R Eduard Berky v Newport City Council (1st Respondent) WM Morrison Supermarkets Plc (2nd Respondent/1st Interested Party) Linc-Cymru Housing Association (3rd Respondent/2nd Interested Party)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date29 Mar 2012
Neutral Citation[2012] EWCA Civ 378
Docket NumberCase No: C1/2011/2110

[2012] EWCA Civ 378





(Sitting as a Judge of the High Court)


Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Carnwath

Lord Justice Moore-Bick


Sir Richard Buxton

Case No: C1/2011/2110

The Queen on the Application of Eduard Berky
Newport City Council
1st Respondent
WM Morrison Supermarkets Plc
2nd Respondent/1st Interested Party
Linc-Cymru Housing Association
3rd Respondent/2nd Interested Party

Richard Harwood (instructed by Richard Buxton Solicitors) for the Appellant

Ian Albutt (instructed by Newport City Council) for the 1st Respondent

Michael Fordham QC & James Maurici (instructed by Gordons LLP) for the 2 nd Respondent 3 rd Respondent was not represented.

Hearing date : 28th February, 2012




This is an appeal against refusal of permission to bring judicial review proceedings in respect of a planning permission given on 26 th January 2011 by Newport City Council ("Newport"). The permission was for mixed development including the construction of a food store, and the restoration of a former workingmen's institute "the Institute", on land at Lliswerry, in the eastern part of Newport. It was granted on an application by Linc Cymru Housing Association and W. M. Morrison Supermarkets plc ("Morrisons"), who are now the landowners and operators of the foodstore. The claimant is a local resident, who also claims to act in the name of a local group known as "Say No To Morrison's Group". Permission was refused in the High Court by HH Judge Cooke QC.


I should note that the legal status, and even the membership of the "group", remain obscure, for reasons that have not been satisfactorily explained. However, for the limited purpose of deciding the appeal (and without prejudice to any other issues, for example as to costs), it is enough that Mr Berky has standing to proceed in his own right.


There was an issue as to the timing of the application for judicial review, having regard to the requirement of CPR 54.5(1) for the claim to be brought "promptly" and in any event within three months from the time when the grounds first arose. It was lodged on 26 th April 2011, which was the day following a Bank Holiday. It was not preceded by any form of letter before action. Work had by then started on site on the foodstore (shortly after 14 th March 2011), and also on the refurbishment of the Institute by the Housing Association. The store opened for business on 17 th October 2011, and now employs 245 people. The judge held that the application had been brought neither promptly nor within 3 months, and refused permission on those grounds, as well as on the merits.

The facts


The site is 2.8 hectares and is bounded by two highways, a watercourse and the site of an existing B&Q store. The area is in mixed commercial use. The disused Institute was a former workingmen's institute built in 1928. Although not a listed building it was regarded as having architectural merit and significant community cultural associations. The site had been vacant for around 6 years and had extant planning permission for 350 to 450 residential units, and the redevelopment and reuse of the Institute. The proposed foodstore was to be of about 5,500 m2 gross floorspace.


On 17 December 2009 GVA Grimley, as agents for the intended applicants, submitted a request to the Council for a screening opinion to ascertain whether the proposed development of the application site required an Environmental Impact Assessment ("EIA"). On the 7 th January 2010 the Council replied that no EIA was needed.


Following the submission of the application, on 23 August 2010 an Environmental Assessment Checklist was completed by the planning case officer, which confirmed that an EIA was not required. The planning officers' detailed report also confirmed that the project was "unlikely to have significant effects on the environment" so that an EIA was not required, and that it was also acceptable on highway grounds. However, the report recommended refusal because the proposed development was contrary to the retail planning policies of the development plan:

"On this basis it must be considered whether there are compelling other material considerations to justify a decision contrary to the development plan. Having considered the merits of the application … it is concluded that the regeneration merits of the proposal do not justify a decision contrary to the development plan. They are not considered compelling. So although there is merit in the scheme and the restoration of Lysaghts is welcomed, it does not outweigh the very significant Policy objections to the scheme."


