Richardson & Anor, R (on the application of) v North Yorkshire County Council & Ors

This case concerns the grant of planning permission by North Yorkshire County Council ("the Council") to Brown and Potter Ltd, which appears as interested party, for the extension of quarrying of sand and gravel at Ripon City Quarry. The site falls within the boundaries of three parishes, including the parish of Littlethorpe, and is close to the settlement of Littlethorpe.

The first claimant, Paul Richardson, is a member of the Council, representing the electoral division which includes the parish of Littlethorpe. He also lives in Littlethorpe, his house being approximately 250 metres from the nearest point of the proposed extraction. He objected to the proposed 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 and Regulatory Functions Committee.

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

At a meeting on 11 June 2002 the Council's Planning and Regulatory Functions Committee, by a majority of 5 to 4, resolved that, subject to the completion of a satisfactory s.106 agreement, planning permission be granted subject to conditions. The s.106 agreement was signed on 6 August 2002 and a notice of decision in respect of the grant of planning permission was issued on the same date.

The claimants contend that Mr Richardson was unlawfully excluded from the meeting at which the resolution was adopted, on the ground that he had a "prejudicial interest" within the meaning of paragraph 12(1) of the Council's Code of Conduct. They challenge what is described as the decision to preclude him from attending and speaking at the meeting, together with the decision to grant planning permission. The Council is the first defendant. The Council's Code of Conduct gives effect to a Model Code promulgated by the Secretary of State, which the Council was required to adopt pursuant to the Local Government Act 2000. Since the claim raises issues concerning the construction and lawfulness of the Model Code, the Secretary of State appears as second defendant.

In addition, the claimants challenge the decision to grant planning permission on the ground of alleged failure to comply with regs. 3(2) and 21(1) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the EIA Regulations"). The Secretary of State is not involved in that part of the case.

Those are the two broad grounds on which permission to apply for judicial review was granted by Collins J at an oral hearing on 20 January 2003. Permission to pursue other matters was refused. Pursuant to the judge's directions the claimants have served a substitute statement of grounds setting out their specific grounds of challenge in relation to the remaining issues.

The two grounds of challenge are entirely separate. It is convenient to deal first with the EIA issues.

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 also material to note reg. 30, which provides in effect that the grant of planning permission by the Secretary of State (it is silent about the position of a local planning authority) in contravention of reg. 3 is to be regarded as ultra vires for the purposes of a statutory challenge under the Town and Country Planning Act 1990:

“For the purposes of Part XII of the Act (validity of certain decisions), the reference in section 288 to action of the Secretary of State which is not within the powers of the Act shall be taken to extend to a grant of planning permission by the Secretary of State in contravention of regulations 3 or 25(1).”

It is common ground that the application for the proposed development in this case was an “EIA application” and that regs. 3(2) and 21(1) both applied to it. An environmental statement was submitted with the application. Permission was refused for a challenge 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. At the hearing before me, I did not understand any of those matters still to be issue.

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

Previously to the meeting of 11 June 2002 the members of the Planning and Regulatory Functions Committee had received an officers’ preliminary report and had made a site visit, at which they also received briefing material. At the meeting on 11 June 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 s.106 agreement.

Of particular importance are the sections of the Director’s report in which the main issues were discussed (section 6) and his conclusions were set out (section 7). In summary, the consideration of the main issues started by examining the North Yorkshire Minerals Local Plan. It was explained that the proposals did not fall within relevant policies of the plan but “do broadly accord with the aims of the plan e.g. sustaining the contribution of mineral related employment to the local economy, preventing the unnecessary sterilisation of mineral resources and encouraging the longer term enhancement of the environment and local amenity”. The report then examined landscape impact, restoration and ecology, referring inter alia to representations from residents and others about the effect on the landscape; noting that the site offered little ecological value, whereas restoration and aftercare could lead to the establishment of a number of priority habitats and could be formalised in a s.106 agreement; and noting that the environmental statement acknowledged the presence of protected species and that, whilst it was felt that they would not be disturbed by the proposed working, it was recommended that a scheme of survey, monitoring and mitigation be required through a s.106 agreement. The next issue considered was flooding, where the proposal was thought to have a net benefit. The report turned to the issue of need, concluding that it was not considered that there was a need to grant further permissions in the interest of maintaining the landbank, but noting that the decision must nevertheless rest on the balance of material considerations. It then examined the issue of employment, including a dispute about the figures. Finally it considered amenity, in particular the impact on local residents in terms of noise and views.

At the start of the section on conclusions, reference was made to the differing views put forward by Littlethorpe Parish Council (which had strongly objected to the proposal), Ripon City Council (which had supported the proposal), Skelton Combined Parish Council (which had not raised any objection) and Harrogate Borough Council (which had formally objected). The effect of s.54A of the Town and Country Planning Act 1990 was then set out. The report continued:

“7.4

As has been stated already this proposal does not fully accord with a number of policies within the North Yorkshire Mineral Local Plan, specifically those relating to preferred areas, areas of search and small scale extensions (Policies 3/2, 3/3 and 3/4 respectively). However the text of the Plan states that any proposal which does not fall within a Preferred Area would need to be justified by other material considerations such as the creation of environmental or economic benefit and that such circumstances would be rare. This is the first case since the adoption of the Mineral Local Plan in 1997 that this circumstance has arisen.

