Cardiff Against the Incinerator: High Court judge rules for CATI: slates Cardiff Council/Viridor

We win our long delayed application for an emergency hearing!

Judge Curran agreed that 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 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”
(see Walesonline/Echo report).

CATI is pleased that the Judge ruled the Hearing should cover most of our points,
though not our maximum demand for an immediate stop on the building work
(full judgement below).

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;
the High Court judge finds 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.”

CATI Statement and full judgment below or online

The judgment: His Hon. Judge CURRAN QC sitting as a judge of the High Court

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CATI Statement

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”.

http://www.walesonline.co.uk/news/wales-news/cardiff-incinerator-high-court-opens-6114519

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

* www.walesonline.co.uk/news/wales-news/monthly-black-bag-collections-charging-6101151

** 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.

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Support our Community Legal Action <cardiffagainsttheincinerator@gmail.com>

[1] The request to Cardiff High Court, lodged on Tuesday 26^th 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)

Case No: CO/1070/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

27/09/2013

Civil Justice Centre,

2, Park Street, Cardiff.

Before :

HIS HON. JUDGE CURRAN QC

sitting as a judge of the High Court

- - - - - - - - - - - - - - - - - - - - -

Between :

	The Queen on the application of Pauline Ellaway	Claimant
	- and -
	Cardiff County Council -and- Viridor Waste Management Limited (Interested Party)	Defendant

- - - - - - - - - - - - - - - - - - - - -

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

- - - - - - - - - - - - - - - - - - - - -

JUDGMENT

- - - - - - - - - - - - - - - - - - - - -

Judge Curran

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 25^th 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 20^th 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 7^th 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

European Communities Act 1972 and the European Union Act 2011.

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.

The Senior Courts Act 1981 s.31 and the Civil Procedure Rules, Part 54, refer expressly to a

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.

General 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.

Cardiff Against the Incinerator

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Tuesday, 1 October 2013

High Court judge rules for CATI: slates Cardiff Council/Viridor

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