Brown v Carlisle City Council & Anor

This is a renewed application for permission to apply for judicial review of a grant of planning permission by the defendant, Carlisle City Council, for a development at Carlisle Lake District airport described in the application for planning permission as:

“The Erection Of A Freight Storage And Distribution Facility Including Chilled Cross Dock Facility (Use Class B8) With Associated Offices (Use Class B1), Gatehouse/Office/Canteen/ Staff Welfare Facilities, Landscaping, New Vehicular Access, Car And Lorry Parking And Infrastructure Works”

Planning permission was granted by a Notice of Approval dated 12 March 2009.

On 29 June 2009 HHJ Anthony Thornton QC (sitting as a Deputy Judge of the High Court) refused permission to apply for judicial review. By his notice of renewal the claimant simply asserts that “it is believed that the judge has erred in law” in holding the grounds of claim to be unarguable.

The Factual Background

On 18 June 2008 the first planning application was called in for determination by the Secretary of State on the basis that it raised issues of more than local importance.

The IP then decided to withdraw the first planning application, and to submit a new application with much reduced works, in particular omitting any proposals for ‘airside works’ as can be seen from the description given by the planning officer when in due course he reported on the application to the defendant’s planning committee –

“… a much more scaled-down application omitting the intended realigned runway and taxi ways, the proposed new Terminal facilities, new air traffic control tower, Instrument Landing System and other navigational aids including approach lighting (officer’s report para. 5.2)”

The application was submitted on 14 October 2008, and was accompanied by an environmental statement addressing the environmental effects of the development proposed in the application.

The application was then the subject of consultation; and the results of the consultation and analysis of the application by the defendant’s officers were set out in a lengthy Officers Report (OR) that went to the defendant’s planning committee on 19 December 2008. The OR addressed the application, the consultation responses, and, with particular relevance to this application, the issue of whether the application constituted a departure from the development plan so as to require referral to the Secretary of State. It contained the recommendation that planning permission be granted subject to the imposition of conditions, and to a requirement that the IP enter into an agreement under section 106 of the Town and Country Planning Act 1990 (TCPA 1990) in accordance with proposed Heads of Terms annexed to the OR, a recommendation that the planning committee accepted.

On 16 December 2008, three days before the planning committee met, the claimant’s solicitors, who had had the opportunity to see the OR, wrote to the defendant expressing concern as to the manner in which it dealt with the issue of whether the defendant was under an obligation to refer the application to the Secretary of State as a departure from the development plan, and informed the defendant that they had “…drawn the Government Office’s attention to what we consider to be a flaw in the reference to the departure direction”. The letter also raised concern as to the ambit of the environmental statement submitted with the application, asserting that there was “the need for environmental assessment of the whole consequences of the scheme”, and pointing out in particular that there did not appear to have been an assessment of the environmental effect of works to be carried out under the proposed s106 agreement.

The Heads of Terms were then the subject of negotiation between the defendant and the IP, and on 11 March 2009 a section 106 agreement was duly signed by the IP. On the following day, 12 March 2009, the defendant granted the planning permission.

The s106 agreement defined ‘development’ as “the development authorised by the Planning Permission”, whereas the “works” referred to the airside works, the subject of the agreement, and were defined as “all those works required to repair/renew the Runway and Substantially Complete the Terminal on the Land”.

Part 4 of the agreement set out the IP’s obligations. At clause 4.2.1 the IP covenanted:

“Unless otherwise approved in writing by the Council not to commence works to construct the Building until a construction programme in respect of the Works has been submitted to and approved in writing by the Council PROVIDED THAT the requirements of the CAA and TRANSAC shall be paramount in all the circumstances”.

Clause 4.2.3 requires the IP “Unless otherwise approved in writing by the Council not to Occupy the Development until the Works have been commenced in accordance with the construction programme approved pursuant to sub-clause 4.2.1.” Clause 4.2.4 requires the IP “…to Substantially Complete the Works in accordance with…4.2.4.1 the construction programme approved pursuant to sub-clause 4.2.1”.

