Lambert, R (on the application of) v Southwark

MR JUSTICE JACKSON: This judgment is in eight parts, namely Part 1: Introduction; Part 2, The facts; Part 3, The present proceedings; Part 4 - Ground 1: in resolving to grant planning permission for the City Academy did the Council err in that it failed to take into account relevant considerations and/or took into account irrelevant considerations? Part 5 - Ground 2: did the Development Control Committee wrongly fail to consider new matters which arose between 16 January and 14 November 2002? Part 6 - Ground 3: did the notice of planning permission issued on 14 November 2002 conform with the Development Control Committee's resolution of 16 January 2002 and the Council's resolutions of 27 March 2002? Part 7 - Ground 4: did the Council fail to comply with the 1999 Regulations? Part 8, Conclusion.

This is a claim for judicial review. The claimant challenges certain decisions made by the Council of the London Borough of Southwark, in particular the grant of outline planning permission for the construction of a school upon Paterson Park in Bermondsey.

The statutory context in which this claim arises is the Town & Country Planning Act 1990 ("the 1990 Act"). Section 54A of the 1990 Act provides:

Section 71A of the 1990 Act provides:

Pursuant to section 71A of the 1990 Act the Secretary of State made the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the 1999 Regulations"). I shall set out the relevant parts of the 1999 Regulations in Part 7 of this judgment.

Having identified the key statutory provisions which are in play in this case, I must now set out the facts.

At the end of the Second World War a bomb site in Bermondsey was cleared and some £18,000 was spent on converting the land into a children's playground and park. It was named Paterson Park after Sir Alec Paterson, the former Commissioner of Prisons, in recognition of his services to the people of Bermondsey. Paterson Park was formally opened by Clement Attlee in October 1953.

Paterson Park has been maintained by the local authority and used by the people of Bermondsey for some 50 years. The claimant is one of the residents of Bermondsey. She has always enjoyed the park and has regularly taken her children to play there. In about January 1995 the claimant moved from the northern part of Bermondsey to 181 Lynton Road, Bermondsey. From then on Paterson Park was immediately opposite her home. Since moving to Lynton Road the claimant and her children have made even greater use of Paterson Park and its facilities.

In the late 1990s the need arose for a new secondary school in Bermondsey. The London Borough of Southwark, as Education Authority, considered that a school to educate 1200 pupils aged between 11 and 19 was required. In order to meet this need the Corporation of London proposed to sponsor the construction of a City Academy, which would be in line with current Government policy on secondary education in major urban areas. The London Borough of Southwark, as Local Education Authority, and the Corporation of London concluded that the most suitable location for the new City Academy would be Paterson Park.

The London Borough of Southwark and the Corporation of London jointly instructed ERM Planning to prepare a report on the proposed development. ERM produced their report in July 2001. ERM proposed that the development should encompass an area on the eastern side of St James's Road comprising approximately 10,700 square metres, and an area to the west of St James's Road comprising approximately 20,506 square metres. Thus the total development would cover approximately 3.1 hectares. This development area appears to be somewhat more extensive than the land which is conventionally described as Paterson Park. However the precise boundaries of the park are said by counsel to be uncertain. For simplicity I shall refer in this judgment to the whole of the proposed development land as "Paterson Park".

ERM proposed that most of the school buildings should be in the eastern part of Paterson Park; that sports facilities, open ground and car parks should be situated in the western part; and that a section of land at the extreme western end of the development site should be retained and should serve as a community park.

On 21 August 2001 ERM wrote to the planning officer of the London Borough of Southwark requesting a screening opinion pursuant to Regulation 5 of the 1999 Regulations. ERM enclosed a report contending that the proposed City Academy did not constitute an EIA development under the 1999 Regulations and accordingly that an environmental statement was not required. The planning department of the London Borough of Southwark acceded to these arguments. On 14 September 2001 the development and building control manager of the London Borough of Southwark wrote to ERM stating that an Environmental Impact Assessment ("EIA") under the 1999 Regulations would not be required.

On 8 October 2001 the Corporation of London applied for outline planning permission to construct a City Academy on Paterson Park. Somewhat to my surprise no copy of the planning application, dated 8 October 2001, has been put in evidence. Both counsel, however, are of the view that it is not necessary for me to look at it.

