Moggridge & Anor v National Assembly for Wales & Anor

MR JUSTICE PITCHFORD: The claimants seek an order quashing compulsory purchase and side road orders made by Caerphilly Borough Council and confirmed by the National Assembly for Wales on 12 December 2002. They are the Caerphilly County Borough Council (Sirhowy Enterprise Way, Route A4084 Classified Road) Compulsory Purchase Order 2001 and the Caerphilly County Borough Council (Sirhowy Enterprise Way Route A 4084 Classified Road) (Side Roads) Order 2001.

The town of Blackwood lies in the Sirhowy Valley within the western extremity of the county of Gwent. It served the surrounding coalmining industrial and agricultural communities. It is in comparative industrial decline and requires economic regeneration. Caerphilly County Borough Council wishes to construct a new road between the north end of Blackwood High Street and Newbridge Road, Pontllanfraith. The scheme would form the Sirhowy Enterprise Way. The effect of the new road would be to provide a bypass from the north-west of Blackwood to the south-east without, as at present, the need to journey through the centre of Blackwood along the A408 High Street. The side roads would create or improve access to the new road from the southern end of Blackwood eastwards towards the Enterprise Way at Pontllanfraith and from the Oakdale Business Park towards the northern end of the Enterprise Way before it crossed the River Row towards Blackwood.

Objections to the orders were made to the National Assembly and the matter was referred to a public inquiry conducted by Mr Ian Osborne, an inspector appointed by the Assembly. Mr Osborne, in a lengthy and closely reasoned report, advised confirmation of the orders. His advice was followed by the minister on behalf of the Assembly.

I have permitted an amendment of the grounds of claim in order to ensure that all relevant matters are considered, so as to do justice to the claimants' challenge.

The grounds of challenge are now as follows:

Article 12 of the Habitats Directive requires member states to take the requisite measures to establish a system of strict protection for the animal species listed in annex IV and it prohibits "(d) deterioration or destruction of breeding sites or resting places". Article 16 permits derogation from Article 12 if there is no satisfactory alternative "(c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment". The 1994 regulations, to which I have referred, were implemented by the United Kingdom government for the purpose of implementing and complying with the Habitats Directive. Regulation 3, paragraph 4 provides:

I turn first to the issue of purposes. In its statement of reasons published under the Compulsory Purchase by Non-ministerial Requiring Authorities (Inquiries Procedure) Rules 1990, the county borough council at paragraph 4, "Objectives of the council", set out what it described as the "principal goals of the scheme as they relate to the objectives of the Council"."

Those objectives are identified in seven numbered paragraphs. The first is:

In their statement of case to the inspector, it is noteworthy that at paragraph 1, in setting out their reasons for making the order, the county borough council commenced as follows:

At section 8 of his report, the inspector summarised the county borough council's submissions. At paragraph 1 he wrote:

It seems to me, as submitted on behalf of the respondents, that while in the county borough council's mind the principal objective was regeneration through the Business Park, the county borough council's submissions did not lose their cogency merely because the business park's potential might not be reached for many years. As the county borough council submitted to the inspector, the scheme, quite apart from the intention to expand the business park, was justifiable for several other reasons, all connected with economic regeneration and for traffic reduction for its own sake. This is what the inspector found:

I turn next to the inspector's overall conclusions with regard to the primary and secondary purposes identified. At section 10, paragraph 78 he said:

Having considered other matters, he continued at paragraph 83:

There does in my view also appear to be a strange inconsistency in the county borough council's reasons. On the one hand the main route is said to be what amounts to a bypass of Blackwood town centre and the link to Oakdale Business Park merely a side road linking to the bypass, while on the other the principal purpose of the scheme is said to be the regeneration of the business park. Nevertheless, there is in my judgment no irrationality or illegality in the council's reliance on both purposes. The adjectives "primary" and "secondary" are not in my view ultimately critical, although I can see that if one was truly dependent on the other, they might be. Proof of the primary in preference to, or in addition to, the secondary is not in my view a precondition of rationality or legality. As the inspector pointed out, the main bypass road had independent and powerful public advantages, environmental and economic. He was in my judgment perfectly entitled to advise the National Assembly that the county borough council's primary purpose -- if that was an appropriate description in the light of all the material before the inspector -- was not justified, while its secondary purpose was.