The Notice of Approval issued by the planning committee contained a summary of reasons for the decision. It recorded inter-alia that:

“The City Council considers that the proposed development of the Freight Distribution Centre and its associated administrative offices … whilst not in itself in accord with the provisions of Policy EC22 of the adopted Carlisle District Local Plan 2001 – 2016, would be integral to securing and facilitating essential investment in upgrading the aviation infrastructure at Carlisle airport … The potential environmental impacts arising from the development proposals have been assessed within the accompanying Environmental Statement and related documents that support the application, including a Flood Risk Assessment, Transport Assessment, Economic Impact Statement and Design and Access Statement. In its overall scrutiny of the planning merits of the proposals the council have subjected those reporting submissions to detail scrutiny, including full assessment by specialist Consultants, prior to determining that the application, with appropriate safeguards, including linkage to the s106 agreement is acceptable. The council is satisfied that the achievement of the renewal of the principle runway and the provisions of passenger terminal facilities can be delivered through the mechanism of the s106 Agreement and that, by providing those facilities, the development as a whole can be regarded as policy compliant.”

The Statutory Framework

‘Environmental information’ is defined in Regulation 2 as meaning inter alia “the environmental statement”, which in turn means a statement –

“(a)

that includes such of the information referred to in Part 1 of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but

(b)

that includes at least the information referred to in Part II of Schedule 4.”

Schedule 4 identifies the information that an environmental statement should contain. The Part I information that is required, in so far as it is relevant, includes –

“4.

A description of the likely significant effects of the development on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects on the development resulting from:

(a)

the existence of the development;…”

The Part II information includes –

“1.A description of the development comprising information on the site, design and size of the development.

2…

3.

The data required to identify and assess the main effects which the development is likely to have on the environment.”

The Departures Direction

But Article 2(2) allows a local planning authority to grant planning permission on a departure application without reference to the Secretary of State if:

“they impose such conditions on the permission as will ensure, in their opinion, that if the development is carried out in accordance with those conditions it will be in accordance with the provisions of the development plan.”

The Secretary of State has a discretion as to whether to call in an application for her own determination. Her power to do so is contained in s77 of the TCPA 1990 which authorises her to give a direction requiring an application for planning permission to be referred to her. That direction -

“(a)

may be given either to a particular local planning authority or to local planning authorities generally; and

(b)

may relate either to a particular application or to applications of a class specified in the direction.”

Section 106 agreements

General Development Procedure Order 1995 (GDPO)

The claimant’s grounds.

Mr Jones, who appeared for the claimant, submits that the non-airside works were an integral part of a more substantial development, and one with potentially damaging environmental effects. He submits that both the airside and the non-airside aspect of the proposal form part of the ‘development’ for the purpose of the environmental impact assessment that had to be undertaken, and that by withdrawing the first planning application and submitting a more limited scheme, the IP has circumvented the obligations imposed by regulation 3(2).

In support of that submission he pointed to the inclusion of the adjective “cumulative” in paragraph 4 of Part 1 of Schedule 4 to the EIA regulations (see paragraph 15 above), and invited my attention to the guidance issued by the Secretary of State in Circular 02/99 which provides:

“46.

… for the purposes of determining whether EIA is required, a particular planning application should not be considered in isolation if, in reality, it is properly to be regarded as an integral part of an inevitably more substantial development … In such cases, the need for EIA (including the applicability of any indicative thresholds) must be considered in respect of the total development. That is not to say that all applications which form part of some wider scheme must be considered together. In this context, it will be important to establish whether each of the proposed developments could proceed independently and whether the aims of the Regulations and Directive are being frustrated by the submission of multiple planning applications.”

The guidance reflected the following passage from the judgment of Simon Brown J in R v Swale BC EX p RSPB [1991] 1PLR6 at page 16:

“… the question whether the development is of a category described in either Schedule must be answered strictly in relation to the development applied for, not any development contemplated beyond that. But the further question arising in respect of a Schedule 2 development, the question of whether it “would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location, should, in my judgment, be answered rather differently. The proposal should not then be considered in isolation if in reality it is properly to be regarded as an integral part of an inevitably more substantial development. This approach appears to me appropriate on the language of the Regulations, the existence of the smaller development of itself promoting the larger development and thereby likely to carry in its wake the environmental effects of the latter. In common sense, moreover, the developers could otherwise defeat the object of the Regulations by piece meal development proposals.”

