R v North-east lincolnshire borough council (ex parte: Bass Developments Ltd)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE McCULLOUGH |
| Judgment Date | 20 October 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1020-4 |
| Docket Number | Case No: CO/829/97 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 October 1997 |
[1997] EWCA Civ J1020-4
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice,
Strand,
London, WC2.
Mr Justice McCullough
Case No: CO/829/97
CO/3457/97
MR J. GOUDIE QC and MR P. OLDHAM appeared as Counsel on behalf of Bass Developments Limited.
MR B. ASH QC and MR K. FREEMAN appeared as Counsel on behalf of North-east Lincolnshire Borough Council.
MR T. CORNER appeared as counsel on behalf of Kestonbond Holst Limited.
Proceedings
Monday, 20th October 1997
My Lord, I appear with my learned friend, Mr Peter Oldham, for the applicants in both applications for leave, that is Bass Developments Limited. My learned friends, Mr Brian Ash and Mr Keith Freeman, appear for the proposed respondent, the North- east Lincolnshire Borough Council and my learned friend, Timothy Corner, appears for an interested third party, Kestonbond Holst Limited.
My Lord, the first application is a renewal in open court by direction of Turner J on 18th June for the paper application, though with notice of the application being given to Kestonbond in accordance with his Lordship's order and notice also being given to the Council.
My Lord, as your Lordship will have seen, both applications are in relation to decisions of the Council in its capacity as local planning authority on 11th December 1996 and 8th August of this year respectively, in the first place to recommend and in the second case to give planning permission to Kestonbond in respect of land at Macaulay Lane, Grimsby.
My Lord, the Council of course is not only local planning authority in respect of that land, it is also land owner and it is clear is a long-term polluter of that land for whom the day of reckoning is at hand and is perceived as being at hand.
My Lord, the Council is also local planning authority but has no direct interest in any other capacity in land owned by the applicants at Birchin Way, Grimsby. The Council has however chosen to take an indirect interest in Birchin Way because it regards development at Birchin Way, including a multi-screen cinema, as a threat to its being able to avoid liability as the polluter of its own land at Macaulay Lane by procuring a development there with a multi-screen cinema.
My Lord, there are four issues. The first and most important concerns the Council being relieved from paying as polluter. My Lord, we make four submissions about that first issue: the first is that it is not permissible for the Council as planning authority to take into account its own position as land owner or polluter; secondly, that it did so; thirdly, that that is enough to in validate its decision; but fourthly, if either submission one or submission three overstates the position then the Council nonetheless acted unlawfully by allowing its interest as land owner and polluter to predominate.
My Lord, as to the first submission on the first issue we say that it is fundamental that when a local planning authority has an interest in its capacity as land owner in the success of an application that interest is not a relevant or material consideration when discharging the planning function, and we further say that the position is precisely the same, if not a fortiori, when the local planning authority is not merely land owner but polluter of its land as well.
We submit that it is beyond doubt that the prospect of criminal and/or civil liabilities for pollution are not a relevant planning consideration; nor is it a relevant planning consideration that remediation may mean that the polluter has to pay; nor, we submit, is the fact that the polluter is a public rather than a private sector body a relevant planning consideration.
My Lord, if the contrary of any of the foregoing were sought to be argued then we would say that that would give rise to fundamental issues of principle which are singularly inappropriate for summary determination at the leave stage.
My Lord, what of course we do accept is that of course there is no dispute that the effect of a development proposal in alleviating or remedying contamination and pollution of land is a material planning consideration; of course that is right, nor is there any dispute that providing an attractive after use for the benefit of the people of the area is a material planning consideration.
We say, however, that it is no part whatsoever of a presentation of either of those legitimate themes to even refer to the fact that the Council is facing prosecution, that that indeed is a paradigm incidence of irrelevancy and, my Lord, the second submission in support on the first issue is we submit that it is manifest that the Council did take into account its position as land owner and its potential liability as polluter.
My Lord, the report on which the decision or the first decision we seek to impugn is based and indeed on which the second decision is based as well is in the applicant's papers in the second bundle beginning at page 465 at tab 11. Your Lordship sees that the Planning and Transportation Committee on 11th December 1996: a report of the Head of Planning and Transportation, K Archer; outline application; open meeting; contact officer, M Walker; monitoring officer contacted, no; recommendations, referred to the Secretary of State with the recommendation that permission be granted subject to conditions.
Can you just remind me, what does the Act say or the law otherwise require about a Local Authority giving permission effectively to itself, or alternatively to land upon which and in which it has an interest?
There are circumstances in which a Local Authority, providing it complies with provisions in the relevant regulations, can give planning permission to itself. In this instance, because a departure from the development plan was involved as well it was an application that had to be referred to the Secretary of State for the Secretary of State to consider whether to intervene and call in the application, but the regulations certainly in principle permit a Local Authority to determine the planning application in respect of land which it itself owns and indeed of course it is by no means uncommon for planning authorities to give permission.
You do not refer that to the Secretary of State because you have the interest?
Not necessarily, not in all cases.
The reference here was because they were intending to depart from the development.
That I think was the essential ground upon which the reference was to the Secretary of State.
How common is it—I am not sure that I remember this being done—to make a recommendation when one is referring?
I do not believe that to be uncommon; it is obviously a matter upon which the practice may vary, but generally the question of the Secretary of State being invited by the authority to call in the application at the stage when it itself is resolving upon it will be in circumstances where the authority itself will be minded to approve if it were able to do so itself and where therefore a recommendation to that effect is simply reflecting the obvious reality of its position.
I am not quite sure what that means.
Well, if the authority simply referred the matter to the Secretary of State, with no recommendation, no express recommendation, it would no doubt be implied that the authority was in favour of the application because otherwise there would not be the same need for it to refer it because it would not need to refer it in order to be able to reject the application as one that was not conforming with the development plan.
My Lord, I rise because this could be a potent source of confusion if your Lordship is concerned that there could be something unusual in this case that the matter was referred to the Secretary of State with a recommendation. The relevant directions—and I can take your Lordship to it in due course if need be—puts forward the position whereby the planning authority only has to refer the matter of a departure to the Secretary of State if they do not propose to refuse it because in a normal case where there is a departure from the development plan then it may well be that the authority will be disposed to refuse and the question of referring it to the Secretary of State simply would not arise.
I see so the mere fact that reference implies, "We are thinking of dropping—
My Lord, not "merely implies"; in virtually every case—I find it difficult to envisage circumstances in which the planning authority had not gone through the process of considering the application on its merits, coming to a view that it ought to be granted and therefore being required to refer it to the Secretary of State because they do not propose to refuse it.
My Lord, I certainly do not suggest that there is anything in the least sinister in the form of the recommendation. Once one has the premise that the authority would itself be minded to approve, but of course the question then arises whether it correctly arrived at that premise.
My Lord, at page 468 the effective text of the report begins. It explains in the first paragraph, as is the case, that this is an outline application to convert the former Local Authority tip at Macaulay Lane into a country park, and so forth, including construction of various new forms of access. Then there is a key paragraph, the second paragraph:
"As members are aware Macaulay Lane tip is a contaminated site that is...
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