R Thomas v Carmarthenshire County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison |
| Judgment Date | 18 July 2013 |
| Neutral Citation | [2013] EWCA Civ 1150 |
| Date | 18 July 2013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2013/0243 |
[2013] EWCA Civ 1150
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE BURTON)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Lewison
Case No: C1/2013/0243
Dr Paul Stookes (instructed by Richard Buxton) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
(As Approved)
This is a renewed application for permission to appeal against a decision of Burton J, permission having been refused on the papers by Sullivan LJ. The appeal concerns the ground of retrospective planning permission by the Carmarthenshire County Council for a change of use of part of a former colliery to use as a coach depot. The principal ground of complaint before the judge was that the Council did not undertake a full environmental impact screening assessment and, if appropriate, a full environmental impact assessment, and that the planning permission should therefore be quashed. There were other grounds of complaint, which I will come to.
The judge heard evidence from Mr Davies, the planning officer from the Council who dealt with this site. He explained to the judge in his witness statement why the Council had taken the view that no environmental impact assessment was required, and the judge accepted his evidence. Apart from a cross in the box in the planning file, there was no contemporaneous documentation to support that view.
Dr Stookes, who appears on behalf of the would-be appellant, suggests that the judge was wrong to accept the evidence of Mr Davies and that this raises a question of general importance. He accepts that in judicial review proceedings disputed facts are generally to be assumed to be as contended for by the authority concerned. However, he says that the court must be cautious about accepting ex post facto evidence, and that the judge did not display the necessary caution.
The principal authority on which he relies in that respect is R v City of Westminster ex parte Ermakov [1996] 28 HLR 819. That was a case under the Housing Act 1985 concerning the local authority's duties towards homeless people. As Hutchinson LJ pointed out, the obligation imposed upon the local authority in that case was to notify the applicant that they are satisfied that he became homeless intentionally, as it happened on the facts of that case, and "they shall at the same time notify him of their reasons". Reasons were given in that case, but the Council then said that those reasons were wrong and not the real reasons. In his summary of principle, Hutchinson LJ said this:
"The court can, and in appropriate cases should, admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observation in ex p Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction."
In the present case, an enforcement notice had been served by the Council in October 2009 in relation to the same site, and in that enforcement notice it was stated that the absence of drainage at the site was likely to cause environmental damage. Following from that, the argument is that the Council's volte face between then and the retrospective grant of planning permission in 2010 should have caused the judge to reject Mr Davies'...
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