Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
IAN DOVE QC
(Sitting as a Deputy High Court Judge)
Between:
THE QUEEN ON THE APPLICATION OF
WYE VALLEY ACTION ASSOCIATION LIMITED
Claimant
v
HEREFORDSHIRE COUNCIL
Defendant
and
EC DRUMMOND & SON
Interested Party
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James Pereira and Paul Stookes (Solicitor-advocate) (instructed by Richard Buxton Environmental & Public Law) appeared on behalf of the Claimant
Richard Kimblin (instructed by Hertfordshire Council) appeared on behalf of the Defendant
J U D G M E N T
THE DEPUTY HIGH COURT JUDGE:
Walking in the Wye Valley in the late 18th century William Wordsworth observed as follows:
"How oft, in spirit, have I turned to thee,
O sylvan Wye! thou wanderer thro' the woods,
How often has my spirit turned to thee!"
I doubt that the great English nature poet Wordsworth would have had much truck with the prosaic and sometimes arid debate about legal definitions which has preoccupied the court in this case. It does, however, address two issues which were a concern of his poetry: the natural landscape and those who tend it and earn their living from it.
North of Tintern Abbey, the location where Wordsworth was inspired to write these lines, is Homme Farm, which is farmed by Mr Drummond and his family. They produce, amongst other crops, soft fruit and have used, for several years, polytunnels for their cultivation. The claimant is a company which has been formed to promote the preservation and improvement of the Area of Outstanding Natural Beauty (AONB) which the farm lies within. The claimant is concerned about the impact on the landscape of the use of polytunnels. It was made clear by them during the hearing that they do not seek the banning of polytunnels in the AONB; what they are concerned about is where the balance should be struck in determining where, when and for how long polytunnels should be used each year.
Up until relatively recently it was unclear whether polytunnels were the subject of planning control. That issue was clarified by the judgment of Sullivan J in the case of R (Hall Hunter Partnership) v First Secretary of State and Waverley Borough Council and Tuesley Farm Campaign/Residents Group [2006] EWHC 3482 (Admin). Sullivan J concluded that polytunnels can amount to development. As a result of that, in 2007 the defendant took enforcement proceedings in relation to the use of polytunnels at land known as Pennoxstone Court. This led to an eight-day inquiry and a decision from a Planning Inspector on 8th January 2008 allowing, in part, but mainly dismissing, an appeal against the enforcement notice which had been made by the defendant.
The Inspector noted the benefits of polytunnels to the farmer in that case, within his decision, as follows:
There are two main benefits of polytunnels for British growers. They protect the developing fruit from rain damage, thereby greatly reducing losses from rot and fungus, whilst allowing continual picking at harvest-time, unconstrained by the weather. Mr Cockburn estimates that the wet summer of 2007 would have resulted in the loss of about 50 per cent of his crops without polytunnels.
Secondly, they extend the growing season, allowing fruit to be harvested from May to November, instead of being limited to the traditional June/July period. No additional heating or lighting is used to extend the growing season. At Pennoxstone the fruit is graded and packed on-site and is mostly sold in supermarkets in the midlands and the south west."
The Inspector also noted the effect which polytunnels can have on the landscape:
In my opinion the presence of large expanses of white polythene coverings in these fields for up to 9 months each year is a strikingly discordant and unnatural feature in the farmland landscape. In my assessment, the fact that these fields lie on the valley side makes it impossible to fully mitigate the visual effect of the polytunnels. There are points on the opposite side of the valley where it is possible to look down on the polytunnels, and no amount of hedge planting would overcome the adverse visual effects from that angle. I accept that improved screening could be achieved in views from the riverside footpath, but I am not convinced that it would be fully effective for all of the months when the polytunnels are covered. Furthermore, the harm would continue with little abatement for years until the new planting became well established."
After this decision, on 28th March 2008, the interested party, EC Drummond & Son, applied for planning permission for polytunnels at Homme Farm. The polytunnels were already in use. The application was supported by a business appraisal which recorded that the farm business employed 33 people full-time and up to 450 at the harvest time. The proposal related to 377 hectares of land, farmed by the interested party, of which 152 hectares would never be under polytunnels and were an exclusion zone. Of the remaining 225 hectares, no more than 54 hectares were to be covered at any one time, and no more than 10 hectares would be covered in a single block. This regime was to be the subject of enforcement by a condition in relation to a scheme of use for the polytunnels. It is that detail, namely the disposition and duration of the polytunnels, which was the particular concern of those involved in the claim and also others who participated in the planning process, whose views I shall turn to.