In support of this planning application two supporting statements were lodged and these have been put in evidence. The first supporting statement is dated 5 October 2001. The supplemental supporting statement is dated December 2001. The first supporting statement gives considerable details about the proposed City Academy and its layout, and it includes a number of plans. Plan PLA005 shows that the area of open space to be made available to the public at the western end of the site is very small. Its area is .14 hectares. The supplemental supporting statement dated December 2001 states that arrangements will be made to enable the local community to make use of the school facilities. Section 3.4 of this supplemental supporting statement states that City Academy will manage the amenity area at the western end of the site and make it available for use by the public.

A number of local residents objected strongly to the siting of a City Academy on Paterson Park and the consequential loss of open space. These residents sent their objections in writing both to Southwark Council and to Mr Ken Livingstone, the Mayor of London.

The Mayor duly considered the issues. On 19 December 2001 the Mayor's office wrote to Southwark Council as follows:

The Development Control Committee of Southwark Council made arrangements to consider the outline planning application at its meeting on 16 January. In preparation for this meeting the development and building control manager wrote a report for the Committee recommending that outline planning permission be granted. This report has come under close scrutiny over the last two days. I will therefore read out the material parts of it:

...

The Development Control Committee duly met on 16 January 2002. The public were present. There was a lengthy debate about the proposals. Handwritten notes of the meeting have been put in evidence. It can be seen that there was discussion as to whether the Canada Water site, which lies some 2 km to the north east, would be a suitable location for the City Academy in preference to Paterson Park. At the end of this discussion the Committee resolved as follows:

On 6 February 2002 the Mayor of London, in the exercise of his powers under Article 5 of the Town & Country Planning (Mayor of London) Order 2000, directed Southwark Council to refuse planning permission. His stated reasons were that the proposed development would result in a loss of open space contrary to national regional and local planning policy.

During February and March 2002 further discussions took place between Southwark Council and the Planning Decision Unit of the Greater London Authority. It was this unit which advised the Mayor on planning matters. On 1 March 2002 Southwark Council wrote to the Planning Decision Unit of the Greater London Authority making two proposals in respect of open space. (1) To reduce the size of the City Academy site to 2.64 hectares and thereby to enlarge the public open space at the western end of the site about 0.4 of a hectare. (2) To create two new open public spaces adjoining Catlin Street and Alexis Street.

On 13 March 2002 Mr Ken Livingstone (the Mayor) wrote to Southwark Council as follows:

On 16 March 2002 the Ratification (Urgency) Sub-Committee of Southwark Council was convened. The Committee agreed to meet the Mayor's requirements (1) and (4) and to seek an urgent response through the Corporation of London in respect of requirements (2) and (3).

On 21 March the leader of Southwark Council wrote to the Mayor giving written commitments of the kind which the Mayor had sought in requirements (1) and (4).

On 27 March 2002 the next full meeting of the Council took place. By then Southwark Council had received favourable indications from the Corporation of London in respect of requirements (2) and (3). At this meeting the Council resolved that the Mayor's requirements (1) and (4) be agreed. The Council noted recent correspondence from the Corporation of London about requirement (2). The Council resolved that community usage of the academy's facilities be secured by legal agreement in accordance with requirement (3).

On 8 April the leader of the Council wrote to the Mayor as follows:

The Mayor of London was satisfied with the assurances which the leader of Southwark Council had given in her letters dated 21 March and 8 April. By a letter dated 25 April 2002 the Mayor cancelled his previous direction to Southwark Council requiring it to refuse planning permission.

On 30 April 2002 Messrs Richard Buxton, the solicitors for the claimant, sent a letter before action to Southwark, threatening judicial review proceedings in the event that the Council should grant planning permission pursuant to the resolution passed on 16 January. This matter was debated in correspondence between solicitors. During the same period there was correspondence with the Secretary of State which culminated in his decision not to call in the planning application.

In the meantime the Corporation of London became concerned that the new City Academy would not be completed in time to receive the first intake of pupils. Accordingly on 30 September the Corporation of London submitted a planning application to construct a temporary educational facility upon part of Paterson Park, which would accommodate 360 pupils.