Mr Jones also relies upon case 227/01 Commission v Spain [2005] ENV.L.R. 384 in which the European Court of Justice considering directive 85/337 (the predecessor to directive 97/11/EC), was faced with an argument from the Spanish government that an environmental impact assessment was not necessary in respect of the extension of a railway line “since the work undertaken merely consisted in approving an already existing railway by doubling the original single track without constructing a new railway line there was no need for a new long-distance route.” Rejecting that submission the court said:

“If the argument with the Spanish government were upheld, the effectiveness of Directive 85/337 could be seriously compromised, since the national authorities concerned would need only to split up a long-distance project into successive shorter sections in order to exclude from the requirements of the Directive both the projects as a whole and the sections resulting from that division.”

(page 401).

In response the defendant and the IP rely upon the judgment of Davis J in R (Candlish) v Hastings BC [2005] EWHC 1539 (Admin) in which he said at paragraph 61 that the EIA regulations:

“… are geared to the actual application for development consent … there is no justification for treating the words “development”, as used repeatedly in the 1999 regulations as though it meant “project” of a wider kind, and the regulations are clear that the relevant assessment is to be made by reference to the application for planning permission.”

But as Mr Jones observed in argument the judgment of Davis J is difficult to square with the inclusion of the word “cumulative” in paragraph 4 of Part 1 of schedule 4.

In this context the defendant and the IP also place reliance upon the decision of Sullivan J in Davies v Secretary of State [2008] EWHC 2223 Admin; but his judgment was not directly in point. In Davies Sullivan J was satisfied that both the Inspector and the Secretary of State had considered whether the link road, the subject of the planning application, and a related Park and Ride scheme were part of a single scheme, and had concluded that they were not, there being no irrationality challenge to that conclusion. In contrast in this case there is nothing to suggest that the defendant addressed the question of whether the proposed development was properly to be regarded as an integral part of a larger development which included the s106 works. Both the OR and the Notice of Approval are silent on the point. It follows that I part company from HHJ Thornton who, in refusing permission on the paper application, said in relation to Ground 1 that the airside works had been considered by the decision maker not to be an integral part of the development. Had that been the case, that would have been an end to the argument as in Davies. But in the absence of any indication that the defendant’s planning committee addressed that issue, it is arguable that the decision to grant planning permission was flawed, a narrower argument than that advanced in Ground 1.

But that is not an end to the matter. I must go on to consider whether there is a real prospect of success if the claimant is given permission to pursue that argument. As to that there are two matters to be taken into consideration. First the challenge to the grant of planning permission is essentially that the approach taken by the IP will have the consequence that an environmental assessment of the airside works the subject of the s106 agreement will be avoided, thereby frustrating the purpose behind the EIA Regulations. It is submitted on behalf of the defendant and the IP that that argument is simply misconceived. The airside development will require a formal environmental assessment under the EIA Regulations if it is likely to have significant environmental effects. If that is the case a planning application will need to be made in respect of it; and the application could not be approved without the defendant first taking into account ‘environmental information’ in respect of that development. Counsel for the defendant and IP argue that there is therefore no prospect of the EIA regulations being breached or circumvented.

Secondly they argue that in any event to permit the claimant to apply for judicial review on this ground would be an entirely empty exercise. They point to the fact that the environmental statement annexed to the first planning application, by which permission was sought for far more extensive airside works, did not identify any adverse environmental factors. The s106 works involve in essence the re-surfacing of the runway and the provision of passenger terminal facilities, whereas the airside works the subject of the first planning application included the replacement and realignment of the runway, and the construction of a new passenger terminal, offices and hangars. It is therefore submitted that the submission of a further EIA to include the s106 works could not conceivably affect the outcome of the planning application, and that accordingly no purpose would be served by quashing the planning permission as a renewed application would inevitably succeed.

