R and Others v Northumberland County Council Ivor Gaston (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Judge Behrens |
| Judgment Date | 06 December 2013 |
| Neutral Citation | [2013] EWHC 3631 (Admin) |
| Docket Number | Case No: CO/7590/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 December 2013 |
2013 EWHC 3631 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
The Court House
Oxford Row
Leeds LS1 3BG
His Honour Judge Behrens Sitting as a Judge of the High Court in Leeds
Case No: CO/7590/2012
and
Richard Harwood QC (instructed by Bircham Dyson Bell) for the Claimants
Sasha White QC (instructed by Peter Bracken, Legal Services Unit, Northumberland County Council) for the Defendant
Mr Gaston in person
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
In this judgment I shall adopt the following abbreviations:
| AONB | Area of Outstanding Natural Beauty |
| CPRE | Campaign for the Protection of Rural England |
| EIA | Environmental Impact Assessment |
| EMS | European Marine Site |
| Mr Ainsley | David Ainsley (the Second Claimant) |
| Mr Gaston | Ivor Gaston (the Interested Party) |
| LPA | Local Planning Authority |
| NPPF | National Planning Policy Framework |
| PPS | Planning Policy Statement |
| SAC | Special Area of Conservation |
| SNCI | Site of Nature Conservation Importance |
| SPA | Special Protection Area |
| SSSI | Site of Special Scientific Interest |
| The Committee | The North Area Planning Committee |
| The Council | Northumberland County Council |
| The Parish Council | Embleton Parish Council |
| The 1990 Act | |
| Town and Country (Environmental Impact Assessment) (England and Wales) Regulations) 1999 | |
| The 2011 Regulations | Town and Country (Environmental Impact Assessment) Regulations 2011 |
In these judicial review proceedings Mr Ainsley and the Parish Council seek an order quashing the grant of a planning permission made on 19th April 2012.
The planning permission was granted by the Council to Mr Gaston in respect of a steel framed livestock building, a temporary caravan and associated development at Dunstan Steads Farm, near Embleton, Alnwick, Northumberland NE66 3DT.
The planning permission is challenged on 7 grounds:
1. The Council failed to take into account material considerations namely its agricultural consultant's viability figures and failed to give an opportunity for comment on those figures. It also failed to consider or address the figures produced by Ms Kathryn Vagneur;
2. The committee report was inaccurate and significantly misleading in saying that properties at the existing Dunstan Steads cottages were not suitable;
3. The Council failed to have regard to the National Planning Policy Framework policy on 'dark skies' and departed from the AONB Partnership's recommended condition on light pollution without appreciating or justifying the departure as it only imposed a condition restricting external lighting;
4. The Council erred in law in adopting an EIA screening opinion without considering the effect on the historic environment and it failed to 'clearly and precisely set out the full reasons' for its decision;
5. The application should have been advertised as affecting the setting of a listed building and the character and appearance of a conservation area, under regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990;
6. In breach of a legitimate expectation created by paragraph 7.28 of the Council's Statement of Community Involvement, the Council failed to notify objectors to the planning application, including the National Trust, of the date of the committee meeting and thereby prejudiced their ability to appear at the meeting or make written representations on the committee report and so the support they could give to the Claimants;
7. The Council erred in considering whether appropriate assessment was required under the Conservation of Habitats and Species Regulations 2010 as (a) it failed to have regard to the Special Protection Area, (b) failed to appreciate that Natural England's advice on the current application had overlooked the existence of European sites in the vicinity and (c) failed to have regard to the fact that when consulted on the previous planning application Natural England considered that if certain conditions were imposed appropriate assessment was not required and the Council failed to impose those conditions.
All of the grounds are opposed by the Council. It will, of course, be necessary to examine the grounds and the Council's response in detail later in this judgment.