The area in which the site sits was described in the Committee Report before members in respect of this planning application on 20th August 2008 as follows:
Homme Farm is located approximately 1 kilometre to the south-west of Ross-on-Wye, on land enclosed along its western edge by the River Wye. The whole of the application site is located within the open countryside and within the Wye Valley Area of Outstanding Natural Beauty. The application site comprises 377 hectares of land that extends eastwards, from the River Wye, towards the B4234, the Ross-on-Wye - Walford road.
The Council's Landscape Character Assessment identifies part of the site that comprises the flood plain of the River Wye as Riverside Meadows with the remainder of the site being described as Principal Settled Farmlands. The area is of significant landscape and built historic interest: Hill Court is a listed building and registered garden and Old Hill Court is a listed building and unregistered garden. There are a number of other listed buildings within the application site. In addition, Goodrich Castle, a Scheduled Ancient Monument occupies a spur of land to the south, and overlooks the application site. Howle Hill, Bulls Hill and Coppett Hill are located to the east of the application site. The site abuts the River Wye Special Area of Conservation and Site of Special Scientific Interest. Parts of the site are within the flood plain of the River Wye. Various Public Rights of Way cross and provide views towards the application site."
In response to the planning application there were consultations and objections. The day before the matter was to be reported to Committee on 19th August 2008, the Council adopted a screening opinion in relation to whether or not the development required an environmental statement. That screening opinion provides as follows after the description of the development:
"SCREENING DETERMINATION
The proposed development is not listed in Schedule 1.
The proposed development is not listed in Schedule 2.
SCREENING OPINION
The application involves the rotation of polytunnels for the purposes of growing soft fruit in the ground and on land that is already cultivated (mixture of arable and turf production)
Therefore the application will not require an Environmental Statement to be submitted".
In conclusion, therefore, the Council determined that the application was not within Schedule 2 of the Regulations, to which I shall turn shortly, and that there was thus no need for an environmental statement. The Committee Report, which was before the Council, recommended that, subject to the decision being referred to the Government Office for the West Midlands, the Committee should determine that they were minded to approve the application. That recommendation was accepted by the Council's Planning Committee and, in accordance with it, the application was referred to the Government Office as a departure from the development plan and further consultation occurred.
In response to that further advertisement of the proposals, some parties reiterated their objections. In particular the Wye Valley AONB Joint Advisory Committee provided objections based upon its concerns as to the regime for rotating the polytunnels.
Natural England also responded to the consultation in a letter dated 30th September 2008. Within that letter they observed as follows:
"The Council's recommendation offers rotation around the site as a form of mitigation, disregarding Natural England's recommendation as it 'would increase the potential impacts in other areas of the farm' (paragraphs 5.1 and 6.12 of the Committee Report). Whilst this is true, the 'other areas' referred to here are less sensitive to the visual impacts of polytunnels and therefore mitigation in these areas could be considered less important.
In the Pennoxstone Court appeal decision the Inspector stated 'The Council's approach to polytunnels has recognised that regular rotation can reduce their adverse visual impact, since the harm is not a constant feature in any one location. However, this depends on tunnels being moved to a different site after one or two seasons'... and went on to conclude that polytunnels were an annual feature in the landscape. It is Natural England's opinion that rotation at Homme Farm is too infrequent to act as mitigation, and that polytunnels would again be an 'annual feature'."
On that basis they sustained their landscape objection to the proposals.
At the conclusion of this further round of consultation there was a meeting held pursuant to the delegation which had been granted by the Planning Committee. At that meeting it was determined that there were no new matters which had been raised in the consultation and that consent could properly be granted. Consent was indeed issued by the Council on 15th October 2008.
These proceedings were issued on 12th January 2009, and permission was initially granted on a limited basis by Cranston J on 29th April 2009.
Whilst the grounds which had originally been issued were wide ranging, by the time of the hearing they had been boiled down to one point. That was: was the screening opinion lawful? The point was put in two ways: firstly, was it lawful to conclude that the development was not covered by Schedule 2; secondly, it was contended that the reasons provided for the screening opinion were inadequate.
I propose to deal firstly with the question of whether or not the Council were right that the development was not a Schedule 2 development.
The other procedural aspect to note is that during the course of proceedings witness evidence was put in by the Defendant out of time. By consent it was admitted to assist me. In particular, the witness evidence from Mr Withers contains an exposition of the reasons for the screening opinion which was given in this case. Mr Kimblin, on behalf of the defendant, made clear that it was the reasons in the screening opinion on which the Council relied, and that this further material from Mr Withers was explanatory but did not either replace or substitute that which was in the screening opinion. The witness statement was admitted to provide that further explanation, but, in addition, as a useful vehicle to introduce the extensive documentation which had accompanied the planning application in relation to its environmental and other effects.
