Bizzy B Management Ltd, R (On the Application Of) v Stockton-On-Tees Borough Council

This application for judicial review concerns the aftermath of service of a Building Notice under section 79(1) of the Building Act 1984 ("the 1984 Act"). In particular it concerns the position of a local authority when an owner, required by such a notice to execute works of repair or, if he so chooses, demolition instead, fails to comply. Such a local authority then has the right under section 79(3)(b) itself to repair the building or demolish it, and recover its reasonable expenses in doing so. As the facts of this case show, it has various further obstacles to overcome.

The claimant, Bizzy B Management Limited ("Bizzy B"), describes itself as a Single Purpose Vehicle owned by an international trading company. Bizzy B operates through external consultants and contractors. In these proceedings its key consultant has been Mr Rabinovitch who has made no fewer than five witness statements. The asset in the Single Purpose Vehicle is Billingham House, a nine-storey office building in Stockton-on-Tees, which has been unoccupied and in a dilapidated state for many years.

When served with a Building Notice in 2007 by the defendant, Stockton-on-Tees Borough Council ("the Council"), the terms of which had been agreed in advance, Bizzy B (again by agreement with the Council) did not exercise its appeal rights under section 102 of the 1984 Act, and elected to demolish. At that time Bizzy B was negotiating with a local property developer, Python Properties ("Python"), the Interested Party in these proceedings, and it anticipated entering a development agreement fairly promptly. Three years later, in October 2010, the Council lost patience with what it saw as Bizzy B's procrastination and commenced preliminary works of demolition. Those steps were then challenged at the end of December 2010 by an application for judicial review made by Bizzy B. In March 2011 the Council gave an undertaking not to demolish Billingham House until the determination of the claimant's application for judicial review. In late April 2011 the Council was alerted by Bizzy B to the need for planning permission before it could demolish Billingham House. In May 2011 it was given a negative screening opinion that a planning application need not be subject to Environmental Impact Assessment ("EIA"). It then, belatedly, sought and obtained planning permission in June 2011. Both the screening opinion and the planning permission were issued by the local planning authority, that is by the Council to itself as applicant.

By its application, which is now in re-re-amended form to cater for what has happened since the application was issued, Bizzy B seeks to quash:

In addition, the Council seeks a declaration that the demolition of Billingham House and associated car parking structures is and would be permitted development within the meaning of Part 31 to Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995, upon which permission the Council would seek to rely were the planning permission of 29 June 2011 to be quashed. There has been a "rolled-up hearing", in which Python also participated in support of the claimant's application. The documentation is voluminous, running to eight lever arch files (excluding authorities).

Section 79 of the 1984 Act provides:

If it appears to a local authority that a building or structure is by reason of its ruinous or dilapidated condition seriously detrimental to the amenities of the neighbourhood, the local authority may by notice require the owner thereof --

Section 99 of the 1984 Act provides:

This section has effect subject to any modification specified in the provision under which the notice is given."

Section 102 of the 1984 Act provides (so far as is relevant):

Where a person is given a notice in relation to which it is declared by any provision of this Act that this section applies, he may appeal to a magistrates' court on any of the following grounds that are appropriate in the circumstances of the particular case --

As is apparent from section 79(1) the mischief to which a Building Notice is directed is the amenities of a building's neighbourhood, and a Building Notice can only be served where the building is in such a ruinous or dilapidated condition that it seriously threatens those amenities. There is no dispute that at the time of issue of the Building Notice on 12 September 2007 Billingham House was in such a dilapidated condition as seriously to threaten the amenities of the neighbourhood; and that it still does four years later. That is why the Council seeks to exercise its power of demolition under section 79(3)(b).

As required by section 79(3)(a) of the 1984 Act, the Building Notice of 12 September 2007 listed both works of repair or restoration and works of demolition and removal of rubbish or material and, as required by section 99(1), the time by which the works were to be completed. The former, to be completed by 31 December 2008, consisted of:

As I have already stated, the terms were agreed, prior to issue of the Building Notice, to prevent an appeal such as had occurred in relation to a Building Notice issued the previous year.

Billingham House, once an iconic headquarters building of ICI, became vacant in 1995, and was acquired by Bizzy B in 2000. In 2001 the building was heavily damaged by fire and vandalism; and incidents of occasional fires and persistent misuse and vandalism have continued over the years to the distress of local residents and local businesses. In a letter of 7 April 2008 Bizzy B stated that

The first Building Notice was withdrawn in 2007, at the same time as the issue of the second Building Notice. Bizzy B had agreed not to appeal against it and to elect, under section 79(1)(b) of the 1984 Act, to demolish as opposed to restore or repair it. In May 2009 the Council issued proceedings under section 99(2)(b) of the 1984 Act against Bizzy B for failure to comply with the Building Notice. In October 2009 Bizzy B was convicted at Teesside Magistrates' Court for non-compliance, fined £1,650, and ordered to pay the Council's costs.

From 2006 onwards Bizzy B and Python, with encouragement from the Council which lasted until late in 2010, have attempted to put together a redevelopment package as an alternative to demolition. Initially Python was to purchase the freehold. This then changed in 2007 to a proposal that Python take a long lease from Bizzy B. In 2009 Bizzy B commissioned works which resulted in documents supplied to the Council showing that the building had been certified asbestos-free.