However in paragraph 18 of his skeleton argument and in his oral submissions Mr White QC made a number of general points. He drew attention to "the incredible degree of diligence" shown by Mr Armstrong, the experienced planning officer involved in the application. He pointed out that this was a relatively small scale development which was the subject of considerable objection resulting in a vast amount of material before the Committee who considered it with considerable care. Both Mr Ainsley and the Parish Council were fully engaged in the process. They made written objections and spoke to members when the application was considered. Mr Ainsley even lobbied other parties such as English Heritage. None of the statutory consultees, such as Natural England, English Heritage, the AONB partnership, the Environment Agency and Northumberland Water maintained any objection to the grant of planning permission. The development has taken place.
A judicial review pre-action protocol letter was sent on 30 th May 2012 on behalf of Mr Ainsley, CPRE (Northumberland Branch) and the National Trust, seeking a response within 14 days. The Council responded on 19 th June 2012.
The application for judicial review was filed on 18 th July 2012. Summary grounds of resistance were filed on 13 th August 2012 by the Council and 15 th August 2012 by Mr Gaston. Permission to apply for judicial review was granted on all grounds by Clive Lewis QC on 15 th March 2013. On 6 August 2013 the application was transferred to the Administrative Court in Leeds and was heard on 30 th and 31 st October 2013. It is, to my mind somewhat unfortunate that a planning case should have taken 15 1/2 months to be heard. As Mr Gaston points out in his helpful submission to the Court the livestock building was erected in January/February 2013. It remains unfinished because of the grant of permission in these proceedings in March 2013. In so far as this application fails he will complete the development in accordance with the permission. It is also worth noting that the permission for the caravan was only for a period of 3 years and will have to be reconsidered in 2016 in any event.
Before dealing with the issues in the case it is right that I should acknowledge with thanks the very considerable assistance I have had from Counsel in this application. Both Counsel produced very detailed and helpful skeleton arguments and the oral arguments were both clear and concise. I am most grateful.
Factual Background
There is little dispute between the parties as to the factual background. It is contained in paragraphs 5 to 17 of Mr Harwood QC's skeleton argument and in the chronologies attached to Counsels' respective skeleton arguments. Much of this section of the judgment is taken from those documents. Some of the matters referred to in this section will be considered in more detail when considering the detailed grounds.
The site
Dunstan Steads Farm, Embleton, Alnwick consists of an agricultural holding of 173 hectares which has been operated as an arable farm. The farm buildings and associated cottages were sold off by the farm's previous owners. The application site lies within the Northumberland Coast AONB, the Northumberland Heritage Coast and is around 575 metres east of the southern edge of Embleton village and the Embleton conservation area.
The Embleton Burn is 45 metres from the site and leads directly to protected coastal sites including an EMS, the North Northumberland Coast Ramsar SPA / SAC, the Northumberland Shore SSSI and the Embleton and Beadnell Coast SNCI and Habitats of Principal Importance. Dunstanburgh Castle, a grade I listed building and scheduled ancient monument is located 1.6 km south- east of the site.
The grain store and the farmhouse application
Mr Gaston erected a grain storage building adjacent to the site in 2009 under permitted development rights. In May 2010 Mr Gaston applied for planning permission for a farmhouse on the site. On 15 June 2010 the Council received a screening opinion to the effect that no EIA was required for the development. On 13 July 2010 the application was withdrawn following written comments from Mr Armstrong and a meeting between Mr Armstrong and Mr Gaston at which Mr Armstrong said that the Council could not support it.
The first application for a livestock building
On 21 July 2010 Mr Gaston submitted an application for a livestock building, hardstanding and a 10,000 litre effluent tank. As can be seen from Mr White QC's chronology between October 2010 and 9 September 2011 a number of steps were taken in relation to the application. On 5 November 2010 the Council received a Screening Opinion to the effect that no EIA was required for the development. On 17 November 2010 Natural England provided a consultation response stating that it had no objection to the proposal and that it would not have a significant effect on the SSSI, SNCI or SPA. On...
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