High
Court judge rules for CATI
We
win our long delayed application for an emergency hearing!
Judge
Curran agreed that Ms Pauline Ellaway is a 'standard bearer' for
many other members
of the public who are deeply concerned about the
incinerator development.
He
ordered an emergency full hearing of Ms Ellaway's case at which all
issues will be
considered. The legal firm
Richard
Buxton Environmental and Public Law who
are
acting
for Ms Ellaway are proposing a December dates for the hearing in
Cardiff High Court.
The
Judge said “the actions of Viridor in the first place in proceeding
to begin works
prematurely, as they did, and of the council in
protesting only after being prompted by
CATI, and then effectively
condoning such conduct” raise issues of “procedural propriety”.
CATI is pleased that the Judge ruled in favour of most of our points,
accepting the Hearing
would cover
An order quashing the grant of the subsequent applications
approval;
A declaration that the decisions of the Council on 13 February to
treat the proposed
subsequent applications approval as
retroactively permitting the unlawful works
and rendering
enforcement action inexpedient was unlawful;
An order requiring the Council to reconsider enforcement action
against the unlawful
works.
Dave
Prosser of CATI said: “the judge slapped down the Council's
assertion that our objections
were 'unarguable'. Their planning
committee had the legal case before them at their meeting
in
February, but led by their chair Cllr Michael Michael, failed to seek
proper advice
before they dismissed it, deciding then to risk public
money on a court case”.
Max
Wallis of CATI added:
“The
judge has knocked another hole in Cardiff Council's plan to sign a
contract with Viridor,
with the High Court judge finding the company
acted unlawfully in starting building works
last July, action that
Cardiff Council condoned by refusing to stop it. It's a further
reason
for the five Councils in Prosiect Gwyrdd to question the
£600million 25-year contract to
incinerate excessive tonnages of
waste.”
Cardiff's
Cllr Govier stated* that 80% of Cardiff's black-bag wastes is
recyclable, yet the
recycling plans would take out only 30% of it
(increase the current 50% recycling to 65% only)
and send the
remainder of which half is 'recyclable' to the incinerator. It
follows the
proposed contract figures should be halved. As the other
Councils' proposed guaranteed
waste tonnages are similarly over-high,
they should all be demanding a review of the
proposed contract.**
At
the emergency hearing of the case in Cardiff High Court, Dave Prosser
of CATI will testify
to the extent of the unlawful building works,
which Cardiff did nothing to check and stop.
Max Wallis will testify
how CATI has found the Council ignoring and misrepresenting
criticisms,
disregarding their duties to protect the environment and
health from Viridor's incinerator.
The
Community is required to raise £3000 to towards the costs of the
legally-aided case
spearheaded by Pauline Ellaway; CATI is appealing
for further donations [4].
CONTACTS
Max Wallis 07714163254
Rob
Griffiths 07790 884137
David
Prosser (Press officer) on 029 20791993 (h), 07504 323422 (m)
Pauline
Ellaway (Claimant) on 07837 346114
Lisa
Foster (Buxton lawyers) 07970 097402
/
FURTHER INFORMATION
**
The Councils' claims of “savings” from the £600million year
incineration contract are
completely fictitious, as the greatest
savings come from avoiding incineration costs through
sorting the waste
and selling it for recycling, as Cllr Govier now proposes.
The
High Court decision, if it goes in favour of CATI, will be
ground-breaking in ensuring
Councils follow the law rather than
political motivations. It will set back the Viridor project
to
square 1, when the Councillors can turn it down as entirely
unsuitable for the Splott and
Cardiff Bay site [3].
It
will also extricate Cardiff from the 25-year contract to incinerate
large tonnages of waste rather
than reduce and recycle waste in
accord with policy. No-one can justify long contracts when
waste
processing is changing rapidly towards recycling. While other
councils try to re-negotiate
such contracts, Cardiff’s current
leaders rush to sign one. They may well be caught because
the
subsidy offered by the Welsh government is unapproved by Europe so
could be
“illegal State Aid” under the European Treaty.
--------------------------------------------------------------------------------------------------------------------------------
Support
our Community Legal Action <cardiffagainsttheincinerator@gmail.com>
[1]
The request to Cardiff High Court, lodged on Tuesday 26th
March, was for the following:
* An order quashing
the grant of subsequent applications approval dated 25 February
2013;
* A declaration
that the decision of the Council to treat the subsequent
applications approval as retroactively permitting the unlawful
works and rendering enforcement action inexpedient was unlawful;
* An order
requiring the Council to reconsider enforcement action against the
unlawful works
* An
order directing the Council to issue an enforcement notice and/or
stop notice prohibiting further continuation of unlawful
development.
