Orme & Anor v North Yorkshire County Council & Anor

This is the claimants’ appeal against Richards J’s order dated 15 April 2003 substantially dismissing their judicial review challenge to the North Yorkshire County Council’s grant of planning permission for a quarry extension at Ripon. At a meeting on 11 June 2002 (“the June meeting”), the Council’s Planning and Regulatory Functions Committee (“the Planning Committee”) resolved by a majority of 5:4 that, subject to conditions and s106 agreement, the permission be granted. The notice of decision of the grant of planning permission was issued on 6 August 2002 (“the August permission”). The North Yorkshire County Council (“the Council”) is the first respondent.

It is not disputed that the planning permission relates to “EIA development” within the meaning of Town and Country Planning (Environmental Impact Assessment) (England & Wales) Regulations 1999 (“the EIA Regulations”), nor is it disputed that, as the EIA Regulations require, the council, before granting the planning permission, first took into consideration the relevant environmental information. What is in dispute, however, is whether two other requirements of the Regulations were complied with - one, indeed, it is acknowledged was not - and the first part of the appellants’ challenge centres, therefore, on these.

A second and quite distinct basis of challenge rests upon the first appellant’s contention that he was unlawfully excluded from the June meeting in breach of the Secretary of State’s Model Code of Conduct. The Secretary of State is the second respondent and concerned solely with this second part of the case.

The appeal comes before us by permission of the judge below, a permission granted in these terms:

“The case raises issues of some importance concerning the EIA regime and the working of local democracy that in my view provide a compelling reason why an appeal should be heard.”

Richards J appears there to have had in mind CPR Part 52.3(6)(b), rather than to have thought that an appeal would have “a real prospect of success”. Be that as it may, the issues arising, in particular perhaps the true construction and application of the Model Code, are certainly of sufficient importance to have justified an appeal hearing.

Richards J’s judgment, let me say at once, is masterly, both thorough and concise, a model of clarity, impeccably laid out. It provides the soundest possible foundation for our consideration of the issues now arising and it would be an absurd waste of effort, both on his part and ours, were we not to incorporate much of it into our own judgments. A good deal of the exposition and analysis that follows is therefore gratefully taken from the judgment below. Yet more detail can be found by direct reference to it.

The planning permission under challenge was granted to Brown & Potter Limited, the interested party, for the extension of quarrying of sand and gravel at Ripon City Quarry, a site falling within the boundary of three parishes, including the parish of Littlethorpe. The first claimant, Paul Richardson, is a member of the Council, living in Littlethorpe and representing the electoral division which includes it. His house is approximately 250 metres from the nearest point of the proposed extraction. He objected to the new 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 Committee.

The second claimant, Wendy Orme, likewise lives in Littlethorpe. She objected to the proposed development as a member of Littlethorpe Parish Council.

As stated, the Planning Committee, by a majority of 5:4, resolved at the June meeting that, subject to the completion of a satisfactory s106 agreement, planning permission be granted subject to conditions. The s106 agreement was signed on 6 August 2002 and the notice of decision in respect of the grant of planning permission was issued that day.

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 common ground that the application for the proposed development in this case was an “EIA application” and that regulations 3(2) and 21(1) both applied to it. An environmental statement was submitted with the application. It is to be noted that the appellants were refused permission to challenge the planning permission 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.

The areas of dispute concern the application of those parts of regulations 3(2) and 21(1) italicised above, namely, first, the duty on the Council to state in its decision that it had taken the environmental information into consideration and, secondly, its duty to make available for public inspection a statement containing the main reasons and considerations on which the decision was based.

Previously to the June meeting the members of the Planning Committee had received an officers’ preliminary report and had made a site visit, at which they also received briefing material. At the June meeting 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 s106 agreement.

Having considered the Director’s report and a number of oral presentations the majority of the members then adopted a resolution which was minuted as follows:

“That, subject to the completion of a Section 106 Agreement requiring an extended aftercare period, a Management Plan, the establishment of a Management/Steering Group to oversee restoration and aftercare and a scheme of survey, monitoring and migration of [sic – i.e. mitigation for] species protected under the Conservation (Natural Habitats etc) Regulations 1994, planning permission be granted subject to the conditions as recommended and to the addition of a further condition requiring the phased working and restoration of the site.”

On 6 August 2002, after completion of the s106 agreement, the council issued a “notice of decision” under the signature of the Director of Environmental Services addressed to the developer, stating:

“The above-named Council being the Planning Authority for the purposes of your application dated 11 February 2002, in respect of proposed development for the purposes of the extraction of sand and gravel at Ripon City Quarry have considered your said application and have granted permission for the proposed development subject to the following conditions: -

(See attached sheets)

NOTE:

In accordance with Article 22(2) of the Town and Country Planning (General Development Procedure) Order 1995 notice is hereby given that the County Council in determining the above application has taken into consideration the accompanying environmental information. Furthermore the County Council in determining the application has taken into consideration the policies of the North Yorkshire Mineral Local Plan adopted 1997 and all other material considerations as set out in the report to the Planning and Regulatory Functions Committee on 11 June 2002.”

The “attached sheets” included the conditions, the signed s106 agreement and various documents annexed to the s106 agreement (including a restoration management plan and documents relating to survey, monitoring and mitigation measures in respect of protected species).

The notice of decision and the attached documents were entered on the register maintained by the Council pursuant to article 25 of the Town and Country Planning (General Development Procedure) Order 1995 (“the GDPO 1995”).

In evidence filed in the course of the proceedings the council’s Head of Minerals and Waste Planning stated that the Council intended, subject to the proceedings, to place on the register a further document in substitution for the notice dated 6 August 2002, intended in particular to include a statement of the main reasons for the decision. What was proposed reads as follows:

“The above named Council, being the Planning Authority for the purposes of your application dated 11 February 2002, in respect of proposed development for the purposes of the extraction of sand and gravel at Ripon City Quarry have considered your said application and, for the reasons set out in the attached sheets, have granted permission for the proposed development subject to the following conditions:-

(see attached sheets)

NOTE

In accordance with Article 22(2) of the Town and Country Planning (General Development Procedure) Order 1995 and Article 3(2) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“EIA Regulations”) notice is hereby given that the County Council in determining the above application has taken into consideration the environmental statement and environmental information (as defined by the EIA Regulations).

The main considerations on which the decision was based were the policies of the North Yorkshire Mineral Local Plan adopted in 1997 and all other material considerations as set out in the report to the Planning and Regulatory Functions Committee on 11 June 2002 (attached hereto).

The main reasons for the decision were as follows:

(1)

agreement with the report to the Planning and Regulatory Functions Committee on 11 June 2002 (attached hereto) and the conclusion at paragraph 7.9 thereof;

(2)

the development constituted an acceptable extension to existing working which would satisfy a local market for aggregates;

(3)

the development would allow for the continuation of working at a well-run and well-maintained site where a good standard of restoration has been achieved;

(4)

there would be no permanent scar to the landscape, a good standard of restoration has been proposed is proposed [sic] and the development would bring significant benefits in terms of site restoration for nature conservation purposes;

(5)

the development site is at an acceptable distance from the nearest residential properties and would not cause undue disturbance to the amenity of local residents;

(6)

minerals can only be worked where they exist in the ground;

(7)

existing jobs in this local business would be protected;

(8)

the requisite monitoring of conditions could be carried out;

(9)

there is a need for sand and gravel in the locality which would not be met by the local market if this permission were not granted.”

The “main reasons” set out in that notice are a composite based on information provided by the individual members who voted in favour of the resolution. According to the evidence, they were all “motivated by factors referred to in the [Director’s] report or in public session” and each of them has also given his “particular reasons” for voting for the resolution. The particular reasons given are consistent with those in the proposed substitute notice, but no individual member refers to all the reasons set out in the notice. For example, the particular reasons given by one member correspond to (2), part of (4) and part of (5); those given by another correspond to part of (3) and to (5) and (6); whilst those given by a third correspond to part of (4), part of (5) and to (7), (8) and (9). None of the particular reasons given by members refers in terms to (1), i.e. agreement with the Director’s report.

The appellants contend that the Council breached the second of regulation 3(2)’s two stipulations, namely that “they shall state in their decision that they have done so [ie have “first taken the environmental information into consideration” before granting planning permission]”. Mr McCracken QC on their behalf advances two alternative arguments to this effect. First, he submits that the Council’s “decision” for this purpose was the resolution at the June meeting rather than the August permission - in which event, of course, the argument succeeds since the Minute of the resolution (see paragraph 19 above) plainly contained no statement that the environmental information had been considered. Secondly, he submits, even if the “decision” was the August permission, the notice of that decision (see paragraph 20 above) itself failed to satisfy the requirement. Richards J below rejected each of these arguments, respectively in paragraphs 31 and 32 of his judgment:

“31.