7.5

The Head of Legal Services has advised that in this case there are material considerations that could justify the granting of planning consent against the policies set out in the Minerals Local Plan. It is felt that the longer term environmental benefits to be accrued through the restoration of this site and the significant continued contribution of the site to local employment and the local economy are all material considerations which justify the granting of planning permission on this occasion. It is felt that the granting of planning permission in these circumstances does not set a precedent for development elsewhere and furthermore would avoid the sterilisation of the mineral reserve.

7.6

The restoration scheme would significantly enhance the conservation value of the application site which is currently in arable production offering little ecological value. The restoration proposals are supported by English Nature and Yorkshire Wildlife Trust and would significantly progress the aims and objectives of the Swale and Ure Washlands Project. Establishment of reedbed and wet woodland accords with the priorities set out in the Biodiversity Action Plan. The completion of mineral extraction would create an additional 94,000 cubic metres of flood storage capacity. The provision of a riverside path would be consistent with Local Plan policies on recreation development. Nevertheless, this enhanced conserv-ation value and increased flood storage capacity will follow a period of disturbance during phased extraction of sand and gravel.

7.7

The impact on employment is a material consideration. The applicants state clearly that the refusal of planning permission would lead to the closure of the quarry and loss of employment to those 25 individuals listed by the company. The Parish Council in their submission query the extent of the job losses which would be caused by the refusal of planning permission. It is inevitable that restructuring of the company would have to take place if planning permission is refused and this has to be weighed in the balance by Members in making their decision. The applicants also emphasise the significant financial input of £1.5 million per annum, contributing to Ripon’s economic regeneration.

7.8

In terms of impact, Members will be aware from the recent site visit of the location and situation of the application site which is set in an attractive rural landscape. However the Environmental Impact Assessment identifies a number of significant mitigation measures. The County Council’s landscape architect considers that in view of the location of the application area in the valley floor, the nature of the working operation, the limited visual envelope and the proposed phased working and restoration scheme, he does not consider there are sufficient grounds to object to the proposal on landscape grounds. The proposed working area is at some distance from the village settlement of Littlethorpe. It is considered that the further restriction of the limit of extraction at the southern margin of the site and other mitigation measures will minimise the impact on the small number of neighbouring properties.

7.9

It is acknowledge that the proposals do not accord with policies 3/2, 3/3 and 3/4 of the adopted North Yorkshire Mineral Local Plan. However it is the opinion of your Officers that the impact of the development is not such as would warrant the refusal of planning permission and that the longer term environmental benefits to be accrued through the restoration of this site and the significant contribution to local employment and the local economy are material considerations which justify the grant of planning permission.”

There followed a recommendation in substantially the terms of the resolution adopted by the members (see below).

The members considered the Director’s report and a number of oral presentations (to which I will refer further when examining the second main ground of challenge). They 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 s.106 agreement, the council issued a “notice of decision” under the signature of the Director of Environmental Services and 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 s.106 agreement and various documents annexed to the s.106 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 1985 (“the GDPO 1995”).

In evidence filed in the course of the present proceedings the council's Head of Minerals and Waste Planning states that the Council intends, subject to the proceedings, to place on the register a further document in substitution for the notice dated 6 August 2002, which is intended to include a statement of the main reasons for the decision. What is 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.

Mr McCracken's first main submission is that there was a failure to comply with reg. 3(2). That provision imposes two separate requirements on a planning authority: (i) not to grant permission unless it has first taken the environmental information into consideration, and (ii) to state in its decision that it has done so. The focus here is on (ii), in that the Council failed to state in its decision that it had taken the environmental information into consideration. The "decision" for this purpose is said to be the resolution of 11 June 2002, the minute of which contains no statement that the environmental information was considered. If, in the alternative, the notice of 6 August 2002 is to be treated as the relevant decision, then that too fails to fulfil the requirement. The failure to comply with reg. 3(2) renders the decision ultra vires, in the same way as reg. 30 provides that the grant of planning permission by the Secretary of State in contravention of reg. 3 is to be taken as not being within the powers of the 1990 Act.

In resisting any exercise of discretion not to quash the grant of planning permission, Mr McCracken draws particular attention to Berkeley (above), in which Lord Hoffmann said in relation to the requirement of 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).

The case for the claimants is resisted by Mr Straker QC for the Council, supported by Mr Hill for the developer. In brief, they distinguish between the substantive obligation in reg. 3(2) to take the environmental information into account, which relates to the decision-making process, and the separate obligation to state that that has been done, which arises once the decision has been made. The first obligation was met by taking the environmental information into consideration. The second was met by stating in the notice of decision dated 6 August 2002 that the accompanying environmental information had been taken into consideration.

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:

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:

If, contrary to my view, there was a failure to comply with the relevant requirement in reg. 3(2), I would not regard it as a sufficient reason to quash the grant of planning permission in the exercise of my discretion:

My actual decision is based, however, on a finding that the Council complied with reg. 3(2) rather than on the exercise of a discretion not to quash in circumstances of non-compliance.