There were problems in achieving a viable project. The Council's preference was for a bold scheme involving the closure of Belasis Avenue, so that Billingham House could form part of a campus development along with the existing industrial premises lying to the south of that road, which included several major employers involved in chemicals. In October 2009 the Council referred to the opportunity for the project "to both be an economic driver as well as icon for Billingham (even a Tees Valley giant!!)". The Council, together with Python, started to prepare a draft Business Case in 2009, the latest version of which was dated 17 May 2010, aimed at securing public funding from ONE North East ("ONE"), the regional development agency. The draft Business Case starkly contrasted the benefits of refurbishing Billingham House as against demolition by the Council using its default powers under section 79(3)(b) of the 1984 Act, followed by redevelopment to provide new office accommodation. Refurbishment, it was contended, "will not only create high quality office accommodation, but generate the intangible aesthetic benefits of improving the quality of life for local residents and the marketability of the chemical complex". What was envisaged was a Phase 1 in which Python would (subject to prelets) refurbish two floors of offices, and then gradually as tenants were identified, bring back the other six floors of offices into occupation. The belief was expressed that adjacent employers would continue to require additional accommodation if their own growth plans came to fruition. The demolition alternative, whilst cheaper and allowing for more sustainable building design in the future, was described as "high risk", because of the cost of redeveloping the site postdemolition. In particular the draft Business Case said that "Redevelopment of the site would result in the loss of a local landmark", and that "Demolition and redevelopment of the site will be less sustainable than refurbishment of the existing building [and] will utilise considerably more materials". Bizzy B rely on these observations in its challenge both to the February 2011 decision to proceed with demolition and to the Planning Permission.

By August 2010 there had been two developments. First, it had become clear that the campus proposal would not achieve funding, so that the only refurbishment scheme with any chance of going ahead was once which excluded the road closure, and was therefore likely to be less attractive to would-be tenants. Python was still keen to proceed on that basis, whilst emphasising in an e-mail of 11 June 2010 that "we have from the start of our involvement in Billingham House .... needed two floors pre-let to comfortably move ahead with out project". It was also assumed by the Council that ONE funding would be required (though in a reduced amount compared with the more ambitious scheme). Second, the Council's forbearance was running out. As long ago as December 2008 it had been assured by Bizzy B that a development agreement with Python was expected to be completed "this week". But terms were still being negotiated with no certainty that any development agreement would result. Therefore on 5 August 2010 the Council's Cabinet resolved (a) to support the refurbishment scheme if a development agreement was signed by 30 September 2010; (b) to apply for a grant for the demolition from ONE North East; and (c) to approve use of its own funds for demolition in the meantime. Bizzy B was informed by the Council on 19 August that this was a reasonable deadline, given the length of time already incurred in preparation of the scheme and drafting the legal agreements.

On 20 September 2010 Bizzy B informed the Council that, despite strenuous efforts, it had not been possible to conclude the contract within the suggested time-frame, observing that the present financial situation had not assisted. On 29 September 2010 Python told the Council that the development agreement would be completed within two weeks. Then on 1 October 2010 the Council informed Bizzy B that works to demolish the building would commence on 4 October, a letter that was re-sent to a different address on 13 October. On commencing survey works the Council found asbestos in water within the flooded basement, and further asbestos was then found throughout the ground floor, notwithstanding the asbestos removal carried out for Bizzy B in 2009. Even Python's asbestos consultants agreed in December 2010 that further asbestos removal works were required (whether for demolition or refurbishment), though there is disagreement as to the extent of those works (and therefore their cost). By 30 November the Council had incurred costs of £111,000, with an estimated further spend of £230,000 by late January 2011.

On 18 October 2010 the Council submitted an application to ONE for £400,000 demolition funding towards a project cost of £464,000. The accompanying Business Case noted that these costs would later be recouped from Bizzy B and that the demolition proposal "will unlock 3.2 hectares of brownfield land at the heart of the region's strategic process industries cluster, immediately adjacent to the Chilton site, which will encourage and support the growth of industries in the biotechnology and life sciences". The building's derelict appearance was referred to as having a detrimental impact on local amenity, prejudicing the competitiveness and expansion plans of the neighbouring world-renowned chemical companies. ONE promptly approved £400,000 grant funding on 1 November, setting a completion date for the works of March 2011 (later extended, as a result of these proceedings, first to 30 September and then to 16 December).

At long last, on 23 November 2010, a development agreement was signed between Bizzy B and Python and sent to the Council on 25 November. In essence, Python was granted a 127 year lease, with an option to purchase the freehold for £1 million, plus an additional sum. The Works which Python was to undertake consisted of:

Three other aspects of the development agreement need to be mentioned. First, the whole agreement was expressly dependent on the Council agreeing to Python carrying out its refurbishment scheme (Recital (B)), with a right to Python to terminate the agreement if at any time prior to the completion date the Council had not confirmed that all enforcement action in respect of the premises had been withdrawn absolutely (Clause 17.4). Second, Python was entitled to terminate the agreement at any time during the first 30 months if it had "not secured sufficient funding to enable the Tenant to complete the Tenant's Works on such terms as the Tenant shall consider to be in its absolute discretion commercially acceptable to the Tenant" (Clause 17.1). The phrase "the Tenant's Works" included not merely the Stage 2 works (Recital A1.4). Third, presumably because of the known risk of expensive further asbestos removal works, Python was entitled to determine the agreement if at any time it became aware of the existence of any asbestos or deleterious material at the premises (Clause 17.3). As an alternative to determination, Python expressly assumed no responsibility whatever for the existence of asbestos at the premises and was entitled to serve notice on the tenant to procure the removal of the asbestos by Bizzy B (Clause 8.3).