In my judgment the relevant “decision” for the purposes of reg. 3(2) was not the resolution dated 11 June 2002 but the notice of decision dated 6 August 2002, which constituted the actual grant of planning permission:

i)

As a matter of domestic law, a resolution to grant planning permission has no immediate legal effect. A local planning authority is required to give an applicant written notice of its decision within the time laid down by article 20 of the GDPO 1995 and containing the details specified in article 22 of the same Order. The grant of planning permission is made only when the written notice is issued by a duly authorised officer of the authority. There is no effective planning permission unless and until the written notice is issued to the applicant: see R v. Yeovil Borough Council, ex parte Trustees of Elim Pentecostal Church, Yeovil (1971) 23 P&CR 39, 44-45.

ii)

The same point lies at the heart of the decision of the House of Lords in R v. LB Hammersmith and Fulham, ex parte Burkett [2002] UKHL 23, [2002] 3 All ER 97, in which it was held that time for bringing an application for judicial review runs from the grant of planning permission, not from the date of the resolution to grant it. An important part of the reasoning was that until the actual grant of planning permission the resolution has no legal effect and the authority has a discretion to revoke it (see e.g. per Lord Steyn at para 39).

iii)

The general principle of the directive is that ‘development consent’ should be granted only after prior assessment of the likely environmental effects. One would expect the ‘development consent’ for present purposes to be the actual grant of planning permission which authorises the relevant development, rather than a resolution which in itself has no legal effect.

iv)

The EIA Regulations tie the assessment requirements into existing planning procedures, as permitted by article 2(2) of the directive. The GDPO 1995 forms part of those planning procedures. Reg. 3(1), which provides that the regulation applies to EIA applications received on or after a certain date, refers expressly to the GDPO 1995, stating that the date of receipt of an application is to be determined in accordance with article 20(3) of the Order.

v)

Against that background the natural and in my view correct interpretation of reg. 3(2) is that it is concerned with the issue of the written notice of decision referred to in articles 20 and 22 of the GDPO 1995. That constitutes the “grant” of planning permission which must not be made unless the authority has first taken the environmental information into consideration; and that is the “decision” in which the relevant statement must be made.

32.

The next question is whether the notice of decision issued on 6 August 2002 complied with the requirement to state that the Council had taken the environmental information into consideration. In my judgment it did, for these reasons:

i)

The notice included a “Note”, which formed part of the notice, stating that “in accordance with Article 22(2) of [the GDPO 1995] notice is hereby given” that the Council had taken into consideration “the accompanying environmental information”.

ii)

Article 22(2) of the GDPO 1995 provides:

‘Where –

(a)

the applicant for planning permission has submitted an environmental statement; and

(b)

the local planning authority have decided (having taken environmental information into consideration) to grant permission (whether unconditionally or subject to conditions),

the notice given to the applicant in accordance with article 20(1) shall include a statement that environmental information has been taken into consideration by the authority.’

iii)

Article 1(2) of the same Order defines ‘environmental information’ as having the same meaning as in reg. 2 of the 1988 predecessor to the EIA Regulations, which is materially identical to the definition in reg. 2(1) of the EIA Regulations themselves.

iv)

It seems to me that article 22(2) of the GDPO 1995 is aimed at achieving the same result as is required by the relevant part of reg. 3(2) of the EIA Regulations, i.e. a statement in the notice of decision that the environmental information has been taken into account. Counsel did not provide me with any details of the legislative history, but it appears that the requirement to include such a statement in the decision was introduced into the EIA regime in 1994, by para. 3 of the schedule to the Town and Country Planning (Assessment of Environmental Effects) (Amendment) Regulations 1994. Given the integration of EIA procedures into the general planning regime, article 22(2) of the GDPO 1995 should in my view be read as consonant with that requirement. There is no material difference between the reference to ‘environmental information’ in article 22(2) of the GDPO 1995 and the reference to ‘the environmental information’ in reg. 3(2) of the EIA Regulations.

v)

The relevant part of the Note in the notice of decision was evidently directed towards compliance with the requirement to state in the decision that the environmental information had been taken into account. It refers to the “accompanying” environmental information rather than simply to environmental information. That was plainly apt to include the environmental statement submitted with the planning application, but if narrowly construed might not cover representations made by other persons about the environmental effects of the proposed development. In my view, however, a narrow construction is inappropriate. Taking into account the statutory and factual context, I would construe the Note as referring to the environmental information as defined in the GDPO 1995 and (by cross-reference) in the EIA Regulations.

vi)

On that basis I conclude that the Council did comply with the requirement in reg. 3(2) to state in the decision that it had taken the environmental information into consideration. It would certainly have been better to express it along the lines of the proposed substitute notice of decision (‘the County Council in determining the application has taken into consideration the environmental statement and environmental information (as defined by the EIA Regulations)’), but the actual wording was good enough for the purpose.”

Mr McCracken takes issue with the judge’s conclusions in both those paragraphs.

As to paragraph 31, Mr McCracken criticises in particular the judge’s reliance on ex parte Burkett which, he suggests, the judge clearly misunderstood. It was wrong, he submits, to conclude from Burkett that “the resolution has no legal effect”; on the contrary, he says, it confers immediate authority on the Council’s officers under their delegated powers to issue the decision notice (subject only to whatever conditions are imposed and, as here, the completion of a satisfactory s106 agreement). Moreover, as Lord Steyn himself noted at paragraph 42 of Burkett:

“The court has jurisdiction to entertain an application by a citizen for judicial review in respect of a resolution before or after its adoption.”

So far as it goes I am inclined to accept Mr McCracken’s criticism of the judge’s statement that “the resolution has no legal effect”. But I do not think it goes very far. The real point, and this surely is the point the judge was intent on making, is that domestic law for all purposes provides for but a single decision on the question of development permission, that being the actual grant of planning permission itself. That has been the consistent view taken by the courts throughout the jurisprudence. Most recently it was this court’s conclusion in R -v- London Borough of Bromley ex parte Barker [2001] EWCA Civ 1766 where the question arose in the context of an outline planning permission granted subject to the approval of reserved matters. True it is that the House of Lords in June 2003 gave leave to appeal in that case so as to refer a number of questions to the ECJ. Meantime, however, we are bound by the Court of Appeal’s decision, and in any event the present case is a fortiori to it.

I am, in short, in full agreement with the conclusions reached on this point by the judge below.

The Note at the foot of the August notice stated that the Council “has taken into consideration the accompanying environmental information” (see paragraph 20 above). Mr McCracken contrasts this with the proposed substitute Note stating that the Council “has taken into consideration the environmental statement and environmental information (as defined by the EIA Regulations)”, and which in addition refers, as the original Note did not, to regulation 3(2) itself (see paragraph 23 above). The former Note, submits Mr McCracken, is deficient in failing to define what was meant by “environmental information”. There was, he submits, nothing to suggest that the term was being used in its technical sense and no basis, therefore, for reading it as if it complied with the regulation. Again I find myself in full agreement with the judge’s reasoning (in paragraph 32 of his judgment below) and venture to add only one observation. Given, as already stated, that no dispute now arises as to the Council in fact having properly taken into consideration all the relevant environmental information, it seems to me impossible to impugn the performance of the remaining secondary limb of regulation 3(2), namely that the Council state that they have taken the environmental information into consideration, when, as here, they adopted for the purpose of such statement the very language which the regulation calls for.

I should notice at this point the judge’s further conclusion (expressed in paragraph 33 of his judgment, which I have not thought it necessary to set out) that, even had he formed the view that the Council had failed to comply with the second limb of regulation 3(2), he would not in any event have regarded that as a sufficient reason to quash the grant of planning permission in the exercise of his discretion. Despite the appellants’ submissions to the contrary, I believe the judge was perfectly entitled to reach this conclusion also. I find his reasoning on the point compelling and think it unnecessary to add to it. I would accordingly have rejected the regulation 3(2) ground of appeal for this reason even if I had not already rejected it for others.

The judge below concluded - and before us the respondents have not disputed - that there was a clear failure by the Council to comply with the requirement under regulation 21(1) to make available for public inspection, at the place where the appropriate register is kept, a statement containing the main reasons on which the decision was based. As stated in paragraph 46(v) of the judgment below:

“v)

The notice of decision dated 6 August 2002 did not contain a statement of the main reasons on which the decision was based. It set out the terms of the decision and attached the conditions to which the permission was subject, together with the s.106 agreement and its annexes relating to mitigation measures and the like. By the oblique reference, in the Note, to the report of the Director of Environmental Services which the members of the planning committee had before them, it referred to the considerations taken into account. But it did not contain a sufficiently specific statement of the main reasons for the decision to achieve compliance with reg. 21(1)(c)(ii). Nor was there any separate statement of reasons.”

