R (Finn-Kelcey) v Milton Keynes Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Mummery,Lord Justice Stanley Burnton,Lord Justice Keene,Lord Justice Thomas,Lord Justice Hughes
Judgment Date10 October 2008
Neutral Citation[2008] EWCA Civ 1067,[2008] EWCA Civ 1052
Docket NumberCase No: C1/2008/1578,Case No: C1/2008/1578 & B

[2008] EWCA Civ 1052





Royal Courts of Justice


London, WC2A 2LL


Lord Justice Mummery and

Lord Justice Stanley Burnton

Case No: C1/2008/1578 & B

The Queen On The Application Of Finn-kelcey
Milton Keynes Council

Mr P Brown (instructed by Messrs Richard Buxton) appeared on behalf of the Appellant.

Mr D Forsdick (instructed by Milton Keynes Council) appeared on behalf of the Respondent.

Mr J Litton (instructed by Messrs Burges Salmon) appeared on behalf of the Interested Party.

Lord Justice Mummery

This is an adjourned application for permission to appeal in a planning case. On 14 January 2008 Milton Keynes Council (“the Council”) granted planning permission to the interested party —MK Windfarm —for the construction of a wind farm of seven wind turbines, 125 metres high, and associated facilities at a site near Olney in Buckinghamshire.


The validity of the permission has been challenged: judicial review proceedings were lodged on 10 April 2008. The application for permission for judicial review was heard by Collins J, and on 3 July he refused permission for judicial review. He gave his reasons in a judgment which was handed down on 17 July. There was then an application to this court for permission to appeal against the refusal of permission for judicial review and that was dealt with by Richards LJ on the papers on 8 August 2008. He directed that the applications for permission to appeal and ancillary orders relating to protective cost disclosure and permission to rely on fresh evidence should be adjourned to an expedited oral hearing on notice to the respondent council and to the interested party. That hearing was to take place before the end of August 2008 with an estimate of two hours. He then explained the reasons why he thought that the issues which had been raised could not be properly resolved on the papers.


That is the matter that has come before the court today. The court has received very detailed skeleton arguments from all parties and has heard excellent submissions from counsel for each party on the question whether the proposed appeal has a real prospect of success and whether, accordingly, this court should grant permission. For reasons which I shall state briefly, the court has decided that permission to appeal should be granted and that there should be an expedited hearing of the substantive appeal. The substantive appeal will —we shall direct, for reasons I will give in a moment —be a rolled-up hearing, and in fact treat as before it the substantive appeal. It will not be necessary for this matter to go back to the Administrative Court, which would simply involve further expense and delay unnecessarily.


The points which have been argued relate first to the question of an admitted breach of the environmental impact assessment regulations: regulation 19(4) and 19(7) being the relevant ones. As I said, the Council admit there had been a breach; the interested party has not made that admission. The question which arises on the admitted breach is one that concerns the effects it would have so far as the court is concerned. There are issues raised as to whether Collins J was right in disregarding the admitted breach, relying in a passage in the opinion of Lord Hoffmann in the Beverley v S/S Environment (CA) case. We have heard detailed arguments from Mr Brown on behalf of the applicants that the judge wrongly drew a distinction between a breach of the regulations and a breach of the directive, apparently consigning breaches of regulations to a lower order than breaches of the directive. He had submitted that there had been a breach of the directive as well as the regulations, and there were flaws in the judge's reasons for exercising his discretion in this matter to disregard the breach which had occurred. We think that there is a reasonably arguable point on this issue of the legal consequences of the breach of regulation 19.


The next point which we also think is reasonably arguable is this: would the position have been any different if there had been compliance? On this there are two aspects —there is a disagreement between the parties as to the meaning of the resolution granting planning permission, which is set out in the judgment at paragraph 20. There have been arguments from all parties about what was meant, in particular by the part of the resolution which opened by saying:

“The planning application has been determined, taking into account relevant Development Plan policies, national planning policies and all other material considerations and addressing a balance of benefits and disadvantages associated with the proposal. The proposal, on balance, is not regarded to have a detrimental impact on …”

Then there are various matters set out which it is said do not have a detrimental impact. It is argued by Mr Brown that there is an ambiguity in this. In relation to that he has an application to adduce further evidence from one of the councillors who was a party to the planning decision that was passed simply by a majority of one. We think there is an argument on this which is reasonably arguable and we think the same of a second aspect of “Would it have made a difference?”—that is, what would the information which the applicant says had not been made available to them have shown? On this aspect we heard some detailed submissions from Mr Litton for the interested party, submissions which, in our view, might require some further evidence to be put before the court if this aspect of the matter is to be properly addressed and resolved.


Then, on the issue “Would it have made a difference?” we think there is a reasonably arguable case. The final issue is one of delay. Collins J, at the end of his judgment, dealt with the question of the need for expedition being of particular importance in challenges to grants of planning permission. This planning permission was, as I say, granted in January 2008; the judicial review proceedings were not started until a few days before the end of the three-month time limit. The judge expressed the view that, even within the time limit the rule requires promptness. He did not think that, in all the circumstances of this case, it had been reasonable to wait until 10 April —nearly three months after the formal grant —in order to bring the judicial review proceedings.


On this aspect we think there is an argument that the judge was wrong to refuse permission on the ground of delay. He said in the conclusion:

“While it may be that to refuse permission on the ground of delay is unnecessary in the light of my decision that the claim must in any event fail, I think it should follow. It makes little difference in the result save that any appeal is to be made within 7 rather than 21 days.”

We would not shut out the applicant's proposed arguments that the judge was wrong in saying that delay was another reason for refusing permission to appeal.


The position is that there will have to be a full hearing of this appeal. We agree that it should be expedited and, as I indicated earlier, the full appeal will be deciding the substantive judicial review application. It is estimated it will take about a day. The question is how soon this can be heard? We mentioned to the parties at the very close of argument this morning that we have ascertained that the 20 August is an available date. That may not give the parties enough time to get in order any supplementary skeleton arguments and any further evidence which they wish to put before the court on the appeal. We have since found out from the listing office that a full day is available on 29 August, which will give the parties two weeks to make the preparations for the appeal. Fortunately, I think, for everybody, there will be a Lord Justice available on that date to sit in the court who has vast experience of planning matters. This is a case that requires judicial experience in this area, so, subject to any representations of the parties, 29 August would, as far as the court is concerned, be a day on which this appeal could be heard.


There is the further matter of protective costs which was raised on the papers before Richards LJ. On that we have received a letter from Mr Richard Buxton, the solicitor acting for the applicants, to say that an agreement had been reached in relation to the appellant's costs at the permission stage of the appeal —a claim against the Council would be capped at £3,000 and a similar provision that the Council's costs at the permission stage of the appeal claimable against the appellant would be capped at £3,000, but no agreement has yet been reached with the interested party, and the agreement which I have mentioned only refers to the permission stage; it does not refer to the appeal. We were, however, told this morning that, if permission was granted then there would be further discussions between the parties. I would express the hope that, if that is still the position, discussion can take place and some agreement can be reached.


For those reasons we grant permission to appeal, with an appeal to be heard on 29 August.

Lord Justice Stanley Burnton

I agree.

Order: Application granted

[2008] EWCA Civ 1067






Mr Justice Collins

Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Keene

Lord Justice Thomas and

Lord Justice Hughes

Case No: C1/2008/1578


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