On 14 November 2002 the Mayor and Burgesses of the London Borough of Southwark ("the Council") entered into a written agreement with the Mayor and Commonalty and Citizens of the City of London ("the Corporation") pursuant to section 106 of the 1990 Act.

By this agreement the Corporation agreed to do a number of things, including the following:

On the same date as this agreement was executed, namely 14 November 2002, the development and building control manager of Southwark Council issued a notice of planning permission to the Corporation of London. This notice stated that outline planning permission was granted for:

On 9 December 2002 the Planning Committee of Southwark Council met to consider the Corporation of London's application for planning permission to erect a temporary educational facility upon part of Paterson Park. The Committee resolved to grant the permission which was sought. That resolution has not yet been carried into effect by the issue of a notice of temporary planning permission. I am told by counsel that this event may never happen since the Corporation of London is hoping to make other temporary arrangements for secondary education in Bermondsey pending the completion of the proposed City Academy on Paterson Park.

In the meantime the claimant has been aggrieved by the grant of outline planning permission on 14 November 2002 and by the resolution on 9 December 2002 to grant temporary planning permission for a smaller educational facility. Accordingly the claimant has launched the present proceedings in order to challenge those decisions.

By a claim form issued on 7 January 2003 the claimants sought the following remedies:

The claim form contained five grounds, namely:

On 29 January 2003 the defendant, the London Borough of Southwark, filed its acknowledgment of service. The defendant contested the claimant's claim on all grounds. On 7 April 2003 Sullivan J granted to the claimant permission to proceed with her claim for judicial review pursuant to Rule 54.4 of the Civil Procedure Rules.

The matter was listed for hearing this week, beginning on Monday, 21 July. Very sensibly the parties had a sequential exchange of skeleton arguments in the period leading up to the present hearing. On 3 July Mr William Upton, the claimant's counsel, served his skeleton argument. In this skeleton he departed from or modified the grounds of claim in a number of respects. On 14 July Mr Eian Caws, the defendant's counsel, served his skeleton argument in response.

The oral hearing of these proceedings started the day before yesterday and concluded yesterday afternoon. In the course of his oral submissions Mr Upton modified, and in one or two cases abandoned, contentions set out in his skeleton argument. I make no complaint whatsoever about the changes in position of the claimant's legal advisors. It is inevitable that issues become more focussed in the run up to a court hearing. It is also sensible for any advocate to concentrate on his stronger points and to pass over or to drop his weaker ones.

In this judgment I shall not linger on points which have been abandoned. Instead, drawing upon the skeleton arguments and the oral arguments, I shall address the claimant's grounds of claim as they were finally formulated. Proceeding on this basis I would summarise the claimant's grounds of claim as follows:

If the claimant succeeds on any one of these four grounds the consequence will be that the planning permission issued on 14 November must be quashed. If that planning permission is quashed then the Planning Committee's resolution of 9 December 2002 can no longer stand. The belief that a valid outline planning permission for the City Academy had been granted three weeks earlier formed the major basis for the Committee's decision on 9 December 2002.

Finally, it should be noted that there is overlap between grounds 1, 2 and 3. In addressing the live issues in this case I shall deal with each one under the heading to which Mr Upton assigned it.

Against that background I must now consider each of the claimant's four grounds of claim.

The Southwark Unitary Development Plan ("the UDP") required that open spaces such as Paterson Park should be preserved: see policies C .4.1, C .5.1, C .5.2 and C .5.4 of the UDP. The proposed construction of a school on Paterson Park was contrary to those policies.

Section 54A of the 1990 Act (which I read out in Part 1 of this judgment) require that the Development Control Committee should determine the Corporation of London's planning application in accordance with the UDP "unless material considerations indicate otherwise". The contention in the claim form that the Council acted in breach of section 54A is no longer pursued. The argument now is that in carrying out the evaluation exercise required by section 54A the Council failed to take into account relevant considerations or took into account irrelevant considerations.

