R (Burkett) v Hammersmith and Fulham London Borough Council (No 1)
| Jurisdiction | England & Wales |
| Judgment Date | 13 December 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J1213-6 |
| Docket Number | Case No: C/2000/2480 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 December 2000 |
[2000] EWCA Civ J1213-6
Lord Justice Ward
Lord Justice Sedley and
Lord Justice Jonathan Parker
Case No: C/2000/2480
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(CROWN OFFICE LIST)
(MR JUSTICE RICHARDS)
ON APPEAL FROM QUEENS BENCH DIVISION
Royal Courts of Justice Strand, London, WC2A 2LL
Mr. C. Katkowski QC and Mr. R. Harwood (instructed by Richard Buxton for the Applicants)
Mr. T. Straker QC (instructed by Legal Services, London Borough of Hammersmith and Fulham for the Respondent)
Mr. R. Purchas QC and Miss J. Clayton (instructed by Masons on behalf of the Interested Party)
Judgment of the Court
This matter came before us as an application by Mr and Mrs Burkett for permission to appeal against the order of Richards J. made on 29 th June 2000 whereby he refused permission to apply for judicial review of the resolution passed on 15th September 1999 by the London Borough of Hammersmith and Fulham, who are the first respondent, to authorise the Director of the Environment Department to grant outline planning permission to St. George West London Ltd. for the mixed use development of land at Imperial Wharf, London, SW6. After an oral hearing, Richards J. refused leave to apply on the grounds of delay, which was the reason advanced by Newman J. when he dismissed the application on the papers. By the direction of Pill L.J. this application was limited to that question of delay. We granted permission and have dealt with the appeal on that limited basis.
Mr and Mrs Burkett live in a ground floor maisonette in a three storey block adjacent to the proposed development at Imperial Wharf. Mr Burkett is in poor health being a chronic diabetic who also suffers a liver complaint. He is housebound for much of the time. His daughter is asthmatic. They are fearful that the large scale disturbance of the contaminated ground at the site will further injure their health.
The site lies on the northern bank of the Thames between Wandsworth Bridge and Battersea Bridge. It is about 32 acres in area. It was formerly owned by British Gas and had been used by them for operational purposes, other parts being let out for general industrial uses. The ground at the site has been contaminated over a number of years as a result of its use which has included the town gas manufacturing works, petroleum and oil storage and blending and various industrial and open site uses. Development will involve the removal of contamination-containing tanks and other underground structures. Remediation work will be essential to ensure that the site is fit for the purpose for which it is intended by the development.
Proposals for development began in June 1996 when duplicate planning applications were submitted to the London Borough by British Gas. In February 1998 outline planning applications were submitted by St. George West London Ltd. The scheme, like the White City development, involves huge urban regeneration and will provide for some 1600 mixed units of affordable public sector and private housing, also community use accommodation, considerable business accommodation, restaurants, a tourist hotel, a health club, a large area of public parks and riverside walks. Not surprisingly in March 1998 the local authority called for an environmental statement and over the months there were meetings to identify the key areas for assessment in that statement which was formally submitted in May 1998. In March and in August there were public exhibitions and the development was advertised in the local press. In January 1999 the proposals were submitted to the Local Ward Planning Consultative Committee. As it happens the applicants' solicitor, then acting for another interested party, suggested in July 1999 that the environmental statement was inadequate and that it would, therefore, be unlawful to approve the application. Nonetheless on 15 th September 1999 the local authority resolved to accept the recommendation of Director of Policy and Administration:—
"Subject to there being no contrary direction from the Government Office for London, the Committee resolve that the Director of the Environment Department be authorised to grant outline planning permission upon the completion of a satisfactory proposed Section 106 Agreement subject to the following conditions: …"
The application had to be referred to the Secretary of State because it involved a departure from the unitary development plan. On 24th February 2000 the Government Office of London, on the Secretary of State's behalf, notified its decision that it declined to call in the outline planning application. On 28th March the applicants' solicitors sent what was effectively a letter before action raising, in very summary form, the matters of complaint and threatening judicial review. That application for judicial review was made on 6th April 2000 and it took nearly a fortnight to come to the attention of the local authority and the developer. On 12th May 2000 outline planning permission was granted.
Three grounds were advanced to challenge the legality of the decision. It will be sufficient to state them in summary only. The first complaint is that the environmental statement fails to provide the information required by the 1988 Regulations then in force. The second ground is that the statement failed to identify the mitigation measures necessary to protect the local population from residual contamination from the reconstruction work. The third ground is that the developers failed to follow the procedures necessary to secure proper publicity of all matters which needed to be set out in the statement thus giving the applicants insufficient opportunity to consider the information and make appropriate representation. Richards J. unlike Newman J. was prepared to accept (though he deliberately observed that he had not heard argument from the respondents) that there was an arguable case on the merits.
Mr Christopher Katkowski QC, in an attractively reasoned submission, contends that Richards J has approached the exercise of his discretion as to time on a false basis of law and of principle. The error of law, he submits, was to regard the "date when grounds for the application first arose" as being the date of the local authority's resolution to grant planning permission rather than the date of central government's decision not to call in the application – or even, arguably, of the eventual grant of planning permission. The error of principle was to apply a six-week rule, or something close to it, to the issue of promptness. But for these errors, Mr Katkowski is entitled to say, the judge's finding that his case is arguable on its merits entitles him, if not to permission to apply for judicial review, at least to a fresh consideration of the time issue. Having heard Mr Katkowski we gave him permission to appeal and went on to hear Mr Timothy Straker QC for the local planning authority and Mr Robin Purchas QC for the developer.
The applicants' argument, as Mr Straker amply demonstrated, faces two initial hurdles. One is that their Form 86A, lodged on 6 April 2000, specifies the resolution of 15 September 1999 as the decision to be challenged. The other is that, on the face of it, it is right to do so, since Order 53 rule 4(1) of the Rules of the Supreme Court, which were then in force, in terms required an application for leave to be "made promptly and in any event within three months from the date when grounds for the application first arose". Since the impugned environmental impact statement was as necessary to the resolution as to any subsequent steps, the logic of measuring time from the resolution seems inescapable.
Although in its final section the Form 86A asserts that the application is made within time because any challenge brought before the call-in decision of 24 February 2000 would have been premature, this cannot on any view be right. If time ran from the resolution, an enlargement of time was needed. If time ran from the call-in decision, it was that which ought to have been specified as the decision under challenge. But for reasons to which we will come, this distinction, though real, is not critical.
Mr Katkowski's essential argument is that both statutory provision and case-law in this particular field make it clear that neither the resolution nor the call-in decision but the final grant of planning permission is the single event from which all rights and remedies flow. The Council Directive (85/337/EEC) on the Assessment of the Effects of Certain Public and Private Projects on the Environment focuses entirely on the measures, including environmental impact statements in cases such as the present, which are required "before consent is given" (Article 4(1)). The implementing regulations (then the Town and Country Planning (Assessment of Environmental Effects) Regulation 1988) by Regulation 4(2) follow suit by forbidding the grant of planning permission without taking the environmental impact statement into consideration. The House of Lords in Berkeley v Secretary of State for the Environment [2000] 3 WLR 420 has made it clear that this is an effectively indispensable requirement of the law. And even without the Directive's regime, the decision of Woolf J in R v West Oxfordshire DC, ex parte Pearce Homes Ltd [1986] JPL 523.establishes that nothing in a resolution is irrevocable until planning permission is actually granted – in that case because of the discovery of archaeological remains in the interim.
We do not doubt the legal accuracy of any of this, but it fails in our judgment...
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