Mr McCracken’s second main submission is that there was a failure to comply with the requirement in reg. 21(1)(c)(ii) to make available for public inspection a statement containing the main reasons on which the decision was based. The regulation requires the statement of reasons to be put on the register at the same time as the decision; alternatively, pursuant to article 25(9) of the GDPO 1995, it must be put on the register within 14 days of the decision. In either case there was a clear failure to comply. The council's attempt at retrospective validation is too late and should in any event be rejected. There is no support in the minutes for the process of reasoning set out in the proposed substitute notice of decision and the whole process is rendered unreliable by the ongoing process of litigation. Moreover there was in this case a departure from the development plan and none of the councillors has put forward reasons which would justify such a departure. Again, the failure to comply renders the decision ultra vires and/or, on the basis of Berkeley, once a breach of the regulations is established the court must quash the decision and has no discretion to withhold relief.

In support of those submissions Mr McCracken cites a number of authorities in addition to Berkeley. He refers first to R (Carlton-Conway) v. Harrow LBC [2002] EWCA Civ 927, in which the Court of Appeal held that a planning officer had acted beyond his delegated powers in deciding to grant planning permission. Although the planning committee had subsequently, by a majority, stated that they approved the conduct of the planning officer and that they would have granted permission had the matter been submitted to them, the court declined to exercise its discretion not to quash the decision:

“… In my judgment, the appellant is entitled to a fresh consideration of the application by the planning committee. There is a real risk that in taking the decisions they did … there was a potential motivation, as would be perceived by a fair-minded member of the public, that a wish to support their chief planning officer and to avoid the possibility of judicial review were factors which led to the relevant decisions …” (per Pill LJ at para 27).

In R (Goodman) v. LB Lewisham [2003] EWCA Civ 140 the council had reached an irrational decision that a proposed development did not fall within the scope of the EIA Regulations and had granted planning permission without an environmental assessment. The council had apparently reconsidered the grant of permission after the bringing of a judicial review challenge and had reached the same conclusion. Again, however, the court declined to exercise its discretion in the council's favour:

“… Nor can the decision be saved by an exercise of this court's discretion based on the reconsideration of the decision undertaken by Lewisham after these proceedings were launched. A strong note of caution in respect of such reconsiderations was sounded by this court in R (Carlton-Conway) v. Harrow LBC … and there is nothing about the present case that compels or permits us to depart from that general guidance. The whole aim and object of the system introduced by Directive 85/337 is that there should be sequential and transparent consideration of the environmental implications of a project; and that decisions whether or not to grant planning permission should be taken by planning authorities in the light either of the information contained in an environmental statement or of the reasons why such a statement is not required ….

… It is to be hoped that this case will at least serve to bring home to local authorities generally the importance of the processes of formal and transparent consideration of environmental issues that are required by Directive 85/337” (per Buxton LJ at paras 14 and 18).

Flannery v. Halifax Estate Agencies Ltd [2000] 1 WLR 377 concerned a deficiency of reasons by a trial judge. The Court of Appeal observed (at page 381G-H):

“We make the following general comments on the duty to give reasons.

(1)

The duty is a function of due process and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost …. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.

(2)

The first of these aspects implies that want of reasons may be a good self-standing ground of appeal ….”

In R v. Westminster City Council, ex parte Ermakov [1996] 2 All ER 302 the relevant statutory provision, s.64(4) of the Housing Act 1985, required the council, if notifying an applicant that of a decision that he was intentionally homeless, "at the same time [to] notify him of their reasons". The Court of Appeal held that the decision should be quashed for a deficiency of reasons. In expressing his conclusions on the main issue, Hutchison LJ stated (at page 315g-j):

“(1)

It is unrealistic to seek to draw any significant distinction, in the context of s.64, between the decision and the communication of the decision with reasons, or to treat the giving of reasons as purely procedural. In reaching this conclusion I am influenced by the fact that the section in terms requires reasons to be given at the same time as the decision is communicated ….

(2)

The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should … be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction ….”

Later in his submissions Mr McCracken cited R v. Royal Borough of Kensington and Chelsea, ex parte Kassam (1993) 26 HLR 455, 462, in which the deputy judge stated that giving reasons involves more than merely reciting the provisions of the section referring to the circumstances to which regard has to be paid; R v. LB Islington, ex parte Hinds (1994) 27 HLR 65, 76, where the giving of reasons was described as a self-disciplining exercise; and the classic exposition by Lord Bridge in Save Britain's Heritage v. Number 1 Poultry Ltd [1991] 1 WLR 153, 167.

In the course of his reply, he drew my attention to a number of additional authorities. In Oxfordshire County Council v. GB and Others [2001] EWCA Civ 1358, a special educational needs tribunal had taken account of a calculation of costs for which it gave no reasons in its written decision. In a witness statement the Chair had purported to amplify the written reasons. The Court of Appeal considered that no attention should be paid to those ex post reasons. In R v. Caerphilly County Borough Council, ex parte Jones (1999) 32 HLR 82, a housing benefit review board, which was under a duty to include a statement of reasons in the record of its decision, had not furnished reasons until more than three months after the decision and had failed to offer an explanation for the delay. In the particular circumstances the decision was quashed. In Re C and P [1992] COD 29, a schools admission case, it was held that affidavit evidence was not admissible to show that the appeal committee meant something different from what they said unambiguously in their reasoned decision letter. The court gave examples of cases where no evidence whatever may be adduced to expand on reasons given for a decision, and of other cases where supplementary reasons can be adduced (in particular where there is no statutory obligation to provide reasons in the first place).

