a first class hotel and building one with conference facilities would help to realise the potential of Dover's high speed rail link and cruise terminal. Approval would be a courageous step but was necessary to give Dover's young people a future. However, it was felt that the application should not be restricted in the way proposed in the recommendation, as this could jeopardise the viability of the scheme, deter other developers and be less effective in delivering the economic benefits. The committee had to assess whether the advantages outweighed the harm that would be caused to the area of outstanding natural beauty. When seen from the ground and with effective screening, it was believed that this could be minimised. In these exceptional circumstances, it was considered that the advantages did outweigh the harmful impact on the area of outstanding natural beauty ... councillor B Gardener raised concerns regarding the security of the £5 million heritage payment ... given the significance of the heritage benefits, it was imperative that the development went ahead as planned to ensure that heritage assets were restored ... councillor KE Morris welcomed the public speakers' contributions which had given the committee food for thought. It was felt that the proposed development would have a balancing effect on recent job losses in the district. The fact that there were developers who are still interested in Dover, despite wider economic uncertainties, was to be welcomed. There were questions around the scheme's commercial sustainability and for this reason it was suggested that the density of housing at Farthingloe C should not be reduced as recommended by officers, nor should linkages be made between the construction at Farthingloe B and the Western Heights. Councillor PM Beresford added that there was a responsibility to make Dover an attractive place to live and work and to care for the town's heritage. Dover was in great need of regeneration and by construction and conservation working hand in hand this could be achieved in a sustainable way."

22. Mr Westaway accepts that if the only respect in which the decision making of the local planning authority is flawed is its failure to fulfil its statutory duty to make a statement of reasons, the acknowledgement of that failure, which has already been made by Mr Cameron whose statement I adopt, will suffice, and no further remedy, for example a declaration or order to give reasons, is required. He makes the more fundamental submission that the failure to fulfil that duty demonstrates that the local planning authority did not have regard to the statement in paragraph 116 of the National Planning Policy Framework that consideration of the application should include an assessment of the extent to which any detrimental effect on the environment and landscape could be moderated.
23. The planning officers in their report to the planning committee for the meeting on 13 June 2013 made trenchant criticisms of the density and layout of the development proposed on the Farthingloe site. In their view the same heritage contribution could be achieved by reducing the number of residential units from 520 to approximately 365, with some alterations to the design of the housing units. They sought advice from Smiths Gore about the likely impact of this reduction on the financial viability of the scheme, and in particular on its effect on the heritage contribution. Smiths Gore advised that with alterations to the design of the units, the reduction in number would not affect the financial viability of the scheme, and so not put at risk the heritage contribution.
24. When this proposal was put to CGI, their advisers, BNP Paribas Real Estate, advised on 11 June 2013 that the reduction would mean that the scheme would not secure funding and so could not proceed. Their opinion was conveyed to the planning committee.
25. It is plain from the minutes already cited that the majority of councillors concluded that the reduction proposed by the planning officers would jeopardise the scheme and so put at risk the benefits which they were anxious to secure for Dover. It is necessarily implicit in that reasoning that although they assessed the extent to which the detrimental effects on the environment and landscape could be moderated, they concluded that the proposal for moderation advanced by the planning officers would jeopardise the scheme and so could not be accepted. Accordingly they voted to reject that advice and approve the scheme at the original density. In so doing, they fulfilled the obligation of their authority to make the assessment required by paragraph 116 of the National Planning Policy Framework.
26. Ground two is therefore rejected.
27. I can deal with grounds three and four together. Mr Westaway submits that in deciding that exceptional circumstances justified the grant of planning permission for a major development on the Kent Downs area of outstanding natural beauty, the local planning authority misdirected itself about a factor upon which it relied; its inability to demonstrate a five year housing land supply. Paragraphs 47 and 49 of the National Planning Policy Framework state:

i. "47. To boost significantly the supply of housing, local planning authorities should:

ii. ...

iii. Identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements with an additional buffer of 5 per cent (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20 per cent (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land;

iv. . ..

v. 49. Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites."

