QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| PS by his litigation friend TS
|- and -
|Royal Borough of Greenwich
- and –
(1) Enderby Wharf Ltd
(2) Enderby Riverside Ltd
(3) Enderby Isle Ltd
Mr Thomas Hill, QC and Mr Christiaan Zwart (instructed by RBG) for the defendant
Mr Paul Tucker, QC and Mr Anthony Gill (instructed by Nabarro Llp) for the interested parties
Hearing dates: 12th and 13th July 2016
Crown Copyright ©
Mr Justice Collins:
"The claimant is granted permission to bring a claim for judicial review of the defendant's decision dated 23rd December 2015 limited to that the defendant's decision was (arguably) unlawful by the failure to require, or take into account the need for, an assessment of the total cumulative and combined effects on air quality that included the effects of the ship emissions."
The claimant was required to serve detailed grounds which met this limitation. In her skeleton argument, Ms Wigley has set out four grounds which she submits show that there was the failure identified which Dove J considered arguable in his grant of permission.
"It is important to note that the claimant does not object per se to the cruise terminal or to the liners. The claimant is simply concerned that the resulting pollution and health impacts be avoided. The significant air pollution that will inevitably arise from berthing liners could be avoided by the provision of on-shore power supply so that the ship's engines may be turned off when berthed. This has not been required by the planning permission, and the investment of providing it has not been balanced against the true costs of the development in terms of its impact on air quality."
"The EIA should investigate in detail the effects of ships engines running while docked on nearby sensitive premises.
The docking of vehicles for longer periods may lead to increased emissions (e.g. if the motor is kept running/other on board equipment). The potential effects should be appropriately assessed in the ES. It should also be noted that the noise associated with cruise ships is to be assessed (page 23 of the EIA scoping report) and therefore it is considered appropriate that emissions associated with cruise ships also be assessed."
The word 'vehicles' in the first sentence of the second paragraph cited above is a mistake, it would seem, for vessels.
"77. In relation to the potential for effects of cruise ships berthing at the jetty, based on the information regarding the use of the Enderby Wharf terminal by cruise liners, and current guidance, the potential effects on local air quality and the proposed land use are likely to be insignificant and therefore, no further assessment to sulphur dioxide emissions from cruise liners is considered to be required to inform the assessment of environmental effects of the Proposed Development.
78. Predictions of NO2, PM10 and PM2.5 concentrations at existing receptors in the vicinity of the Proposed Development and local road network have shown that there would be low and very low changes in pollutant concentrations between 'Without Development' and 'With Development' scenarios. The impact of the additional emissions from road sources at Enderby Wharf during operation of the Proposed Development to sensitive receptors is therefore considered to be negligible."
This is clearly recognising that the development did not change the ability of ships to moor at the wharf as had been decided in 2012.
In dealing specifically with air quality, the same approach is made.
"Development proposals with the potential to result in any significant impact on air quality will be resisted unless measures to minimise the impact of air pollutants are included. Such planning applications should be accompanied by an assessment of the likely impact of the development on air quality."
In addition, policy 7.14 of the London Plan provides, so far as material, that particularly in AQMAs development should be air quality neutral and should not lead to further deterioration of poor air quality. The officer's report refers to those. This submission cannot succeed since it is clear that not only was this considered but the reports obtained indicated that there was no significant increase in air pollution from the development and indeed that even with the ships' emissions there would be no unacceptable increase in pollution. The submission that these policies required consideration of the total emissions is not sustainable since it is clear that the effect of a development is what matters.
"The High Court –
(a) must refuse to grant relief on an application for judicial review…….if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred."
The court has always had a discretion in deciding whether notwithstanding any unlawfulness in a decision relief should be granted. But that has been exercised, submits Ms Wigley, on a narrower basis than 'highly likely', namely would the decision necessarily have been the same. Section 31(2A) makes mandatory what was discretionary but does not remove the power to exercise discretion in a particular case. The submission seems to depend on arguing that the wording of s.31(2A) in using the past tense looks back to the time of the decision and does not include any future material and means the situation before the amendments were made resulting in s.31(2A). There is certainly scope for arguing that s.31(2A) should be narrowly construed, but in that case there is no need to consider those details. It is clear to me that outcome for the claimant would have been no different since, if he succeeded, the 2012 permission would go ahead and the same emissions from the ships would occur. Thus whether under s.31(2A) or in the exercise of my discretion I would have refused relief.