The inspector did not purport to reach a concluded opinion on the validity of the compulsory purchase order: he left that to the Assembly. Mr Fletcher submits that the secondary purpose advanced was indeed dependent upon the success of the primary. Accordingly, it fell with the inspector's advice upon the primary purpose. To that extent, therefore, the failure of the primary purpose was indeed an insuperable obstacle to confirmation. I accept the submission of Mr Stephenson on behalf the county borough council that it did not. The side road under consideration is described in section 3, paragraph 2.1 of the county borough council's statement of case as follows:

It is right to observe that in paragraph 6 of the report the minister misstated section 10, paragraph 84 of the inspector's report. In paragraph 1 the minister writes that the inspector concluded that, subject to the Assembly considering that both orders came within the powers of the relevant sections of the 1980 Act, there would be no insuperable problem in confirming the orders. In fact, as I have already quoted from the inspector's report, the inspector identified more than one caveat. The first was that confirmation of both orders within the powers of the relevant sections of the 1980 Act was a matter for the Assembly; secondly, that there would be no insuperable problem in confirming them, bearing in mind the mistaken identification of the primary objective; thirdly, that there would be no overriding conflict with national transport policy on new road building in the urban area. Those were three matters which the inspector reserved for the opinion of the Assembly.

However, it seems to me that, in the result, that misstatement of the inspector's reservation for consideration of the Assembly is not material, since at paragraph 14 of the confirmation letter it is said:

Oakdale Business Park already exists. 70 acres of it have been developed. In time, that area is likely to increase. As I have already noted, a road improvement scheme at Kendon Hill to the east of the business park, designed to relieve the impact of heavy goods vehicle traffic, has already been completed. The inspector found that the link road to the Sirhowy Enterprise Way to the west was independently justifiable. That being the case, there could not in my view be any illegality or irrationality in confirming the side road order for the purpose of improvement of traffic flow generally. Neither can I see any basis in law for challenging the minister's conclusion that the new highway was to be constructed for a purpose connected with the new bypass: namely to provide access to it in a manner which the existing network would not. Indeed, I do not understand it to be challenged by Mr Fletcher that section 14 would be an appropriate authority for the making of the side road order, subject to the issue of compatibility between the primary and secondary objective and the dependence of one upon the other.

I turn then to the second limb of ground 1. It seems to me that the argument that the objectors were unfairly deprived of the opportunity to challenge the county borough council's secondary purpose is contradicted by the evidence. I have already drawn attention to the statement of reasons and the statement of case. I am informed, without contradiction, that at the pre-inquiry meeting the inspector required that all evidence was to be served upon the objectors within 21 days of the inquiry and that, of course, all the evidence upon which the county borough council relied was included. The objectors, it appears, manifestly did direct their fire both at the necessity for the bypass at all, and the means of providing it if it was necessary. I need refer only, without quotation, to section 9, paragraphs 1, 8, 9, 41 and 42, and section 10, paragraphs 21-28 and 35-39 of the inspector's report. Furthermore, I fail to see how it can be argued that the purposes described in the county borough council's reasons did not fairly provide the objectors with the targets at which they should aim. The whole thrust of the case was twofold: economic regeneration and traffic diversion. They were inextricably linked, not only because the latter would encourage the former.

