R (Portland Port Ltd) v Weymouth and Portland Borough Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HARRISON |
| Judgment Date | 21 December 2001 |
| Neutral Citation | [2001] EWHC 1171 (Admin) |
| Date | 21 December 2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | NO: C0/3469/01 |
[2001] EWHC 1171 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand
London WC2
Mr Justice Harrison
NO: C0/3469/01
MR A DINKIN QC and MR MICHAEL BEDFORD (instructed by Bevan Ashford, Curzon House, Southernhay West, Exeter EX1 1AB) appeared on behalf of the Claimant
MR J HOBSON QC and JAMES STRACHAN (instructed by Weymouth and Portland Borough Council) appeared on behalf of the Defendant
This is an application for permission to apply for judicial review of a decision dated 25th July 2001 by the defendant, Weymouth and Portland Borough Council (“the Council”) when it resolved, firstly, that three planning applications, to which I will be referring, should be delegated to the Director of Environmental Services to approve subject to the execution of legal agreements and the imposition of specified conditions; and secondly, that the first claimant's application for hazardous substances consent should be refused. The claim form had sought to quash both aspects of the decision of 25th July 2001, but the claimants no longer seek to quash the resolution to refuse the hazardous substances consent because they have an appeal pending relating to an identical application which is to be heard in January 2002. The challenge is therefore confined to the resolution relating to the three planning application.
The first claimant, Portland Port Limited, is the harbour authority for Portland Harbour. The second claimant is an associated company of the first claimant which owns Mere Tank Farm, which forms part of the operational land of the harbour, and which is used with the benefit of planning permission for the storage of liquids including hazardous liquids up to a controlled level. The Council is not only the local planning authority but also the hazardous substances authority. The hazardous substances consent that had been refused by the Council was for an increased level of storage of flammable aviation fuel on the Mere Tank site.
The first interested party, the South West Regional Development Agency (“the Development Agency”) made two of the three planning applications that were the subject of the resolution of the 25th July 2001. They related to an area called Osprey Quay which adjoins Mere Tank Farm. One of the applications was an outline application for a mixed use development incorporating employment, leisure, retail and residential uses on an area of about 27 hectares (I refer to that application as “the outline application”). The other application made by the Development Agency was a full application for infrastructure consisting of roads, flood defence works, and landscaping within the area encompassed by the outline application (I refer to that application as “the infrastructure application”). There were, however, no separate submissions made in respect of the infrastructure application save that it was alleged that it would sink or swim with the other two applications which were the subject of the resolution of 25th July 2001.
The third application which was the subject of the resolution of 25th July 2001 was made by the second interested party, Weymouth and Portland Sailing Academy, (“the Sailing Academy”). They presently occupy land immediately adjoining Mere Tank Farm which they use as a sailing and outdoor centre under a previous temporary planning permission which has now expired. The Sailing Academy had applied to renew that temporary planning permission for a period of three years which, I was told, is the unexpired period of their lease from the Development Agency (I will refer to that application as “the renewal application”).
The Sailing Academy site of just over 3 hectares is included within the area of the outline application submitted by the Development Agency. Part of the area of the outline application adjoins the Chesil and Fleet Special Protection Area (“SPA”) and candidate Special Area of Conservation (“cSAC”). By virtue of those designations the Chesil and Fleet area is a European site for the purposes of the Conservation (Natural Habitats, etc) Regulations 1994 (“the Habitat Regulations”). The area of Hamm Beach, which is a site of special scientific interest, is included within that area.
The thrust of the submissions in this case related to the outline application made by the Development Agency and the renewal application made by the Sailing Academy. A large number of points were made by Mr Dinkin QC on behalf of the claimants, no doubt on instructions, with the result that the hearing took about a day and a half in total, which is very much longer than a permission hearing normally takes. One could have been forgiven for thinking that it was the substantive hearing.
Mr Hobson QC who appeared on behalf of the Council submitted that, due to the detailed nature of the permission hearing, I should adopt a heightened threshold of whether the claimants’ case is strong and likely to succeed (see Mass Energy Ltd v Birmingham City Council [1994] Env LR 287 at pp 307–308 and 311). Mr Dinkin, on the other hand, reminded me that the issues in the Mass Energy case were relatively narrow whereas, he suggested, although there were a large number of points in this case, they had not been explored in full depth.
In R v Cotswold District Council ex parte Barrington [1998] 75 P&CR 515, Keene J, as he then was, said:
“…where the court seems to have all the relevant material and have heard full argument at the [permission stage] on an inter partes hearing, the court is in a better position to judge the merits than is usual on a [permission] application. It may then require [a claimant] to show a reasonably good chance of success if he is to be given [permission].
In the present case this court has heard arguments stretching over one and a half days from all three parties, each represented by leading counsel, and with substantial skeleton arguments from all three parties, and with all the documentation which those parties have been able to assemble over the period of almost four months since this application was lodged. This is very different, therefore, from the ordinary 20 minute ex parte [permission] hearing.”
Very similar circumstances apply in this case. The parties have gone into the case in much greater detail than is normally the case on a permission application, and I am in a good position to assess the merits of the case and the likelihood of the claimants’ case succeeding. In those circumstances I consider it appropriate to adopt a higher threshold than mere arguability and to adopt the threshold of whether the claimants have a reasonably good chance of success with their claim for judicial review of the defendant's decision of 25th July 2001.
Mr Dinkin's first main submission was that the environmental assessments submitted with the outline and renewal applications failed to comply in a number of different ways with the requirements of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the 1999 Regulations”). Regulation 2(1) of those regulations defines an “environmental statement” as a statement:
“(a) that includes such of the information referred to in Part I of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile but
(b) that includes at least the information referred to in Part II of Schedule 4.”
The same regulation defines “environmental information” as meaning:
“the environmental statement, including any further information, any representations made by anybody required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development.”
Regulation 3 prohibits the grant of planning permission on an application for an EIA unless the decision-maker has first taken into consideration “the environmental information”.
Of most relevance to this case, Part II of Schedule 4 to the 1999 Regulations requires, inter alia:
“1. A description of the development comprising information on the site, design and size of the development.
2. A description of the measures envisaged in order to avoid, reduce and if possible, remedy significant adverse effects.
3. The data required to identify and assess the main effects which the development is likely to have on the environment.
4. An outline of the main alternatives studied by the applicant and an indication of the main reasons for his choice, taking into account the environmental effects.”
Mr Dinkin submitted that the environmental assessments in this case fell foul of paragraphs 1, 3, and 4 of Part II of schedule 4 of the 1999 Regulations, namely the description of the development, the data, and the alternatives.
So far as the description of the development is concerned, Mr Dinkin submitted that the environmental assessments accompanying the applications did not describe the development as required by paragraph 1 of Part II of schedule 4. He made two points under that heading: firstly, the total effects of the land and water based development were not properly described or assessed (which he described as his “outline point”); and secondly, that future development relating to both applications had not been assessed (which he referred to as “the future development point”).
I deal first of all with the “outline point” which, as Mr Dinkin said, is probably...
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