[2]
25-year contract for £600million between the 5 Local Authorities, of
which Cardiff will pay
about £250 million.
[3]
Entirely unsuitable for the Splott and Cardiff Bay site on grounds of
lorry traffic, flood risk,
hazard to health and processing hazardous
ash. It's also unsuitable for use of the huge
quantities of waste
heat, because the claims for a city-wide pipe network are unviable
fantasy, not part of a full district heating scheme meeting the big
seasonal variations in demand.
[4]
Appeal
for our Community Legal Action fund
Please
contribute to our £3,000
legal action fund.
You can do this by:
Making
a donation
by cash or cheque
(made payable to 'CATI') and sending it to CATI,
58 Janet St.,
Splott, Cardiff CF24 2BE.
Donation
to an accredited CATI representative (who will have proper ID).
Phoning
David Prosser on 029 20791993 (h), 07504 323422 (m) or emailing us
at cardiffagainsttheincinerator@gmail.com
to arrange a visit.
Paying
online into our account (The
Cooperative Bank, Sort Code 08-92-99
Account No. 65423583) or at the
Bank in High Street, central Cardiff.
Paying
online via
PayPal
at www.ukwin.org.uk
(add “for CATI/Cardiff” in the
comment
box
on second page, called 'Review
Donation').
COURT RULING
Neutral Citation
Number: [2013] EWHC 2907(Admin)
IN THE HIGH COURT OF JUSTICE
sitting as a judge
of the High Court
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The
Queen on the application of
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Viridor
Waste Management Limited
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Defendant
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Alex
Goodman (instructed by Richard Buxton) for the Claimant
Simon
Bird QC (instructed by the Chief Legal Officer) for the Defendant
David
Holgate QC (instructed by Bevan Brittan) for the Interested Party
Hearing
date: 12 July 2013
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This is a renewed application for permission to apply for judicial
review in order to challenge
planning decisions of the Defendant,
Cardiff County Council, in respect of the development
of a waste
incinerator by the interested party, Viridor Waste Management Ltd
(“Viridor”),
at a site in Cardiff Bay, including the decision
of the defendant council dated 25th February 2013 to
revoke pre-commencement conditions, and to approve retrospectively
works which have already been performed at the site.
The single judge, His Hon. Judge Jarman QC, sitting as a judge of
the High Court, refused
permission on the papers on 1st May 2013.
In the briefest terms, the history of the matter is as follows. In
2008 an unsuccessful application
was made for permission to develop
an energy waste facility for Cardiff at the same site.
Whilst
concern had been raised about the potential effect of such a
development on the
estuary of the River Severn in terms of what is
called eutrophication, (which I understand
to be the process by
which airborne particles generated by that proposed development
may
be absorbed in water) and the acidification of the water in the
estuary, the actual
grounds for refusal concerned in part recycling
targets set by the Welsh Assembly
Government, and included
considerations such as the import of waste from outside
Cardiff, and
the export of what is known as hazardous fly ash. Permission was
refused in 2009.
On 29 June 2010 the Council granted a full planning permission to
Viridor on a new
application for a major development on the site at
Trident Park, Glass Avenue, Cardiff,
to include an “energy from
waste” (“EFW”) facility; a combined heat and power plant;
a
pre-treatment and recycling facility; an “Incinerator Bottom Ash
Recycling plant”;
and associated offices. This proposed
development differed in a number of respects
from the previous
application.
There were a number of conditions attached to the permission, (“the
pre-commencement
conditions”) and Viridor were required to obtain
approvals from the Defendant Council
to certain matters before
development commenced under the permission. Applications
for such
approvals under the pre-commencement conditions constituted
“subsequent
applications” under Reg. 2(1) of the Town and
Country Planning (Environmental
Impact Assessment) (England and
Wales) Regulations 1999 (“the EIA Regulations.”)
There was no
challenge by judicial review to the actual grant of permission,
whether in relation to the EIA Regulations, or in respect of what
has been called the
‘Habitats Directive.’
On 19 July 2012 the Council published a consultation notice on the
subsequent applications.
However, in what was on any view a
premature move, on 20th July 2012 Viridor began
operations with works on site. It continued to do so for a period of
eight months
despite admonitions from the Defendant Council and
protests from the Claimant a
nd her associates.