28. The framework is supplemented by Planning Practice Guidance on housing and economic land availability assessment. Page 15 of the guidance contains the following statements:

i. "The National Planning Policy Framework requires local planning authorities to identify and update annually a supply of specific deliverable sites sufficient to provide five years' worth of housing. As part of this, local planning authorities should consider both the delivery of sites against the forecast trajectory and also the deliverability of all the sites in the five year supply.

ii. Local planning authorities should ensure that they carry out their annual assessment in a robust and timely fashion, based on up-to-date and sound evidence, taking into account the anticipated trajectory of housing delivery, and consideration of associated risks, and an assessment of the local delivery record. Such assessment, including the evidence used, should be realistic and made publicly available in an accessible format. Once published, such assessments should normally not need to be updated for a full twelve months unless significant new evidence comes to light or the local authority wishes to update its assessment earlier.

iii. By taking a thorough approach on an annual basis, local planning authorities will be in a strong position to demonstrate a robust five year supply of sites. Demonstration of a five year supply is a key material consideration when determining housing applications and appeals. As set out in the National Planning Policy Framework, a five year supply is also central to demonstrating that relevant policies for the supply of housing are up-to-date in applying the presumption in favour of sustainable development."

29. Dover District Council did conduct an annual assessment in accordance with that guidance and produced annual monitoring reports. For the purposes of the planning committee meeting on 13 June 2013, the latest report was that for 2011/2012. It concluded that with a 5 per cent buffer there was a shortfall of 620 units, and with a 20 per cent buffer a shortfall of 999 units.
30. In their report to the committee meeting, the planning officers set out the steps which had been taken to identify sites other than the Farthingloe site for house building. Their conclusions were set out at paragraphs 2.44 and 2.46:

i. "2.44. It is therefore concluded that while there are options to develop outside the area of outstanding natural beauty, they are not viable for a combination of reasons, such as conflict with core strategy, locational policy, access issues, flood risk, and landscape impact. There is no proven practical scope for developing elsewhere outside the area of outstanding natural beauty.

ii. ...

iii. 2.46. The analysis from a housing delivery perspective indicates that the greatest weight must be given to the inability to demonstrate a five year land supply. As a consequence, and with regard to the area of outstanding natural beauty policy tests at paragraph 116 of the National Planning Policy Framework, it appears reasonable to conclude that the delivery of housing in the particular circumstances of this case would help address the test relating to establishing a national need for the development."

31. Mr Westaway criticises the language used in the first section of paragraph 2.46 and submits therefore that the committee must be taken to have given "the greatest weight" to this factor.
32. The extracts from the minutes already cited demonstrate that it did not. Further, the words do not bear the weight placed on them by him for two reasons: one, all that the officers said was that "from a housing delivery perspective", "the greatest weight must be given et cetera". They did not suggest that when making an overall planning judgment the committee must give the greatest weight to this factor. Their overall conclusion was measured and balanced and was set out in the second sentence of paragraph 2.46, which I have already cited. Further, in their minuted oral report to the committee, they are noted to have advised:

i. " ... that the application has been assessed principally against National Planning Policy Framework policies rather than the core strategy, due to the council's reliance on national policy as a result of being unable to demonstrate a five year housing land supply. The proposed development would contribute significantly to the latter ..."

33. That statement was clearly unobjectionable.
34. I therefore reject this part of Mr Westaway's submissions.
35. By the time the committee reconsidered the application on 18 December 2014, four things had happened: one, the annual monitoring report for 2012/2013 had been published; two, on 2 September 2014, the same committee had resolved to grant outline planning permission for 500 residential units at a former industrial site vacated by Pfizer; three, on 1 December 2014, Dover District Council approved the annual monitoring report for 2013/2014; four, on 5 December 2014, an inspector appointed by the Secretary of State reported that Dover District Council's land allocations local plan, including its housing provision, was sound.
36. The annual monitoring report for 2012/2013 showed a shortfall of 605 units with a 5 per cent buffer. Based on that report, the inspector reported that there was unlikely to be a shortfall in housing provision, but only if the Farthingloe site was included. The annual monitoring report for 2013/2014 showed a shortfall of 347 units, on the basis that 350 of the units for which permission had been granted at the Farthingloe site would be built within five years. Its conclusions were summarised in the planning officers' report to the committee for its meeting on 18 December 2014. The report contained no reference to the resolution to grant planning permission by the same committee on 2 September 2014. Mr Westaway submits that it should have been referred to, and that without reference to it, the report was misleading and so the committee may well have made its decision to maintain approval of the application on a materially erroneous basis.
37. At first sight, there is some force in this submission. The permission, if it led to the grant of full planning permission and was built out within five years, would have eliminated the assessed deficit and would have got within 200 units of doing so, if the 350 units assessed as the contribution of the Farthingloe site were to be removed.
38. The submission, however, is convincingly answered by two considerations: one, the committee must have known that it had granted outline planning permission only three and a half months before; and two, as Mr Ebbs, the head of regeneration and development at Dover District Council explains in his witness statement of 30 June 2015, the latest annual assessment is for good reason taken to be the yardstick for the judgment of the planning committee. Assessing housing provision is a time consuming task, requiring large amounts of evidence to be assembled and digested. Judgments have to be made about the likelihood within five years of the grant of planning permission of a site being fully or partly built out.
39. This is an exercise which can only reasonably be performed annually, as the Planning Practice Guidance already cited recognises. If the exercise had to be undertaken especially for the purpose of the meeting on 18 December 2014, deductions from the housing land provision set out in the 2013/2014 annual monitoring report would have had to have been made as well as additions. A judgment would have had to have been made about the likelihood and rate of building on the Pfizer site. Hence the officers' conclusion in their report to the committee that Dover District Council was still unable to demonstrate a five year supply of housing land was justified. I accept that reasoning.
40. These grounds therefore also fail.
41. Ground five
42. Mr Westaway sought permission to add a fifth ground. An option agreement signed on 1 April 2015, by which Dover District Council gave to CGI and Highcliffe a four year option to buy the land required to build the hotel and conference centre at a price 65 per cent below the assessed market value, amounted to unlawful state aid under European Union law and also to a local planning authority subsidy for a development for which it is granted permission. The proposal to enter into such an agreement must, he submits, have been mooted by the time the committee made its decision on 18 December 2014. It is not mentioned in the officers' report or in the minutes. The decision must therefore have been made in ignorance of a material factor.
43. There is a short answer to this point. The planning officers' report to the committee expressly stated at paragraph 133 the following:

