R Daniel Gerber v Wiltshire Council (Defendant/1st Appellant) Terraform Power Inc. and Another (Interested Parties/2nd Appellant)
Jurisdiction | England & Wales |
Judge | Lord Justice Sales,Lord Justice Tomlinson,Lord Dyson MR |
Judgment Date | 23 February 2016 |
Neutral Citation | [2016] EWCA Civ 84 |
Docket Number | Case No: C1/2015/0985, C1/2015/0990 |
Court | Court of Appeal (Civil Division) |
Date | 23 February 2016 |
[2016] EWCA Civ 84
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE DOVE
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Tomlinson
and
Lord Justice Sales
Case No: C1/2015/0985, C1/2015/0990
and
DJ Forsdick QC & Jonathan Wills (instructed by LEGAL SERVICES, WILTSHIRE COUNCIL) for the 1 st Appellant
Richard Drabble QC & Jonathan Wills (instructed by WATSON FARLEY & WILLIAMS LLP) for the 2 nd Appellants
Morag Ellis QC & Jenny Wigley (instructed by RICHARD BUXTON ENVIRONMENTAL & PUBLIC LAW) for the Respondent
Hearing date: 20 JANUARY 2016
This is an appeal from the decision of Dove J in which he extended time for the respondent (Mr Gerber) to bring judicial review proceedings and then quashed the planning permission granted by the appellant council ("the Council") for installation of photovoltaic arrays mounted on frames to form a solar farm on 22.1 ha of agricultural land at Broughton Gifford, Wiltshire ("the Site"). Mr Gerber owns Gifford Hall, a Grade II* listed building close to the Site. The application for planning permission was made by the owner of the Site, a Mr Steve Rademaker, who has not played a part in the appeal.
The planning permission was granted on 25 June 2013. The judicial review proceedings to challenge the grant of planning permission were only commenced on 20 August 2014. In the meantime, the other appellants ("Norrington" and "Terraform", respectively) between them had in February 2014 purchased from Mr Rademaker a 25 year leasehold interest in the Site with its planning permission and then installed the solar farm, with the installation being completed in June 2014.
Prior to granting planning permission the Council had posted notices of the planning application at prominent places in the vicinity of the Site in accordance with its obligations under article 13 of the Town and Country Planning (Development Management Procedure) Order 2010 ("the 2010 Order"), including at the end of the lane leading to Gifford Hall, but Mr Gerber had not noticed them. Notice of the application was also given in the local newspaper, the Wiltshire Times, but Mr Gerber did not see it. Details of the planning application were also posted on the Council's website, but Mr Gerber did not know about this. Mr Gerber did not appreciate that there was an application for permission for development of the Site and so made no representations to oppose it.
Mr Gerber first realised that the Site was being developed when he noticed development work being carried out on it on 19 March 2014, at which point he checked the position on the Council's website and realised that an application for planning permission had been made and had been granted. On 20 March 2014 he wrote an email to the Council to object to the development on the grounds of the detrimental impact it had on the setting of Gifford Hall. The Council rejected his complaint and eventually Mr Gerber commenced this claim for judicial review.
On 20 October 2014 Dove J granted permission for the application for judicial review to be brought, reserving to the substantive hearing on the merits the question whether the claim should be dismissed under either CPR Part 54.5 or section 31(6) of the Senior Courts Act 1981 on grounds of delay. At the substantive hearing, the Council, Norrington and Terraform all argued that the claim should be dismissed on grounds of delay and Norrington and Terraform adduced evidence of the substantial financial hardship they would suffer if the planning permission was now quashed and the solar farm had to be dismantled. They also joined in resisting Mr Gerber's claim on the legal merits.