The Claimant is and has been for some time an objector to the
development. She is a member
of a campaign group, called “Cardiff
Against the Incinerator” (“CATI”). She lives close to
the
site in question, and has drawn attention not merely to the
environmental impact of the
development, but also to the fact that
the development will be on 4.5 hectares of a
20-hectare site, and
parts will be within 500 metres of homes and workplaces. She has
been
granted legal aid to bring these proceedings.
This application for permission to apply for judicial review has
been made upon the basis
that Viridor had not obtained the necessary
approvals from the defendant council for the
subsequent applications
works, and that the defendant council should have issued (and still
should issue) enforcement proceedings or a stop notice in respect of
those works. Complaint
is made that the Defendant acted irregularly
and unlawfully in terms of procedure in
retrospectively approving
these works.
The applications for approval under the pre-commencement conditions
were not, it is common
ground, subjected to the procedure required
by the EIA Regulations before July 2012.
But by then Viridor had
supplied, so Viridor says, the substantive information needed to
support the applications. It had not, however, supplied a
“Non-Technical Summary” of
that information, as was required by
the procedure. Under the relevant procedural scheme
the defendant
council should have advertised and consulted on the information
submitted
CATI sent what was described as a “Notice Prior to Action” to
the defendant council on
12 July 2012 complaining that details
submitted under pre-conditions (at that stage solely
conditions 3,
7, 10 and 11) had not been subjected to EIA procedures. This seems
to
have caused some dismay within the ranks of the defendant
Council, and on 17 July 2012
the Council notified Viridor that it
had been advised that none of the pre-commencement
conditions had
been validly discharged because of the failure at that stage to
comply with
EIA procedure. By then, however, contracts had been
entered into by Viridor for the
development of the site. Although
there is no express reference to it, the contemporaneous
correspondence and other documents from the parties during this
period seemed to me to
reflect a degree of pressure under which
those acting for the Defendant were placed by
the sequence of
events.
Whether I am right or wrong about that, it is clear that, faced with
the situation as they were,
the defendant council decided that the
Planning Committee would make fresh decisions on
whether to grant
approvals under the pre-commencement conditions, after satisfying
EIA
procedures. Viridor had already submitted a satisfactory
Environmental Statement in
connection with the application for
planning permission in 2010, and substantial technical
information
during 2011-2012 in support of the applications to discharge the
pre-commencement conditions. The only additional information which
Viridor needed to
submit was the Non-Technical Summary.
The Claimant’s solicitors wrote to the defendant council on 15
November 2012 purporting
to require it to serve a Stop Notice to
bring the development to a halt, because the
pre-commencement
conditions had not been properly discharged before the development
was started. They also sent a letter before action on 7th
December 2012, challenging the
continuing failure of the defendant
council to take enforcement action. The letter requested
enforcement
action to be considered in the shortest possible time, apparently
because of
the claimed risk of water pollution to a European site. A
“firm response” was sought by
13 December 2012 and they stated
that they were “almost ready to issue a claim for
judicial
review,” having instructed Counsel.
The defendant council’s reply on 13 December 2012 stated that a
report from officers
on enforcement action would be considered by
the Committee on 9 January 2013.
On 9 January 2013 the Committee
accepted a recommendation that it would not be
appropriate to take
enforcement action at that time.
On 29 January 2013 this application for permission to apply for
judicial review was lodged
at the court office.
On 13 February 2013 the council’s Planning Committee received a
detailed report,
which included the observation that,
“Viridor submitted all the substantive information required by [the
defendant council] in order
to discharge the conditions prior to
commencement.” (para.7.70.)
The Committee, having taken the environmental information into
account, resolved that all the
applications under the
pre-commencement conditions be approved, and that in the light of
those
decisions it would not be expedient to take enforcement action.
None of the statutory consultees, including the Environment Agency
for Wales and the
Countryside Commission for Wales, had raised any
objection to the grant of approvals
under the pre-commencement
conditions, whether in relation to any effects of the Severn
Estuary
or otherwise.
On 20 March 2013 the Claimant filed an amended statement of facts
and grounds. By this she
sought the following relief:
An order quashing the grant of the subsequent applications
approval;
A declaration that the decisions of the Council on 13 February to
treat the proposed subsequent
applications approval as
retroactively permitting the unlawful works and rendering
enforcement
action inexpedient was unlawful;
An order requiring the Council to reconsider enforcement action
against the unlawful works, or
An order directing the council to issue an enforcement notice or
stop notice, or both,
prohibiting further continuation of unlawful
development.