In my judgment both arguments are well founded, and would be determinative of the exercise of the court’s discretion to grant the relief sought if satisfied that the decision was flawed for the reason identified at paragraph 27 above. As to the first, if the s106 works fall within the ambit of regulation 3(2), they will have to be the subject of an EIA, which by Schedule 4 Part 1 paragraph 4 will include their cumulative effect. As to the second it seems clear that if the grant of planning permission were to be quashed, the environmental statement extending to the s106 works that would have to be attached to a renewed application, would not contain any material that could adversely affect the outcome of the application, which would inevitably succeed. No purpose would therefore be served by permitting the claimant to pursue his claim on this ground.

Grounds 2 and 4

As to Ground 2, the defendant did not refer the application to the Secretary of State as a departure application as it was satisfied that the effect of the obligations undertaken by the IP in the s106 agreement was to bring the proposed development within the development plan. The claimant contends that the defendant could not rely upon the s106 agreement to bring itself within the Article 2(2) exception, which permits a local planning authority to grant planning permission on a departure application without reference to the Secretary of State if they impose such conditions as will ensure that the development will be carried out in accordance with the development plan. Mr Jones argues that Article 2(2) cannot be construed as including restrictions or requirements imposed by a s106 agreement, as the term ‘conditions’ has a clear meaning in the planning context, and cannot be read to embrace s106 obligations.

In this context Mr Peter Village QC, who appeared for the IP, invited my attention to Circular 05/2005 on planning obligations which provides guidance on the interpretation of s106. It identifies the purpose of planning obligations as being –

“to make acceptable development which would otherwise be unacceptable in planning terms…For example planning obligations might be used to prescribe the nature of the development e.g. by requiring that a given proportion of housing is affordable; or to secure a contribution from a developer to compensate for loss or damage created to a development; or to mitigate a development’s impact (e.g. through increased public transport provision). The outcome of all three of these uses of planning obligations should be that the proposed development concerned is made to accord with published local, regional or national planning policies” (at B3).

And at B8 –

“It will generally be reasonable to seek or take account of a planning obligation if what is sought or offered is necessary from a planning point of view i.e. to bring a development in line with the objectives of sustainable development.”

Mr Village also referred me to the decision of Ouseley J in R (on the application of Cummins) v Camden LBC [2001] EWHC Admin 1116 in which he observed at para. 160 –

“there is in my judgment a single determination involved in the grant of planning permission subject to conditions; the imposition of particular conditions may itself be a determination in a given case, and certainly conditions and s106 agreements can affect the “accordance” of the determination with the development plan.”

I respectfully agree. In my judgment where a s106 agreement, entered into before the grant of planning permission, has the effect of securing that the application under consideration accords with the development plan, the question of referral to the Secretary of State under the Departures Direction simply does not arise. The development will no longer represent a departure from the development plan. To hold otherwise would lead to the absurd result that an application would be referred to the Secretary of State notwithstanding that if granted, its implementation would not offend the development plan.

Furthermore, and as Mr Tim Mould QC submitted on behalf of the defendant, the point is in any event academic because the Secretary of State decided that she would not call the application in. That is clear from the e-mail correspondence between the claimant’s solicitors and the Secretary of State dated 15 and 19 December 2008. In that exchange the claimant’s solicitors raised with the Secretary of State the issue now raised under ground 2, arguing that there was a potential procedural irregularity if the defendant were to rely upon the proposed s106 agreement as bringing the application for planning permission within the development plan. In the reply on behalf of the Secretary of State, the claimant’s solicitors were advised that the decision on whether or not to refer a departure application to the Secretary of State was for the local planning authority under the terms of the Departure Direction. The e-mail further stated that it had been decided that an Article 14 Direction would not be appropriate and that the council should be free to determine the application as they thought fit. The position of the Secretary of State can also be seen from a letter dated 22 December 2008 to Mr R Weldon, who had written to her in relation to the IP’s planning application, and which contains the following passages –

“We were fully aware of the issues raised by this latest application for development at the airport and after carefully considering the matter, it was decided that there were no grounds for the Secretary of State to take the matter out of the local planning authority’s hands and that the referral of the application to her was not therefore necessary.