Turning to the relevant law, the starting point for the assessment of the claimant's ground of challenge is the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, which bring into English law the provisions of the European Directive in relation to Environmental Impact Assessment 85/337/EEC as amended. In particular, the following aspects of the Regulations are pertinent. Firstly, at Regulation 2 a definition is provided of environmental impact assessment development:
"'EIA development' means development which is either-
Schedule 1 development; or
Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location..."
The Regulations provide a mechanism for determining whether or not a proposal is EIA development and that is described as "screening". In particular, Regulation 4(5) provides as follows:
"Where a local planning authority or the Secretary of State has to decide under these Regulations whether Schedule 2 development is EIA development the authority or Secretary of State shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development."
In this case, for reasons which will be obvious from what I have already said, the categories of development in Schedule 2 are relevant and the issue is whether or not this development relates to any of those categories.
Schedule 2, paragraph 1(a) was, ultimately, the only candidate which the claimant submitted was a category which could fit this development. That provides as follows:
"Projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes..."
It is common ground that if this is an EIA development, and there has been no EIA, then that amounts to an error of law and the claim must succeed. There is no question of an exercise of discretion in such a case, because the authorities make clear that substantial compliance with the requirements of the Regulations will not do in the absence of a formal EIA process: see Berkley v Secretary of State for the Environment [2001] 2 AC 603.
The next question which then arises is: what is the process involved in determining whether a development is EIA development and what is the role of the court in relation to that exercise? The leading case in relation to that point is the case of R (Goodman) v London Borough of Lewisham [2003] EWCA Civ 140, in which the legal principles were set out in the judgment of Buxton LJ at paragraphs 7-9:
The first question for a planning authority is, therefore, to determine whether the application before it is a 'Schedule 2 application': that is, in terms of the definition set out in paragraph 5 above, whether the development falls within the descriptions and limits set out in Schedule 2. Although the application becomes a Schedule 2 application by decision of the authority; and does not thereafter become an application for EIA development unless the authority further so decides; the authority cannot avoid the implications of the application being for EIA development simply by not taking the preliminary decisions at all. That is clear from the observations of Lord Hoffmann (albeit in relation to the obligations of the Secretary of State under an earlier version of the Regulations, the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988) in Berkeley at pages 614G-615A. The authority is bound to enter upon consideration of whether the application is for Schedule 2 development unless it can be said that no reasonable authority could think that to be the case: Berkeley. If the development is found to be a Schedule 2 development, responsibilities of the same order attach to the authority's consideration of whether it is an EIA development.
In the present case, the only serious contender for a category of Schedule 2 development under which the application might fall is paragraph 10(b) of the Schedule: infrastructure projects that are urban development projects. These are very wide and to some extent obscure expressions, and a good deal of legitimate disagreement will be involved in applying them to the facts of any given case. That emboldened Lewisham to argue, and the judge to agree, that such a determination on the part of the local authority could only be challenged if it were Wednesbury unreasonable. I do not agree. However fact-sensitive such a determination may be, it is not simply a finding of fact, nor of discretionary judgement. Rather, it involves the application of the authority's understanding of the meaning in law of the expression used in the Regulation. If the authority reaches an understanding of those expressions that is wrong as a matter of law, then the court must correct that error: and in determining the meaning of the statutory expressions the concept of reasonable judgement as embodied in Wednesbury simply has no part to play. That, however, is not the end of the matter. The meaning in law may itself be sufficiently imprecise that in applying it to the facts, as opposed to determining what the meaning was in the first place, a range of different conclusions may be legitimately available. That approach to decision-making was emphasised by Lord Mustill, speaking for the House of Lords, in R v Monopolies Commission ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23 at page 32G, when he said that there may be cases where the criterion, upon which in law the decision has to be made:
'may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational.'
That is the decision as to whether the development is a Schedule 2 development. If the authority concludes that it is such, it then has to go on and decide whether that Schedule 2 development is also an EIA development, by determining whether it is likely to have significant effects on the environment by virtue of factors such as it nature, size or location. That is an enquiry of a nature to which the Wednesbury principle does apply, and I understand Sullivan J to have so held in R (Malster) v Ipswich Borough Council [2002] PLCR 251."
Thus, there are two stages. Stage A: is the development within Schedule 1 or Schedule 2 of the Regulations? The meaning in law of the description of the types of projects in Schedule 2 is a matter for the court to determine and, unless the language is so open-textured or imprecise, and the factual circumstances so open to interpretation that a range of decision-makers, all acting rationally, could come to different conclusions, for the court to determine. Then, Stage B: if it is within Schedule 2, would the project have significant environmental effects? That is pre-eminently a matter of planning judgment, which could only be interfered with on Wednesbury principles: see R (Jones) v Mansfield District Council [2003] EWCA Civ 1408.