In summary, the Claimant’s first three grounds for seeking such
relief are that by simultaneously
(a) granting reserved matters
approvals and (b) deciding to take no enforcement action and
(c)
treating those decisions as validating the unlawful works the
Interested Party was in effect
granted retrospective development
consent. The process employed by the Defendant,
submits the
Claimant, denied the public a proper opportunity of comment on the
works
which were thereby approved. Partly in consequence, it is
said, the Council’s committee
was deprived of adequate information
on the works which it was approving. The process
was not the
equivalent, in terms of information, clarity or public consultation,
of that which
would have taken place had an actual application for
retrospective permission been made
according to the relevant
statutory process.
The way in which counsel for the Claimant, Mr Goodman, puts the case
is as follows. In granting
de facto retrospective permission,
he submits, the Defendant acted contrary to common law,
in that
inadequate consideration was given to the works which had in fact
been undertaken.
Moreover, by improperly adopting “a non-statutory
ad hoc procedure retrospectively to
validate the works,”
the proper procedure -- a formal retrospective application under s.
73A of the Town and Country Planning Act 1990 -- was circumvented,
and the public,
including the Claimant and her associates, were
thereby denied the right to be fully
consulted and to make
representations following such consultation, whereas the
opportunity
for full public participation would have been ensured if a
retrospective
application had been made under s. 73A.
Further, the Claimant submits that the Council has made an error in
seeking to short-cut
the processes required under the Habitats
Directive by failing properly to undertake appropriate
assessment in
circumstances where, on the face of its own documents, the test
requiring
appropriate assessment was met. (This refers to a failure
to obtain the opinion of the public,
“as required” by the
Regulations, although the words ‘if [the Defendant] considers
it appropriate’ are those which are actually the terms of
Regulation 61 (4).)
Judge Jarman QC had refused permission for the following reasons.
First, he considered that the
Defendant council was entitled to take
the view that, exceptionally, it was appropriate
to grant
retrospective approval of details under pre-commencement conditions,
“… given that
substantive details under such conditions were
given before works started.” Secondly, detailed
planning
permission was granted in 2010 “… following a full EIA …”
and it had not been
shown that the works carried out “… arguably
differ from the scheme approved by such
permission.” Thirdly, the
further information which was the subject of further consultation
amounted to no more than the non-technical summary and “… a
letter from Dwr Cymru.”
Lastly, the learned judge observed that
the Defendant was entitled to take the view that the
scheme would
have no likely significant effect in respect of “… the Severn
Estuary …
and so an ‘appropriate assessment’ is not required.
The contrary is unarguable.”
Leading counsel for the Defendant, Mr Bird QC, and for the
interested party, Mr Holgate QC,
put their respective cases in
different ways, but both submitted in effect that the grounds for
this application really boil down to one main point upon which the
Claimant relies, namely
that although the development received
planning permission in 2010, once work had started,
approvals to
discharge pre-commencement conditions in that permission could
not lawfully
be given by the defendant council in order to comply
with the EIA Regulations. For the reasons
given at length in their
skeleton arguments, and trenchantly advanced in oral argument by
reference to numerous authorities, they submitted that that point,
and indeed the whole claim,
was unarguable.
In addition to the contention that the whole claim is unarguable in
law, the Defendant and the
interested party submitted that (1) the
proceedings were pointless as, even if the site were
returned to its
original state, and whole process were reversed and re-started (at
incalculably
massive cost) the outcome would inevitably be
identical; (2) the relief sought went far beyond
any relief the
court had power to grant, save perhaps as to the grant of a
declaration and
possibly of an order for the Defendant Council to
re-consider certain matters afresh; and
(3) that permission should
be refused because of a failure to bring the claim within 3 months
of the date when the Claimant says development started. The
arguments (a) that only a
section 73A application could suffice, (b)
that a Habitats Regulation Assessment has not been
properly carried
out and (c) that enforcement action should be taken, could all have
been
put forward in July 2012. The delay point was clearly raised in
the letter from Viridor’s
Solicitors to the Claimant’s
Solicitors on 11 February 2013. The Claimant had failed,
it was
submitted, to put forward any evidence or material to explain, let
alone to justify,
such delay.
On the Claimant’s main point, that the Council could not lawfully
approve details under
the pre-commencement conditions once the
development had started, considerable time
was devoted to discussion
of what was referred to as the Whitley principle (Whitley
&
Sons v. Secretary of State for Wales and Clwyd County Council
(1992) 64 P. & C.R. 296).