At the Council's Planning Committee meeting on 13 October 2010, it was resolved by 8–1 to grant planning permission, subject to a section 106 agreement. The minutes recorded the following reason:

"The regeneration benefits of the proposal including the restoration, refurbishment and change of use of Lysaght Institute and the development of a vacant, urban site in a prominent location were compelling material planning considerations that outweigh the policy objections to the scheme."


As a significant departure from the development plan, the application was referred to the Welsh Assembly Government but was not called in for decision. Following completion of the section 106 Agreement, the Council formally granted planning permission on 26 January 2011, notifying objectors between 28 January and 3 February 2011.

The grounds for review


The applicant sought to challenge the Council's decision on three grounds, in summary:

i) the decision not to require an environmental statement was erroneous in law, and inadequate reasons were given;

ii) the decision making process was tainted by real or apparent bias on the part of one of the members, Councillor Richards;

iii) the decision to grant permission contrary to the officers' advice was irrational or inadequately reasoned. In particular, the council were wrongly advised that, as an unlisted building not in a conservation area, the Lysaght Institute was not protected from demolition (contrary to the law as later established in R(SAVE) v Secretary of State [2011] EWCA Civ 311).


The judge rejected each of these grounds:

i) The Council had been entitled to decide that an environmental statement was not required, having consulted relevant parties and reviewed the evidence before coming to its decision regarding the environmental statement. Although its letter of 7th January 2010 setting out the reasons for granting planning permission was "terse", the only reasonable interpretation was that it was based on the information in, and adopted the reasoning of, the GVA Grimley letter of 17 December 2009.

ii) Although there was some room for concern over aspects of Councillor Richards' conduct, both before and at the meeting, it had not been established that he actively canvassed support for the development. Applying the guidance of Pill LJ in R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746, he concluded that there was insufficient material to hold that the Councillor should have played no part in the decision, or to regard the decision of the committee as a whole as vitiated by apparent bias or pre-determination.

iii) The decision was not Wednesbury unreasonable. The planning committee considered the application carefully and had come to a rational decision. Although there is in Wales no statutory duty to give reasons for the grant of permission, the reasons were apparent from the report and the minutes. Knowledge of the possible option of preserving the Institute, as "a deteriorating derelict eyesore on a prominent site", would not have materially affected the decision.

The grounds of appeal


The main points advanced by Mr Harwood for Mr Berky can be summarised in accordance with the grounds of appeal, relating first to timing and secondly to substance.


Timing The application was made in time:

i) In calculating three months, the date on which the grounds arise is not counted, and in any event the bank holiday should be disregarded (see Pritam Kaur v S Russell & Sons Ltd [1973] QB 336).

ii) Under European law (which governs the EIA issue) time for bringing proceedings runs from the date the claimant knew or ought to have known of the ability to challenge the decision, and a requirement to bring proceedings promptly is contrary to the principles of certainty and effectiveness and so unlawful Uniplex (United Kingdom) Ltd v NHS Business Services Authority [2010] PTSR 1377; R(Buglife) v Medway Council [2011] EWHC 746 (Admin).


Substantive grounds.

i) EIA The judge should have held that the screening opinion was based on responses which were legally flawed, and in any event failed to provide adequate reasons.

ii) Bias The judge should have found the evidence sufficient to indicate that Councillor Richards was biased in favour of the proposal and had pre-determined the issue. Appearance of bias by one member of a committee can vitiate a decision ( Bovis Homes Limited v New Forest District Council [2002] EWHC 483 (Admin) para 103 per Ouseley J).

iii) Rationality Whilst there is no statutory duty in Wales to give reasons for the grant of planning permission, it was irrational to approve the application without sufficiently explaining why the members had differed from critical elements of the officers' report.



It will be convenient to deal first with the substantive issues.



Mr Harwood's submissions raised two questions under this head:

i) Did the material relied on by the officer disclose legal errors, in particular the Council's Highways department's reliance on the necessary information being...

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