This is a Stage A case. The defendant determined that this proposal was not Schedule 2 development. Therefore, it did not proceed to Stage B. The question is, therefore, whether it was right to determine that this was not a project for the use of a semi-natural area for intensive agriculture. The construction of those terms is a matter for the court.
The approach to the construction of those terms is material. The authorities from the European Court of Justice point to the wide scope and broad purpose of the Directive. That makes perfect sense at Stage A, because those projects caught by Schedule 2, which do not have a significant environmental effect, will of course be screened out and not require an environmental statement. However, exclusion of a project at Stage A means that they will never have to be examined to see whether or not they will have a significant environmental effect and, therefore, whether or not they would require the procedure of an environmental statement being provided.
The leading judgment from the European Court of Justice in respect of this issue [is] Case C-72/95 Aannemersbedrijf P.K. Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403. The judgment of the court at paragraphs 30-32 provides as follows:
"30 Given that divergence, one must go to the purpose and general scheme of the directive. According to Article 1(2) of the directive, 'project' means 'the execution of construction works or of other installations or schemes' and 'other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources'. According to Article 2(1), the directive is aimed at 'projects likely to have significant effects on the environment by virtue inter alia of their nature, size or location'. Article 3 provides that the environmental impact assessment is to identify, describe and assess the direct and indirect effects of a project on human beings, fauna and flora, soil, water, air, climate and the landscape, material assets and the cultural heritage.
31 The wording of the directive indicates that it has a wide scope and a broad purpose. That observation alone should suffice to interpret point 10(e) of Annex II to the directive as encompassing all works for retaining water and preventing floods and therefore dyke works even if not all the linguistic versions are so precise.
32 Even if, as argued by the Government of the Netherlands, dyke works consist in the construction or raising of the height of embankments in order to contain watercourses and avoid flooding, works retaining a static quantity of water, rather than a running watercourse, may have a significant effect on the environment within the meaning of the directive where they are liable permanently to affect the composition of the soil, flora and fauna or the landscape. Such works must therefore fall under the directive."
The European Court of Justice was again taxed with the question of the correct approach to whether or not a development was within Schedule 2 in Case C-142/07 Ecologistas en Acción-CODA v Ayuntamiento de Madrid [2008]. In that case the court again had to address the correct approach to the construction of the directive in respect of a project which was said to be outwith Schedule 2. In paragraphs 27-28 the judgement provides as follows:
According to the Ayuntamiento de Madrid, the ring road concerned in the main proceedings is an urban road. The amended directive does not refer to that type of road in Annexes I and II, which mention only motorways, express roads and roads. Furthermore, those terms are not defined, except, with respect to the notion of express road, by reference to the definition given by the agreement. According to the defendant in the main proceedings, in the absence of clarification as to those terms, the Spanish law transposing the amended directive repeated its exact words. Since urban roads are not mentioned there, it was entitled to take the view that projects for the alteration of such a road were not covered by the amended directive and, consequently, did not have to be made subject to an environmental impact assessment.
That argument cannot be accepted. The Court has stated on numerous occasions that the scope of Directive 85/337 and that of the amended directive is very wide (see, to that effect, Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403, paragraph 31; Case C-435/97 WWF and Others [1999] ECR I-5613, paragraph 40; and Case C-2/07 Abraham and Others [2008] ECR I-0000, paragraph 32). It would, therefore, be contrary to the very purpose of the amended directive to allow any urban road project to fall outside its scope solely on the ground that the directive does not expressly mention among the projects listed in Annexes I and II those concerning that kind of road."
Against the background of that material, I first have to consider whether or not the area within which this proposal is sited is a semi-natural area. There is no definition to assist in relation to that within the legislation. There is, however, guidance which is provided by the European Commission in relation to the operation of the directive. That guidance does touch upon the meaning of semi-natural and provides as follows:
"The definition of what constitutes semi-natural areas will vary from one Member State to the next, given that it relates to the adjudged value of different areas which occur throughout the EU. In this context, the term 'value' will certainly include the nature conservation value of an area, but will also include, where relevant, other valued environmental factors. For example, the concept of semi-natural areas may be associated with their landscape and/or archaeological value.
The term 'semi-natural' indicates that even areas where there has been some degree of human intervention, which prevents an area from being 'natural', will fall within this category, regardless of the moment in time when the human intervention took place. In many Member States, the term 'semi-natural' is likely to be applicable to large parts of the country area, although the extent of management will vary.