Mr Fletcher's argument that the objectors had no opportunity to address the balancing exercise once the primary purpose was excluded does not in my view survive paragraph 9.1 of the report, in which the inspector writes, in describing the objections of Mr Moggridge and Mr Morgan, the claimants:

I turn secondly to the question whether the county borough council and the minister complied with regulation 3, paragraph 4 of the Conservation (Natural Habitats etc) Regulations 1994. The inspector expressed his conclusion in section 10, paragraphs 9-11. I quote from paragraph 9:

The minister accepted this advice, saying at paragraphs 11-13 of her confirmation letter that she had considered whether a decision on the orders could be made irrespective of the timing of an application by the council for a licence to disturb bats. She noted the prohibition created by regulation 39 of the Habitats Regulations 1994. She noted the exception provided by authorisation under regulation 44, and conditions which might be attached to such a licence. She continued at paragraph 12:

However, Mr Fletcher submits that was not enough. He submits the minister should not have confirmed the orders without herself coming to the conclusion that the scheme would on balance be Article 12 and 16 compliant. In support of his argument he cites as authority R v Cornwall County Council, ex parte Hardy [2001] JPL 786. Harrison J found that pursuant to regulation 3, paragraph 2, Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 999, a planning authority should not have granted planning permission unless they had taken environmental information which was awaited into consideration. The planning committee having decided that further surveys were required, it was not possible to conclude that no significant nature conservation issues arose in the absence of the results of those surveys. The results were fundamental to the issue of planning consent. They could not be relegated to the status of reserved matters. The planning permission was thus unlawful.

This decision is not, however, in my judgment authority for the proposition which Mr Fletcher advances. The Cornwall County Council was bound to make an assessment of the impact of the proposed development on the environment and to take into account environmental information. In order to perform that function they required further information, but in the meantime proceeded to grant permission. Harrison J said, at paragraph 73:

I am concerned not with a planning process which gives permission for the work to proceed, but a confirmation process which enables the acquisition of land to take place. As matter of fact, planning permission for the Sirhowy Enterprise Way was granted on 14 December 2000 under regulation 3 of the Town and Country Planning (General) Regulations 1992 subject to, amongst many other things, protection of animals. That planning permission has not been challenged. Neither the compulsory purchase or side road order, nor confirmation of them, were subject to the planning regulations of 1999 or their predecessors. There was no obligation upon the county borough council or the minister to exercise the judgment required by regulation 44 of the 1994 regulations. Neither the orders nor the confirmation could amount to breach of the directive, since neither authorised the deterioration or destruction of breeding sites or resting places of bats. They merely, as I have said, permitted compulsory purchase of land.

Mr Fletcher submits that the minister has in effect fettered the discretion of the National Assembly. In this regard, Mr Lewis on behalf of the Assembly has directed my attention to the opinion of Advocate-General Tizzano upon the reference of a complaint by the European Commission, Commission of the European Communities v United Kingdom of Great Britain and Ireland Case No C-434/01. The opinion was delivered on 3 July 2003 but I am told that the case has not yet proceeded to a hearing in the European court. Having referred to Articles 12 and 16 of the Habitats Directive, and having noted the provisions of regulations 3 and 44 of the United Kingdom 1994 regulations, the Advocate General proceeded at paragraph 14 of his Opinion to say:

The Advocate-General went on to observe that the issue was limited to the commission's charge against the United Kingdom that the government had failed to implement correctly Article 16(1)(c) of the directive where there was a danger of disturbing species protected by Article 12 and Annex 4. The commission argued that where planning permission had already been granted, the competent authority (that is, the authority competent to grant derogation licences) was no longer in a position to determine whether or not there was a satisfactory alternative to the development project, as required by Article 16. The government, on the other hand, maintained, first, that local planning authorities were required to have regard to the directive when exercising their functions, which meant that they may not grant planning permission where making use of that permission would raise the risk of endangering a protected species, if they were not persuaded that the conditions laid down by Article 16 had been satisfied.

The government argued that what was essential was that regulation 44 ensured compliance with Article 16, since it demanded a licence granted only upon the condition provided by Article 16. The fact that the authorities may base their decisions on facts communicated by one to the other did not restrict the power of discretion, "still less make binding on them the assessments expressly made on the basis of those facts by the local planning authority which granted planning permission".