The main ground of challenge is that the Council failed properly to take into account open space policy:(see paragraphs 3.8 to 3.10 of the claimant's skeleton argument). This contention inevitably brings the officer's report of January 2002 (which informed the Committee's decision) under the spotlight. It seems to me that this report sets out admirably the national, regional and local policies on open space (see the passages quoted in Part 2 of this judgment). It should also be noted that policies C .4.1, C .5.1, C .5.2 and C .5.4 (upon which the claimant relies) are each summarised in paragraph 4.2 of the officer's report. Indeed so accurate is this summary that my suggestion during argument that perhaps I should look at the UDP was rejected by both counsel. It is agreed by all parties that the relevant provisions of the UDP are correctly summarised in the officer's report.

In the course of his oral submissions Mr Upton placed some emphasis on paragraph 4.4.17 of the officer's report. In response to my specific inquiry, however, he conceded that there was no defect in that paragraph of which the claimant could complain. Turning to paragraph 4.4.21 Mr Upton pointed out that this contains no express reference to the Planning Policy Guidance known as PPG17. Whilst I accept that there is no express and specific mention of PPG17 the effect of that guidance note is accurately set out. The reference to "national policies" in paragraph 4.4.21 is clearly intended to embrace PPG17.

A separate but related complaint is made by the complainant that the Committee failed to consider alternative sites for the school which would not involve loss of open space at Paterson Park. The specific alternative site which is relied upon for the purposes of this submission is the Canada Water site. The claimant contends that the Development Control Committee was not properly informed about the availability of this alternative site (see paragraphs 3.12 to 3.15 of her skeleton argument). In his oral submissions Mr Upton fastened upon paragraph 4.4.4 of the officer's report. He submitted that this paragraph was cursory and inadequate.

I do not accept any of these submissions. It is clear from the evidence that the Council carefully considered the Canada Water site both before, during and indeed after the meeting of 16 January. There were substantial objections to using this site for the new City Academy arising both from the nature of the site and its location. In particular, the Canada Water site was removed from the catchment area which the new City Academy was intended to serve. It seems to me that the relevant considerations are set out in paragraph 4.4.4 of the officer's report and the addendum report which was provided to the Committee on 16 January. Furthermore, the various notes of the meeting on 16 January reveal that the feasibility of locating the new City Academy on the Canada Water site was explored at the meeting.

Both counsel are agreed that the standards by which I must evaluate the efficacy of the officer's report and the addendum report are these set out in the judgment of the Court of Appeal in Oxton Farms v SelbY District Council, Court of Appeal transcript 18 April 1997. At page 17 of the transcript Pill LJ said this:

Let me now apply these principles to the present case. I have no hesitation in concluding that in January 2002 the Development Control Committee had all the relevant considerations and no irrelevant considerations drawn to their attention. The Committee had all relevant matters in mind when reaching what was recognised to be a finely balanced decision.

In the course of argument Mr Upton conceded with commendable candour that the claimant's case was not very strong if one stopped the clock at January 2002. He then turned to his argument that events after January were relevant considerations not considered by the Committee. This part of Mr Upton's argument was focussed upon the steps taken by the Council in order to meet the concerns of Mr Livingstone, the Mayor of London. It seems to me that this argument has three flaws:

Mr Upton's final argument on ground 1 was that the application for temporary planning permission initiated on 30 September was a material consideration which the Committee should have taken into account. I do not agree. The application was undetermined as at 14 November 2002. It would be decided at a future date on its own merits. The existence of the application could not possibly call into question the Committee's decision reached on 16 January 2002.

For all these reasons the claimant fails in her first ground of challenge. My answer to the question posed in Part 4 of this judgment is "no".

In relation to this ground both counsel are agreed that the leading authority is the decision of the Court of Appeal in R (Kides)v South Cambridgeshire District Council and others [2002] EWCA Civ 1370, [2003] JPL 431. Jonathan Parker LJ gave the leading judgment with which Laws and Aldous LJJ agreed. Jonathan Parker LJ set out the relevant legal principles at paragraphs 119-126 of his judgment as follows:

How do these principles apply to the present case? Mr Upton's arguments on ground 2 traverse the same terrain as the second half of his arguments on ground 1. Accordingly he developed his oral submissions on ground 2 with commendable brevity after taking me to the Court of Appeal's decision in Kides.