The definition of which areas should be considered 'semi-natural' may, in practice, depend upon a wider evaluation of the role of habitats and areas or features of high biodiversity interest in the wider countryside (such as ponds, small wetlands, ancient hedgerows, patterns of tree cover) by the competent authority or authorities responsible for nature conservation designations or biodiversity in the Member States. Other potentially relevant environmental factors may have to be considered by other authorities - those responsible, for example, for landscape designations or protection of archeology. There is therefore some margin for discretion, but the main emphasis should be on identifying those areas which reflect natural conditions and which have some intrinsic nature conservation or other environmental value which would be lost by agricultural management proposals employed to permit intensification of agricultural practices."
The guidance produced by the UK Government in relation to the Regulations is somewhat less forthcoming on this point. Circular 2/99 does not provide any further exposition of the approach to semi-natural areas. At Annex A, paragraph A2, the following is provided:
"A2. Development (such as greenhouses, farm buildings et cetera) on previously uncultivated land is unlikely to require EIA unless it covers more than 5 hectares. In considering whether particular development is likely to have significant effects, consideration should be given to impacts on the surrounding ecology, hydrology and landscape."
The term "semi-natural" also appears in the Environmental Impact Assessment (Agriculture) (England) Regulations 2006. Those Regulations were published as successors to previous Regulations which seek to cover the types of project that do not amount to development within the planning system, but which nevertheless are, or may be, caught by the Directive as agricultural practices which require the production of an environmental statement. Thus, whilst those Regulations are not directly in point in this case, they relate to the same directive and they have the same requirement in mind in relation to the need for an environmental statement.
Under those Regulations, Regulation 2 provides as follows:
"'uncultivated land project' means a project to increase the productivity for agriculture of uncultivated land or a semi-natural area, and includes projects to increase the productivity for agriculture of such land to below the norm."
There is, in relation to such uncultivated land projects, further guidance provided pursuant to the Regulations, which seeks to provide further assistance. Within the guidance paragraphs 19-20 provide as follows:
Most semi-natural areas will qualify as uncultivated land. However some semi-natural areas may have been subject to low levels of cultivation (eg some semi-natural hay meadows and wetland may have been subject to low levels of farmyard manure). The types of land considered to be semi-natural are described at Annex 1...
Semi-natural areas are defined largely by the plants and wildlife they support (Annex 1 gives more detail). Often they will not have been subject to active cultivation for many years. However, they may in the last 15 years have been subject to:
low levels of physical cultivation (eg chain harrowing may have caused some disturbance of soil, but there will not normally have been any sub-surface cultivation such as ploughing, discing or heavy harrowing);
low levels of chemical cultivation (eg to replace nutrients lost through hay-cutting or water leaching, as often happens in the traditional management of semi-natural meadows and wetland).
As will be obvious from those quotes, Annex 1 contains a list of habitats to which the attention of the reader is drawn.
This guidance is helpful to me, but in reality simply confirms the view which I would have held, even without it, applying the wide scope and broad purpose of the Directive and construing the term "semi-natural".
In my view, the starting point in this connection is that in this context "natural" means untouched by man. It is well known that most of the landscapes of England have been subject to some extent or another to the hand of man artificially denaturing them through agriculture or through technological activity associated with settlement of the landscape. Semi-natural land is land where there has been some interference with that landscape, but the natural qualities which preceded or continued alongside man's activities are still clearly and obviously evident in the natural environmental capital of the area.
This can be gauged by the statutory and other designations to which the land may have been made subject. It may include landscape and archaeological elements which, although man made, have, through the passage of time, become naturalised into the area and, therefore, valued as part and parcel of its natural environmental assets. Once more, the extent to which these landscape and archaeological elements are prized, and therefore contribute to whether or not an area is semi-natural, can be measured by the environmental designations which they have attracted. Man's intervention in such areas may well be evident, but it will not have spoilt, and may even have complemented, the natural qualities which give the area its environment value.
During the course of the argument, reliance was placed by the defendant upon the fact that the land was, and still is, cultivated, and that this should have an impact on whether the land is semi-natural. Obviously, the fact that there has been agricultural cultivation is a relevant factor, but it cannot, in my judgment, be determinative, because the language of the 1999 Regulations is "uncultivated land or semi-natural areas". That clearly contemplates that semi-natural land may be cultivated and, therefore, the fact of cultivation cannot remove land from this category.
Whilst the guidance to which I have referred in relation to the 2006 Regulations refers to cultivation at a low level, that does not undermine the validity of the point I have just made. At Stage A the fact that land has been cultivated does not automatically exclude it from the status of being semi-natural. This points up what appears to be, to my mind, a material misdirection in the Council's screening opinion, since it appears to suggest that because the land is already cultivated it is not listed in Schedule 2. That approach altogether excludes what is contemplated by the words of Schedule 2, that there could be a Schedule 2 project on semi-natural land which had been the subject of cultivation.