The issue in Whitley was
whether development authorised by the permission in that case
had
been ‘begun’, so as to satisfy a condition which imposed a time
limit for the
commencement of development, and thus to prevent the
permission from lapsing under
section 93(4) of the 1990 Act. It was
held that if the building operations relied upon
contravened the
conditions of the permission, they could not be treated as a
commencement
of the development authorised by the permission.
Operations which are not in compliance
with the permission
constitute a breach of planning control.
The Whitley principle also applies where the conditions of a
permission require approval
of certain details to be obtained before
the development may be begun, as in this case.
Leading counsel for
the Defendant and for Viridor submitted that the Whitley
principle should
not be applied in an unduly rigid manner, where to
do so would produce absurd results or
run contrary to the purpose of
the legislation: see Rastrum Limited v. Secretary of State
[2009] EWCA Civ. 1340 para. 15 and Greyfort Properties Ltd v.
Secretary of State [2011] EWCA Civ.908, paras. 6-19.
The Defendant Council and the Interested Party submitted that the
Claimant had ignored,
(or willfully misconstrued as ‘narrow’)
certain well-established exceptions to the
Whitley principle.
It was, they submitted, a recognised principle of planning law and
practice that, exceptionally, work which is the subject of planning
permission may lawfully
be begun before the approval of details
required by pre-commencement conditions, provided
that the developer
has applied for approval before the expiry of the permission, in
circumstances where (a) the works undertaken comply with the
details, and (b)
those details are subsequently approved by the
local planning authority. In such circumstances
no fresh application
is required even where the time for commencement has expired.
Putting it in a slightly different way, if the approvals are applied
for before the planning
permission expires and are subsequently
granted, any irregular development carried out
before the approvals
are obtained is thereby rendered lawful and is to be treated as a
proper commencement of development. In circumstances such as those
in the instant case,
they submitted, an application for a fresh
permission does not need to be made.
The Claimant submits that in asserting that the circumstances fell
within the first established
exception to Whitley, the
Defendant
“... sidestepped the point that applications capable of being
lawfully consulted on and
approved were not made - in the Council’s
view - until November 2012, long after
works commenced.”
Thus, it is submitted, the case did not fall within the defined
exception, but requires an extension
of the exception. The
Interested Party did not in this case
“… jump the gun to keep a planning permission alive. It simply
jumped the gun
(presumably for commercial reasons). The underlying
rationale of avoiding injustice
to a developer who has otherwise done
what he could to implement a planning
permission is therefore absent
from this case.”
Counsel for the Claimant relied upon some observations of Lord Woolf
in Whitley (at p. 307):
“I should also make it clear that the
approach which I have sought to identify is not intended to
be a
charter to developers to ignore conditions which are intended to be
complied with
before a planning permission is implemented. If it is
not already clear, I make it absolutely
clear now, that if a
developer does not comply with a condition he can have enforcement
action or any other available action taken against him. The only
consequence of the approach
indicated in this judgment is that when
the merits of the enforcement proceedings come to be
considered, it
is necessary to take into account the situation as it exists at the
time and in particular whether or not at that time any approval
required by condition has been obtained.”
To demonstrate the Claimant’s misconstruction of the Whitley
principle, it was submitted that
she had misread the Court of
Appeal’s decision in Greyfort [2011] EWCA Civ 908.
The
‘narrow exceptions’ referred to by counsel for the Claimant were
the second and
third exceptions to the Whitley principle,
neither of which are relevant in the present case.
This case is
concerned with the first exception to Whitley, dealt with in
paragraph 8 of
Greyfort, which is not expressed to be, nor to
be treated as, a narrow exception.
On that premise, the assertion by
the Claimant that it was “dubious” as to whether the first
exception to Whitley applied, on two grounds unsupported by
authority, was wholly lacking
in substance. The first point was that
works were commenced before a valid application was
made under the
EIA Regulations by the submission of the Non-Technical Summary,
which
was a trivial and insubstantial criticism. The second point
was that this is not a case where the
developer was trying “to
preserve a planning permission which would otherwise have expired”
(in this case in 2015), which amounted to a distinction without a
significant difference.
Given that the Council had decided to approve the details submitted
and had decided that
enforcement action against the works carried
out beforehand would be unjustified, no
rational argument has been
advanced as to why the first exception to Whitley should not
apply.