I shall adopt the same approach. First, by way of background, it should be noted that in Kides a period of some five years elapsed between the relevant committee decision and the issue of the notice granting planning permission. In the present case the period of delay is much shorter, namely, ten months, and the reason for that delay is apparent from the sequence of events narrated in Part 2 of this judgment.

Secondly and more importantly, it seems to me that the principles formulated by the Court of Appeal in Kides have been followed in the present case. For the reasons stated in Part 4 of this judgment it seems to me that on 14 November 2002, when the development building control manager signed the notice of outline planning permission, that Southwark Council had had regard to all material considerations.

Accordingly, the claimant fails on her second ground of claim. My answer to the question posed in Part 5 of this judgment is no.

This ground of claim is stated in the claimant's skeleton argument to overlap with ground 2. Because of this overlap, it has occupied only a minute fraction of the oral argument over the last two days.

My conclusions are as follows. The notice of planning permission issued on 14 November 2002 is entirely in accordance with the resolution of the Development Control Committee on 16 January 2002. The execution of the section 106 agreement on 14 November 2002 fulfilled the further requirements which the Committee specified on 16 January. Since the planning permission was in outline only, none of the matters which the Council resolved on 27 March affected the terms of that planning permission. There is no inconsistency between the Council's resolutions on 27 March and the notice of outline planning permission dated 14 November. Furthermore, in so far as the requirements of the Mayor needed to be dealt with in the section 106 agreement, they were so dealt with in the section 106 agreement executed on 14 November 2002.

For all these reasons the claimant fails in her third ground of challenge. My answer to the question posed in Part 5 of this judgment is "yes".

It is necessary at the outset of this part of the judgment to set out the relevant provisions of the 1999 Regulations. Regulation 2 defines "EIA development" as:

If an EIA development is to be carried out then the application for planning permission is an "EIA application" for the purpose of these regulations. Regulation 3(2) applies to EIA regulations. It provides:

Part 2 of the regulations (comprising Regulations 4 - 6) deals with screening. Regulation 4(5) provides:

In March 1999 when these regulations came into force the Secretary of State issued policy guidance concerning the application of the regulations. This was contained in Circular 2/99. The guidance concerning Schedule 2 developments includes the following paragraphs:

Mr Upton submits, and I accept, that the proposed construction of a City Academy on Paterson Park is an urban development project falling within item 10(b) of Schedule 2 to the regulations. Accordingly the Council were obliged to consider whether an environmental impact assessment was required. Southwark Council considered this matter and concluded that it was not (see the Council's screening opinion dated 14 September 2001).

The claimant contends that this screening opinion was flawed because it was reached at a premature stage. The Council were considering what is described in paragraph 6.7 of the claimant's skeleton argument as "an essentially unknown proposal". I do not accept this argument. At the time of the screening opinion the Council were in possession of a great deal of detailed information concerning the proposed development. This was contained in ERM's lengthy report dated 2 July 2001. This report had copious annexes and detailed analyses. The Council also had a further report from ERM dated August 2001, which specifically focussed on the criteria contained in the regulations. It seems to me that the Council had considerably more than the bare minimum of information which was required by Regulation 5(2).

The claimant's skeleton argument at paragraph 4.6 suggests that Regulation 5 of the 1999 Regulations might be inconsistent with Directive 85/337/EC of the Council of the European Union as amended by Directive 97/11. Mr Upton did not take up this point in his oral submissions and I believe it to have been abandoned. In case it is relevant, however, I do not accept that Regulation 5 is inconsistent with the Directive.

I turn next to the director of planning and regeneration's report to the council upon the request for a screening opinion. In his oral submissions Mr Upton went through paragraphs 4.3-4.7 of this officer's report with great care and in some detail. The upshot of this exercise is as follows. The second sentence of paragraph 4.3 of the report treats paragraph A19 of Annex A to Circular 2/99 as if it were part of Schedule 2 to the regulations. This is incorrect. Paragraph A19 is in fact policy guidance on the application of Schedule 2. Each of the other sentences in paragraphs 4.3-4.7 of that report is factually correct.