To apply this approach to the present case the question of semi-natural area needs to be assessed not simply by reference to the appeal site but to the site in its context. A site which abuts a European designated site of nature conservation status, a Special Area of Conservation, and a site of Special Scientific Interest, a site which is within the AONB, overlooked by a Scheduled ancient monument, to my mind clearly comes within the definition of "semi-natural area" as a matter of law. It is an area which has within it a significant number of designated sites, or areas, some of which are overlapping, and which are redolent of the high quality natural environment of the kind described in my earlier exposition of the term "semi-natural".
This then brings me to the next question of whether this is project for intensive agricultural purposes. The purpose of providing the polytunnels, as described in the application document and as referenced in the earlier appeal decisions, is to engineer a step change in the productivity of the land. Whilst the crop grown remains the same, the amount of the crop and the length of time the land can be used to cultivate it is substantially extended. The productivity of the land is substantially improved. Whilst the definition in the 2006 Regulations is not directly in point, it does provide helpful context and talks about, as we have seen, increasing the productivity of the land. That is the object of this development.
In the explanatory memorandum provided to the Regulations the following appears:
"7.14... The meaning of 'for intensive agricultural purposes' is given as 'to increase the productivity for agricultural'. This is wider than the interpretation given to the phrase 'for intensive agricultural purposes' in the case of Alford v DEFRA [2005] EWHC 808 (Admin), which did not enable the UK to meet the aims of the EIA directive."
It appears from the explanatory memorandum, and from my perusal of the Alford case, that one of the purposes of the 2006 Regulations was to clarify that the term "for intensive agricultural purposes" needed to be widened to equate to increasing productivity for agriculture so as to meet the aims of the directive. This reinforces my view that the project with which this case is concerned is one for intensive agricultural purposes.
Thus, to conclude on this point, the Council, in my judgment, have made an error of law in relation to their findings that this development was not a project within Schedule 2 and such an error of law, as I set out above, means that quashing of the decision must follow, because the Council have failed to undertake an environmental impact assessment of the process. They failed to go on to consider whether or not the project would have significant environmental effects and, therefore, whether or not it required an environmental statement.
In those circumstances, there is no need or purpose for me to consider the subsidiary ground which was raised in relation to the reasons provided with the screening opinion since my conclusions in respect of the first element of the ground of challenge disposes of the case and the planning consent must be quashed.
MR STOOKES: My Lord, thank you.
THE DEPUTY HIGH COURT JUDGE: Yes, Mr Stookes?
MR STOOKES: On that basis, just one application, an application for the defendant pay the claimant's costs in this matter. A schedule, or summary of the costs, was sent to the defendant on the 2nd. They have been slightly amended. We ran slightly over what I anticipated and we came back again today. There is a very rough amendment to the --
THE DEPUTY HIGH COURT JUDGE: Is there any issue in relation to costs, Mr Kimblin? We will start with the principle.
MR KIMBLIN: In respect of both the principle and, no doubt, amount there is.
THE DEPUTY HIGH COURT JUDGE: Right. Before we get into that, I very rudely forgot to thank you for accommodating me. I know that this had been fixed for Tuesday, I am afraid, for reasons entirely out of my control, I was unable to honour that commitment. So I do apologise to both parties. I should have done this at the outset. Thank you both very much for making yourselves available to deal with the matter today.
MR KIMBLIN: Not at all.
THE DEPUTY HIGH COURT JUDGE: On to the question of costs. Let us start with principle, shall we? I will hear from Mr Kimblin, Mr Stookes, and then you can reply.
MR KIMBLIN: My Lord referred to the way in which the claim commenced broadly-framed grounds narrowing to one narrow point. So, in my submission, this is a case in which the court can properly give consideration to no order as to costs. It is for these reasons: firstly, as to those grounds upon which permission was not given, my Lord will recall that the grounds start off with a very substantial emphasis in respect of the Committee Report and it is very much a claim which is founded in the approach taken to the Pennoxstone case; secondly, in respect of setting.
My Lord, I raise those points for the obvious reason that of course the Council has invested resources in successfully resisting those elements of the claim.
So far as the hearing itself is concerned, it is a hearing which, as my Lord identified, really did boil down to a narrow point and it boiled down to that narrow point really very late in the day, during a flurry of exchanges of skeleton arguments, and indeed during the course of the hearing. So my Lord I do resist that.
THE DEPUTY HIGH COURT JUDGE: Part of that, Mr Kimblin, part of that, was as a result of the extremely late lodging of evidence by your clients.