The critical question then arising was what the consequences of that failure should be. The appellants were contending that the Council’s attempt at retrospective validation was too late and should in any event be rejected. There was, they submitted, no support in the Minutes of the June meeting for the process of reasoning set out in the proposed substitute notice of decision and they suggested that the whole process was rendered unreliable by the ongoing process of litigation. They argued that the failure rendered the decision to grant planning permission ultra vires and/or that having regard to Berkeley the court had no alternative but to quash it and no discretion to withhold relief. Mr Straker QC’s submission for the Council was that common sense required reasons now to be given rather than that the grant of planning permission be set aside for a failure to state them earlier. This particularly was so given that it was not until the hearing of the appellants’ renewed application for permission to move for judicial review before Collins J on 20 January 2003 that the appellants for the first time sought to advance a reasoned challenge under regulation 21(1), at which point the Council for its part speedily sought to repair the omission.

The judgment below contains the most detailed and illuminating review of the many cases down the years which have considered what consequences should attend failures on the part of decision making bodies to comply with the requirement to give reasons imposed upon them in varying contexts. I shall not repeat that review but rather proceed to the judge’s cogently expressed conclusions reached in the light of it:

“47.

The consequences of a failure to comply with a requirement to give reasons depend very much on statutory context and the particular circumstances of the case. The authorities cited by counsel cover a range of different situations. In evaluating them it is also important to bear in mind that there has been, as it seems to me, a tendency in recent years to adopt a stricter approach to the requirement to give reasons and to be readier to quash a decision for failure to give reasons and less ready to allow a deficiency of reasons to be cured by the provision of reasons or supplemental reasons at a later stage.

48.

The closest decision in point of subject-matter, though furthest away in point of time (and divorced from the context of an EC directive), is Brayhead (Ascot) Ltd v. Berkshire County Council, where it was held that a failure to comply with the duty to give reasons for the imposition of a planning condition did not invalidate the condition (let alone the planning permission) and the duty could be enforced by mandamus. At the other end of the spectrum, R v. Westminster City Council, ex parte Ermakov provides an example of a case, more recent and in a different statutory context, in which a decision was quashed for a failure to comply with the duty to give adequate reasons at the same time as the decision, and the court adopted a restrictive approach to the admissibility of later reasons. Flannery v. Halifax Estate Agencies was concerned with a different context again, namely the duty of a trial judge to give reasons for his decision. In that area a more up to date and detailed analysis is to be found in English v. Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 3 All ER 385, which was not cited by counsel but which makes it clear that it may be appropriate in certain circumstances to remit the case to the trial judge for the provision of additional reasons (paras 22-25). Although these and the other cases to which I have been referred provide general guidance, they do not lay down a principle that is determinative of the present case. There is no substitute for a careful examination of the particular statutory context and the precise nature of the requirement to state reasons in each case.

49.

As to that, the first and most important point in the present case is that reg. 21(1) looks to the position after the grant of planning permission. It is concerned with making information available to the public as to what has been decided and why it has been decided, rather than laying down requirements for the decision-making process itself. It implements the obligation in article 9(1) of the directive to make information available to the public “when a decision to grant … development consent has been taken’ (emphasis added). That is to be contrasted with article 2(1) of the directive, which lays down requirements as to what must be done before the grant of planning permission (which may be granted only after a prior assessment of significant environmental effects).

50.

The fact that the requirement focuses on the availability of information for public inspection after the decision has been made, rather than on the decision-making process, leads me to the view that a breach of reg. 21(1) ought not to lead necessarily to the quashing of the decision itself. A breach should be capable in principle of being remedied, and the legislative purpose achieved, by a mandatory order requiring the authority to make available a statement at the place, and containing the information, specified in the regulation.

51.

Thus, to take a straightforward example, if the members of the committee had agreed in terms at their meeting on a specific statement of the main reasons for the grant of planning permission but the officers had failed to include that statement on the register, a mandatory order requiring the statement to be placed on the register (or, perhaps more accurately, requiring it to be made available for public inspection at the place where the register is kept) would plainly be the appropriate remedy.

52.

The difficulties in this case arise out of the fact that there was no such agreement. The need to make a statement of main reasons available for public inspection appears to have been overlooked by the officers, so that members were not advised about it. That was a most unfortunate oversight. It meant that members did not have imposed upon them the same disciplined and structured approach as might have been thought appropriate had they been aware of the duty to make a statement of main reasons available. It also meant that they missed the opportunity to agree in terms on a specific set of reasons. The most obvious way in which that might have been done was by expressing agreement with the reasoning in the Director’s report, subject to any agreed departures from or additions to that reasoning.

53.

The resulting situation is very unsatisfactory. I have reached the conclusion, however, that it is still capable of being remedied by a mandatory order and that what has happened does not justify the quashing of the grant of planning permission. My reasons are as follows:

i)

Although it is necessary to view with caution any subsequent statement of reasons for a decision, especially where the reasons have not been articulated until many months after the decision, I do not think that the exercise of obtaining reasons ex post from the individual members who voted for the resolution is inherently flawed or of such doubtful reliability that the evidence should be rejected. All that the individual members have been asked to do is to cast their minds back to the reasons that actually motivated them to vote for the grant of planning permission. There is no suggestion that they have had any difficulties of recollection. In my view there is nothing in the nature of the exercise or in the evidence obtained to cause concern that the answers might have been distorted by the existence of these proceedings or other extraneous considerations. The process does not involve changing a decision or reconsidering it or anything of that kind. This is a very different exercise from that found unacceptable in R (Carlton-Conway) v. Harrow LBC or in R (Goodman) v. LB Lewisham. In both those cases the councils had engaged in a later decision-making process and there was an understandable concern that that might be vitiated by a wish to sustain a former invalid decision. In this case it is simply a matter of being satisfied that the reasons now put forward were the actual reasons that motivated the decision-makers at the time.

ii)

On the face of it, a greater difficulty is created by the fact that, although all the members were ‘motivated by factors referred to in the report or in public session’, each of them has given a different set of ‘particular reasons’ for voting for the resolution and those ‘particular reasons’ do not of themselves provide a sufficiently reasoned basis for a departure from the development plan and the grant of planning permission.

iii)

It requires only a limited degree of beneficence, however, to read the evidence as meaning that all the members accepted the reasoning and conclusion in the Director’s report but each attached particular significance to the ‘particular reasons’ that they have identified. If the evidence is read in that way, everything seems to me to fall into place and a reasoned basis for the decision is immediately provided. That is evidently how the author of the proposed substitute notice understood the information being provided by the individual members, since the first reason expressed in that notice, though not mentioned as a ‘particular reason’ by any of the members, is ‘agreement with the [Director’s] report … and the conclusion at paragraph 7.9 thereof’. All of the ‘particular reasons’ are consistent with the reasoning in the Director’s report. All but one (namely (9), the need for sand and gravel in the locality) are clearly reflected in that reasoning. The tenor of the resolution and original notice of decision also support the view that the Director’s report was accepted, though I recognise that they do not say so in terms. Taking all those matters into account, I have reached the view that the evidence should be read in the way I have indicated.

iv)

On that basis the substitute notice of decision and its attached documents (including the Director’s report) would contain an entirely satisfactory statement of the main reasons for the decision, and the placing of that material on the register would remedy the breach of reg. 21(1). There would be no problem with the decision to grant planning permission: I have already covered the point that the members took the environmental information into consideration and reached a rational conclusion on the information before them, and the statement of reasons would give rise to no separate cause for concern about the lawfulness of the decision reached.

v)

It might be possible to refrain from making any order at all, on the basis that the Council has informed the court of its intention to place the substitute notice of decision on the register. In my view, however, the right course is to grant a mandatory order requiring the Council to follow that course. That will ensure compliance with reg. 21(1) and will thereby also ensure compliance with the obligation imposed by article 9(1) of the directive. No question of the discretionary withholding of relief arises.”

Mr McCracken criticises not only the judge’s central conclusion that the placing on the register of the substitute notice of decision will remedy the breach of regulation 21(1), but also his view that the proposed substitute notice contains “an entirely satisfactory statement of the main reasons for the decision”.