Whilst it would not be appropriate, for reasons of propriety, to comment on the various points you raise, the decision on whether or not to refer the application to us under the Departures Direction procedure was properly taken by the local planning authority, who are responsible for such matters. They are also responsible for considering whether any development requires an EIA and, if so for ensuring that the requirements of the EIA regulations are complied with.”

Accordingly Mr Mould argues, and I accept, that it is clear that the Secretary of State did not consider that the application could merit a call in.

So far as Ground 4 is concerned the claimant knows why the application was not referred to the Secretary of State as a departure application, as the reasons form the basis of Ground 2, namely:

“the council took the view that it was not necessary to refer the application to the Secretary of State because it believed that the proposed s106 obligations, if carried out, would ensure that the development accorded with the development plan”.

(see para.32 of the claimant’s grounds of claim).

Furthermore the defendant’s reasons for concluding that there was compliance with the development plan were explained in the Statement of Summary Reasons attached to the planning permission (see paragraph 12 above), the relevant paragraph also being set out at paragraph 17 of the claimant’s grounds.

But in any event I am satisfied that the defendant was not under a duty to give reasons for the decision not to refer the planning application to the Secretary of State as a departure application. The Departure Direction does not require any reasons to be given; and Article 22 of the GDPO 1995 (as amended) (see paragraph 21 above) upon which the claimant seeks to place reliance, imposes an obligation to give a summary of reasons for the grant of planning permission. The defendant plainly discharged its duty under article 22.

It follows that in my judgment grounds 2 and 4 are unarguable.

Ground 3

The OR contained the following paragraph:

“5.52.

The applicants had made submissions, including Opinions from two Queen’s Counsel, to the effect that the proposals are “policy compliant” since they relate to a strategic Employment Site allocated under the provisions of Policy EC22 of the Adopted Local Plan, cross-referenced under Policy DP3, and are not in conflict with the very recently adopted Regional Spatial Strategy. Accordingly, they consider that the proposals do not constitute a “Departure” from the Development Plan. That view is not accepted by Officers and this position is supported by an Opinion obtained by the Council from Leading Counsel. While there has been disagreement on a point of law, it is ultimately a matter for the city council, as Local Planning Authority, to come to a view on this issue, and, if satisfied that it is a Departure Application, to undertake the necessary requirements to refer the application in accordance with the Town and Country Planning (Development Plans and Consultations) (Departures) Direction 1999, if members are minded to approve the application. Accordingly, the application has been formally advertised as a “departure” from the development Plan.”

The question of whether the application was a departure application was addressed in detail at paragraphs 5.165 – 5.172 of the OR. Paragraph 5.169 summarises the advice from leading counsel –

“5.169.

The opinion the Council has obtained from Leading Counsel advises that “although the paragraph quoted refers only to conditions, there is no reason in principle, why the paragraph should not be treated as including a s106 obligation, particularly if the relevant terms of the s106 obligation could equally well be the subject of planning conditions.” That view is supported by Case Law whereby the High Court Judgment ruled that “conditions and section 106 agreements can affect the “accordance” of the determination with the development plan”. By analogy Counsel takes the view that this may be said to recognise that a s106 obligation can in principle affect the “accordance” of the proposal with one or more of the provisions of the development plan.”

In my judgment the OR clearly set out the issue, and alerted members of the planning committee to the different opinions that had been expressed, accurately reporting the views of leading counsel who had been instructed to advise the defendant. The contention that the OR significantly misled the committee as to the advice that had been given by leading counsel is unsustainable, and accordingly Ground 3 has no real prospect of success.

Ground 5

The claimant appears to rely upon an assertion that he attributes to the defendant and the interested party that “the developer was obliged under the agreement to do little in connection with the airside works other than submit a construction programme.” (claimant’s reply to the grounds of resistance of the defendant and interested party para. 8). I can find no basis for his argument. It flies in the face of the express terms of the s106 agreement, which plainly impose an obligation to carry out the works to which it relates.

This ground is a make weight of no weight. It is unarguable.

It follows that the application is refused.