On 24 November 2010 Python started work on site, but did not proceed because the Council indicated that it was pressing ahead with demolition. On 29 November a meeting took place between representatives of the Council, Bizzy B and Python, at which it was clear that full detail for the site had still not been worked out by Python, nor had funding been confirmed. On 2 December Python assured the Council in an e-mail that it would have "funding and contracts firmly in place, within January, at the very latest", and that they did not require the Council to lift the demolition order at that stage, but simply agree to do so "when we put the contract and funding in place in January". The Council did not close the door entirely to a refurbishment scheme. On 7 December Bizzy B's solicitors proposed appointment of a joint expert as a matter of urgency to resolve any difference of opinion concerning the presence or not of asbestos, an offer not taken up by the Council. Bizzy B was sufficiently concerned to start judicial review proceedings on 31 December 2010 challenging the Council's decisions of 13 October to demolish the property, and of (or soon after) 23 November to continue with demolition. Whilst still maintaining the irrationality of those decisions, they are no longer formally challenged in these proceedings.

On 11 January 2011 the Council, responding to the judicial review application, noted Bizzy B's request that it reconsider its decision to demolish and the contention that there was now a real opportunity to move forward. The Council's letter continued:

On 21 January Council representatives, including the Leader and the Chief Executive, met with Bizzy B and Python. The latter presented its proposals. Bizzy B's notes of the meeting record that the background was that they were asking that "the demolition order for Billingham House be deferred for a short period of time to enable [Python] to institute their refurbishment proposals [which] could start in February and were solely dependent on the [Council's] decision to stay the demolition order, everything else being in place". During the meeting it was explained that what was sought was "a development window from February to the summer with fixed points to assess progress of the project in between. The demolition play [sic] could be reverted to at any time if [Python] miss their milestones". Python explained that their indicative programme envisaged a start of construction works on 16 February with an anticipated completion of the Stage 1 works by mid-June. It was accepted on Python's behalf that the building "in its present condition is an eyesore", but it was argued that "demand is there" from potential occupiers and that the scheme would not need to obtain external finance. Discussion on finance showed that Python would require Bank funding of £250,000, Python funds of £550,000, and ONE funds of £250,000-£400,000. These covered the whole project and not merely the Stage 1 works. It was noted that ONE's agreement would be needed to reallocate funding already agreed to the Council for demolition to support refurbishment. The parties disagreed on the asbestos issue. Python accepted that the matter needed to be looked at closely, and stated that the costs of asbestos removal were not in their appraisal as this was specifically excluded from their agreement with Bizzy B. The latter confirmed that contractual obligations existed for Bizzy B to deal with the issue. Plans of Python's proposals were circulated, which no longer included two floors of office, but contained a heritage centre and a bistro, so that there might be a requirement for planning permission.

Following this meeting, Bizzy B's solicitors repeatedly sought a response from the Council, and by letter of 8 February expressed concern at the absence of a response and that the Council had issued a press release stating that it intended to continue with its plan to demolish the building. Meanwhile, on 4 February, the Council's Chief Executive wrote to Python. The terms of that letter are important. Having expressed confidence in the history, credibility and track record of Python, the Chief Executive's letter continued:

Public opinion; despite a suggestion that public opinion had moved, we have been presented with a validated petition, with continuing additions approaching 1000 signatures of local people who are forcibly voicing their wish to see the remaining fabric of the building removed. This is confirmed by locally elected members of the Borough Council, Billingham Town Council, and the partnership body for the area.

The ONE funding you are seeking. As you identified, this is a key factor in your plans and would require a substitution of the redevelopment business case for that of demolition which is already approved. This we consider to be a high risk as we have already commenced the process of demolition since our final deadline of 30 September 2010 confirmed in the Council decision. In addition, we already have claims against a major proportion of the funds for work already undertaken in line with the approved project.

Prospective Tenants -- Whilst we accept the list of enquiries you have identified in general, the two major local businesses on whom your earlier and original proposals were based are not current enquiries with no immediate or guaranteed future requirements. The other enquiries you identify are of a general nature with no guaranteed commitment to this building of which we are aware. This leaves no certainty in the near future of occupation.

The significant issue of asbestos appears to still be a matter of contention; despite a thorough, detailed and independent survey commissioned by Stockton Council as to the extent of the contamination, Bizzy B and yourselves

The matter of costs already incurred by Stockton Council in meeting our obligations and process to carry out the agreed fulfilment of the section 79 notice confirmed by full legal process. As you are aware, we have sunk a large amount of funds already into progressing the demolition of the building in the line with the stated legal confirmed objective. The cost plans you submitted make no reference to reimbursement in full of the Council's costs incurred to date.

The legal context

So far as the first part of the challenge is concerned, the parties are agreed that the appropriate test is that of Lord Diplock in Secretary of State for Education and Science vTameside Metropolitan Borough Council [1977] AC 1014 at 1064:

So far as the second part of the challenge is concerned, Article 1 of the First Protocol provides:

There is no dispute that, whereas the burden of proof is on the claimant to prove irrationality, it is for the Council to justify any Article 1 of the First Protocol interference. Thus, at least in theory, a claim could fail on the one ground, whilst still succeeding on the other.

Submissions on the February 2011 decision

Mr Clarke argues that the only legitimate question for the Council was whether Python could carry out the works required by the Building Notice. As at February 2011, Python's project was sufficiently funded to allow the repair works required by the Building Notice to be accomplished within six months and without pre-letting of space or ONE funding. He says that in these circumstances it is unreasonable for the Council to spend a very substantial sum of public money demolishing the building to leave an empty site, which will then need to be fenced and maintained empty. He also refers back to the draft Business Case for the campus project, when the disadvantages and high risk of demolition had been emphasised by the Council. He suggests that the various matters now relied upon by the Council, through the three witness statements of its Head of Economic Development and Director of Regeneration, Mr Poundford, are late quibbles about Python's proposals only raised several months after being provided with Python's proposals at the meeting of 21 January 2011. He relies on the evidence of Python, which suggests that there is no reasonable basis for doubting Python's ability to deliver the whole project, but says that the Council's concern should have been confined to whether the Stage 1 works would go ahead.

