R Edward Berky, on his own behalf and on behalf of the "Say No to Morrisons" Group v Newport City Council W. M. Morrison Supermarkets Plc (1st Interested Party) Linc-Cymru Housing Association (2nd Interested Party)
| Jurisdiction | England & Wales |
| Judge | The Recorder of Cardiff |
| Judgment Date | 29 July 2011 |
| Neutral Citation | [2011] EWHC 2100 (Admin) |
| Docket Number | Case No: CO/3841/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 July 2011 |
[2011] EWHC 2100 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Cardiff Crown Court
The Law Courts
Cathays Park
Cardiff
CF10 3PG
THE RECORDER OF CARDIFF
His Honour Judge Cooke Q.C.
(sitting as a Judge of the High Court)
Case No: CO/3841/2011
and
and
Richard Harwood (instructed by Richard Buxton Solicitors) for the Claimant
Ian Albutt (instructed by the Legal Services, Newport City Council) for the Defendants
Michael Fordham Q.C. and James Maurici (instructed by Gordons Solicitors) for the First interested party
The Second interested party not being present and not being represented.
Heard at Cardiff Civil Justice Centre on the 27 th and 28 th June 2011
The Recorder of Cardiff:
I direct pursuant to CPR Part 39 PD 6.1 that no official recording shall be taken of this judgment and that copies of this version, subject to editorial corrections, may be treated as authentic.
A. INTRODUCTION
This is an application for permission to bring judicial review proceedings which falls to be dealt with on a 'rolled up' basis, pursuant to an order of Thirlwall J. dated the 27 th of May, 2011. There is an issue as to whether or not this claim has been brought in time but, irrespective of that, I have heard full argument on the merits. The decision sought to be challenged is a grant of planning permission by Newport City Council ('Newport') for mixed development including the construction of a food store of 5,504m 2 gross, 2,784m 2 net and the restoration of a former workingmen's institute on land at Lliswerry, a district of the eastern part of Newport's urban area.
The claimant is a local resident, the group which he also represents is an anonymous — in terms of its membership — and unincorporated, loose, single issue campaigning organisation. W. M. Morrison Supermarkets PLC, the First Interested party ('Morrisons'), are now the landowners and the proposed supermarket operators. Morrisons have taken a full part in these proceedings, as have Newport. Linc-Cymru Housing Association, the Second Interested Party, made no submissions before me.
The relevant site is bounded by two significant highways, the Southern Distributor Road and Corporation Road, a watercourse and the boundary of a B&Q D.I.Y. store. It is level, vacant and located within a mixed commercial/residential area.
Significantly, in the context of the planning issues which were to be resolved, the site is dominated by the disused W. R. Lysaght Institute. That building is unlisted although the building is clearly, from the material before me, regarded locally as having both architectural merit and significant community cultural associations. The latter flow from its place in the city's industrial heritage, it being very much, until comparatively recently, a 'steel town' and the workingmen's institute concerned being a legacy of that industry.
In the shortest of form the determining issue before Newport's planning committee was — does the benefit of the restoration of the workingman's institute and the development of this prominent, presently neglected and vacant site outweigh the breach of retail policy and consequential damage to the interests protected thereby which would be the negative consequence of permitting the development? Of course, striking that balance was a matter for Newport's planning committee, the Welsh Assembly Government having declined to call the matter in. It is not a matter for me.
The challenge brought by the Claimant may be divided into three separate attacks upon Newport's decision making. It is submitted that the manner in which the decision not to require an environmental statement was taken is fatally flawed. It is submitted that the decision making process was tainted by apparent or real bias or pre-determination. It is further submitted that Newport's approach to a consideration of enabling development was erroneous and, in consequence, its determination irrational.
The very short summary of the criticisms of Newport's decision making which I have set out is not intended to be comprehensive as to detail. I consider that there is some advantage to be gained by my seeking to produce a judgment in this case which is relatively brief and comprehensible to the non-specialist reader. I am conscious that the Claimant's skeleton argument extended to 42 pages, those of Newport and Morrisons 25 pages and 32 pages respectively. The agreed bundle of legislation, policy and authorities included 43 authorities. I make no specific criticism in relation to any of this but I do flag up the risk that the areas of law with which this application is concerned may very easily become hopelessly obscure even to those working in the relevant field, let alone the general public. There is also a danger that the speedy resolution of matters like this is rendered difficult by the sheer volume of material submitted. Such considerations and risks need to be borne in mind, lest the development control system be rendered avoidably inefficient and opaque.