i. "It should be noted, however, that despite the significant benefits a hotel would generate, there is no guarantee that this element of the total package would be implemented. Its provision would be entirely dependent on market forces."

44. Further, no part of the rest of the development, including that which went to fund the heritage contribution, depended on the building of the hotel. Even if, which has not yet been established by evidence, the local planning authority knew that it was proposing to enter into an option agreement with the level of subsidy afforded by it, it will not have been a material consideration for planning purposes, the omission to consider which required the decision to be quashed.
45. If necessary -- but in my judgment it is not -- I would also have concluded that, under section 31(3D) of the Senior Courts Act 1981, it would be highly likely that the outcome of a judicial review on this ground for the claimants would not have been substantially different. I would therefore be required by this new provision to refuse permission to apply for judicial review.
46. For those reasons, I refuse to grant permission for the amendment, and for the reasons which I have just completed giving, I dismiss this claim.
47. MR CAMERON: My Lord, thank you. I have one application for costs. There is a summary schedule of costs, but in this case it is an Aarhus Convention claim and the maximum amount, because the claimant is an organisation rather than an individual, would be £10,000. So I make an application in the sum of £10,000.
48. My Lord, just before Mr Westaway responds, when your Lordship comes to approve the note of the judgment, there are just two very minor points.
49. MR JUSTICE MITTING: Yes.
50. MR CAMERON: Your Lordship referred to the planning permission at Discovery Park. You said there was a no reference to the planning permission granted on I think 2 September. There was in fact a resolution to grant on that day rather than an actual grant.
51. MR JUSTICE MITTING: You're quite right. Thank you for that correction.
52. MR CAMERON: My Lord, the other one. When your Lordship was referring to regulation 122, at one point in the judgment your Lordship referred to a "relevant decision". It's a "relevant determination".
53. MR JUSTICE MITTING: Thank you.
54. MR CAMERON: Again, I don't think it makes a great deal of difference, but if I say it now, it will remind your Lordship when your Lordship comes to approve the judgment.
55. MR JUSTICE MITTING: It will appear on the transcript and I will make the necessary corrections. Thank you.
56. Mr Westaway, do you accept that this is an organisation claim and therefore the £10,000 limit applies?
57. MR WESTAWAY: Yes. The box was ticked on the claim form, so it falls within (Inaudible).
58. MR JUSTICE MITTING: Yes. Have you been shown a schedule of costs?
59. MR WESTAWAY: We have been shown, we've considered, and we accept that it's above that amount.
60. MR JUSTICE MITTING: Yes.
61. MR WESTAWAY: And I don't resist the put forward quantum of £10,000.
62. MR JUSTICE MITTING: Right.
63. MR WESTAWAY: The only further matter from me, my Lord, is appeal. I do seek permission to appeal on the four grounds upon which permission was granted. It may be that it's not necessary to use much court time to set out the reasons for those, they largely reflect the arguments of today and yesterday. I'll simply add that in my submission on ground one in particular not only is there a real prospect of success of the Court of Appeal taking a different view, but it's a matter importance, and your Lordship recognised that the issue raised importance beyond the facts of this case. It is an issue of importance in a number of respects: firstly from a purely legal(?) point of view in terms of being an interpretation of regulation 122 and in particular subsection (2) of that, when one's looking at what is meant by the relationship with the planning obligations that are referred to in that subsection.
64. It is further in my submission a matter of importance because it raises the (Inaudible) point. It is right that one can draw a bent line around a number of different areas and thereby respectively and potentially be varying the application of those requirements. That raises an interesting question and in my submission it is not appropriate that the regulatory criteria which has tests that must be complied with can be avoided by, if I can call it this, a composite approach being adopted by the parties. In terms of the composite approach, that causes questions for the planning authority, but in my submission it is not simply a question of Wednesbury unreasonableness whether something is composite, the planning authority must go on and answer the substance of the law courts, both in terms in (Inaudible), the Sainsbury's point, and in terms of the reg 122(2) point, before it can be properly said, "Oh, it's composite, therefore those requirements are (Inaudible)".
