Coedbach Action Team Ltd v Secretary of State for Energy and Climate Change
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wyn Williams |
| Judgment Date | 16 September 2010 |
| Neutral Citation | [2010] EWHC 2312 (Admin) |
| Date | 16 September 2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7004/2010 |
[2010] EWHC 2312 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN CARDIFF
Mr Justice Wyn Williams
Case No: CO/7004/2010
Mr Richard Kimblin (instructed by Morgan LaRoche) for the Claimant
Mr James Maurici (instructed by Treasury Solicitor) for the Defendant
Mr John Litton QC (instructed by Burgess Salmon) for the First Interested Party
The Second Interested Party did not appear and was not represented
Hearing date: 7 September 2010
Introduction
The Claimant is a private limited company. It was incorporated in or about August 2008. Its Memorandum of Association describes its objects in the following way:
"To promote for the benefit of the public the conservation, protection, and improvement of the physical and natural environment of the Gwendraeth Valley, Camarthenshire, including 20 SSSIs, SACs, SLPs, Ramsar sites.
To Promote for the benefit of the public the natural beauty of the landscape, clean air and low pollution levels in the Gwendraeth Valley, Carmarthenshire."
The Claimant came into existence as a response to a proposal to build a biomass power station at a site known, locally, as Coedbach Washeries – a site which is situated at the mouth of the Gwendraeth Valley. The aims and objects of the Claimant are driven by a small number of individuals. They are Robin Cammish, Ron Howells, David Gravell, Peter Protheroe and Pauline Bowers. There are 26 paid up members.
During the course of 2008 members of the Claimant discovered that there was another proposal to build a biomass power station in South Wales. It was proposed that such a power station should be located at the Kings Dock in Swansea. Mr Robin Cammish, in particular, liaised with a number of residents who were opposed to the prospect of a power station at the Kings Dock and the Claimant offered its assistance in opposing any proposal for a power station at the Dock.
In due course applications for planning permission were made to the relevant local authorities for the construction of power stations at the Coedbach Washeries and the Kings Dock. Following consideration by the local planning authority each application was refused. As I understand it the Claimant registered strenuous and detailed objections to the planning applications prior to their refusal.
The applicants for planning permission have appealed against the refusal of their plans. The appeals are by way of local public inquiry. The hearing of the appeal in respect of the proposal at Kings Dock has begun but it is adjourned part heard. The hearing of the appeal in respect of the proposal at Coedbach Washeries has yet to start.
On 26 March 2010 the Defendant granted consent under section 36 Electricity Act 1989 to the First Interested Party for a biomass fuelled power station at Avonmouth Docks, Bristol. He also directed that planning permission be deemed to be for the development under section 90(2) of the Town and Country Planning Act 1990. Neither the Claimant nor anyone else objected to the applications for consent in respect of the site at Avonmouth Docks. The Claimant played no part in any of the processes which led to the grant of the consent and the associated direction that planning permission be deemed to be granted.
On 24 June 2010 the Claimant instituted these proceedings. In the proceedings it seeks an order quashing the consent granted under section 36 of the 1989 Act and the associated deemed planning consent in respect of the Avonmouth site (as well as other and alternative relief). In its claim form the Claimant invited this court to grant a protective costs order in its favour. On 19 July 2010 the Defendant filed its Acknowledgement of Service together with summary grounds for resisting the claim. On 20 July 2010 the First Interested Party filed an Acknowledgement of Service and summary grounds of opposition. Both the Defendant and First Interested Party resisted the grant of permission to apply for judicial review and resisted the grand of a protective costs order.
On 26 July 2010 Beatson J made a detailed order with accompanying observations. The learned Judge refused the application for a protective costs order and he ordered that the application for permission should be listed for a hearing with the substantive application to follow immediately if permission was granted. That "rolled up" hearing has been listed before me on 17 September 2010. Beatson J refused the application for a protective costs order because he took the view that the Claimant had furnished insufficient information about its resources and the consequences for the proceedings if no protective costs order was made. Although the learned Judge does not say so expressly on the face of his order I have no doubt that in reaching his conclusion he had very much in mind the judgment of the Court of Appeal in R (Corner House Research) v Secretary of Trade and Industry [2005] 1WLR 2600.
On 29 July 2010 the Court of Appeal gave judgment in the case of R (Garner) v Elmbridge Borough Council & Others [2010] EWCA Civ 1006. In the light of that decision the Claimant made a further application to this court for a protective costs order. Its application was issued on 19 August 2010. This application, like its predecessor, is opposed by the Defendant and the First Interested Party.
The law which is applicable to my decision
There is no dispute but that the Defendant's decision to grant planning permission to the First Interested Party for a power station at Avonmouth is a decision to which Directive 85/377 EEC (as amended) applies. It is also common ground that the Directive has a direct effect in domestic law. Article 10a of the Directive is in the following terms:
"Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
a. having a sufficient interest, or alternatively,
b. maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition,
have access to are view procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.
Member States shall determine at what stage the decisions, acts or omissions may be challenged.
What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 1(2), shall be deemed sufficient for the purpose of subparagraph (a) of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) of this Article.
The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.
Any such procedure shall be fair, equitable, timely and not prohibitively expensive.
In order to further the effectiveness of the provision of this article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures."
Article 1 specifies that;
"'public' means:
one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups;"
The Article defines 'public concerned' as
"the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures referred to in Article 2(2);for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest."
The United Kingdom is a signatory to the Aarhus Convention. This Convention deals with access to information, public participation in decision-making and access to justice in environmental matters. For the purposes of the Convention the word "public" and the phrase "the public concerned" are defined in exactly the same way as that word and phrase are defined in Directive 85/337 EEC (see Article 2 of the Convention). Article 9 is concerned with "Access to Justice"; paragraphs 2 to 5 of that Article contain provisions which are very similar to the provisions of Article 10a of the Directive. It seems clear that the Directive, as amended, is intended to give effect in community law to the provisions of the Convention. However, since the Directive takes effect as part of our domestic law it is sufficient, in the main, hereafter to concentrate upon its provisions.
It is clear that the Directive does not proceed on the basis that every member of the public should have "wide access to justice" in appropriate environmental cases. The persons who are to enjoy such access are "members of the public concerned" who are persons having a "sufficient interest" or "maintaining the impairment of a right". Whether or not a person has a sufficient interest is to be determined in accordance with the domestic law of each Member State albeit that determination must be consistent with the objective of giving wide access to justice to appropriate categories of persons. These conclusions derive from the Directive itself; they are also...
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