For the Council, Mr Straker submits that in the present case reasons have been given in the notice of decision dated 6 August 2002 and duly placed on the register. If not, then the breach of reg. 21(1) will be remedied by the substitute notice that it is proposed to place on the register and that the court can if necessary order to be placed on the register. Any breach of reg. 21(1) to date does not invalidate the grant of planning permission, which was properly made after taking the environmental information into consideration. The requirement of reg. 21(1) is to make available a statement after the decision has been taken. Vindication of the directive requires only that reasons should be given; and although there has been a delay (arising in part out of the fact that this point was taken by the claimants only at a late stage, at the hearing before Collins J), that is not a problem provided that, as is the case, the reasons why members reached the decision can still fairly be stated.

Mr Straker submits that that approach is supported by the language of the EIA Regulations and the directive, by the authorities and by practice in other fields (e.g. appeals by way of case stated from magistrates, where magistrates have had to give reasons for a previous decision even though until recently there has been no requirement to state reasons at the time of the decision), and that it is common sense to require reasons to be given now rather than to set aside the grant of planning permission for a failure to state them earlier.

As to the authorities, he draws particular attention to Brayhead (Ascot) Ltd v. Berkshire County Council [1964] 2 QB 303, 313-314, where it was held that the duty to give reasons for the imposition of a condition was mandatory and that compliance could be enforced by mandamus, but that a failure to state reasons did not render the condition void since that result was not required by the purposes of the statute. He points to other cases in which it has been held that a failure to comply with a statutory duty to give reasons does not of itself give rise to a right to have a decision quashed on an appeal on a point of law: Mountview Court Properties Ltd v. Devlin (1970) 21 P&CR 689, Crake v. Supplementary Benefits Commission [1982] 1 All ER 498 and R v. Legal Aid Area No.8 (Northern) Appeal Committee, ex parte Angell [1990] COD 355. Thus, although he accepts that there are many contexts where a failure to give reasons does vitiate the decision, he submits that that is not always so. He also refers to the analysis by Sedley J in R v. Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242, in particular at 257-258 and 263, where it seems to be contemplated that breach of a duty to give reasons may in some circumstances justify relief in the form of mandamus though in others it will lead to the quashing of the decision.

Mr Hill, for the developer, adopts Mr Straker’s submissions and adds an alternative submission that, if the grant of planning permission was rendered unlawful by non-compliance with reg. 21(2), the court should nonetheless exercise its discretion not to quash the planning permission. The failure to give reasons has not prejudiced the claimants (who did not ask for reasons and who took the point only at the permission hearing), whereas the developer would suffer serious prejudice if the planning permission were now quashed.

In my judgment there has been a clear failure to comply with the requirement of reg. 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 (I refer only to “main reasons” and not also to the “main … considerations” on which the decision was based, since the argument has been presented by Mr McCracken only in terms of a failure to state the main reasons and it is therefore unnecessary to examine any separate question that might otherwise arise in relation to “considerations”):

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.

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.

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).

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.

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.

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.

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:

Accordingly the claimants succeed on this part of the case to the limited extent of obtaining a mandatory order as to the making of a statement of reasons available for public inspection. They fail in their real objective of having the planning permission quashed.

I move to the second broad ground of challenge, concerning the Council's Code of Conduct and the Model Code to which it gives effect. Mr McCracken raises a number of issues, which do not correspond precisely with the substituted grounds but may be summarised as follows: (1) Mr Richardson was entitled to make up his own mind whether to withdraw from the meeting on 11 June 2002 and the Council acted unlawfully in telling him to withdraw; (2) he did not have a "prejudicial interest" within the meaning of the Code; (3) on the proper construction of the Code, he was not bound to withdraw even if he had a prejudicial interest, since (a) he was not a member of the decision-making committee and/or (b) he was entitled to attend in his personal capacity to make representations; and (4) if on the proper construction of the Code he was bound to withdraw, then the Code is unlawful and in breach of his Convention rights. Given the way in which submissions were developed, the issues under (3) and (4) can be considered together.

Before examining the issues, it is necessary to set out the legislative framework and a number of relevant facts.

The background to some of the issues arising in this case 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 do not think it necessary to examine those reports in detail. 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 to 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, 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.

According to the claimants' statement of facts, Mr Richardson was informed on 5 June 2002 by the Council's Head of Committee Services and later by representatives of the Legal Department that, because he had a prejudicial interest as defined in the Code, he would not be allowed to speak at, or attend, the meeting on 11 June. Mr Richardson says in a witness statement that he did not want to withdraw from the meeting and he did so under protest: he regarded himself as being instructed to leave the meeting. On the other hand Mr Sharpe, who is Principal Solicitor (Environment) with the Council and acted as legal adviser to the committee, says in a late witness statement that he advised Mr Richardson about his personal and prejudicial interest in relation to this matter. According to Mr Sharpe, at no time was Mr Richardson "barred" from the meeting: he was given advice and it was for him to decide whether to accept and act upon it. Mr McCracken did not object to the late admission of that evidence, though he made a number of comments upon it, including the point that the principal people putting the views of officers to Mr Richardson at the time were not Mr Sharpe but Mr Daly (the former Head of Legal Services) and Mr Knight (the Chair of the committee).