Mr Clarke also says that the Council has allowed itself to be driven by three irrelevant concerns: first, impatience with Bizzy B for taking so long to find a developer and missing previous deadlines to fix the building. Exasperation, he says, is no basis for sound public administration, and particularly so since under the development agreement Bizzy B will be in the back seat, with control passing to Python in whose track-record the Council has stated its confidence. Secondly, the Council has allowed its thinking to be dominated by the large costs it has run up or contracted for in relation to demolition. He describes this as the tail wagging the dog. Third, the asbestos issue would (if it arose) be dealt with under the provisions of the development agreement (which is also the view expressed in Mr Broome's witness statement). In Mr Clarke's words it was "not a deal breaker".

In his witness statement Mr Broome of Python says that at a meeting with Mr Poundford on 20 August 2010 and on numerous occasions since then, Python has made clear that its normal business model would be applied, that is to regenerate to a standard to attract tenants without any requirement for pre-lets, a point he reiterated in his submission in reply. As part of the Stage 1 works (even in their amended form to exclude one floor of offices) the whole exterior of the building would be regenerated, and external structures repaired. Admittedly the complete renewal of the roof coverings would not take place (though required by item 10 of the Building Notice), but this was because complete renewal was not needed and it would be sufficient for the roof to be "repaired as required". Stage 1 of the Python scheme would include many items of improvement (reception fit out, bistros and the heritage gallery) which went beyond the section 79 required works. He states that whilst ONE funding is desirable (and indeed in his opinion justifiable) it is not essential to the scheme. I take this to be a reference to Stage 1, rather than the entire project; Mr Clarke contended that public funding was not needed for the Stage 1 works as at February 2011, but only for the next stage and may not be needed at all. Mr Rabinovitch states that the section 79 works are an integral part of the refurbishment, and draws attention to the list of Stage 1 works in the development agreement. He states that the scope of the work is clear and unambiguous, covering all the work that is outstanding in the Building Notice.

In his oral reply, Mr Clarke criticised the Council for not concentrating enough on the terms of the Building Notice in January/ February 2011, but rather concerning themselves overmuch with issues of viability and the rental market. He drew attention to the e-mail from Mr Rabinovitch to Python of 20 January 2011, showing that Bizzy B had given landlord's consent to the (slightly revised) initial works which Python was proposing.

In relation to the Article 1 of the First Protocol claim, Mr Clarke contends that demolition of the building is a straightforward deprivation of property, notwithstanding that legal title to the land will remain with Bizzy B. They will have lost an asset, just as if chattels on the land had been expropriated by the Council. Under the 1984 Act there was no compensation which underlined the hardship. If he was wrong on this, execution of demolition would be a control on Bizzy B's use of the property, by removing the use rights which attached at the present time to the building. He accepted that the effect of the unappealed statutory Building Notice had been to erode and partly encumber Bizzy B's property right, but it remained a property right nonetheless. In his oral reply Mr Clarke stressed that the Council had in practice for a long period stayed its hand and chosen not to enforce the Building Notice because of continuing negotiations. Therefore it was only in February 2011, when the Council refused to negotiate further, that the threatened deprivation of property materialised; it had been "abstract and theoretical" before then. For all the reasons which he had advanced in relation to unreasonableness, demolition as at February 2011 could not be justified. It was disproportionate, given the viability of the alternative scheme.

Mr Broome, in his oral submissions on behalf of Python, drew attention to the successful record of Python, and to the inevitability of their refurbishment proposals having changed, given a changing market. Their proposals to the Council in January 2011 would attract tenants. Python had had, and still have absolute confidence their scheme can be completed on time and on budget. They had tried to start before Christmas 2010, but had been prevented by the Council. All they then or now sought was a pause from the Council to allow them to demonstrate their ability to do the work. They were happy to engage with the Council and agree a time-line, but had been rebuffed. In his submission in reply, Mr Broome also said that on the day when the development agreement was signed in November 2010, he received a telephone call from Mr Poundford, who was "absolutely furious that we had had the audacity to sign the Development Agreement, in his words 'when he had already announced the demolition of Billingham House to the press'". The Council was given no advance warning of this allegation, and I was told by Mr Tabachnik, representing the Council, that this is strongly denied.

For the Council Mr Tabachnik disputes both heads of challenge to the February decision to proceed with the demolition. His starting point is the validity of the unappealed Building Notice, and the Council's right to execute demolition works under section 79(3)(b) of the 1984 Act. He accepts that the Council has no duty to proceed and must act reasonably, but that is precisely what it has done. The Council would have preferred not to be in the position they were in last February, where there had been no alternative but to enforce demolition. Even at this late stage, if a proposal was put to the Council, it would have to consider it. But one could not ignore the history of the matter.

He draws attention to the continuing absence of any remedial works and to the continuing serious detriment to the amenities of the neighbourhood. Various extensions of time have been granted to the defendant, and there has been a complete failure to comply with the 30th September deadline set by the Council's Cabinet on 5 August 2010. Since at least 5 August Bizzy B (and for that matter Python) have known of the urgency, and nothing done by the council since then has suggested that there is any further scope for delay. The Council is being pressed by local people to take action and has not acted unreasonably in enforcing the demolition option of which Bizzy B has at all times been aware.

Mr Tabachnik says that Bizzy B faces a high threshold in showing irrationality, where the Council has weighed the certainty of demolition, which will inevitably remove the eyesore and potential nuisance of Billingham House, and thereby eliminate the detriment to local amenities against the risk that the redevelopment proposed by Bizzy B and Python will not occur, or will not occur in a reasonable timescale. If there were two reasonable opposing views, then the Council could not be held to be acting perversely.