65. So in my submission there is some real importance in that matter being considered at a high level, and in terms of the specific interpretation of these new provisions, I think that I can say while there has been some general discussion of them, there has been no focussed interpretation of what the meaning of "development" is in say reg 122, that's a matter of substantial importance.
66. On ground two, there is a real prospect of the Court of Appeal taking a different view, and I note in your Lordship's judgment that you referred to it being implicit in the reasons that the officers' advice had been rejected. Well in my submission that's not enough, where there's express national policy that has been applied.
67. On grounds three and four, my Lord, I simply reiterate my submissions about the appropriateness of using the yardstick in the annual monitoring report to justify the conclusion of very significant weight for housing land supply deficit without regard to other factors. The plain submission was not that the annual monitoring report needed to be redone, simply that that was something that was relevant and should have expressly, in my submission, been drawn to (Inaudible)'s attention.
68. So for those reasons those four grounds, although clearly three, grounds one, two and three, three and four having been rolled together, I ask for permission to appeal.
69. MR JUSTICE MITTING: Yes. Any reply?
70. MR CAMERON: I oppose that application. It is of course a matter for your Lordship, but on the real prospect of success, I leave that for your Lordship to judge, but on the second point, the matter of importance, the provisions of CPR 52.36, permission to appeal may be given only where, (b), there is some other compelling reason why the should be heard. My Lord, the argument is put it's a matter of importance, but the question is, is there some other compelling reason? In my submission there is no such compelling reason. Regulation 122 is in my submission simple to interpret, it has been considered in other cases, for example in the (Inaudible) village case, and this isn't a matter of such importance that it would amount to a compelling reason to give permission to appeal.
71. MR REED: My Lord, can I reiterate those observations of Mr Cameron.
72. MR JUSTICE MITTING: First, the claimants must pay the defendant's costs capped at £10,000. Secondly, I refuse permission to appeal. I do not believe that there is a realistic prospect of success and it is for the Court of Appeal, not me, to judge whether the issue raised in ground one, which I acknowledged to be of importance, provides a compelling reason why the appeal should be heard.
73. MR WESTAWAY: My Lord, there's just one other matter that turns on any approach that my lay client may make to the Court of Appeal. I would ask for an extension of time to 14 days following receipt of the transcript for that. That would allow for appropriate careful consideration of your Lordship's judgment when it arrives. In the alternative, my Lord, Christmas is almost upon us, it knocks out at least seven days, if not more, from a reasonable timetable (Inaudible) could have 21 days. So in the alternative if your Lordship, if your Lordship's not (Inaudible) I would ask for an extension of seven days. I think, if my maths is right, although it may be sensible for this double checked, that will take us to 13 January. So I ask for those in that order.
74. MR JUSTICE MITTING: Any comment on that?
75. MR CAMERON: No.
76. MR REED: My Lord, I object to that approach. There has been a full judgment given by your Lordship today, and points that have been raised by your Lordship are clear points, they are ones that are capable of being considered in an application for permission in short order.
77. My Lord, there's the additional point that my clients of course are the beneficiaries of the planning permission and they need certainty and surety about the validity of that permission, and so in those circumstances, my Lord, I ask that the application be refused and the usual timescale applied.
78. MR JUSTICE MITTING: Just let me speak to the shorthand writer a moment, please. (Pause)
79. I am told that the shorthand writer will expedite the production the judgment and will have it on my desk on Friday this week. I will then check it on Friday and send it out. In those circumstances I don't think you need any extension of the usual time. If there is some shortfall in that expectation, make an application on paper and I will grant you additional time by reference to receipt of the transcript, but I will limit it to seven days.
80. MR WESTAWAY: My Lord, what about the Christmas point?
81. MR JUSTICE MITTING: Well, I'm afraid that given the economic importance of the case to the interested party, and the general importance to the citizens of Dover, that a little overtime may have to be worked.
82. Thank you all for your submissions.