In view of that factual dispute I think it necessary to set out the terms of the main contemporaneous documents as well as dealing with a number of other relevant aspects of the factual background.

In a letter dated 6 June 2002 from Mr Richardson to Mr Jeremy Walker, the Council's Chief Executive, Mr Richardson registered his concerns in these terms:

“As you are aware I am not a member of the Planning Committee, I cannot vote or exert influence within that Committee. Quite properly, had I been a member of the Committee, and I had a conflicting interest then it would be declared, I would retire from the Chamber and not vote.

However, I have been asked by the community of Littlethorpe, as their County Councillor, to represent their 100% opposition to a quarry application. As a result have declared at every opportunity that I myself am a resident of Littlethorpe, and, as such, will be affected should any application for quarrying be granted.

Nevertheless, it was felt necessary suddenly for Mr Knight, supported by the Legal department, not only to disallow me from putting Littlethorpe's views across to the Planning Committee, but to ban me from the room ….”

An e-mail response, apparently on the same day, acknowledged the letter and went on:

“I understand that you have also spoken to colleagues in Committee Services and Legal Services on this issue and accept that under the Council's Constitution it will not be possible or appropriate for you to attend the Planning Committee when this item is discussed ….”

At the meeting on 11 June, Mr Richardson attended at the outset and read from a typed statement before leaving the room. His statement was as follows:

“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.”

A note of the meeting prepared by an objector describes Mr Richardson as indicating that "the decision to 'bar' him from speaking … on behalf of local residents, and the Council's failure to allocate a deputy, was a travesty of justice and an infringement of our Human Rights". The second claimant, Mrs Orme, made a statement in which she referred to Mr Richardson being "banned at the eleventh hour, by your officers - from speaking on behalf of the Littlethorpe Parish". The Council's own minutes of the meeting record matters in this way:

“County Councillor Paul Richardson informed the meeting that he owned property in the vicinity of the application site and that in accordance with the County Council's Code of Conduct he had a personal interest in this matter and that it was also a prejudicial interest as set out in the Code. As the local Member he considered that local residents were being denied the opportunity of being represented by their local County Councillor.

County Councillor Paul Richardson then left the meeting room.”

In my view Mr Richardson's typed note provides the best evidence of the precise words he used before withdrawing from the meeting.

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.

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. Mr Richardson complains in his witness statement that Mr Galloway was given short notice (though the evidence on this point is not clear) and was unable properly to reflect the interests of the parish, let alone bring to bear Mr Richardson's wider perspective as a county councillor.

On 19 June Mr Richardson wrote a letter to Mr Walker in which he said:

“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 ….”

A file note, prepared by Mr Daly, of a meeting on the same day between himself, Mr Walker and Mr Richardson records that Mr Richardson "opened the meeting by saying that he was very pleased with the advice he had received from Glenn Sharpe: he felt that the advice had been technically correct, and given very sensitively." That file note was supplied as an exhibit to Mr Sharpe's late witness statement, and Mr McCracken submits that it should not be relied on as against the evidence of Mr Richardson, who was not previously shown the file note or given an opportunity to comment on it.

In a statement dated 2 July 2002, the precise purpose of which is not clear to me, Mr Richardson recorded:

“The Planning Committee were diaried to meet on 11 June. On 5 June I was told by the Head of Committee Services and later by representatives of the Legal Department, that I would not be allowed to speak, but also I was not allowed to be in the meeting room. I asked for written 'chapter and verse' (see letter 6.6.02 and undated email reply).”

The first issue is a very short one. Mr McCracken submits that Mr Richardson was entitled to make up his own mind whether he had a prejudicial interest and should withdraw from the meeting and that the Council's officers acted unlawfully in telling or instructing him to withdraw. It is not in issue that the Council's role was to advise, not to instruct, but Mr Straker submits that what happened went no further than advice, even if Mr Richardson felt under constraint in consequence of the advice.

I am not persuaded that Mr Richardson was instructed to withdraw. There is no sufficient basis for rejecting the evidence in Mr Sharpe's witness statement that Mr Richardson was given advice rather than being barred from the meeting, though I have borne in mind that he dealt with other, more senior officers as well as with Mr Sharpe. The contemporaneous documents do not provide a clear answer, as is illustrated by the fact that in his own statement to the members of the committee before withdrawing from the meeting, Mr Richardson said both that he had been "advised by the officers" that he could not speak or be present and that he was leaving the room "as instructed". On the evidence as a whole I take the view that Mr Richardson was given firm advice and reluctantly accepted that advice, although voicing strong objection about the resulting position. A further consideration is that everyone concerned must have understood that compliance with the Code was the personal responsibility of individual councillors, each of whom had given an undertaking to observe its terms.

