Matthew Champion v North Norfolk District Council (Defendant (1st Claim) Natural England (Defendant (2nd Claim) Crisp Maltings Group Ltd (Interested party)
| Jurisdiction | England & Wales |
| Judge | James Dingemans |
| Judgment Date | 07 May 2013 |
| Neutral Citation | [2013] EWHC 1065 (Admin) |
| Docket Number | Case No: CO/12074 and 10269/2011 |
| Date | 07 May 2013 |
| Court | Queen's Bench Division (Administrative Court) |
[2013] EWHC 1065 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice Strand,
London, WC2A 2LL
James Dingemans QC
(Sitting as a Deputy High Court Judge)
Case No: CO/12074 and 10269/2011
and
Richard Harwood QC (instructed by Richard Buxton Environmental & Public Law) for the Claimant
Estelle Dehon (instructed by Sharpe Pritchard) for the Defendant (1 st Claim)
Christopher Boyle QC (instructed by Browne Jacobson) for the Defendant (2 nd Claim)
Christopher Lockhart-Mummery QC (instructed by Howes Percival) for the Interested party
Hearing dates: 23 and 24 April 2013
James Dingemans QC:
INTRODUCTION
These claims arise out of the grant of planning permission for the erection of two silos to store some 6,000 tonnes of barley, a lorry park with wash bay and ancillary facilities, associated surface water balancing pond, access and landscaping at Crisp Mailings, Fakenham Road, Great Ryburgh, Norfolk ("the proposed development"). The land is owned by the Interested Party Crisp Malting Group Limited ("Crisp Maltings Group").
The proposed development is about 400 or 500 metres away from the River Wensum, and 2.1 kilometres by watercourse. The longer length for the watercourse is because the ditches do not lead directly from the proposed development to the river but flow east into the grazing marsh ditch network of the Wensum Valley.
The river is a Site of Special Scientific Interest ("SSSI"), and is a designated EU Special Area of Conservation ("SAC"), because it hosts 4 species listed in Annex II of the Habitats Directive, 92/43/EEC ("the Habitats Directive"). These are white-clawed crayfish, Desmoulin's whorl snail, brook lamprey and bullhead. There is also Ranunclus vegetation. The river has what has been described as an "outstanding chalk stream fauna". The conservation objectives were, among other objectives and subject to natural change, to maintain the river in favourable condition with particular reference to listed species.
As appears from paragraph 5.2 of the Extended Phase I Ecological Assessment dated February 2010 ("the Phase I Ecological Assessment") obtained by Crisp Maltings Group, concerns have been expressed about: (1) whether during the construction of the lorry park and infiltration basin there is the potential for sediment-laden and polluted run-off to enter the ditch system and be carried into the river; (2) whether during the operational phase water from the infiltration basin may drain into the ditch system towards the river; and (3) whether, in the event of a pollution incident, extreme rainfall and malfunction of the interceptor or infiltration basin, there is the potential for petro-chemicals and gritting salt from the lorry park to enter the river. Deposition of pollutants in sediments could have long-term impacts on water quality.
In the course of the application for planning permission, there were produced on behalf of Crisp Maltings Group a number of detailed reports including ecological assessments and flood risk assessments, and there was consultation by North Norfolk District Council ("the Council") with, among others, Natural England, the Environment Agency and the Norfolk Rivers Internal Drainage Board ("the IDB"). Mitigation measures designed to ensure that pollutants would not enter the river were proposed, and in some cases, revised and improved in the light of comments received. No Environment Impact Assessments ("ELA") or Habitats Appropriate Assessments ("Appropriate Assessment") were carried out.
On 13 September 2011 the Council granted planning permission subject to conditions for the erection of the silos, lorry park and ancillary development at Crisp Maltings. In the course of the application Natural England, which is a statutory body established under the Natural Environment and Rural Communities Act 2006, made a number of responses to the application for planning permission as a statutory consultee, including a response dated 26 July 2011. Natural England is the appropriate nature conservation body for the purposes of regulation 61(3) of the Conservation of Habitats and Species Regulations 2010 ("the Habitats Regulations") which the Council, as the competent authority, had to consult.
The Claimant Matthew Champion ("Mr Champion") is a member of the Ryburgh Village Action Group ("VAG") and seeks, on a number of grounds, to quash: (1) the grant of planning permission by the Council in the first action; and (2) the consultation response made by Natural England in second action.