Let me dispose first of this second point which I can deal with quite shortly. It focuses, of course, principally on paragraph 53(iii) of the judgment below which Mr McCracken submits involves impermissibly ascribing to the majority of the Planning Committee the detailed reasoning contained in the Director’s report. Paragraph 24 above describes the factual background to the judge’s conclusion that the evidence can be read as meaning that all five members who voted for the resolution accepted the report’s reasoning. Mr McCracken, however, disputes the judge’s entitlement to draw that inference: being “motivated by factors” in the report, he submits, is not the same as and falls short of the adoption of those factors, still less of all of them or of the officer’s reasoning. For my part I find this submission unpersuasive. As Sullivan J remarked in R -v- Mendip District Council ex parte Fabre [2000] JPL 810, 822, a case where, as here, the committee accepted the officer’s recommendation:

“… one is concerned with the members’ reasons not the planning officer’s, but where a planning officer makes a recommendation which is followed by the members, the reasonable inference is that the members did so for the reasons advanced by the officer, unless of course there is some indication to the contrary”.

Mr McCracken submits that there was indeed here an “indication to the contrary” namely the “particular reasons” given by each of the five who voted for the resolution. I cannot, however, accept this: the “particular reasons” which each gave seem to me self-evidently to have been those particular considerations upon which they as individuals chose to place the greatest weight. In some cases they went to matters about which the individual members had been especially concerned and required specific reassurance, in others they went to what the individual members thought represented the most telling of the reasons for permitting this departure from the development plan.

All that said, it would plainly have been easier and in the event better had each of the five members voting for this resolution - given, as I believe to be the case, that each of them did indeed endorse the reasoning in the Director’s report which recommended it - simply resolved to do so, something which Mr McCracken concedes could have been lawfully done. In this connection it is worth noting what is said at paragraph 127 of Circular No 2/99 Environmental Impact Assessment:

“The requirement to make available the main reasons and considerations on which the decision is based now applies equally to cases where planning permission is granted and where it is refused. In practice, authorities may find that this requirement is met by the relevant planning officer’s report to the Planning Committee.”

I turn, therefore, to the appellants’ main criticism of this part of the judgment, Mr McCracken’s argument that, in a case falling as this one does within the scope of the Directive, the court is simply not permitted to regard a breach of the implementing regulations as curable other than by the outright quashing of the development permission granted. Mr McCracken not suprisingly emphasises certain features of the judgment below: the judge’s recognition that the need to make a statement of reasons appears to have been overlooked by the council’s officers so that the members of the Planning Committee were not advised of it; that this “most unfortunate oversight … meant that members did not have imposed upon them the same disciplined and structured approach as might have been thought appropriate had they been aware of the duty to make a statement of main reasons available”, the resulting situation being “very unsatisfactory”. These, of course, are powerful considerations. But are they such as to compel the court to quash the permission itself? In common with the judge below I conclude not. The critical part of the judge’s reasoning I conceive to be that expressed in paragraph 49 of his judgment, namely that:

“ … reg. 21(1) looks to the position after the grant of planning permission. It is concerned with making information available to the public as to what has been decided and why it has been decided, rather than laying down requirements for the decision-making process itself.”

Mr McCracken submits that an irresistible inference arises from the requirement to give reasons following an EIA decision that at the time the decision is taken those reasons must be openly discussed and formulated in public. Whenever there is a legislative requirement for reasons, he argues, there are necessarily twin objects to be served. One is to enable those aggrieved by the decision to challenge it if its reasoning can be seen to be deficient. The other is to improve the quality of decision-making. Often, of course, that will be so. But to contend that it is invariably so seems to me extravagant: The requirement for “the main reasons and considerations on which the decision is based” to be made available to the public - after, it should be noted, the decision “has been taken” - was first introduced by the amending Directive in 1997. To suggest that there then suddenly arose a duty upon planning committees to discuss their detailed reasoning in public I find absurd. As Mr Straker points out, an EIA planning application can on occasion be decided by a council officer under his delegated powers when, of course, there would be no public hearing at all. In any event it seems to me plain that the particular requirement for reasons imposed upon planning authorities here was to inform the public retrospectively of the basis for the decision rather than to dictate the course or even quality of the decision making process itself. Be it noted that the recital quoted in Berkeley (set out in paragraph 9 above) was from the unamended Directive, when therefore, there was no requirement for reasons to be stated. Yet the Directive already contemplated its central purpose being achieved irrespective of whether reasons were or were not to be given. Nor, of course, is this the only context in which the law regards it as acceptable to formulate and state the reasons for a decision subsequent to the decision itself. Courts on occasion follow this practice (for example announcing a decision for reasons to be given later, or, following English -v- Emery Reimbold & Strick Ltd [2002] 3 All ER 385, requiring additional reasons to be stated by the judge below). So too do certain tribunals - Employment Tribunals, for example, under the provisions of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001. So too, in my experience, do various other public bodies.

Mr McCracken’s argument places great weight upon the decision in Berkeley itself. He draws particular attention to what Lord Hoffmann said there in relation to the requirement for an EIA:

“Although section 288(5)(b) [of the 1990 Act], in providing that the court ‘may’ quash an ultra vires planning decision, clearly confers a discretion upon the court, I doubt whether, consistently with its obligations under European law, the court may exercise that discretion to uphold a planning permission which has been granted contrary to the provisions of the Directive. To do so would seem to conflict with the duty of the court under article 10 (ex article 5) of the EC Treaty to ensure fulfilment of the United Kingdom’s obligations under the Treaty. In classifying a failure to conduct a requisite EIA for the purposes of section 288 as not merely non-compliance with a relevant requirement but as rendering the grant of permission ultra vires, the legislature was intending to confine any discretion within the narrowest possible bounds ….

… In the present case the Directive has been transposed into domestic legislation and there was a failure to comply with the terms of that legislation. In my view, a court should not ordinarily be willing to validate such an act on the ground that a different form of transposing legislation … might possibly have also satisfied the terms of the Directive. I would accept that if there was a failure to observe some procedural step which was clearly superfluous to the requirements of the Directive, it would be possible to exercise the discretion not to quash the permission without any infringement of our obligations under European law. But that is not the case here …” (616D-F and 617G-H).”

Mr McCracken submits that the breach of regulation 21(1) cannot possibly be characterised merely as “a failure to observe some procedural step which was clearly superfluous to the requirements of the Directive”, such as alone Lord Hoffmann appears to have contemplated could properly escape the extreme sanction of the permission being quashed. The flagrant breach of regulation 21(1) here, he points out, was something quite different from the scenario postulated in paragraph 51 of Richards J’s judgment (as set out at paragraph 34 above). A venial error of that nature, he accepts, could well be excused as falling within Lord Hoffmann’s exception to the basic principle (akin, suggests Mr McCracken, to the operation of the slip rule). Not so a failure to recognise until long after the decision was taken that reasons needed to be given for it.

This whole argument to my mind reads altogether too much into Berkeley. It is not necessary to go as far as Carnwath LJ recently went in Jones -v- Mansfield District Council [2003] EWCA Civ 1408 in suggesting the true reach of the Berkeley principle was narrow - a view which Mr McCracken suggests was both obiter and arrived at without argument - to conclude, as I do, that Richards J’s reasoning and decision in the instant case sit perfectly comfortably alongside that authority.

In short, I fully concur with the judgment below in respect of the entirety of the EIA-based part of this challenge and rather regret that, instead of simply saying so in the baldest terms, I have somewhat slavishly followed the convention of addressing at least the bulk of the arguments afresh.

I turn then to the wholly distinct second basis of challenge, that resting upon the first appellant’s contention that he was unlawfully excluded from the June meeting. Once again, my exposition of the relevant material will draw heavily upon the judgment below.

The background to the Model Code can be found in a 1986 report, The Conduct of Local Authority Business, by a committee chaired by Mr David Widdicombe QC (“the Widdicombe report”) and in a 1997 report, Standards of Conduct in Local Government in England, Scotland and Wales, by the Committee on Standards in Public Life chaired by Lord Nolan (“the Nolan report”). I shall refer to certain passages in them when considering the specific issues.

Part III of the Local Government Act 2000 provided a new statutory framework for governing the conduct of members and employees of local authorities. Section 49(1) provides that the Secretary of State “may by order specify the principles which are to govern the conduct of members … of relevant authorities in England …”. Section 50(1) empowers him by order to “issue a model code as regards the conduct which is expected of members … of relevant authorities in England …”. By section 50(4), a model code must be consistent with the principles specified in an order under section 49(1) and may include provisions which are mandatory and provisions which are optional.

In July 2000 the Secretary of State invited the Local Government Association to draw up proposals for a model code. Following an extensive consultation exercise, the Association submitted a proposal in October 2000.

On 8 February 2001 the Department for Transport, Local Government and the Regions issued a consultation paper, “A Model Code of Conduct for Members”, seeking views on the Government’s proposals on members’ conduct that might be reflected in the model code. Copies of the consultation paper were sent to a wide range of local government bodies and others.