Relying on the evidence of Mr Poundford he points to the failure to address all the refurbishment requirements of the Building Notice, pointing out that amongst other matters item 5 (asbestos removal) and 10 (roof replacement) are not addressed. The Council estimates that there will be substantial additional costs in addressing these matters, assessed at £360,000. Mr Tabachnik describes Bizzy B as being in a state of denial in relation to the issue of remaining asbestos, particularly referring to Mr Rabinovitch's reliance (as late as his fifth witness statement of 5 August 2011) on the early certificate of Bizzy B's own asbestos contractors. This was despite the evidence produced by the Council and the admission in the report to Python by its (Python's) consultants, Orangery Environmental, on 21 December 2010 that "further asbestos removal works following those carried out by the building owner Bizzy B would be required", even if not to the extent suggested by the Council's consultants (who had estimated a cost of £130,000). The Council had been entitled to fear that Python would exercise its right to terminate the contract upon discovery of asbestos (Clause 17.3 of the development agreement).

Mr Tabachnik draws attention to Python's provisional costings tabled at 21 January 2011 meeting which suggest as a minimum that over £800,000 would be required for the initial refurbishment stage, excluding any asbestos works. Yet Python has only set aside £550,000 for the project as a whole, hence the need for ONE and bank borrowings. He points to Mr Poundford's uncontradicted evidence that Python had made it clear at the meeting on 29 November 2010 and 21 January 2011 that its proposals were dependent on ONE grant funding, reflected also in a letter from Python's bank of 19 January 2011. He placed particular emphasis on an e-mail from Python of 8 February 2011 (the date of the decision challenged) recording that "We believe we can negotiate with both [Bizzy B] and ONE. This funding will provide us with the remainder of the grant not claimed for the demolition. [Bizzy B] and ourselves can then fill the financial gap of the short fall between the original grant promised and the remaining amount". He suggests that no credibility should attach to later statements by Mr Rabinovitch and Mr Broome that ONE funding is now not necessary for the Stage 1 works.

Mr Tabachnik also argues that the scheme, certainly as at January 2011, required an element of bank funding, which was not yet in place.

These concerns about funding have to be seen in relation to Clause 17.1 of the development agreement which enable Python to terminate and walk away if unable to secure acceptable funding for the contractual works. Alternatively, the funding problem and the difficulty in securing pre-lets would be likely to cause the postponement of much if not all of the initial refurbishment works, with Python constantly asking for more time to proceed.

Mr Tabachnik accepts that the Council is concerned at the expenditure it has already incurred, and wishes to recover its reasonable costs, as it is entitled to do under section 99(2)(a) of the 1984 Act. But this has not fuelled its stance to demolition.

For all these reasons it cannot be said, says Mr Tabachnik, that the Council acted irrationally in deciding to continue with its demolition programme in February 2011.

In respect of the Article 1 of the First Protocol claim, Mr Tabachnik's primary position is that execution of the demolition works, pursuant to an unappealed Building Notice, does not involve any interference with Bizzy B's property rights. Billingham House is an unencumbered property, liable at the Council's discretion to be demolished. A parallel can be drawn with property the subject of a restrictive covenant or positive obligations under an agreement under section 106 of the Town and Country Planning Act, when legitimate rights are asserted against it. Another parallel would be property subject to chancel repair rights, such as those the subject of enforcement proceedings in the Aston Cantlow case. (Though not specifically cited to me by Mr Tabachnik, the relevant passages in that judgment appear to be per Lord Hope at Craighead at paragraph 72:

Analysis

Because of all that has happened since early February, including the metaphorical exchange of fire between the parties, engaged in litigation and planning disputes, intermingled with attempts at negotiation, those making witness statements have tended to confuse the position as it was in early February 2011 with the position as it is today. This was particularly so in the case of the submissions made to me by Mr Broome on behalf of the Interested Party, but it also affected the submissions of counsel. What happened after 8 February 2011 is not necessarily wholly irrelevant to the matters I have to decide on Ground 1, but it is largely so. The focus has to be on the position leading up to the decision in early February to continue with demolition, rather than on what came after.

My initial view on reading the papers was that this was a clear-cut case and that the Council had acted in a demonstrably reasonable manner. I confess that as the hearing progressed, I have wavered, because instinctively it seems regrettable that matters such as those relating to asbestos, funding, and the extent of the Stage 1 works, were not explored in more detail by the Council before the Python scheme was finally rejected. Some of the points made by Mr Poundford in his third witness statement of 5 August 2011 do come at a very late date and do not appear to have been key to the Council's decision-making in February 2011. It is clear that the Python scheme, backed by the redevelopment agreement, was considerably the most realistic scheme to have emerged over the decade that Billingham House had been a problem and that in Python the Council had a developer in whom it had confidence. In an analogous context, that of a General Vesting Declaration made pursuant to a confirmed Compulsory Purchase Order, it was said by Wyn Williams J in R (Iceland Foods Ltd) v Newport City Council [2010] EWHC 2502 (Admin) at paragraph 44:

On the other hand, I agree with Mr Tabachnik that the claimant too readily brushes aside the fact of an unappealed Building Notice, and, even more importantly, a building still dilapidated and an eyesore four years later. Mr Tabachnik is able to point to Python's e-mail to the Council of 2 December 2010. Two months later, the funding and contracts were still not in place. A choice had to be made. There was no necessarily right answer. I do not consider that Bizzy B or Python were acting unreasonably in seeking a further opportunity to resolve remaining concerns, though it is a pity they did not make a detailed offer, such as that made on 15 March 2011 for a contractual agreement between the Council and Bizzy B and Python, with proper step-in rights for the Council, way before 15 March 2011, and well in advance of the meeting in January 2011, though even if it had, some further time would have been needed for the legal implications to be explored and the Council's position fully secured.