Counsel for the Claimant submitted that there had been no
misunderstanding of Greyfort,
and that the other authorities
relied upon by the Defendant and the interested party could
be
distinguished. In Greyfort, at paragraph 7, reference was
made to the case of Leisure
Great Britain plc v Isle of Wight
Council (1999) 80 P&CR 370. In dealing with the
Whitley
principle, at 378, Keene J spoke of “a clear legal principle
of general application,”
observing that the court
“… is not in these cases exercising some general equitable
jurisdiction as though it had a
broad discretion vested in it where
fairness was the only or main criterion”.
It was clear, submitted Mr Goodman, that the circumstances did not
fall squarely within an
established exception to the Whitley
principle. It would be remarkable if a retrospective planning
consent can be held to have been granted by expansion of an
exception to a common law
principle rather than by statutory means.
On the point that the works are said to be in accordance
with what
was anticipated, and that there is no evidence that they were not,
the Claimant’s
submission is that it is not enough that works are
said to have complied with predicted effects,
there had to be an
opportunity (a) to challenge that and (b) to make suggestions on
different
approaches, notwithstanding apparent compliance with
predicted effects.
A bare denial was no sufficient answer, Mr Goodman submitted, to the
Claimant’s complaint
that information was not made available as
part of a public consultation. The Interested Party had
not in fact
pointed to any such opportunity for consultation, nor had it
specified where or when
the monitoring reports or other data as to
the works mentioned in the officers’ report might
have been the
subject of consultation by the public.
As I have already mentioned, leaving aside their attack on the legal
merits of the Claimant’s
case, the Defendant council and the
interested party submit that the Claimant has been
guilty of
inexcusable delay. The essence of the Claimant’s case was that the
development
which was begun on 20 July 2012 was unlawful because no
valid approvals under
pre-commencement conditions were obtained
beforehand, a section 73A application
should have been made, and an
appropriate assessment should have been carried out.
There was no
reason why these points could not have been taken by the Claimant in
July 2012.
Indeed, legal action to secure enforcement action was
repeatedly threatened from 19 July
through to 19 September 2012. It
was no answer to this point that the Defendant Council
did not
formally deal with the enforcement issue at Committee until January
and February
2013. CATI, including the Claimant, had been
complaining about the Council’s failure to
take enforcement action
from as far back as 19 July 2012. The recommendation to committee
was that “it would not be appropriate to take enforcement action
at this time”. Whether the
Council resolved “not to take
enforcement action at this time” or to “defer consideration of
enforcement”, the result was the same: that the Council did not
take enforcement action.
I am conscious that the Claimant is in effect the standard bearer
for many interested individual
s who are not personally parties to
the litigation, although they may be members of CATI. It
may be of
assistance, therefore, to explain the restricted nature of the
jurisdiction of the
Administrative Court. Judicial Review is a
public law remedy which enables individuals
with proper and
sufficient interest to challenge the lawfulness of decisions made by
public
bodies and others exercising public functions.
The principles upon which the court acts include the following. (1)
Public bodies such as local
planning authorities must have legal
authority for their actions. This may be derived from statute
or the
common law. The public body in question must act within the scope
of that legal authority
(2) Powers must be exercised within the
objects and purpose of a statute such as the Town &
Country
Planning Act 1990. (3) Public bodies must take into account all
legally relevant
considerations and avoid taking into account those
that are irrelevant. (4) Fair procedures
must be
followed: whether these are founded on legislation, the common law,
or
European Union law. Those procedures may, according to context,
include requirements
to give notice of a proposed decision before
making it; to consult and receive written
representations; to
disclose information before a final decision is reached; to provide
oral
hearings; and to give reasons for a decision. (5) A
public body acts unlawfully if it creates a
legitimate expectation
that a particular procedure will be followed and later seeks to
resile
from it without an adequate justification. (6) Public bodies
must comply with the requirements
of European Union law, in
accordance with the
The court’s role, when a dispute arises, is to adjudicate on the
lawfulness of the decision,
procedurally or otherwise. Standards of
public administration rest on principles and rules
developed by the
courts as part of the common law. This is especially so in relation
to
procedural propriety and rationality requirements. Here the
court’s role is both to develop
and apply standards. Against a
general background in recent years of increasing expectations
of
fairness, rationality, and justification in public affairs, the
courts have developed exacting
legal standards and have applied
these to a wide variety of decision-makers.
requirement that permission should be refused where there has been
delay in applying to the
court; or where the claimant does not have
a sufficient interest in the matter to which the claim
relates.