Having considered the consultation responses, the Secretary of State, in the exercise of powers under the 2000 Act, made the Local Authorities (Model Code of Conduct) (England) Order 2001, which came into force on 27 November. The Order contained two versions of the model code for local authorities. The relevant one for present purposes is the model code for authorities operating executive arrangements, which is contained in Schedule 1 to the Order (“the Model Code”). Article 2(2) of the Order provided that all the provisions of the Model Code were mandatory.

In those circumstances the effect of section 51 of the 2000 Act was to impose a duty on the Council to adopt a code of conduct incorporating the provisions of the Model Code. The Council incorporated the Model Code into Part 5 of its constitution as its Code of Conduct.

Article 2.04 of the Council’s constitution provides that “Councillors will at all times observe the Members’ Code of Conduct … set out in Part 5”. Pursuant to section 52(1) of the 2000 Act, councillors also had to give a written undertaking to comply with it.

Section 53(1) of the 2000 Act required relevant authorities to establish a standards committee. The functions of such committees are set out in section 54(1) and are (i) to promote and maintain high standards of conduct by members of the authority and (ii) to assist members of the authority to observe the code. Article 13.09 of the Council’s constitution set up a standards committee in those terms. The Relevant Authorities (Standards Committee) (Dispensations) Regulations 2002 (“The Dispensations Regulations”), also made by the Secretary of State in the exercise of powers under the 2000 Act, prescribe the circumstances in which a standards committee may grant dispensations to members of relevant authorities. By section 81(4), the effect of a dispensation is to allow the participation by a member of the relevant authority in any business where it would otherwise amount to a breach of the code. Although the existence of the dispensation procedure is relevant by way of background (especially since the possibility of dispensation is referred to in paragraph 12(1) of the Model Code), it is not suggested that any power of dispensation could have been exercised in the circumstances that arose in this case.

The relevant provisions of the Model Code, and therefore, as explained above, of the Council’s own Code of Conduct, are as follows:

“PART 1 – GENERAL PROVISIONS

Scope

1.(1) A member must observe the authority’s code of conduct whenever he-

(a)

conducts the business of the authority;

(b)

conducts the business of the office to which he has been elected or appointed; or

(c)

acts as a representative of the authority,

and references to a member’s official capacity shall be construed accordingly.

(2)

An authority’s code of conduct shall not, apart from paragraphs 4 and 5(a) below, have effect in relation to the activities of a member undertaken other than in an official capacity ….

General Obligations

…

4.

A member must not in his official capacity, or any other circumstance, conduct himself in a manner which could reasonably be regarded as bringing his office or authority into disrepute.

5.

A member-

(a)

must not in his official capacity, or any other circumstance, use his position as a member improperly to confer on or secure for himself or any other person, an advantage or disadvantage ….

PART 2 – INTERESTS

Personal Interests

8.(1) A member must regard himself as having a personal interest in any matter if the matter relates to an interest in respect of which notification must be given under paragraphs 14 and 15 below, or if a decision upon it might reasonably be regarded as affecting to a greater extent than other council tax payers, ratepayers, or inhabitants of the authority’s area, the well-being or financial position of himself, a relative or a friend ….

Disclosure of Personal Interests

9.(1) A member with a personal interest in a matter who attends a meeting of the authority at which the matter is considered must disclose to that meeting the existence and nature of that interest at the commencement of that consideration, or when the interest becomes apparent ….

Prejudicial Interests

10.(1) Subject to sub-paragraph (2) below, a member with a personal interest in a matter also has a prejudicial interest in that matter if the interest is one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice the member’s judgement of the public interest ….

Overview and Scrutiny Committees

11.(1) For the purposes of this Part, a member must, if he is involved in the consideration of a matter at a meeting of an overview and scrutiny committee of the authority or a sub-committee of such a committee, regard himself as having a personal and a prejudicial interest if that consideration relates to a decision made, or action taken, by another of the authority’s -

(a)

committees or sub-committees; or

(b)

joint committees or joint sub-committees,

of which he may also be a member.

(2)

But sub-paragraph (1) above shall not apply if that member attends that meeting for the purpose of answering questions or otherwise giving evidence relating to that decision or action.

Participation in Relation to Disclosed Interests

12.(1) Subject to sub-paragraph (2) below, a member with a prejudicial interest in any matter must -

(a)

withdraw from the room or chamber where a meeting is being held whenever it becomes apparent that the matter is being considered at that meeting, unless he has obtained a dispensation from the authority’s standards committee;

(b)

not exercise executive functions in relation to that matter; and

(c)

not seek improperly to influence a decision about that matter.

(2)

A member with a prejudicial interest may, unless that interest is of a financial nature, and unless it is an interest of the type described in paragraph 11 above, participate in a meeting of the authority’s -

(a)

overview and scrutiny committees; and

(b)

joint or area committees,

to the extent that such committees are not exercising functions of the authority or its executive.

13.

For the purposes of this Part, ‘meeting’ means any meeting of -

(a)

the authority;

(b)

the executive of the authority; or

(c)

any of the authority’s or its executive’s committees, sub-committees, joint committees, joint sub-committees, or area committees.

PART 3 – THE REGISTER OF MEMBERS’ INTERESTS

Registration of Financial and Other Interests

14.

Within 28 days of the provisions of an authority’s code of conduct being adopted or applied to that authority or within 28 days of his election or appointment to office (if that is later), a member must register his financial interests in the authority’s register maintained under s.81(1) of the Local Government Act 2000 by providing written notification to the authority’s monitoring officer of -

…

(f)

the address or other description (sufficient to identify the location) of any land in which he has a beneficial interest and which is in the area of the authority ….”

In what follows I shall refer generally to “the Code”. Strictly speaking, however, in relation to what happened in practice it is the Council’s own Code of Conduct which is material; in relation to questions of construction, the identical issues arise both under the Council’s own Code of Conduct and under the Model Code; and in relation to questions of lawfulness, the focus of attention is the Model Code, since the Council was required by statute to adopt the Model Code and the real question is whether the Secretary of State acted lawfully in promulgating the Model Code as part of the Order made by him under his statutory powers.

These facts I propose to deal with substantially more shortly than appear in the judgment below. It is, I think, sufficient for present purposes to note three matters. First, Mr Richardson’s typed statement which he read out at the commencement of the June meeting and which the judge accepted provided “the best evidence of the precise words he used before withdrawing from the meeting”:

“The application before you, concerning Ripon City Quarry, lies partly within my Division. I also live within and represent Littlethorpe Community, and as such will be affected by the Quarry, should the application be approved.

I have been advised by the officers of the County Council that, as such, I can neither speak nor be present in my capacity as Councillor or as a citizen, despite the fact that I have no decision making role on the Planning Committee.

The Rights of Representation, by their chosen elected Member, has been denied to the Littlethorpe Community by Government legislation, and my basic Human Right of Freedom of Speech, as a citizen has also been denied.

I will leave the room as instructed, but give formal notice that I will further fight for the rights of the individual and unrepresented Communities.”

Secondly, I should note that following Mr Richardson’s withdrawal, the Director’s report was presented by Mr Shaw, the Council’s Head of Minerals and Waste Planning. The members were then addressed by District Councillor Galloway, Mr Roly Curtis (the chairman of Littlethorpe Parish Council), Mrs Orme and a representative of the developer. Those making representations were allowed three minutes each.

Thirdly, it should be noted that, according to the Council’s minute of the meeting, a specific resolution was passed to extend a right of audience to Mr Galloway to address the meeting “to represent the views of those affected by the development” in view of the fact that Mr Richardson was unable to represent the views of his constituents.

Four questions arise on this part of the case:

I have formulated these questions in order of their importance rather than in the order followed below. Plainly the first two are of general importance and application; the third touches upon the correct approach to determining what amounts to a “prejudicial interest”; the fourth is a narrow question turning on the individual facts of this case.

