The King on the application of Camilla Swire v Canterbury City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 22 June 2023 |
| Neutral Citation | [2023] EWHC 1533 (Admin) |
| Docket Number | Case No: CO/4627/2022 |
| Court | King's Bench Division (Administrative Court) |
and
[2023] EWHC 1533 (Admin)
Mr Justice Chamberlain
Case No: CO/4627/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Alex Goodman KC (instructed by Richard Buxton Solicitors) for the Claimant.
Noémi Byrd (instructed by Canterbury City Council) for the Defendant.
Andrew Tabachnik KC (instructed by Redrow Homes Limited) for the Interested Party.
Hearing dates: 25 May 2023
Approved Judgment
This judgment was handed down remotely at 10.00am on 22 June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This claim concerns a site at Cockering Road, Thanington, to the south-west of Canterbury. It is allocated for residential development in the Local Plan (“the Site”). On 12 November 2018, Canterbury City Council (“the Council”) granted outline planning permission (“OPP”) for a mixed use development comprising up to 400 new homes, together with associated development. The application for outline consent was supported by an Environmental Statement (“ES”). The Council carried out an Environmental Impact Assessment (“EIA”) under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (“the EIA Regulations”).
The claimant, Camilla Swire, challenged the OPP by judicial review. Permission was refused by Stuart-Smith J, who described some of the arguments as “lacking either realism or merit” and “more than faintly ridiculous”. Permission to appeal to the Court of Appeal was refused. The claimant then brought two further claims challenging consequential decisions, the first relating to the approval of a Masterplan under condition 8 of the OPP, the second an amendment to the timing of the initial earthworks. Those challenges were dismissed by Holgate J in January 2022: [2022] EWHC 390. The arguments were variously described as “excessively legalistic” (see [91]), “hopeless” (see [98]), “untenable” (see [107]) and “wholly wrong” (see [122]). Five further claims by the claimant for judicial review of approvals under the OPP's conditions were subsequently withdrawn.
This is the claimant's ninth claim for judicial review relating to the Site. The claimant challenges the decision of 19 October 2022 to grant reserved matters approval for a spine road pursuant to condition 10 of the OPP. Permission was refused on the papers by Lang J. The application was renewed orally before me. Like Lang J, I have concluded that it is not reasonably arguable that there is a public law flaw in the decision and that permission should therefore be refused.
The arguments for the claimant were advanced by Alex Goodman KC for the claimant. The defendant was represented by Noémi Byrd. Submissions for the interested Party were made by Andrew Tabachnik KC. I am grateful to all counsel for their excellent submissions.
Although I listened carefully to the arguments and spent a great deal of time reading the papers to which my attention was drawn, I am conscious that this is an application for permission. It would not, therefore, be right to go into the kind of detail appropriate in a case where permission was granted.
There were originally two grounds, 1 and 2, but ground 2 is no longer pursued and the new ground 1A is, as Mr Goodman accepted, essentially another way of putting ground 1.
Ground 1
Ground 1 is that the Council failed to consider whether certain changes to anticipated infrastructure which, it is said, were key to the granting of the OPP amounted to a change of circumstances such that a revised EIA was required. It is said that this failure amounted to a failure to take account of a material consideration and/or a breach of reg. 9 of the EIA Regulations.
The law is clear. Regulation 3 of the EIA Regulations prohibits a local planning authority from granting planning permission “or subsequent consent” for “EIA development”. Everyone agrees that the OPP was for EIA development and that the grant of reserved matters approval for the spine road was a “subsequent consent” for these purposes unless an EIA has been carried out in respect of that development. The claim therefore turns on reg. 9(2) and (3), which provide as follows:
“(2) Where it appears to the relevant planning authority that the environmental information already before them is adequate to assess the significant effects of the development on the...
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