Absent such contractual agreement, it is difficult to say that the Council acted in a way no sensible and responsible authority could have done in exercising its discretion to enforce demolition pursuant to the Building Notice.

Reverting to the matters identified in the Council's letter to Python of 4 February 2011, none of these can be said to be irrelevant to the decision which had to be made. Local people (affected by the dilapidated building not merely visually but in terms of the undesirable uses attracted to a vacant building), locally elected members and the partnership body for the area were all pressing for demolition, which was after all an outcome contemplated by the Council and Bizzy B from the outset in 2007. By February 2011 the Council contractors were on site, the fencing had been erected and demolition had commenced. Far from suggestion that ONE funding was not needed, Python had made it clear at meetings that it was needed, and this would have required, as the Council's letter said, a substitution of the redevelopment business case for that of demolition which had already been approved. There could be no certainty this would have been approved. There undoubtedly was no certainty in the near future of occupation by tenants, which went not merely to funding (whether of Stage 1 or beyond), but also left open the prospect of a building falling back into disrepair, even if the Stage 1 works went ahead; although that risk would have existed if Bizzy B had simply carried out the repair works in the Building Notice. The asbestos issue remained a live one, and the development agreement was undoubtedly worded in such a way that the whole project could fall apart on this issue. It could (to return to Mr Clarke's phrase) be a deal breaker. Finally, even though the Council had recovery rights under section 99(2)(b) of the 1984 Act, it was reasonable to expect reference to reimbursement in full of its costs to be included in the cost plans being pressed on it by Bizzy B and Python.

Other local authorities in the Council's position, acting reasonably, might have given Bizzy B and Python more time, but I do not see that the decision taken, after exhaustive consideration of the issues, can be considered irrational. As Lord Diplock said in a celebrated passage in Tameside (at 1064):

I do not consider that a different conclusion can be reached when the matter is approached through the lens of Article 1 of the First Protocol. Even though the Council had a discretion not to enforce demolition, Mr Tabachnik is probably right that enforcement of an unappealed Building Notice cannot be regarded as an interference at that stage with property rights. If that is wrong (and I accept that the matter was not approached in that way in relation to the General Vesting Declaration in the Newport case: see paragraph 51 of the judgment where the emphasis was placed on justification), then one cannot ignore the Building Notice and the Council's statutory enforcement powers. In those circumstances it seems to me that first sentence interference with peaceable enjoyment, or second sentence deprivation of property (for it cannot sensibly be termed a control of use of property under the third sentence of Article 1 of the First Protocol), was an interference with severely encumbered property and relatively easy to justify. Here there was perceived by the Council to be a public interest in finality. Given the margin of appreciation in cases such as this where social welfare, including the protection of the amenities of the neighbourhood, is involved, the interference was justified.

For the above reasons the challenge to the February 2011 decision to demolish the building, whilst arguable and warranting permission, fails substantively.

When the 1984 Act was passed, I doubt anyone supposed that demolition pursuant to a Building Notice required planning permission, much less that it might need Environmental Impact Assessment before it could be permitted. Had either been contemplated, one would have expected reference to the Town and Country Planning Act 1990 ("the 1990 Act") in section 79(5) of the 1984 Act (as amended).

However, section 55(1A)(a) of the 1990 Act provides that "building operations" includes "demolition of buildings", so that demolition is brought within the ambit of the 1990 Act. That of its own does not mean that a planning application is always required, since the demolition may be permitted development under the GPDO (provisions of which I have to consider in respect of the Declaration sought) or a lawful direction given under section 55(1)(g) of the 1990 Act. I say lawful, because the relevant paragraphs of the Town and Country Planning (Demolition -- Description of Buildings) Direction 1995 ("the Demolition Direction") were held to be unlawful in R (Save Britain's Heritage) v Secretary of State for Communities and Local Government andLancaster Council [2011] EWCA Civ 334, a decision of the Court of Appeal on 25 March 2011. This was shortly after the first hearing of the present application in the Administrative Court, when a rolled-up hearing was ordered for 10 May 2011 and an undertaking not to demolish pending the outcome of proceedings was given.

Fundamental to the decision in Save Britain's Heritage was the decision in Commission vIreland (Case C-50/09) on 3 March 2011 that "demolition works come within the scope of Directive 85/337 and, in that respect, may constitute a 'project' within the meaning of Article 1(2) thereof" (paragraph 101 of the judgment of the European Court of Justice). In Save Britain'sHeritage it was held at paragraph 23 per Sullivan LJ that:

The illegality in the Demolition Direction was that by providing that demolition of certain descriptions of buildings (which included a building such as Billingham House) were not to be taken to involve development of land, the Direction precluded them from the possibility of EIA under Directive 85/337/EC, as transposed by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the EIA Regulations").

None of this is in dispute. What it means is that the Council could not proceed with the demolition of Billingham House without obtaining at the very least a screening opinion that the demolition was not "EIA development", which here means an urban development project "likely to have significant effects on the environment by virtue of factors such as its nature, size or location" (see regulation 2(1) of the EIA Regulations).

In order to be "likely", an environmental effect must be more than a bare possibility; there must be a "real risk" or "serious possibility" of it coming about: see Morge v Hampshire CountyCouncil [2010] EWCA Civ 608 at paragraph 80 per Ward LJ, and Bateman v South CambridgeDistrict Council and Camgrain Storage Ltd [2011] EWCA Civ 157 at paragraph per Moore-Bick LJ.