The Advocate-General noted that it was not in dispute that the member state was required to consider whether the conditions laid down in Article 16 had been satisfied nor, on the other hand, that regulation 44 constituted full implementation of Article 16. What was in issue was whether, as applied in practice, the British system was liable to interfere with observance of the obligations imposed by the directive. The Advocate-General concluded that the final administrative decision is the responsibility of the authority competent to grant derogation licences and that those licences would not be granted unless the requirements of regulation 44 and Article 16 had been satisfied. At paragraph 41 he said:

The United Kingdom government thus underlined the necessity for the exercise of judgment of the responsible authority under regulation 44, a judgment said to be entirely independent of the planning process.

Mr Lewis accepts on behalf of the National Assembly that one authority makes both the confirmation decision and the regulation 44 decision in Wales. To that extent, it is possible to distinguish the Advocate-General's opinion. However, to paraphrase, it is, he submits, a distinction without a difference since here the decision-making process can be regarded as staged. The first concerns whether the land may be acquired for a public purpose; the second concerns whether that public purpose satisfies the requirements of regulation 44. The minister expressly reserved the latter for another occasion when the existing evidence could be considered afresh, together with the necessary environmental evidence gathered in the meantime. Discretion expressly was not fettered.

I am invited by Mr Lewis and Mr Stephenson to pay close attention to the precise words of paragraph 4 of regulation 3 of the 1994 regulations in comparison with the words used in paragraphs 2 and 3 of regulation 3.

In paragraph 2 the Secretary of State, the Minister of Agriculture Fisheries and Food and the nature conservation bodies "shall exercise their functions under the enactments relating to nature conservation so as to secure compliance with the requirements of the Habitats Directive". In paragraph 3, in relation to marine areas, the competent authority "shall exercise those functions so as to secure compliance with the requirements of the Habitats Directive", while in paragraph 4, "every competent authority" shall have regard to the requirements of the Habitats Directive "so far as they may be affected by the exercise of those functions".

The exercise of the function being performed by the minister did not entail a breach of Articles 12 or 16 of the Habitats Directive. It seems to me that this is the appropriate analysis. Far from abdicating responsibility for regard to the Habitat Directive, the minister expressly dealt with it. She was not in the result required by the directive to make the decision whether the scheme should proceed: that was for another occasion.

Mr Lewis submits that the risk that the scheme will not proceed as a result of a possible refusal of a regulation 44 licence is not a reason for refusing confirmation of the compulsory purchase and side road orders. The function which the minister is performing is an assessment of the public interest whether the compulsory purchase should go ahead and in so doing should prevail over the private interests of the claimants, not whether the development will or will not proceed. He relies for this proposition upon the judgment of Laws J (as he then was) in Chesterfield Properties Plc v Secretary of State for the Environment (1997) 76 P&CR 117. In that case it was the claimant's contention that the scheme was financially unviable. Accordingly the Secretary of State could not, as he must, be satisfied that the land was required in order to secure the carrying out of development within the meaning of the Town and Country Planning Act 1990 section 226(1)(a). Laws J held that it was not a condition precedent of the power to confirm a compulsory purchase order that the confirming authority must be satisfied that the development would probably be carried out. While I am not concerned here with the construction of section 226(1), I agree with the submission that the reasoning of Laws J and his citation of authority is relevant to the analysis required and supportive of the argument that the risk that the regulation 44 licence will not be granted was not a matter which need prevent confirmation of the compulsory purchase order. It seems to me that the discretion of the decision-maker in that application remains entirely unfettered and that in recognising that fact the minister performed her duty under regulation 3 paragraph 4 of the 1994 regulations.

Since she was not required in the performance of her function to find on a balance of probability, or to any other standard, that the licence would be granted -- accordingly that the scheme could in the result proceed -- it is my judgment that she acted lawfully and rationally in confirming the orders. Thus I find that ground 2 also fails and the claim must be dismissed.