I have come to the conclusion that paragraphs 4.3 to 4.7 of the officer's report fairly set out the considerations which were relevant to the screening opinion. The mistake which occurred in paragraph 4.3, as the officer picked her way through the labyrinthine provisions of the Regulations and the Circular, is a venial error. It has not misled anyone in any material respects since both the regulations and the annex must be considered in determining whether the construction of a city academy on Paterson Park is an EIA development.

Mr Upton goes on to contend that it was irrational for the Council to conclude that the proposed construction of a City Academy was not an EIA development. I do not agree. Having examined the nature of the proposed development, the criteria set out in the regulations and the guidance contained in Circular 2/99, I have come to precisely the same conclusion as the Council. It seems to me that the construction of a secondary school on Paterson Park, comprising school buildings, sports areas, play areas and so forth, is not a development which falls within the parameters for environmental impact assessment. I fully understand the strength of opposition to this development and the controversy which it has generated, but these matters do not give rise to the need for environmental impact assessment (see paragraph 34 of the Circular). As that paragraph points out, only a very small proportion of Schedule 2 developments should be regarded as EIA developments. If I may return to the language of Regulation 2(1), the proposed City Academy is not "likely to have significant effects on the environment by virtue of factors such as its nature, size or location."

In my view the claimant has failed to establish her challenge on grounds of rationality.

Mr Upton went on to develop an argument that events occurring after the date of the screening opinion should have led the Council to revise its view. I do not agree. I have discussed the nature of the subsequent events in Part 2 and Part 4 of this judgment. I will not repeat that discussion.

In relation to the application initiated on 30 September for a further temporary planning permission, Mr Upton places reliance on paragraph 46 of the Circular. He submits that the main planning application and the temporary planning application needed to be considered together. Collectively they constitute an EIA development.

I do not accept this argument. First of all, it was and still is far from clear that any temporary educational facility will in fact be needed or built on Paterson Park. Secondly, the construction of a temporary school of some 360 pupils cannot sensibly transform the project as a whole into an EIA development.

In relation to this issue counsel have drawn my attention to a number of other authorities, in particular Berkeley v Secretary of State for the Environment [2001] AC 603, Fernback v London Borough of Harrow [2001] EWHC Admin 278, and R (Belgrave Land Ltd) v Bedford Borough Council [2001] EWHC Admin 1127. I have found these decisions most illuminating, but will not lengthen this judgment by discussing them. There is nothing in those judgments which appears to me to be in conflict with the conclusions which I have reached in the present case.

For all these reasons the claimant fails on ground 4. My answer to the question posed in Part 7 of this judgment is no.

For the reasons set out in Parts 4-7 of this judgment the claimant fails in each of her grounds of challenge to the Council's various resolutions and to the planning permission which has been granted.

I should place on record that over the last two days certain matters have been canvassed which do not seem to me to be issues before this court. In particular, there has been argument about whether the Mayor's requirements have been met and whether the Mayor was right to withdraw his objection to planning permission.

I am not going to analyse these issues. The present proceedings do not involve any challenge to the Mayor's decision of 25 April 2002. I should however say, in fairness to the Greater London Authority and the Mayor, that nothing which I have seen causes me to doubt the legality of the Mayor's decision or to doubt that the Mayor's requirements (as formulated in his letter dated 13 March 2002) have been met and complied with.

For all the reasons which I have stated, the claimant's claim is dismissed.

MISS WARD: I do not have any application for costs against the Legal Services Commission.

MR UPTON: I am sorry, my learned friend said it quietly. I am not sure if there was an application or not, my Lord. I understand there not to be an application, in which case I do not need to address you on the issue of costs at all.

My Lord, there was just one minor matter I thought to just raise about what you read out when you were quoting from Environmental Impact Circular, just so that the transcript, if it needs to be corrected, can be. It was the point at which you were dealing with the EIA development section 7 and you referred to: "In March 1979 the Secretary of State issued planning guidance" is my note. Of course it is March 1999. Just in case that has emerged in the transcript it will obviously need to be corrected on the date.

MR JUSTICE JACKSON: Thank you very much, Mr Upton. I certainly intended to say 1999. If I said 1979, which is very probable, I ask that it be corrected on the transcript.