However, the latter requirement is of limited importance at the
permission stage, and
does not arise in this case. It is not
suggested that the Claimant does not have sufficient standing,
and
that requirement is essentially designed to weed out cranks,
mischief-makers
and busybodies. The issue of delay is a more
substantial hurdle, and it is not unusual for
permission to be
refused on this ground in a clear case. Where, however, the Court
is
minded to grant permission on the general merits, and there is
room for real argument on
whether there has actually been delay, or
whether an extension of time should be allowed,
the issue should be
left to be considered at the full hearing.
The most common reason for refusing permission is that the claim is
wholly lacking in merit,
or unarguable. That test is broadly similar
to the practice governing applications for summary
judgment, or
strike-out applications, in other types of claim, namely that there
is “no real
prospect of succeeding on the claim or issue”.
If permission is granted, it may be subject to conditions or on some
grounds only. If a claimant
at the substantive hearing seeks to rely
on grounds for which permission has been refused,
application to do
so must be made to the trial judge. At the subsequent full hearing
of the claim the judge has a discretion to allow such an application
if there is a good reason to do so. Permission may also be refused
to pursue a particular remedy, while granting it in relation to
other remedies. Permission may be granted in relation to one
impugned decision and refused in relation to others.
So far as the principles upon which the court acts in respect of
timing and delay, “grounds for making a claim” generally arise
when the public authority does an act with legal effect, rather than
something which is preliminary to such an act. So in the context of
town and country planning, time runs from when planning permission
is actually granted rather than from when a local authority adopts a
resolution to grant consent. The subjective experience and state of
knowledge of the claimant are not relevant in determining a start
date, though those facts may be relevant to whether time should be
extended. The primary requirement is always one of promptness, and
permission may be refused on the ground of delay even if the claim
form is filed within three months. The fact that a breach of a
public law duty is a continuing one does not necessarily make it
irrelevant to take into account the date at which the breach began
in considering any question of delay.
There is no general legislative formula to guide the court on issues
of delay. Factors taken into
account include: whether the claimant
had prior warning of the decision complained of; and
whether there
has been a period of time between the taking of the decision
impugned and its communication to the claimant. Good reasons for
delay may include time taken to obtain legal aid; the
importance of the point of law at stake; or that the Claimant is
awaiting the outcome of consultation. The mere fact that permission
is granted does not mean that an extension of time for making the
application is given; an express application for extension of time
must be made.
Observance of proper procedures is a matter of some importance in
planning matters. Some procedural errors may be minor and venial,
others may be more fundamental. In the case of a fundamental error,
as Lord Denning MR said in the Court of Appeal in
Att.-Gen.
ex rel. Co-operative Retail Services Ltd. v. Taff Ely Borough
Council and Another (1980)
39 P. & C.R. 223; (1979) 250 E.G. 757;
[1979] J.P.L. 466, CA, &
(1981)
42 P. & C.R. 1 (HL), at the conclusion of his judgment:
“… there is an important principle of planning law. It is that a
grant of planning permission is made in the public interest—so as
to ensure that the amenities of our countryside are preserved for the
good of all. The protection of the public interest is entrusted to
the representative bodies and to the ministers. It would be quite
wrong that it should be pre-empted by …” [in that case] “…
a mistaken issue by a clerk of a printed form—without any authority
in that behalf. When such a mistake is brought to the attention of
the court by the Attorney-General, or anyone else with a sufficient
interest, the court can and should declare the grant to be void and
of no effect. It does not follow that all the consequences that
follow from it are void also.”
The procedural error in that case perhaps represents the top end of
the possible scale, whereas the procedural error in the present case
would lie -- if indeed there has been error at all -- towards the
opposite end. The facts in the instant case are not remotely
similar. Nevertheless, some of the circumstances in this case may
have generated a legitimate suspicion that when Viridor acted
prematurely, there might have been a degree of nervous acquiescence
by those officers or members of the Defendant Council dealing with
the matter, perhaps having regard to the immense size and importance
of the project in financial and other respects. That, in turn, might
have resulted in the taking of decisions which are of questionable
procedural propriety, even if the same amounted to no more than
‘cutting corners’.
Section
31(6) of the Senior
Courts Act 1981 requires the court to consider
whether the granting of relief would “be likely to cause
substantial hardship to, or substantially prejudice the rights of,
any person or would be detrimental to good administration”. In all
but the clearest cases, the court will, however, normally postpone
consideration of hardship, prejudice and detriment to good
administration until the full hearing, though only if the judge
granting permission has indicated that this should be so, or if
fresh and relevant material relating to delay has arisen in the
meantime.