It is Mr McCracken’s submission that paragraph 12(1) refers only to members of the relevant committee and not to members of the authority generally. In rejecting this submission below, the judge concluded, first, that “the effect of the Code on its ordinary and natural meaning” was that paragraph 12 applies to all councillors and, secondly, that there is nothing in the background material to the code which could possibly justify departing from that natural and ordinary meaning. Once again it is convenient to set out the bulk of the judgment below on both points. As to the natural and ordinary meaning of the Code, the judge said this at paragraph 102:

“i)

I reject Mr McCracken’s submission that attendance by a councillor at a meeting of a committee of which he is not a member falls outside the scope of the Code. It seems to me that such attendance falls clearly within paragraph 1(1). If a councillor attends a meeting of a committee of which he is a member, he is ‘conduct[ing] the business of the authority’ within paragraph 1(1)(a). If he attends a meeting of a committee of which he is not a member, he is ‘conduct[ing] the business of the office to which he has been elected …’ within paragraph 1(1)(b). He is there as an elected councillor performing the functions of that office. That is well illustrated by the facts of this case. Mr Richardson’s wish to attend the meeting as a councillor representing his electorate and giving the community a representative ‘voice’ at the meeting was at the heart of his objection to withdrawing from the meeting (I deal later with the question of his attendance in a personal capacity as well). An additional consideration is that attendance by a councillor at any meeting of a committee of a council, whether or not he is a member of that committee, counts towards fulfilment of the minimum attendance requirement imposed on members by s.85 of the Local Government Act 1972.

ii)

The ordinary and natural reading of paragraph 12 is that it applies to a member of the Council, not just to a member of the relevant committee. Throughout the Code, starting most obviously with paragraph 1(1), the expression ‘a member’ denotes a member of the Council. Where a provision is limited to participation as a member of a particular committee, it is done so expressly, as in paragraph 11(1) (which opens by a general reference to ‘a member’, i.e. a member of the Council, but then refers to decisions made or action taken by committees ‘of which he may also be a member’). There is no such limitation in paragraph 12. On its face it lays down a rule applicable to any member of the Council in relation to any meeting of the council or of any of its committees (see the wide definition of ‘meeting’ in paragraph 13).”

As to the background material, the judge said this:

“103.

The background material provides some support for the view that the mischief at which the provision is aimed is the presence of a councillor in the room, whether or not he is a member of the relevant committee, though it is fair to say that the point does not seem to have been addressed in terms. Paragraphs 6.51-6.52 of the Widdicombe report deal as follows with the question of withdrawal from meetings, referring first to pecuniary interests and then to non-pecuniary interests:

‘6.51 At present there is no statutory requirement for someone who has declared an interest at a meeting to withdraw from the room …. We believe that this is wrong. By staying in the room, even though he or she may not speak or vote, a councillor may still influence the decision or might gather information which would help in the furtherance of his or her interest …. We propose that there should be a statutory requirement for councillors in all such instances to withdraw. Withdrawal should be from the room, not just to the space set aside for the public. There should be no option to invite councillors to stay, which could place their colleagues in an invidious position.

6.52

The 1975 Code … currently requires councillors to treat non-pecuniary interests precisely as if they were pecuniary ones: that is to say that the councillor should not only declare such interests but also abstain from voting and speaking (and, under our recommendation, withdraw from the room). We do not think that this is right. Non-pecuniary interests will sometimes be substantial and clearly justify such disabilities. In other cases they will be much more distant …. The councillor should … only be required to abstain from voting and speaking and, under our recommendation, to withdraw from the room, if the interest is a clear and substantial one ….’

104.

It is true that, as Mr McCracken says, that recommendation does not deal in terms with the issue of a single member constituency and the problem of representation to which withdrawal in such circumstances may give rise. But other passages of the report show that the authors were well aware of, and attached value to, single member constituencies (see e.g. paragraph 7.16); and in my view it is clear that they put forward their recommendation as one of general application.

105.

The Nolan report deals extensively with general principles of conduct for local councillors, including a lengthy discussion of conflicts of interest. Paragraph 82 refers to the complexity of the issues and the balancing exercise required:

‘The issues are particularly complex in local government. Local authorities are multi-purpose bodies, involved in many different activities within a restricted geographical area. They are run by councillors, elected on a ward basis, whose task is to represent the interests of local people. Councillors are themselves local people, who are likely to have been actively involved in the local community before election, both in commercial and non-commercial activities, and who may be even more involved after election. Potential conflicts of interest are likely to occur frequently, and the public interest requires that a sensible balance should be struck between avoiding impropriety, and enabling councillors to fulfil the role for which they were elected.’

106.

Paragraphs 112ff. deal specifically with public and private interests and bias, drawing the distinction between a situation in which a councillor or his family is no more affected than the generality of the community and a situation in which he or his family is particularly affected. For example, I have referred already [this is a reference to paragraph 84(iv) of Richards J’s judgment, now set out in paragraph 76 below], in the context of ‘prejudicial interests’, to the illustrative contrast drawn in paragraph 118 between a case where a councillor's home is one of a hundred households affected and a case where it is one of ten households affected. On the specific issue that I am now considering, however, I do not think that the Nolan report takes matters further.

107.

The Department's consultation paper contained the following passage under the general heading ‘dealing with conflicts of interest’:

‘4.17 Under the proposals put forward by the LGA, members would be required to withdraw from consideration of any matter in which they had a financial interest. The Government agrees that this is the right approach to such interests. In relation to non-financial interests, the LGA proposed that members should be required to declare such interests but (unless that interest related to a planning, licensing or grant application) should then be able to speak and vote. Where a member had a non-financial interest in relation to a planning, licensing or grant application, members should be able to speak, but not vote.

4.18

Ministers believe that, in relation to non-financial interests, these proposals tilt the balance too far in favour of member participation, at the expense of public confidence. The range of potential non-financial interests is very large, and some of these may be of greater significance than some financial interests. Nor are significant non-financial interests restricted solely to planning, licensing and grant-related matters. They may arise in any area of council activity. So the Government believes that a more restrictive approach is needed in relation to such interests. The approach proposed below reflects that view’ (original emphasis).

108.

The draft of paragraph 12 required a member with a prejudicial interest in any matter to ‘withdraw from a meeting wherever it becomes apparent that the matter is being considered’. The evidence before the court is that responses to the consultation paper and subsequent discussions suggested that ‘withdraw from the meeting’ was too vague, since it would allow a member to withdraw to the public gallery and use his or her presence there to put pressure on those taking part in the debate; and that there was considerable anecdotal evidence that this could cause problems. The paragraph was therefore amended so that the final version required a member to ‘withdraw from the room or chamber where the meeting is being held’.

109.

The consultation paper, together with the evidence concerning the amendment to the draft of paragraph 12, shows the general mischief at which the provision is addressed and that a restrictive approach was intended. It does not show in terms that paragraph 12 was intended to apply to withdrawal by any member of the Council with a prejudicial interest, and not just by a member of the relevant committee. The general thrust of the material seems to me, however, to provide greater support for that view than for the contrary view. Again I take the point made by Mr McCracken that there was no express consideration of the effect on a single councillor constituency, but again it seems to me that the intention was to formulate a rule of general application.

110.

Overall, I do not regard the background material as decisive, but there is nothing in it that could possibly justify my departing from what I have found to be the ordinary and natural meaning of the relevant provisions.”

A little later in his judgment, dealing with Mr McCracken’s submission that, thus construed, paragraph 12(1) imposed an unnecessary and disproportionate restriction on members’ ability to represent their constituents such as to make it unlawful to have promulgated a mandatory code in these terms, the judge said this at paragraph 111:

“i)

In my judgment the question at this stage is one of rationality, not proportionality. Despite the observations of Lord Slynn in Alconbury and of Sedley LJ in R v. Flintshire CC, ex parte Armstrong-Braun (who, in the context of that case, may in any event have had the Convention in mind), proportionality has not yet displaced rationality as the relevant test in domestic law, though in practice the result will very often be the same.

ii)

It was plainly rational for the Secretary of State to adopt a Code that has the effect of requiring a councillor with a prejudicial interest to withdraw from a meeting of a committee even if he is not a member of that committee. In my view the principle of proportionality, if applicable, would also be satisfied.

iii)

The Code reflects the outcome of a complex balancing exercise after extensive consultation and deliberation. There has been a sufficiently structured and articulated approach (to the use the language from South Bucks DC v. Porter on which Mr McCracken relied). The Secretary of State has placed particular weight, as he was entitled to do, on the need to retain public trust and confidence in the operation of the system. This is expressed extremely clearly in the consultation paper:

‘4.3 The retention of public confidence is not so much a desirable goal, as a fundamental necessity. Without the public's trust, an authority would quickly become discredited. So Ministers see the requirements of public probity as paramount. The system we design must, first and foremost, meet those requirements.’

iv)

Although the presence of a councillor with a prejudicial interest may give rise to lesser public concern when he is a non-member of the relevant committee than when he is a member of the committee, a non-member is still able to exert influence by reason of his position as a councillor, and the risk that public confidence in the decision-making will be impaired is a real one.

v)

To require the highest standards of behaviour in public life is properly viewed as promoting rather than offending the principles of local representative democracy. Moreover, as Mr Sales submitted, the principles of democracy do not require that any particular councillor sit on a council committee or attend or speak at a committee meeting. It is in the nature of council committees that they conduct business on behalf of the council without full participation by every member of the council. Nor is attendance by a councillor at a meeting the only way in which the interests of his constituency can be taken into account. In the present case, for example, the committee heard from a district councillor, the chairman of the parish council and a member of the parish council (the second claimant), as well as receiving written representations.”