MR UPTON: I am grateful, my Lord. Obviously I have not had the chance to take instructions from my clients and they will need to reflect very much on what you said in your very detailed judgment. But it is clearly appropriate for me to ask for permission to appeal at this stage before you, and I do so, obviously with that caveat that they will need to be considered. But I would seek to do it in regard to the grounds essentially following the way -- I appreciate the way you have analysed the evidence in your judgment means that the temporary planning permission application and the offer of two alternative open spaces are, in your view, not connected to the main grant of permission.

My Lord, if that is incorrect then obviously some matters do flow from that. First, with regard to ground 1 my submission would be that that would materially effect the balance of the decision which, as everyone acknowledges, is finely balanced. And were it to be the case that they are related and part of the overall consideration my submission would be that that would require the Council to reconsider its position and might lead to a different decision. I cannot put it higher than that because of course they may reach the same decision; but they do need to have considered them, in our submission. Therefore in respect of ground 1 that would be two material points that were not taken into account and, conscious obviously of what you have said, if it was the case that there should not be, that that would have led to the decision being quashed.

My Lord, since there is a link between grounds 1, 2 and 3, a similar point follows through. But there is a further point regarding ground 2, which is the question of whether or not the areas are to be provided, because as you will recall there is no evidence before this court that the two alternative areas will either be funded or provided. As I have sought to state in the skeleton argument it was not just the fact that they were being considered that is relevant, it is whether or not they are achievable. And if they are not, as is the evidence before this court, that actually is going to occur then that would obviously affect ground 2 and the need to take that into account come November before a decision notice is granted.

My Lord briefly on ground 3, a similar point arises in regard to what the section 106 agreement would reflect. If they are part of this development it should have been in there. And of course as one is aware they are not, though one of course comes back to this point is the link between those areas and the grant of permission.

My Lord, finally on ground 4 essentially two points arise. One is that we would say it is arguable and an important point about the link between the temporary planning permission and the main planning permission on the same site and the need to consider them as one development for the purposes of Environmental Impact Assessment. As a result of that it is not just 1200 pupils in the school. It is 360 plus 1200 that will be essentially what is developed on the site for a period of five years. From one being subsumed within the other it is additional. And it is really the nature of the development. It is not the number of pupils that is relevant; it is what it represents.

My Lord, the second point on this is that in granting a bare outline planning permission with no limits on this scale of the development the screening opinion and the opinion clearly maintain that there is no significant environmental effect, could only apply to something that was limited, and because it is only outlined as I have argued previously that therefore means that they have failed and erred in law in regard to the 1999 Regulations. That again is an important point which partly comes out of the cases which you referred to in your judgment.

I am conscious from what you have said in your judgment that the point about Fernback and whether or not there is a continuing obligation to consider the screening opinion did not arise on the facts in your consideration. We would obviously submit that it would arise, given the nature of this linkage which emerged obviously later on in the process.

So my Lord in respect to those four grounds in that way I would ask for permission to appeal. Obviously there is, in our submission, arguable legal points which do clearly depend on the linkage between all the elements of the development planning and I wish to put it in that way.

MR JUSTICE JACKSON: Miss Ward?

MISS WARD: My Lord, I can tell from your judgment that you are clearly far more familiar with the detailed facts of this case than I have any hope of being, being sent only to collect the judgment. But as my learned friend acknowledged it was a very detailed judgment reflecting a full consideration of the facts and the arguments that you have heard in this case. And it is my submission that the points that have just been made by my learned friend really seek to re-argue those points rather than raise anything new arising out of your judgment.

One point that falls to be corrected is that the temporary educational facility of 360 pupils who it is envisaged might be educated there would be the first two years' intake of the 1200 pupils for the permanent school. So it is not the case that there would be anything more than 1200 pupils needing to be educated on the site.

My Lord as you held it is very difficult to see how a temporary facility for 360 pupils, pending the final facility for 1200, could possibly transform the application to one which does require EIA if it did not otherwise.