MR LEWIS: I am obliged, my Lord. Could I ask for summary assessment of costs in the sum of £6,887.75. It is in fact just under one third of the costs that the claimant would have been asking, and in my submission it is both right that we should have the costs of coming to defend our decision and the sum itself is entirely reasonable. I have not had the opportunity of discussing with Mr Fletcher the sum. As I say, their costs were £18,461 and ours is indeed a bargain.

MR JUSTICE PITCHFORD: Never judge your own advocacy, Mr Lewis.

MR STEPHENSON: My Lord, I am well aware of the two sets of costs rule, of course, as your Lordship is. I am here because the authority thought it desirable I should be here, for practical reasons as much as any other. I leave it to your Lordship to decide whether my presence here has helped your Lordship in the understanding of the case and the background of the case and whether, therefore, in the circumstances of this case I should be entitled to my costs as well.

MR JUSTICE PITCHFORD: Can you remind me of the sum?

MR STEPHENSON: The sum I am asking for, my Lord, is £7,438.75. If I can paraphrase my learned friend, even if you add my costs to my learned friends, it is still a bargain compared with the other advocate's, my Lord. Can I pass my costs schedule up. It has been given to the other side, of course.

MR FLETCHER: May I deal with the two costs question first, perhaps. My learned friend has very fairly said, there is a rule and the rule is reasonably clear. I do not see any particular reason why there should be a breach of that rule here. The issue is not whether your Lordship was assisted by my learned friend's presence.

MR JUSTICE PITCHFORD: You made him a respondent, did you not?

MR FLETCHER: We had to. We were obliged to. It is standard form in these cases that if they are successful there is then one set of costs and not two because there is only a necessity for one counsel to sustain the order made. My Lord, there is nothing exceptional about this or special about this that makes it any different. It is a matter of choice for the borough council to decide in this case whether they choose to be represented or not. They do so at their own risk as to costs, because the rule is clear. If necessary I can take you Lordship to the authority on it but there is clear authority, as my learned friend accepts, that only one set of costs is really justifiable, unless there is something quite exceptional, which there is not here.

MR JUSTICE PITCHFORD: Suppose, Mr Fletcher, the council had decided to accept joint representation. There would still have been, presumably, an input from the council to the legal representatives of the National Assembly and therefore some costs would have been incurred.

MR FLETCHER: I do not quite follow that, my Lord, with respect.

MR JUSTICE PITCHFORD: Would you like me to repeat it?

MR FLETCHER: No, not at all. One representative makes the submissions and, in so far as he has to give instructions, he gets those instructions and the issues are issues of law. My submission would be that this is a normal case where it would be oppressive to order two sets of costs.

MR JUSTICE PITCHFORD: Mr Stephenson, do you have anything to add?

MR STEPHENSON: No, my Lord, nothing.

MR JUSTICE PITCHFORD: Do you agree that in the ordinary way Mr Fletcher is right: there would be single representation.In the ordinary way?

MR STEPHENSON: Yes, my lord, either single representation by way of joint, in which case there would have been costs incurred from our point of view; or no representation at all, us leaving the Secretary of State to get on it with it, as it were, and deal with it in the best way. We thought we should be here because of the practicalities of the background of this scheme, which we thought we would be able to assist the court with. I think, if I may say so, my Lord, with respect, we have been able to assist the court and your understanding of the full import of the order. Therefore, if we have served a purpose in being here, without which your Lordship would be deprived of certain facts and matters, then our appearance is justified. Otherwise my learned friend is right.

MR JUSTICE PITCHFORD: Thank you very much, Mr Stephenson.

MR STEPHENSON: As your Lordship pleases.

MR JUSTICE PITCHFORD: I shall grant an order for costs in favour of the first respondent against the claimants, which I shall assess summarily in the sum of £6,887.75. Nothing else? Thank you all very much.