B THE ENVIROMENTAL STATEMENT POINT
I turn first to Newport's decision not to require an environmental statement. It is common ground between the parties that that was a decision which it was open to Newport to take and for which it was incumbent to give reasons. It is not in terms attacked as an irrational decision but the reasons given are said to be inadequate and it is submitted that the decision was founded upon some material error of reasoning.
The relevant decision was set out in Newport's letter of the 7 th of January, 2010:
1. "I refer to your correspondence dated 17 th December 2009 regarding the above,
2. This represents a formal screening opinion in accordance with the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 in relation to the above works.
3. As an urban development project, the proposal falls to be screened for Environmental Impact Assessment purposes on the basis that it exceeds the thresholds contained in Schedule 2 section 10b of the above Regulations and those of Circular 11/99.
4. Having consulted relevant parties in relation to your request and having considered the information provided in your correspondence and Schedule 3 of the Regulations, I am of the opinion that in accordance with the Town and County Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 and Environment Statement is not required."
5. It is important to note that although there was no obligation to consult, here there was consultation. There is no regulatory requirement as to the form in which reasons should be given.
In relation to the challenge made to the failure to require an environmental statement, I find the following authorities to which I have been referred of particular assistance.
R (Lebus) v South Cambridgeshire District Council [2002] All E.R. (D) 96 ,
R (Mellor) v Secretary of State for Communities and Local Government (Case C — 75/08) [2010] Env. L.R. 2,
R (Friends of Basildon Golf Course) v Basildon District Council (2010) All E.R. (D) 153 and
R (Bateman) v South Cambridgeshire District Council [2010] All E. R. (D) 226 .
From these decisions I consider that the following propositions relevant to this matter may be distilled.
(a) It is not permissible to dispense with the requirement for an environmental statement because the information which it would contain will be supplied in another form in any event or because it is concluded that any relevant adverse environmental effects will be able to be rendered insignificant by conditions.
(b) A decision not to require an environmental statement must contain or be clearly attributable to information and reasoning sufficient to enable any interested party to check whether there has been adequate screening, in accordance with Directive 85/337.
(c) The courts will be slow to interfere with the exercise of a judgment as to whether or not an environmental statement is required but it must be able to be clearly shown that the relevant decision has been taken carefully and conscientiously, the issues arising having been understood and considered.
Newport's letter of the 7 th of January 2010 was undoubtedly terse and a few extra sentences might well have precluded a good deal of the argument which I have heard. It did however, proceed with express reference to GVA Grimley's letter of the 7th of December 2009. The only reasonable construction of Newport's letter of the 7 th of January 2010 is that its decision not to require an environmental statement is based upon the information in and adopts the reasoning in GVA Grimley's letter of the 7th of December 2009. That letter provided a considerable amount of useful information in relation to the possible need for an environmental statement. Whereas it did, as some consultation responses also did, refer to the provision of other information later in the planning process, I do not consider that it can legitimately be construed as falling into the error of regarding that or suggesting that an environmental statement was not needed because further information will be supplied later. I also do not consider that the paragraph of this important letter dealing with the then extant outline planning permission and using the expression 'fall back'...
To continue reading
Request your trial
-
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)
... ... , who also claims to act in the name of a local group known as "Say No To Morrison's Group". Permission was ... of the petition were the words "(14/09/2010) John Edward Richards petition Morrison's doc". ii) ... ...
-
Harry Shindler MBE and Another v Chancellor of the Duchy of Lancaster and Another
... ... both his written and oral submissions on behalf of the claimants Mr. Aidan O'Neill QC has made ... Wandsworth London Borough Council [2013] QB 687 where it was rejected by the ... for itself whether it wishes to remain a party to the EU treaties and to determine the ... set by the 15 year rule form an appropriate group to vote on the question whether the United ... ( R (Berky) v. Newport CC [2012] EWCA Civ. 378 , [2012] ... ...
-
Musgrave Retail Partners (NI) Ltd’s Application (Leave stage)
... ... , in Finn-Kelcey v Milton Keynes Borough Council [2008] EWCA Civ 1607 at paragraphs [21] to [25] nd R (Berky) v Newport City Council [2012] EWCA Civ 378 at ... extensive oral and written submissions on behalf of all of the parties at the leave hearing and I ... take into account prejudice to third party interests, here the developer’s interests, but, ... ...