R (Richardson) v North Yorkshire County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Richards,MR JUSTICE RICHARDS,‘MR JUSTICE RICHARDS’ |
| Judgment Date | 15 April 2003 |
| Neutral Citation | [2003] EWHC 764 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4205/2002 |
| Date | 15 April 2003 |
[2003] EWHC 764 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Richards
Case No: CO/4205/2002
Mr Robert McCracken and Mr Gregory Jones (instructed by Richard Buxton) for the Claimant
Mr Timothy Straker QC and Mr Paul Greatorex (instructed by North Yorkshire County Council Legal Department) for the First Defendant
Mr Philip Sales and Mr James Maurici (instructed by The Treasury Solicitor) for the Second Defendant
Mr Thomas Hill (instructed by Walker Morris) for the Interested Party
This case concerns the grant of planning permission by North Yorkshire County Council (“the Council”) to Brown and Potter Ltd, which appears as interested party, for the extension of quarrying of sand and gravel at Ripon City Quarry. The site falls within the boundaries of three parishes, including the parish of Littlethorpe, and is close to the settlement of Littlethorpe.
The first claimant, Paul Richardson, is a member of the Council, representing the electoral division which includes the parish of Littlethorpe. He also lives in Littlethorpe, his house being approximately 250 metres from the nearest point of the proposed extraction. He objected to the proposed development both in his capacity as the elected representative of the inhabitants of Littlethorpe and in his personal capacity. Although a member of the Council, he is not and was not a member of the Planning and Regulatory Functions Committee.
The second claimant, Wendy Orme, likewise lives in Littlethorpe. She objected to the proposed development as a member of Littlethorpe Parish Council.
At a meeting on 11 June 2002 the Council's Planning and Regulatory Functions Committee, by a majority of 5 to 4, resolved that, subject to the completion of a satisfactory s.106 agreement, planning permission be granted subject to conditions. The s.106 agreement was signed on 6 August 2002 and a notice of decision in respect of the grant of planning permission was issued on the same date.
The claimants contend that Mr Richardson was unlawfully excluded from the meeting at which the resolution was adopted, on the ground that he had a “prejudicial interest” within the meaning of paragraph 12(1) of the Council's Code of Conduct. They challenge what is described as the decision to preclude him from attending and speaking at the meeting, together with the decision to grant planning permission. The Council is the first defendant. The Council's Code of Conduct gives effect to a Model Code promulgated by the Secretary of State, which the Council was required to adopt pursuant to the Local Government Act 2000. Since the claim raises issues concerning the construction and lawfulness of the Model Code, the Secretary of State appears as second defendant.
In addition, the claimants challenge the decision to grant planning permission on the ground of alleged failure to comply with regs. 3(2) and 21(1) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the EIA Regulations”). The Secretary of State is not involved in that part of the case.
Those are the two broad grounds on which permission to apply for judicial review was granted by Collins J at an oral hearing on 20 January 2003. Permission to pursue other matters was refused. Pursuant to the judge's directions the claimants have served a substitute statement of grounds setting out their specific grounds of challenge in relation to the remaining issues.
The two grounds of challenge are entirely separate. It is convenient to deal first with the EIA issues.
The EIA issues: legal framework
The EIA Regulations implement Council Directive 85/337/EEC, as amended by Council Directive 97/11/EC. The general principle of the directive, as set out in the recital quoted in Berkeley v. Secretary of State for the Environment [2001] 2 AC 603, 609D, is:
“Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out; whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question ….”
The primary obligation imposed on Member States, by article 2(1) of the directive, is “to adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment … are made subject to a requirement for development consent and an assessment with regard to their effects”. Article 2(2) provides that the environmental impact assessment may be integrated into the existing planning procedures in the Member States.
Article 9(1) provides:
“When a decision to grant or refuse development consent has been taken, the competent authority or authorities shall inform the public thereof in accordance with the appropriate procedures and shall make available to the public the following information:
- the content of the decision and any conditions attached thereto,
- the main reasons and considerations on which the decision is based,
- a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects.”
As regards the implementing EIA Regulations, reference should be made first to reg. 3(2), which provides:
“The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so” (emphasis added).
The “environmental information” is defined in reg. 2(1) as “the environmental statement, including any further information, any representations made by any body 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”. The “environmental statement” is defined as a statement that includes the information specified in Parts I and II of Schedule 4.
Reg. 21(1) provides:
“Where an EIA application is determined by a local planning authority, the authority shall –
…
(c) make available for public inspection at the place where the appropriate register (or relevant section of that register) is kept a statement containing –
(i) the content of the decision and any conditions attached thereto;
(ii) the main reasons and considerations on which the decision is based; and
(iii) a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development” (emphasis added).
It is also material to note reg. 30, which provides in effect that the grant of planning permission by the Secretary of State (it is silent about the position of a local planning authority) in contravention of reg. 3 is to be regarded as ultra vires for the purposes of a statutory challenge under the Town and Country Planning Act 1990:
“For the purposes of Part XII of the Act (validity of certain decisions), the reference in section 288 to action of the Secretary of State which is not within the powers of the Act shall be taken to extend to a grant of planning permission by the Secretary of State in contravention of regulations 3 or 25(1).”
It is common ground that the application for the proposed development in this case was an “EIA application” and that regs. 3(2) and 21(1) both applied to it. An environmental statement was submitted with the application. Permission was refused for a challenge on the ground that the environmental information was inadequate. Permission was likewise refused for a challenge on the ground that the Council failed to take the environmental information into consideration or reached an irrational conclusion on the information before it. At the hearing before me, I did not understand any of those matters still to be issue.
The remaining areas of dispute concern the application of those parts of regs. 3(2) and 21(1) that I have italicised, namely the duty on the Council to state in its decision that it had taken the environmental information into consideration and the duty on it to make available for public inspection a statement containing the main reasons and considerations on which the decision was based.
The facts relevant to the EIA issues
Previously to the meeting of 11 June 2002 the members of the Planning and Regulatory Functions Committee had received an officers’ preliminary report and had made a site visit, at which they also received briefing material. At the meeting on 11 June they had before them a full report by the Council's Director of Environmental Services in which he summarised the proposal, the background to it and the results of consultation, identified relevant policies and discussed the main planning considerations. He reached a conclusion favourable to the proposal and recommended the grant of planning permission subject to conditions and to the completion of a s.106 agreement.
Of particular importance are the sections of the Director's report in which the main issues were discussed (section 6) and his conclusions were...
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