I do not attach much significance to this point in any event. In my view the crucial question is whether the Code, properly interpreted, required Mr Richardson to withdraw from the meeting. If it did, then it makes no practical difference whether he was advised to leave or was instructed to leave. If it did not, then the Council acted in error, whether by way of advice or instruction.

Mr McCracken submits that Mr Richardson did not have a "prejudicial interest" within the meaning of paragraph 10(2) of the Code and was therefore not required by paragraph 12(1) to withdraw even if it would otherwise have applied to the situation. He also submits that it was for Mr Richardson to decide whether he had such an interest.

The Council clearly understood Mr Richardson to accept that he had a prejudicial interest. He does not appear to have taken issue with the point at the time. In those circumstances, and having regard to my finding that the Council advised rather than instructed him in the matter, I do not think that it is open to him to adopt a different position now.

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:

Mr McCracken submits that the Code had no application to the situation that arose in this case, so that it did not require Mr Richardson to withdraw from the meeting even if he did have a prejudicial interest. The scope of the Code is laid down in paragraph 1. Paragraph 1(1) requires a member to observe the Code in specified circumstances, which together are defined as his "official capacity", but does not apply to attendance by a councillor at a meeting of a committee of which he is not himself a member. Paragraph 1(2) provides that the Code shall not, apart from paragraphs 4 and 5(a), have effect in relation to the activities of a member undertaken other than in his official capacity. Thus paragraph 12 is not to construed as precluding Mr Richardson's attendance at the meeting on 11 June either in his representative capacity to voice the objections of his electorate or in his private capacity as an individual objector.

It is further submitted that there is a particular cause for concern if the sole councillor for an area is prevented from addressing a committee and even from remaining in the room when a proposal affecting the constituency he represents is discussed. Moreover the public are entitled to attend such meetings and it is very strange if Mr Richardson, because he is councillor, is denied the same opportunity to attend as a citizen. Had it been intended to produce such results, the points would have been addressed in the Department's consultation paper, e.g. by way of consideration of a dispensation; but the consultation paper contains nothing on them. Reference is also made to various passages in the Widdicombe report and the Nolan report which are said to be supportive of the claimants' case.

In the course of examining the authorities, Mr McCracken made clear that one of his contentions is that in interpreting the Code as a matter of domestic law, leaving aside the Convention, one should approach the matter in terms of proportionality. In that connection he refers to the observation by Lord Slynn in R (Alconbury Developments Ltd) v. Secretary of State for the Environment [2001] UKHL 23, [2001] 2 WLR 1389 at 1406, para 51, that "even without reference to the Human Rights Act 1998 the time has come to recognise that this principle [of proportionality] is part of English administrative law".

Also cited is R v. Flintshire County Council, ex parte Armstrong-Braun [2001] LGR 344, both for an observation on proportionality and as having a wider relevance. In that case a 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). In relation to the question whether such a standing order could lawfully be adopted, he stated (para 60):

“Although it does not arise at the moment for decision, it may well be that this needs to be regarded in law as a question of proportionality: is the proposed measure, having regard to its restrictive effect on the functioning of individual elected representatives, one which is necessary in a democratic society to achieve the efficient functioning of the county council?”

So too here, submits Mr McCracken, one should ask whether paragraph 12(1) of the Code, if interpreted in the way for which the Council and the Secretary of State contend, imposes a restriction that is necessary for the avoidance of conflict of interests that would damage public confidence in the system?

The issue of proportionality arises again in the context of Mr McCracken's submissions on the Convention. He relies on the Convention both as requiring the construction of the Code for which he contends and, in the alternative, as a ground for seeking a declaration that the Code is unlawful if and in so far as it did require the exclusion of Mr Richardson from the meeting.

Although the substituted grounds make reference to articles 6, 8 and 14 of the Convention and to article 1 of the First Protocol, Mr McCracken's oral submissions identified articles 6 and 8 as the key provisions. The argument under article 8 is that the development affected Mr Richardson's home and that it was not consistent with his right to respect for his home under article 8(1) to deny him the same chance to be present and to speak at the meeting as others whose homes were affected. The issue under article 6(1) is one of lack of equality of arms between Mr Richardson and the developer, who again was allowed to be present and to speak at the meeting.

As to questions of justification under the Convention, Mr McCracken refers to the requirement of proportionality and submits that the task of balancing the competing interests has not been undertaken in "a structured and articulated way" (see South Bucks District Council v. Porter [2001] EWCA Civ 1549, [2002] 1 All ER 425 at para 42). He also cites Ahmed v. United Kingdom (1998) 29 EHHR 1, in which the Strasbourg Court rejected a challenge to the restriction on the freedom of local government officers to engage in political activities.

Finally, and on a different tack, I should mention that Mr McCracken has sought to rely on observations made by Collins J at the permission hearing in the present case. Whilst it is true that in places Collins J expressed himself in robust terms in favour of the claimants' submissions, he also made clear that he was dealing only with arguability and had not heard full argument. I yielded to Mr McCracken's strenuous efforts to show me the transcript of that hearing, but I remain of the view that it was not appropriate to refer to it and that it cannot assist the claimants. I shall say no more about it.