At the substantive hearing, the judge granted Mr Gerber an extension of time for bringing his claim. In doing so, the judge held that by assurances it had given in its published policy on consultation, its Statement of Community Involvement ("SCI"), the Council had created a legitimate expectation on the part of Mr Gerber that he would receive a letter of notification of the planning application as the owner of a neighbouring property, albeit Gifford Hall and its garden was not a property adjoining the Site. The judge upheld the four grounds of challenge to the grant of planning permission for the solar farm. First, the Council had wrongly failed to assess that the development of the Site could have a significant impact on the setting of Gifford Hall, a Grade II* listed building, and on the Broughton Gifford conservation area nearby and had acted unlawfully by failing to consult English Heritage for its views as the Council was required to do under regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990. Later correspondence with English Heritage revealed that it would probably have objected to the development on these grounds. Secondly, the Council had unlawfully failed to comply with its duty to give special weight to the desirability of preserving the setting of Gifford Hall as a listed building under section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990, as explained in East Northamptonshire DC v Secretary of State for Environment, Food and Rural Affairs [2014] EWCA Civ 137; [2015] 1 WLR 45. Thirdly, the Council had failed to comply with its obligation to consult Mr Gerber by direct communication with him pursuant to the legitimate expectation created by its SCI. Fourthly, the Council had failed properly to screen the development in order to decide whether an environmental impact assessment should be carried out in relation to it pursuant to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 ("the EIA Regulations"), which implement the relevant EU Directive. The judge held that the legal errors which occurred in the case were serious, particularly the failure to give proper consideration to the interests of a nationally protected heritage asset and observing the requirements of EU environmental law. The judge held that the claim should not be dismissed by reason of application of section 31(6) of the 1981 Act on grounds of delay, hardship to Norrington and Terraform or detriment to good administration. Accordingly, he quashed the grant of planning permission for construction of the solar farm on the Site.
The Council, Norrington and Terraform now appeal against this decision. They submit that the judge erred in holding that the Council had created a legitimate expectation by reason of the SCI and in his assessment of the significance of the delay by Mr Gerber in commencing his claim under both CPR Part 54 and section 31(6). They do not appeal in respect of the judge's ruling that the first, second and fourth grounds of challenge referred to above were each made out. It is a testament to the quality of the judgment in relation to those grounds that the appellants recognised that an appeal could not succeed in relation to them. We were greatly assisted in understanding the case by the clarity of the judge's reasoning on those points.
Legal and policy framework
At the time the Council took its decision to grant planning permission the CPR Part 54.5(1) provided:
"The claim form must be filed –
(a) promptly; and
(b) in any event not later than 3 months after the grounds to make the claim first arose."
A court has a discretion under CPR Part 3.1(2)(a) to extend time for compliance with this rule.
Part 54.5 was amended with effect from 1 July 2013 to displace rule 54.5(1) in cases specified in rule 54.5(5), which provides as follows:
"Where the application for judicial review relates to a decision made by the Secretary of State or a local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose."
However, since the grounds for judicial review in this case arose before 1 July 2013 the relevant time limit is that in the unamended version of Part 54.5, i.e. as set out in Part 54.5(1). At most, the amendment in July 2013 emphasised the importance of promptness in claims for judicial review of planning decisions, as the judge noted at [77], but the importance of promptness in such cases is in any event emphasised in well-known authorities pre-dating the amendment in July 2013, including Finn-Kelcey v Milton Keynes BC [2008] EWCA Civ 1067; [2009] Env LR 17, to which I refer below.
On any view, Mr Gerber required an order under CPR Part 3.1(2)(a) to extend time for bringing his judicial review claim. In deciding whether to extend time, the judge was obliged under CPR Part 1.2(a) to seek to give effect to the overriding objective set out in CPR Part 1.1(1) to enable the court to deal with the case justly and at proportionate cost. As set out in CPR Part 1.1(2), dealing with a case justly and at proportionate cost includes, so far as is practicable, a range of matters including at Part 1.1(2)(f) "enforcing compliance with rules, practice directions and orders". Sub-rule (f) was added along with other amendments of the overriding objective provisions with effect from 1 April 2013, as part of the Jackson procedural reforms. It was thus in effect before the grounds for judicial review arose in this case. It does not appear that the judge had his attention drawn to this provision, which is intended to...
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