MR KIMBLIN: Which is the point I come to next, which is that in this case what has in fact happened is that both parties have turned their minds to the case as the hearing approached and that which was exchanged, really very late, I quite frankly admit, before the hearing is what framed the case. So, my Lord, I do seek to resist any award on a basis that the defendant pay the entirety of the claimant's costs. It is the sort of case where I would, in the end, submit that it is a case for detailed assessment, but my Lord's guidance in respect of whether any costs should be paid, or whether there is a proportion of the claimant's costs which should be paid, would be very valuable in that process, because it is the sort of case where there is, applying a broad brush to it, really scope for doing justice between the parties by saying either no order for costs, having regard to --
THE DEPUTY HIGH COURT JUDGE: Well, I am not attracted by that submission, Mr Kimblin.
MR KIMBLIN: Or, in the alternative, making an order as for a proportion of the claimant's costs for the reasons which I have submitted.
THE DEPUTY HIGH COURT JUDGE: Assuming I understand the submission you make about Grounds 1 and 2, and, without prejudice to anything Mr Stookes might want to say, I have a great deal of sympathy with the view that was taken by Cranston J in relation to those grounds. However, having said that, that is a tiny -- I have not looked at the costs schedule at the moment, but it is a tiny proportion of the costs which have been engaged since that decision back in, I believe, April, from memory, in conducting the litigation. I would be surprised if it was 10 per cent.
MR KIMBLIN: Well, I would seek to persuade my Lord to another view in that regard, having regard to the time spent upon the matter by Mr Stookes. It comes to weeks, in fact. The short point is this, I am not going to take very long making the point, because it is a simple point. In my submission it is a proper case in which a proportion of the claimant's costs, at best, should be awarded.
THE DEPUTY HIGH COURT JUDGE: Your submission would be, or the assessment should be on Grounds 3 and 4 only.
MR KIMBLIN: That is an alternative way of putting it.
THE DEPUTY HIGH COURT JUDGE: The difficulty for me is I am not equipped, I suspect, unless you are going to take me through the costs assessment of the costs schedule in detail, to identify, other than on the most broad brush basis, what the costs legitimately attributable to Grounds 1 and 2 might be --
MR KIMBLIN: I do not seek to ask my Lord to do that.
THE DEPUTY HIGH COURT JUDGE: -- and what, legitimately, are attributable to Grounds 3 and 4, but it seems to me, Mr Kimblin, that in relation to Grounds 3 and 4 the claimant was entitled to fight on and, indeed, fought on and lodged a skeleton argument in relation to those, but it was only the very late introduction of your evidence and the re-assessment, very shortly prior to trial, that led to Ground 4 being withdrawn. That information that you provided was clearly instrumental in that.
I am not persuaded, at the moment, that Grounds 3 and 4 are now properly costs incurred in the litigation. It may very well be that if your evidence had been provided sooner costs would have been saved, but that is not the claimant's fault.
MR KIMBLIN: My Lord, the only point which I seek to press further is this, it is the difference which there is between the way in which the claim form was drafted in respect of Ground 3, which is the main event, and the way in which it was argued, admittedly successfully.
THE DEPUTY HIGH COURT JUDGE: Well, I am not sure that is right, you see, because if you take up Mr Pereira's first skeleton argument, the first skeleton argument dwells on the point on which the claimant was ultimately successful, that is to say -- at what I have described as Stage A -- an unlawful decision was reached. So it may be that it was pleaded very differently. I appreciate the points that you made in the course of argument, and accept the points you made as to some of the aspects in which the case was pleaded ranged beyond what was appropriate, but in the final analysis it seems to me that is all part and parcel of the case put, and the case put, certainly in your skeleton argument, which preceded your further witness evidence, was the one on which the claimant has succeeded.
MR KIMBLIN: That is precisely right, and it is that difference between the claim form and that first skeleton argument which I draw to my Lord's attention, and clearly my Lord has that.
THE DEPUTY HIGH COURT JUDGE: Well, it may be, I do not know, that at a detailed assessment your clients would be able to say "Well, here is some preparation time under Ground 3 being spent chasing a wild goose", but I am not equipped to deal with that.
MR KIMBLIN: My Lord, I make it absolutely clear that I do not ask for a summary assessment, just such guidance as the court is able to give, having had the case before it for a number of days. Clearly, on a summary assessment, that background would not be present.
THE DEPUTY HIGH COURT JUDGE: Yes, thank you.
Mr Stookes.
MR STOOKES: Yes, my Lord.
THE DEPUTY HIGH COURT JUDGE: Grounds 1 and 2.
MR STOOKES: Well, I think the summary scheduled does help, or does assist a bit.