The courts have declined to provide a definition or gloss on the words "significant environmental effect". As held by Lloyd Jones J in Loader v Secretary of State for Communitiesand Local Government [2011] EWHC 2010 (Admin) at paragraph 45:

The procedure for applying for a screening opinion in a case such as this is contained in regulation 22(2) to (4) of the EIA Regulations, which provides:

An authority which is minded to make a planning application in relation to which it would be the relevant planning authority may adopt a screening opinion or request the Secretary of State in writing to make a screening direction, and paragraphs (3) and (4) of regulation 6 shall apply to such a request as they apply to a request made pursuant to regulation 5(6).

A relevant planning authority which proposes to carry out development which they consider may be --

Regulation 4(5) then provides:

Schedule 3 to the EIA Regulations lists Selection Criteria for Screening Schedule 2 Development under three heads: Characteristics of Development, Location of Development, and Characteristics of the Potential Impact. It is unnecessary to set these out at this stage, because, as will become apparent, the local planning authority says that it had specific regard to them.

The parties were directed to agree propositions of law, and in respect of the legal test in challenging a screening opinion they are agreed:

On 21 April 2011 Bizzy B's solicitors raised in correspondence with the Council the implications of the decision in Save Britain's Heritage. They said:

On 3 May 2011 the Council requested of itself (as local planning authority) a screening opinion under regulation 22(2) of the EIA Regulations. The request concluded:

Mr Archer, the Major Projects Officer within the Planning Service of the Council, was the person to whom the request was directed. In his first witness statement of 25 May 2011 (thus shortly after the event) he explains that he was made aware that the judicial review hearing was listed for 10 May and was asked to expedite the screening opinion so that it would be available for the hearing. He was already familiar with the building, the surrounding area and the planning history of the site. He was and remains satisfied that he had received sufficient information upon which to reach a screening opinion and that the process was not prejudiced by expediting it. He says that he considered the Schedule 3 selection criteria and reached the following conclusions by reference to them:

Location of development

Characteristics of the potential impact

In the light of this consideration Mr Archer says that he formed the opinion that the proposed demolition would not have a significant effect on the environment and therefore did not constitute EIA development.

His screening opinion was dated 9 May 2011. It is contained in a short document with only one page of text. Having referred to the request and plan, the location of the property, what lay to its north (a residential estate, the Synthonia Sports Ground and Charlton's Pond Local Nature Reserve) and the nature of the land surrounding Billingham House ("areas of hardstanding, rough grassland, with scattered trees around the periphery and areas of scrub and ornamental planting"), the screening opinion stated:

In a second witness statement of 5 August 2011, Mr Archer clarified that he had considered the full extent of the demolition works, including all affected structures, the suggestion having been made that he had omitted to consider the demolition of the car port. This point was not pursued by Mr Clarke in his oral submissions.

Mr Clarke submits that the screening was hurried and cursory. The Council had simply "gone through the motions of dealing with the EIA point", and had dealt with it in a hasty and barely considered manner. This was because (in his phrase) "it wanted the building gone". He takes three points.

First, the court must investigate the merits, because Article 6 of the European Convention on Human Rights is engaged. The screening opinion, he asserts, determines a civil right of the claimant, because it paves the way for the Council to take away the claimant's property. He points particularly to the summary by Lord Hutton in R (Alconbury Developments Ltd) vSecretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295 at paragraphs 182-185, whilst accepting that these were in the context of a planning permission, rather than a screening opinion.

Second, the screening opinion was not comprehensive. It failed to have any or sufficient regard to ecological factors, including the wildlife present at the site and surrounding the building, which includes bats, frogs, other animals, birds and insects, and the proximity to the building of a nature reserve and other sensitive sites. The Council's Bat Survey was defective, being conducted at the wrong time of year and partly in unsuitable weather, with an insufficient number of surveys. In his third witness statement Mr Rabinovitch complained that:

Third, other matters insufficiently considered were the Council's own concerns about asbestos in the building, and the proposal to crush waste produced by demolition on site, thereby creating dust and leaving waste on completion. Mr Clarke dealt with these issues only very briefly in his oral submissions (to such an extent that Mr Tabachnik assumed at one stage that they were no longer pursued, although Mr Clarke clarified that he was pursuing them).

Mr Clarke placed particular emphasis on the absence of "comprehensive screening", as required by Commission v Italy. Instead, this was a very thin opinion which gave the Council the desired effect.

In response to these points Mr Tabachnik contends that there is no basis for asserting that the screening opinion, though expedited, was an inadequate document. He particularly relied upon items (3), (4) and (5) above in the agreed points of law.

On ecological factors, he relies on the findings of the Bat Survey Report, which I have already referred to, and to the further comments of Argos Ecology who conducted it, set out in Mr Archer's second witness statement, explaining that the number of surveys was within the Bat Conservation Trust's Good Practice Guidelines, that September was a valid time to carry out surveys, and that bats had left the site before the rain started, so that conditions were good for most of the survey period. In respect of the nearest local nature reserve (Charlton's Pond), Mr Archer had taken it into account. It was 0.4 kilometres to the north east of the site, and separated from it by a road and ecologically disconnected from the Billingham House site, so that the demolition works were extremely unlikely to impact on ecological features within the nature reserve. Mr Tabachnik argues that the reasonableness of Mr Archer's conclusion is confirmed by the fact that no concern about effects on the nature reserve were raised later during consideration of the planning application, whether by Natural England or by the Tees Valley Wildlife Trust.