There is obvious force in the submissions made by the Defendant and
by the interested party that in practical terms the state of affairs
is such that it is inconceivable that any order could be made to
restore the site to the status quo before work began. There
is likewise force in the point that, when all is said and done, the
interested party has a planning permission with several years to run
before expiry. It is submitted that even if a retrospective
application were made, as the Claimant contends should have been
done, the likelihood is that it would be granted, resulting in more
or less exactly the current state of affairs. In terms of the relief
sought in respect of enforcement action, the court simply cannot
substitute its own exercise of discretion for that given by statute
to the Defendant Council, and so the court could not grant some of
the relief sought.
Those are all points which, independently of the problems over the
primary merits of the claim in law, will pose formidable problems
for the Claimant in proceeding with a successful claim for judicial
review. That said, the actions of the interested party in the first
place in proceeding to begin works prematurely, as they did, and of
the Defendant Council in protesting only after being prompted to do
so by CATI, and then effectively condoning such conduct in the ways
in which it subsequently dealt with matters, might conceivably raise
matters of legitimate concern, amongst those opposed to the
development such as the Claimant, over the procedural propriety of
what occurred. Were the court to be satisfied that a significant
procedural irregularity had occurred, it is conceivable that limited
relief, such as a declaration to that effect, might be granted, not
least because it might be thought to be conducive to good
administration in the future.
I have considerable reservations as to the Claimant’s likelihood
of success on the first three grounds on which the application for
permission was renewed, for the reasons given so forcefully and
persuasively by leading counsel for the Defendant and for the
Interested Party at the hearing. I think, however, that it would be
wrong to characterise the case generally as hopelessly unarguable,
and the point, in particular, that the process adopted by the
Defendant Council amounted to an impermissible extension or addition
to any previously-recognised exception to the Whitley
principle may indeed be arguable. It must be clearly understood,
however, that the matters variously raised by the Defendant and by
the Interested Party which are referred to at paragraphs 23 and 44
above are matters which might cause the court to refuse relief even
if any merit were to be found in the point.
The fourth ground, in respect of the Habitats Directive, is in my
view unarguable. The assessment was on its face, and in substance,
merely a screening assessment, and not an “appropriate assessment”
and for that reason no obligation, statutory or otherwise, arose to
consult the public or to give reasons for not doing so.
I therefore give permission for the first three grounds and refuse
permission for the fourth. I also refuse permission to apply for
relief in the form of a mandatory order requiring the Defendant
council to issue an enforcement notice, for the reason I have
already given.
I expressly reserve the issue of delay for the decision of the judge
at the substantive hearing. Likewise, I reserve any considerations
of hardship, prejudice, and detriment to good administration, until
the full hearing.
I direct (under CPR Part 39 PD 6.1) that no tape-recording need be
made of this judgment, and that copies of this version may be
treated as authentic.
I make the following case management directions.
The
defendant and any other
person served with the claim form who wishes to contest the claim,
or to support it, on additional grounds must file and serve
detailed grounds for contesting the claim or supporting it on
additional grounds and any written evidence, within 18 days of
service of this order.
Any reply and any application by the claimant to lodge further
evidence must be lodged within 14 days of the service of detailed
grounds for contesting the claim.
The claimant must
file and serve a trial bundle not less than 21 days before the
date of the hearing of the judicial review.
The
claimant must
file and serve a skeleton argument not less than 14 days before
the date of the hearing of the judicial review.
The
defendant and any interested party must
file and serve a skeleton argument not less than 7 days before the
date of the hearing of the judicial review.
The claimant must
file an agreed bundle of authorities, not less than
3 days before the date of
the hearing of the judicial review.
For the avoidance of doubt,
the issue of delay within the terms of CPR Part 54.5 is expressly
reserved for consideration at the substantive hearing
in respect of all issues which arise in respect of it.
Listing Directions
The case is to be listed for an expedited hearing, with a time
estimate of 2 days, before a judge with specialist planning
experience, at the Civil Justice Centre, Park Street, Cardiff. If
this is not possible on an expedited basis, the Listing Officer in
the Administrative Court Office at Cardiff is to make arrangements
for the case to be heard at a venue elsewhere.
The case is not suitable for hearing by a Deputy High Court Judge.