Mr Straker submits that paragraph 12 of the Code imposed a clear requirement on Mr Richardson, as a member of the Council with a prejudicial interest, to withdraw from the meeting. The justification of the Code's provisions is a matter for the Secretary of State, since the Council was required by statute to adopt the Model Code promulgated by the Secretary of State and to follow it. The Council's position is nonetheless that paragraph 12 is a profoundly sensible requirement, given the problem of the impression that would be left with members of the public if a councillor with a prejudicial interest were to attend such a meeting.

For the Secretary of State, Mr Sales likewise submits that paragraph 12 plainly requires a member of the Council with a prejudicial interest to withdraw from such a meeting. Every interpretative indicator points to that conclusion: the language is clear and the legislative history and purpose support it. A provision with that effect is justified and lawful. It turns into a general rule what Sedley J in R v. Secretary of State for the Environment, ex parte Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, 329f, described as "wise advice".

It is further submitted that, on the facts, Mr Richardson did not seek to attend the meeting solely in his private capacity. Had he done so, paragraph 12 would nonetheless have applied and have required him to withdraw. In that respect breach of paragraph 12 is to be seen as a specific instance of conduct falling within paragraph 4 (conduct, in any circumstance, which could reasonably be regarded as bringing a member's office or authority into disrepute) and/or paragraph 5(a) (a member's use of his position, in any circumstance, improperly to confer on or secure on himself an advantage). That too is justified and lawful.

As to the Convention, Mr Sales submits that there is no incompatibility between the ordinary meaning of the Code and Mr Richardson's Convention rights and there is therefore no reason to depart from the ordinary meaning.

No admission is made by the Secretary of State that article 6 of the Convention is engaged in these circumstances. Even if it is, however, its requirements are met. Mr Sales refers generally to Bryan v. United Kingdom (1995) 21 EHHR 342. He submits that there is no right to an oral hearing before the committee: R (Adlard) v. Secretary of State for the Environment, Transport and the Regions [2001] 1 WLR 2515. Nor was there any inequality of arms between Mr Richardson and the developer arising out of the fact that the former was precluded by the Code from attending the meeting whereas the latter was able to address the committee. The point can be tested by considering the application of article 14, albeit not pursued separately by the claimants. There is no breach of article 14, because (i) a councillor is not in the same position as a private landowner and (ii) any differential treatment can be justified as a proportionate response to a legitimate objective (as to which, see Ahmed v. United Kingdom, above).

If Mr Richardson's complaint fails by reference to the express procedural rights conferred by article 6, then Mr Sales submits that a fortiori it cannot succeed under article 8. In developing his submissions on this topic, he stresses the wide margin of discretion that should be accorded to the Secretary of State when balancing competing interests of the kind in play in this case. He also refers to para 27 of the judgment of Simon Brown LJ in South Bucks DC v. Porter (above), where it is said that the approach adopted in the in the Bryan v. United Kingdom line of cases "clearly supports the view that the recent House of Lords decision in R (Alconbury Developments Ltd) v. Secretary of State for the Environment …, rejecting art 6 of the convention challenges to the legislative scheme for statutory appeals and applications in planning cases which affords the court only a limited review jurisdiction over inspectors' decisions, applied equally in art 8 cases …".

For the developer, Mr Hill adds a submission that, if there was a failing in relation to the Code, the court should exercise its discretion against quashing the grant of planning permission. The committee had a detailed analysis of the issues in the Director's report and heard representations from Mrs Orme. The matters that Mr Richardson said that he wished to raise were set out in his letter of 19 June 2002, and he has not elaborated on them in evidence. One was a bad point about the EIA Regulations, the other was addressed fully in the Director's report. Thus there was nothing material that he would have added. In those circumstances, and having regard to the factors addressed in Mr Hill's other submissions, it would be wrong to deny the developer the benefit of the planning permission.

The various submissions of counsel cover a fair amount of ground. I propose to organise my conclusions on them as follows: (1) I shall deal first with the application of the Code to Mr Richardson in his capacity as a councillor, considering both its proper construction and its lawfulness as a matter of domestic law apart from the Convention. (2) I shall then consider its application to Mr Richardson in his private capacity, again considering relevant issues apart from the Convention. (3) Finally I shall examine the impact of the Convention.

As to the application of the Code to Mr Richardson in his capacity as a councillor, in my judgment paragraph 12 did apply to this situation and did require Mr Richardson to withdraw from the meeting. I reach that conclusion, first, because that is the effect of the Code on its ordinary and natural meaning:

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 ….”

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.

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.”

Paragraphs 112 ff. 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, 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.

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).

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".

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.

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.

Leaving aside the Convention for the time being, I take the view that the Code, if construed in the way I have held it should be, was lawfully promulgated by the Secretary of State and therefore lawfully adopted by the Council:

I move to consider the arguments addressed to the issue of attendance by Mr Richardson in his personal capacity, as opposed to attendance in his capacity as a councillor.