Mr McCracken challenges all those conclusions. First, he submits that in reaching them the judge took insufficient account of Sedley LJ’s judgment in R -v- Flintshire County Council ex parte Armstrong-Braun [2001] LGR 344, both for its observation on proportionality and as having a wider relevance. In that case the council had made a standing order preventing a councillor from putting a matter on the agenda for discussion at a council meeting without being seconded by another council member. The Court of Appeal quashed the standing order. Schiemann LJ, at paras 37-38, pointed out that councillors represent particular areas and that one of the ways in which they are intended to exercise their function is by raising matters in council. The standing order prevented them from doing that. Before such a standing order was made the matter should be given the most anxious consideration. The council had failed to consider "the full democratic implications" of the course it had adopted. Sedley LJ likewise held that the standing order had been made without proper consideration and laid stress on the fact that "a councillor is elected as the representative of a territorial unit" (para 53; see also paras 57-58).

For my part I see no inconsistency between that decision and Richards J’s decision here. It is one thing to conclude, as the Court of Appeal did there, that the introduction of a measure designed merely to prevent time-wasting was too high a price to pay for the damage it might cause to local democracy; quite another to suggest that the Secretary of State has struck the wrong balance in the Model Code between, as paragraph 4.2 of the consultation paper put it, the goals respectively of “retention of public trust in the member and the working of the authority” and “maximising opportunities for members to contribute to the work of their authority”. As Richards J said in paragraph 111(iii) of his judgment:

“The Secretary of State has placed particular weight, as he was entitled to do, on the need to retain public trust and confidence in the operation of the system.”

Secondly, Mr McCracken submits that the judge erred in his approach to the natural and ordinary meaning of the word “member” where it appears in paragraph 12 of the Code. The judge’s analysis in paragraph 102 of his judgment (see above), submits Mr McCracken, misunderstands the point arising on paragraph 11 of the Code and in any event overlooks the significance of the Dispensations Regulations.

As to paragraph 11, Mr McCracken points out that the word “member” where last it appears in paragraph 11(1), is clearly being used in the more limited sense for which he contends, namely as a member of a committee. So it is, of course, but, as Richards J pointed out in paragraph 102(ii), that is achieved expressly by the language used. Paragraph 11, albeit a somewhat opaque provision, can, I think be paraphrased essentially as follows: if an overview and scrutiny committee (Committee A) is considering a decision made, or action taken, by another of the authority’s committees (Committee B), then, if one of Committee A’s members was also a member of Committee B, he must regard himself as having a prejudicial interest and must necessarily therefore withdraw from Committee A’s meeting unless (and this is the effect of paragraph 11(2)) he is attending Committee A to answer questions or give evidence in relation to the decision or action under consideration. Properly understood, paragraph 11 of the Code to my mind tends rather to support than to undermine the judge’s approach to paragraph 12. To achieve the narrower construction of paragraph 12(1) for which Mr McCracken contends it would be necessary to write in words: the word “member” would have to read “member of the Committee holding a meeting”.

As for the Dispensations Regulations, Mr McCracken draws our attention to regulation 3(1)(a)(i) which provides that the authority’s standards committee may grant a dispensation under paragraph 12(1)(a) of the Code if “the number of members of the authority that are prohibited from participating in the business of the authority exceeds 50% of those members that are entitled or required to so participate”. This provision applies, correctly submits Mr McCracken, not merely when at least half the members of the council have a prejudicial interest but also when half a committee has. The word on which he focuses in regulation 3(1)(a)(i) is “participating”. These Regulations, he points out, were designed to work with the Model Code as part of a single legislative scheme. His submission is that the word participation in all this legislation should be treated as referring to participation solely as a member of a committee or other decision making body. It would thus exclude representations made by a member of the authority who is not himself a member of the committee in question.

This submission too I would reject. True it is that paragraph 12 of the Code is headed “Participation in relation to disclosed interests”. That word does not, however, appear anywhere in paragraph 12(1) but only in paragraph 12(2) and its presence there is explained by reference to paragraph 4.28 of the consultation paper:

“… the Government believes that the requirement [to withdraw from a meeting] should be modified by making a distinction between decision-making activities and the other types of member activity provided for under such constitutions. Where decisions are not being taken, the Code could take a less restrictive approach to handling conflicts of interest. The functions of overview and scrutiny committees are constrained by statute to prevent them exercising any traditional decision-making function. Area committees and joint committees may carry out decision-making functions formally delegated to them by the authority, or the executive, but they may well also conduct discussions in order to review or inform policy decisions, rather than actually to make those decisions.”

If anything, the Dispensations Regulations to my mind tend rather to support Richards J’s construction of paragraph 12(1) of the Code. Regulation 2 of the Dispensations Regulations defines “member” to mean “a member or co-opted member of an authority”. Although the Code itself does not in terms define “member”, by paragraph 1(4) it provides that within the Code “‘member’ includes a co-opted member of an authority”.

Certainly, in every other paragraph of the Code except paragraph 12 (and paragraph 11 where the word is expressly qualified) wherever the word member is used it is crystal clear that the reference is to a member or co-opted member of the authority as a whole. A very strong presumption accordingly arises that that is also what the word means in paragraph 12. Nothing that Mr McCracken submits begins to persuade me that this presumption is displaced either by the language of the Code or by its underlying rationale. On the contrary, whilst I readily acknowledge that nothing in the background material directly addresses the question whether all councillors with a prejudicial interest ought to withdraw from a meeting or only those sitting on the decision making committee itself, it seems to me that there are at least as good reasons for treating all councillors alike as for distinguishing between them.

No doubt, as Mr McCracken urges, a councillor who is not on the same committee as those taking the decision will generally be less well able to exert untoward influence on the decision than fellow committee members. But that will not invariably be so and in many cases the public would be unlikely to accept it was so.

It is Mr McCracken’s core submission that the narrower construction of paragraph 12 for which he contends would allow more scope for democratic representation within local government. So, of course, it would. But it would be at the expense of public trust and confidence in the local democratic process. The government in the Model Code decided upon has chosen not to pay that price. At the end of the day it is as simple as that.

The judge below, whilst holding that that question “simply does not arise on the facts”, indicated in paragraph 116 how he would have dealt with it had it been necessary to decide the point:

“i)

On its face, paragraph 12 would seem to apply to such a situation, since a councillor is still "a member" of the Council even if acting only in his private capacity. It must, however, be read in the light of the limitations expressed in paragraph 1 on the scope of the Code.

ii)

Paragraph 1(2) provides that the Code "shall not, apart from paragraphs 4 and 5(a) below, have effect in relation to the activities of a member undertaken other than in an official capacity". In my view a councillor would not be undertaking activities in an official capacity if he attended a meeting solely in his private capacity. In particular, he would not be "conduct[ing] the business of the office to which he has been elected", within the meaning of paragraph 1(1)(b).

iii)

I would reject Mr Sales's submission that paragraph 12 is to be seen as an illustration of paragraph 4 and/or paragraph 5(a) of the Code. It is not so expressed; and if it had been intended to apply to activities undertaken otherwise than in an official capacity, I would have expected an express reference to it in paragraph 1(2) as a further exception to the general rule there laid down. There may of course be circumstances in which attendance at a meeting in a private capacity would be caught directly by paragraph 4 and/or paragraph 5(a), but that is a different matter and is not a reason for adopting a strained interpretation of paragraph 12 so as to apply it in all cases to attendance in a private capacity. Nor was any advice given, or suggestion made, by the Council's officers that attendance by Mr Richardson would be a breach of paragraph 4 or 5(a).

iv)

The policy objections to attendance by a councillor at a meeting might reasonably be considered to apply even where attendance is on the express basis that the councillor is attending in a private capacity to defend his own personal interest, rather than in a representative capacity. They might, however, be thought to have less weight in that situation, on the basis that the risk of damage to public confidence would not be so great. In any event I do not regard the policy objections as so compelling that they ought to lead to a construction of the Code that would not be justified on its ordinary and natural meaning.

v)

Accordingly, I would have held that the Code did not in principle preclude attendance by Mr Richardson solely in his private capacity to defend his own personal interest, though steps would have had to be taken to ensure that the limited basis of his attendance was abundantly clear to all.

vi)

On that basis the arguments about the lawfulness of the Code in its application to a councillor wishing to attend a meeting in his capacity as a private citizen would fall away.”