In relation to the two separate areas again there is no way, in my submission, it could sensibly be said that they can or should be considered as part of this application for planning permission. There are things that could be undertaken to deal with objection to points raised by the Mayor and the undertakings that have been given by the defendant, but they do not relate to the grant of planning permission itself, simply to accept undertakings in relation to separate areas. My Lord, for those reasons we obviously oppose the grant of permission and would submit there is no arguable basis for it.

MR JUSTICE JACKSON: I refuse permission to appeal, having regard to provisions of CPR rule 52.3(6), because in my view the proposed appeal has no real prospect of success and there is no other compelling reason why the appeal should be heard.

So far as the merits are concerned my views on the issues raised by Mr Upton are set out in the judgment which I delivered a few minutes ago. The only new point raised by Mr Upton is the contention that the construction of the temporary education facility, if it goes ahead, could lead to a total of 1560 pupils being on the site, namely 360 pupils in the temporary facility and 1200 pupils in the main school. That is a point which has no substance. The 360 pupils are clearly intended to be part of the 1200 pupils in the event that there is a temporary facility followed by a permanent school.

MR UPTON: (After a pause) My Lord, I obviously would like to be able to leave things at this point. I have had some brief whisperings in my ear about a subsidiary point on the costs side which reflects the very late stage at which the section 106 agreement came to light. As you will be aware it was essentially this last week that this clearly crucial document was produced. And it has been, as you will be aware, considerably pursued by my solicitors in terms of documentation that was to be before this court and at the stage at which obviously skeleton arguments had to be prepared and everything considered. That agreement was not available and indeed had not been seen I think until the beginning of last week - the 106 agreement - Wednesday, when the supplementary statement which actually provides a bit more substance arrived and of course it is in my consideration the end of last week. So it is really in relation to this narrow point about, I suppose, the procedure relating to the pre-action stages and the preparation of the case that we would seek our costs in pursuing what should have been part of the evidence back at the stage of the acknowledgment of service, if not the detailed grounds. As you will be aware there were no detailed grounds put in. And my instructing solicitors did indeed pursue this point right up until June, as to whether more evidence was going to be put in. So it is really the costs relating to that sequence of requests, my Lord - as you will be aware there has been considerable sequence of pre-action protocol letters as well which can be identified specifically in the bundle - that has led to additional work being done which would otherwise have not normally have been expected. So it is a slightly unusual application but it is relating to the fact that my instructing solicitors have had to carry out work they would otherwise reasonably not have had to have done, and it is in relation to that that I would ask for those costs to be paid to the claimant, which obviously could be identified at a more detailed stage. But it can be circumscribed quite clear in that way. There is a list of when the requests were made for section 1 agreement, temporary planning permission supplementary supporting statement, and there is a clear paper trail; and so this is not an open-ended application. In that respect we would ask for that proportion of the costs in the light, of course, of the new procedural rules which encourage cooperation, and we would say that has not occurred and has led my solicitors to incur additional costs at the expense of the Legal Services Commission which should not have been necessary to incur.

MR JUSTICE JACKSON: This is application for costs made somewhat surprisingly by the claimant. The background is that the claimant has lost this action on all grounds of the claim. The defendant makes no application for costs because the claimant is legally aided and there are no circumstances which would make it just to order her to pay a contribution towards the defendant's costs.

However it should be noted that if the claimant were suddenly to come into funds there would be no reason why the victorious defendant should not be making an application for costs. If, therefore, Mr Upton were to succeed in the application which he is now making for a costs order in favour of the defendant, the immediate consequence would be that the defendant would come into funds and those funds make it just for this court to make a partial order for costs in favour of the victorious defendant in respect of the defendant's costs of the action. It therefore seems to me that the application for costs made by Mr Upton is both circular and without any merit.

Leaving that on one side, however, let me address Mr Upton's point. His application for a partial costs order is based upon the fact that the section 106 agreement was disclosed late. In my view, if the section 106 agreement had been disclosed earlier, the claimant would still have pressed on with her claim and I do not think that there would be any significant difference between the overall costs of the action as they now are and the overall costs of the action as they would have been in that hypothetical situation.

Accordingly the claimant's application for costs is refused. The defendant very sensibly is not making any application for costs either. Therefore my order at the end of this case is no order for costs.