In my judgment that issue simply does not arise on the facts. At no time did Mr Richardson say that, if he could not attend as a councillor, he nonetheless wanted to attend and address the committee in his personal capacity. The essence of the concerns expressed by him prior to the meeting was that he wanted to represent the community he served (see in particular his letter of 6 June). It is true that in his statement at the beginning of the meeting, before his withdrawal, he referred to advice that he could not speak or be present "in my capacity as a Councillor and as a citizen", and that the note of the meeting on 19 June refers both to a restriction on freedom of expression and to a restriction on his freedom to defend his own personal position in relation to his property. But at no time was there any suggestion that he wished to attend solely for the purpose of putting forward his private objections to the development based on its impact on his own home. It is also significant that in his witness statement in these proceedings he focuses on his wish to attend as a councillor, which he says would have given him as much time as he needed to speak rather than being constrained within three minutes as others were, and on the prejudice to his constituents arising out of his inability to speak on their behalf.

Where a councillor wishes to attend a meeting in a dual capacity, as councillor and as private citizen, paragraph 12 plainly applies to the situation for the reasons already given. It is enough that he is present in his capacity as a councillor even if he has a separate interest of his own to defend. Indeed, it is because he has a personal and prejudicial interest in the matter that the restriction is required. Thus it is only in relation to attendance solely as a private citizen, rather than in a representative capacity as councillor, that any separate considerations might arise. They do not arise in circumstances where no question was raised of attendance solely as a private citizen.

I reject a submission by Mr McCracken that the Council was in some way bound to allow Mr Richardson to attend solely as a private citizen even if he did not ask to do so. I have already held that Mr Richardson followed advice to withdraw from the meeting, rather than being instructed to do so. The advice given related to the course of action that he wished to pursue. The Council cannot sensibly be criticised for failing to advise him about a course of action that he did not express a wish to pursue.

In the circumstances it is unnecessary for me to decide on the application of the Code to a councillor who wishes to attend a meeting solely in his private capacity. I will, however, give the following indication of how I would have dealt with the issue had it arisen for decision:

I move finally to consider whether the application of the Convention affects any of the matters considered above, though it seems to me that the Convention issues are in truth of only limited relevance, since (i) they concern the rights enjoyed by Mr Richardson personally, rather than his entitlement to attend the meeting in his capacity as councillor so as to provide a representative voice for his constituents, and (ii) I have held that attendance in his personal capacity does not arise as a separate issue on the facts.

As to article 6 of the Convention, I accept Mr Sales's submissions that, if it conferred relevant rights on Mr Richardson (which I do not need to decide), the application of the Code involved no breach of those rights. The material provisions of the Code are fully consistent with the aim of ensuring fairness and impartiality in the decision-making process - a process in which there are competing interests at stake, including those of the developer as well as those of objectors such as Mr Richardson. It was for the Secretary of State to balance those competing interests so as to achieve fairness overall; and the result is in my view well within the margin of discretionary judgment allowed to him. It was also open to the Secretary of State, and conducive to legal certainty, to adopt a general rule applicable across the broad range of decision-making processes of local authorities.

I do not think that R(Adlard) v. Secretary of State for the Environment, which held that there is no entitlement to an oral hearing at this stage of the procedure, provides in itself an answer to Mr McCracken's point that the developer had the opportunity to make oral representations (albeit for only three minutes) whereas Mr Richardson did not. For the reasons advanced by Mr Sales, however, the developer and Mr Richardson were not in the same position, the differential treatment was based on the legitimate aim of preserving public confidence in the system, and the restriction placed upon Mr Richardson was a proportionate measure. All that he was prevented from doing was attending the meeting in his capacity as a councillor. He was able to arrange for others to put forward any points he wished to make, and I have indicated that, had he wished to attend the meeting solely in his personal capacity, it would in my view have been open to him to do so.

As to article 8 of the Convention, essentially the same procedural issue is raised. The case put forward is that it was not consistent with Mr Richardson's right to respect for his home to deny him the same chance to be present and to speak at the meeting as others whose homes were affected. I accept Mr Sales's submission that that case must fail in the light of the conclusion I have reached on article 6. There is no article 8(1) right to a hearing. The issues concerning attendance at the meeting can come in only in the context of justification under article 8(2), most obviously as an aspect of proportionality. In that connection I refer back to the substance of the views I have expressed in relation to article 6. In my judgment any interference with article 8(1) rights arising out of the relevant provisions of the Code was plainly justified.

Since Mr McCracken effectively conceded that he could not succeed by reference to other provisions of the Convention if he did not succeed under article 6 or article 8, I do not propose to address them.

For the reasons I have given, there is in my judgment nothing in the Convention arguments to cause me to depart from what I have held to be the ordinary and natural meaning of the relevant provisions of the Code or to hold that the Code, if so interpreted, is unlawful.

I therefore conclude that the advice given to Mr Richardson about the application of the Code was correct and that the various grounds of challenge advanced in this part of the case all fail.

I understand the claimants' concerns and respect their reasons for bringing these proceedings. The issues are substantial and there are areas of difficulty. In the result, the claimants have achieved a limited success in respect of the EIA Regulations, in that I think it right to make a mandatory order (in a form to be discussed with counsel) as to the making of a statement of reasons available for public inspection in order to ensure compliance with reg. 21(1). I have found against them, however, on the balance of the EIA issues and in respect of the Code of Conduct. Save to the limited extent indicated, therefore, the claim will be dismissed.