THE DEPUTY HIGH COURT JUDGE: Well, I am not going to be assessing costs today, Mr Stookes. I really do not want to engage in that. I am grateful for the effort that you have gone to in putting it together, and I do not seek to belittle that at all, but the usual order in a multi-day case would be for a detailed assessment of the costs to be ordered. It seems to me that that is the right approach, because summary assessment is for the short cases where the court has a pretty good feel for what is engaged in what is a narrow piece of litigation. Cases going beyond a day -- cases of this kind where we have a fair bit of paper -- really do not lend themselves to that process.
MR STOOKES: My Lord, the only thing that I would say is the purpose of the summary was really for the other side. The only thing it does is it highlights that the amount of time spent on Grounds 1 and 2 is in fact less than 10 per cent, because it is the first of paragraph 1 or item 1. The total there is a total of around 57 of a much larger total of 32,000. Beyond that, in item 2, we are looking at Grounds 3 and 4 anyway.
THE DEPUTY HIGH COURT JUDGE: It is only part of the 57 anyway.
MR STOOKES: Exactly. It is only part of it because much of it is pre-action protocol, claim forms, things that need to be done for anything. My submission really simply is, if there is any query about the detail it leads to a full detailed assessment. Can there just be a simple order for costs without --
THE DEPUTY HIGH COURT JUDGE: At the moment, I am minded to order costs on Grounds 3 and 4, because I really do not think there was in any merit at all in Grounds 1 and 2.
MR STOOKES: I will leave it like that, but subject to detailed assessment.
THE DEPUTY HIGH COURT JUDGE: Subject to detailed assessment, but, Mr Stookes, I want to make that plain, because it seems to me that those were a kind of full-frontal assault on aspects of planning judgment which, I am sure, you know as well as I do is very, very tricky unless there is some clear misdirection of the kind that I found in relation to Ground 3. So that is the order that I propose unless you want to --
MR STOOKES: My Lord, I am grateful for that. The only other application from there is whether I can make an application for interim payment on a proportion of the costs rather than wait for detailed assessment.
THE DEPUTY HIGH COURT JUDGE: Is that a matter you have asked Mr Kimblin or those who instruct him prior to --
MR STOOKES: I have not.
THE DEPUTY HIGH COURT JUDGE: Then Mr Kimblin will not be here with any instructions. So by all means you can, after today, make that application, or make that request, to the defendant, but I think without notice it is difficult for Mr Kimblin to make any sensible response to that direction.
MR STOOKES: My Lord.
THE DEPUTY HIGH COURT JUDGE: The order that I propose to make in this case is that the claimant should have its costs on Grounds 3 and 4, that is to say the grounds which survived the permission stage of these proceedings, and that those costs should be made the subject of a detailed assessment.
Anything else?
MR KIMBLIN: My Lord, yes. May I deal briefly with the question of permission to appeal? There are two key issues -- semi-natural and intensive -- both of which are points of law which I, firstly, submit are of some importance. They are of some importance because this is not the only place in which one has this kind of development. It is of some importance because it is something which my Lord has identified: there is not an abundance of guidance, certainly in the domestic sphere.
They are, secondly, matters in respect of which, in my submission, there is a real prospect of success on appeal for these reasons: firstly, there is, as I repeat from in respect of the first matter, nothing pointing directly in respect of the outcome which this court has settled upon; and, secondly, because these are questions which, as pointed out in paragraph 8 of Goodman, are questions of interpretation, to which there is significant latitude. In my submission, there is a real prospect that another court, considering the case afresh, would come to a different conclusion.
THE DEPUTY HIGH COURT JUDGE: Well, Mr Kimblin, I am not unaccustomed to trail blazing in this role and do not think that simply because there is no other authority on the point that necessarily means that there are realistic prospects of success. In relation to the other aspects, bearing in mind the guidance which was is available and my approach to it, I do not believe that there would be any realistic prospect of success if this matter were to go further.
MR KIMBLIN: I am grateful.
THE DEPUTY HIGH COURT JUDGE: Good. I need to fill a little form in now, I think, in relation to that. We do not have an associate here. (Pause). I have to fill a form in in relation to Mr Kimblin's application. There is no need for you to remain whilst we locate that form, but I know that if we do not do it now then some administrative chaos would break out somewhere or other for which I will get the blame.
MR KIMBLIN: My Lord, would my Lord object to the time being used to assist the shorthand writer?
THE DEPUTY HIGH COURT JUDGE: Not in the slightest. I think that would be a very profitable use of time, and I also printed off the quote that I started the judgment with, which you might like as well. If you could help with those European Court references, that would be extremely helpful.