PROCEDURAL MATTERS
At the start of the hearing on Tuesday 23 April 2013 there were a number of outstanding procedural matters. The first related to a protective costs order ("PCO") sought by Mr Champion in relation to the claim against Natural England. The second procedural matter related to an application for permission to rely on a further witness statement by Mr Champion made on 18 March 2013. The third related to an application to amend the Statement of Facts and Grounds to include a new point of law relating to the Council's Development Committee's legal power to decide not to get an Appropriate Assessment or an EIA.
Having heard argument I reserved the first two matters because it seemed to me that I could make a fairer decision in the light of a full understanding of the case. I should record that while reserving the matter I did confirm that, whatever order I decided to make in relation to the PCO, I would not impose an additional liability on the Claimant greater than £5,000 for Natural England's costs. I also said that I would look at the witness statement of Mr Champion on a provisional basis at this stage for the purposes of deciding the application, and that if I decided to admit the further witness statement of Mr Champion and there were relevant factual matters which needed a response, I would not take them into account without giving the Council, Natural England and Crisp Maltings Group a chance to respond.
Amendment to the claim form
The third procedural matter, namely whether the Claimant could argue the new point of law, could not properly be postponed to my judgment. Having heard argument I granted permission for the Claimant rely on the ground. This was because: it was a pure point of law so that no further evidence was required to deal with the point; and all the parties were able to deal with this new point within the original time estimate for the hearing. Mr Harwood QC produced an amendment to the Grounds (covering paragraphs 42 to 52) to cover this new point, and I give permission for the Claimant to amend the Claim Form in the action against the Council to include this amendment.
I will deal with orders for costs consequential on the delivery of this judgment, but nothing has been said to me so far to suggest that the Claimant should not bear the usual consequences of such a late amendment to its claim.
The PCO
So far as the PCO is concerned it is necessary to set out some of the procedural background. The claim against Natural England was issued on 25 October 2011. It was noted at section 7 of the claim form that the claim was being made on a protective basis in anticipation that a second claim would be made against the Council, and directions providing for a stay were suggested. It was noted that an application for a PCO would be considered if Matthew Champion proceeded with the claim. In Natural England's Summary Grounds of Resistance there was (understandably) no reference to a PCO.
The claim against the Council was issued about a month and a half later on 12 December 2011. In section 7 of that claim form the Claimant applied for a PCO if one could not be agreed with the Council. The Council responded in the summary grounds of defence to the effect that it was accepted that a PCO was appropriate, and suggesting a cap of £5,000 for Mr Champion's liability for the Council's costs, and a cross cap of £20,000 for the Council's liability for Mr Champion's costs. An undated reply to the Council's summary grounds of defence was filed in which it was noted that the Council accepted that a PCO was appropriate, but that the proposal for a £20,000 cap on the Claimant's costs was unjustified. One of the submissions advanced was "the Claimant has, of course, to deal with two opposing parties, one of which is represented by Queen's Counsel so that the suggestion of a £20,000 cap would leave the Claimant at risk of substantial unrecoverable costs", but it seems likely that that was a reference to the fact that Crisp Maltings Group, who was an interested party, had by then retained Mr Lockhart-Mummery QC.
On 9 March 2012 Her Honour Judge Alice Robinson sitting as a High Court Judge granted permission to apply for judicial review to Mr Champion in both claims. In relation to the claim against the Council the following order was made: "(2) Claimant's liability to pay costs will be limited to £5,000; (3) Defendant's liability to pay costs will be limited to £35,000." In the observations HHJ Robinson sitting as a High Court Judge noted that that "the Claimant and Defendant agree that a protective costs order for both parties is appropriate. The Claimant's cap of £5,000 is agreed. In the light of the multiplicity of issues a cap of £35,000 is appropriate for the Defendant".
In relation to the claim against Natural England HHJ Robinson sitting as a High Court Judge noted that "although the claim form includes an application for a protective costs order no further detail is provided nor has the Defendant commented on it, presumably as attention has focussed on the protective costs orders sought in CO/12074/2011....
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R Matthew Champion (Claimant/ Respondent) v North Norfolk District Council (Defendant/First Appellant) Crisp Malting Group Ltd (Interested Party/Second Appellant) Natural England (Interested Party)
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