Given the obvious importance of this issue and since for my part I am disposed to disagree with Richards J on Issue (iv) (the factual issue), I must confront this question, arising as it does on the Secretary of State’s Respondent’s Notice. Bear in mind that, on the judge’s conclusion, even a member of the decision-making committee, notwithstanding his prejudicial interest, will be entitled to remain (and indeed speak) in his (so-called) private capacity.

As appears from paragraph 116(ii) of the judgment below, the judge reached his conclusion on this point essentially by reference to paragraphs 1(1)(b) and 1(2) of the Code. These provisions, he concluded, operate to displace the apparent effect of paragraph 12. On this point, it seems to me, Richards J erred in his approach. A member of the authority attending a council meeting cannot in my judgment, simply by declaring that he attends in his private capacity, thereby divest himself of his official capacity as a councillor. He is still to be regarded as conducting the business of his office. Only by resigning can he shed that role. To conclude otherwise would drive a coach and horses through paragraph 12. Realistically it would be rendered wholly ineffective. The mischief which paragraph 12 is designed to avoid is manifestly the same whether the councillor is attending the meeting in his public or purportedly private capacity. Is it seriously to be suggested that the very quality which elevates a councillor’s private interest under the Code into a prejudicial interest (ie a private interest so strong that on its face it requires him to withdraw from the meeting under paragraph 12), nevertheless itself entitles him to remain in a supposedly private capacity? Surely one has only to state the proposition to reject it. It is on this basis, rather than by reference to paragraphs 4 and 5(a) of the Code (the basis for Mr Sales’s alternative arguments), that I am driven to a different conclusion on this issue from that reached by the judge below.

The first point to make is that the initial and principal judgment on the question is for the individual councillor himself. This is plain both from the consultation paper and also from several of the provisions in the Code itself, for example paragraphs 8(1) and 11(1). But there comes a point at which it would clearly be irrational and therefore unlawful for the councillor to conclude that he does not have a personal interest under paragraph 8(1) or, as the case may be, a prejudicial interest under paragraph 10(1). That point, Richards J below concluded, was reached here:

“84.

In any event I think it plain that he did have a prejudicial interest and that neither he nor the Council could reasonably have taken a different view:

i)

I do not understand it to be in dispute, and I would certainly hold, that he had a ‘personal interest’ within paragraph 8(1), in that the decision on the planning application (i) related to an interest of which he had to give notice under paragraph 14(f), namely his home in Littlethorpe, and/or (ii) might reasonably be regarded as affecting his well-being and/or financial position to a greater extent than other relevant persons.

ii)

His personal interest was also a ‘prejudicial interest’ within paragraph 10(2) if it was ‘one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice the member's judgement of the public interest’.

iii)

Mr Richardson's home, Ox Close House, was very close to the proposed extension of the quarry and was one of a handful of properties liable to be most affected by the development. As it was put in paragraph 6.7.1 of the Director's report:

‘The properties potentially most affected by the development proposal are Ox Close House, The Bungalow, Ox Close Farm and Great Givendale. The closest properties are Ox Close House, The Bungalow and Ox Close Farm. These lie approximately 250 metres to the south west and west of the application area. Residents in these properties have expressed concern with regard to noise arising from the proposed workings …. Residents are also concerned about the impact on their views of the valley ….’

iv)

Mr McCracken relies on the statement in paragraph 118 of the Nolan report that ‘[i]f one hundred households are affected by a council decision, then most people would agree that a councillor similarly affected has no special interest which might debar him or her from speaking or voting, providing the interest is declared’. He submits that that was the case here and points to the fact there were some 400 signatories to a local petition opposing the development; Mr Richardson had the same interest as his constituents, albeit to a greater degree than many (and less than some). In my judgment, however, the next sentence of paragraph 118 of the Nolan report is more pertinent: ‘[i]f in a different decision ten households are affected, then in most circumstances a councillor might feel that taking part in a decision was inappropriate’. The present case is stronger still, since Mr Richardson's home was one of three or four properties closest to the site and potentially most affected. The owners of those properties were not merely ‘similarly affected’ as other residents of the parish, but had a greater and special interest in the outcome of the planning application.

v)

Anyway, the test is not what was said in the Nolan report but what is laid down in paragraph 10(2) of the Code; and in my judgment a member of the public with knowledge of the relevant facts would reasonably have regarded Mr Richardson's personal interest as so significant that it was likely to prejudice his judgement of the public interest. I reject Mr McCracken's submission that a knowledgeable member of the public would reasonably have regarded him as simply putting forward the views of the people he represented, or making a contribution to the debate based on his perception of the public interest, rather than being influenced by the potential impact of the development on his own home. However conscientious a councillor might be in his representative role and his concern to protect the public interest, the personal interest was a highly material additional consideration.

vi)

As a further way of examining the point, though this is not necessary for my decision, I have asked myself whether, if Mr Richardson had been a member of the committee and had participated in a decision to refuse planning permission, it would have been open to the developer to object to the decision on the ground that his participation gave rise to the appearance of bias. In my view it would have been, for the very reason that a fair-minded and informed observer would have concluded that, by reason of the personal interest, there was a real possibility that the committee was biased. The test in paragraph 10(2) of the Code is not in identical terms but similar considerations underlie it.”

Quarrel with that as Mr McCracken does, it seems to me that the judge’s conclusion on this point is self-evidently correct. Assume, as the judge posited in paragraph 84(vi), that Mr Richardson had in fact been a member of the Planning Committee which had then refused planning permission by a 5:4 majority. How could it possibly have been suggested that “a member of the public with knowledge of the relevant facts [essentially those set out in paragraph 84(iii) of the judgment] would [not] reasonably have regarded [Mr Richardson’s interest] as so significant that it [was] likely to prejudice [his] judgment of the public interest” (the language of paragraph 10.(1) of the Code)? Plainly it could not.

Having regard to my conclusion on Issue (ii), a conclusion I understand to be shared by my Lords, Issue (iv) itself does not now arise for consideration. As already indicated (see paragraph 74 above) , however, I for my part would have been inclined to resolve it, had it mattered, in favour of Mr Richardson. True it is, as Mr Sales argues and as the judge below found, that Mr Richardson’s main concern was to attend the June meeting in his representative capacity to advance the interests of his constituents in the parish and settlement of Littlethorpe. To my mind, however, his statement at the outset of the meeting (see paragraph 55 above) indicated that, failing that, he wished at the very least to attend “as a citizen” and yet regarded himself as barred from the meeting even in a personal role. The judge below, I should note, dealt at considerable length with this issue too. Since, however, nothing now turns on it, I shall hope to be forgiven for the comparatively brisk way in which I have expressed my respectful disagreement with him.

Before leaving Issue (iv), however, I would add one thing. The very points which Mr Richardson indicated in later correspondence that he wished to make at the meeting illustrate the difficulty - realistically, I would suggest, the impossibility - of distinguishing his supposedly private capacity from his public one. On 19 June 2002 he wrote to the Council’s Chief Executive:

“As you are now well aware I was forbidden to speak at the North Yorkshire Council's Planning Committee on Tuesday, 11 June.

Had I been allowed my freedom of speech I had intended to give emphasis on two points. One was the impact on the environment and the lack of a cohesive overall plan of restoration for the whole valley. The second was the impact of the probable increase in flooding; on the flood plain; the villages and towns along the River Ure Corridor and the safety of the workforce ….”

These plainly were just the sort of points which Mr Richardson was wishing to make on behalf of his constituents but which, because of his personal interest in the matters, he could not properly be allowed to do. (The fact that they may well have been entirely lacking in merit - a point urged in particular by Mr Hill for the Interested Party - is not for this purpose material).

It follows from all this that on each of the determinative issues raised on the appeal I find against the appellants. I am conscious that despite the unusual length of this judgment it nevertheless leaves unaddressed a number of Mr McCracken’s disparate arguments. For that I shall hope to be forgiven. Where, as here, a challenge or appeal is pursued in a somewhat scattergun fashion , it is simply not practicable to examine every pellet in detail.

By way of footnote I add just this. On the first part of the case Mr McCracken put before us the following proposed questions for a possible reference to the European Court of Justice:

“Whether it is compatible with the requirements of Directive 85/337/EEC, as amended by Directive 97/11/EC:

(1)

for the decision maker not be aware while making its decision of its obligation for formulate and state publicly the reasons for its decision

(2)

for the reasons for the decision to be formulated otherwise than contemporaneously with the decision and in advance of the public registration of the decision

(3)

for the reasons for the decision to be formulated and stated publicly after the period of time for legal challenge has expired?”

In my judgment, however, it is not necessary to refer any questions to Europe for the purposes of disposing of this appeal. Even if, moreover, it were, the questions as presently formulated would not seem to me the appropriate ones. That, however, is by the way. For the reasons earlier given I would dismiss this appeal.

I agree.

I also agree.