So far as the claimant's concerns about asbestos, the method statement submitted with the request for a screening opinion showed how asbestos could be removed without a significant environmental effect. In the recent case of Loader (at paragraph 74), remedial measures as regards asbestos clearance were properly regarded as falling within this category. Similarly, the other method statement submitted with the request dealt fully with dust suppression. As Mr Archer explained in his first witness statement, the demolition method statement made it clear that no waste would be left on site at completion of demolition, thus there was no basis for the allegation that this matter had been left out of account in the screening exercise.

A screening opinion, said Mr Tabachnik, was not a determination of Bizzy B's civil rights; even if it were the procedure under regulation 22 of the EIA Regulations was Conventioncompliant, given the availability of judicial review (as recognised in Alconbury and a number of subsequent cases), it mattering not that the Council/local planning authority had an interest in the outcome of the screening opinion. Therefore there was no power for the court to conduct a "merits review" of the screening opinions and no warrant for doing so.

Although the screening opinion was unusually brief, and one can readily understand Bizzy B's concern that the result was a foregone conclusion, I am entirely satisfied that there is no basis for this, and that Mr Archer took into account in an appropriate way all relevant matters. There has been the requisite careful and conscientious consideration of which Pill LJ spoke in Basildon.

Article 6 is simply not in play. A screening opinion will normally (though not necessarily) be followed by a planning application, with EIA in between unless the screening opinion has been negative. It is simply a procedural step. It does not determine civil rights in the way that that expression has been recently construed and applied by the Supreme Court in R (G) vGovernors of X School [2011] UKSC 30; [2011] 3 WLR 237, where the relevant case law was extensively reviewed.

The decision of the European Court of Justice in Commission v Italy should not be interpreted as requiring every possible impact to be considered at the screening stage. Only real risks have to be considered. As Moore-Bick LJ said in Bateman, "something more than a bare possibility is probably required, though any serious possibility would suffice". The claimant has failed to identify any such real rusks or serious possibilities left out of account in this screening opinion. I accept the submissions of Mr Tabachnik as set out above. In relation to the open green space between the site and the nature reserve, all that Mr Rabinovitch says (in his third witness statement) is that "various types of flora and fauna may be found" there; that is quite insufficient to require EIA. In so far as the claimant relies on an alleged difference of approach to asbestos between the Council's concern about its presence in their negotiations with Bizzy B, whilst not regarding asbestos as being a potential significant environmental impact, the reason for the difference is plain. In negotiations and in this litigation the Council has stressed the potential cost of asbestos removal and its implications for funding and for the development agreement. That is very different from accepting that removal constitutes (or risks) a significant environmental effect.

I suspect that there will be relatively few cases where demolition of an unlisted building, outside a conservation area, and not within some form of ecological designation, will call for EIA. Such cases may arise. This was not one of them.

The challenge to the screening opinion fails as unarguable.

It is convenient to consider the declaration sought with regard to the GPDO, before turning to the challenge to the planning permission of 29 June 2011. The Council has at all times maintained that it did not need to apply for planning permission, because demolition had the benefit of the GPDO. It was only because the Council was less than entirely confident of this position (and knew that reliance on the GPDO would involve further challenge from Bizzy B) that it submitted the planning application.

Under Part 31 Class A, permitted development includes "Any building operation consisting of the demolition of a building". Questions of EIA do not arise because of my finding that the negative screening direction was lawful. Article A.1. of Part 31 Class A provides:

Under Article A.2. in most cases notification to the local planning authority has to be given, although the local authority's powers are confined to approval of the method of demolition and any proposed restoration of the site (Article A.2.(b)). In the case of urgently necessary demolition all that need be served is a written justification (Article A.2.(a)). Certain demolitions are excluded from the scope of Article A.2.(a) as "excluded demolition", including demolition "required or permitted to be carried out by or under any enactment" (Article A.3.(b)).

My attention has not been drawn to any decided cases in relation to Part 31.

Mr Clarke contends that Article A.1. shows decisively that the proposed demolition cannot be permitted development.

First, on the Council's own case, Billingham House has been rendered unsafe or otherwise inhabitable by the action or inaction of its owner, as it was on that basis that the Building Notice was issued.

Second, it would be practicable to secure safety or health by works of repair, as contemplated by the Building Notice itself. The issue here is not whether the particular works proposed by Python are feasible, but whether the works by the Building Notice are practicable. That question would have to be determined even if Python's proposals did not exist. When the Council itself has listed the works that it wants done to comply with the Building Notice, the Council cannot now say that such works are not practicable.

In so far as the Council seek to rely on Article A.2(b), that is irrelevant to the interpretation of Article A.1.(b).

Mr Tabachnik starts from Article A.3.(b). The Council's proposed demolition is "required or permitted to be carried out by or under any enactment", namely section 79 of the 2004 Act. That suggests that it falls within, rather than outside, the scope of the permitted rights under Class A.

The Council concedes that the present condition of Billingham House falls within Article A.1.(a), but not that it falls within Article A.1.(b).

The word "practicable" cannot mean possible, since the skill of engineers is such that, with sufficient resources available to them, it will always be possible to secure safety or health by works of repair or works for affording temporary support. "Practicable" should be read as "likely to happen". The test was whether there is a realistic likelihood. Here the Council does not believe that, absent demolition, works of repair to secure safety or works for affording temporary support are likely to happen. Python's proposals are manifestly uncertain, particularly because there are funding and viability problems, and because some of the requirements of the Building Notice will not be addressed by the Python proposals, even if they come forward such as asbestos removal, and the necessary replacement of the roof. Therefore Article A.1.(b) has no application.

In company with Mr Clarke I do not find any assistance from Article A.2.(b) in answering the key question posed by Article A.1.(b).

I agree with Mr Tabachnik, for the reasons he gives, that there is difficulty in interpreting "practicable" simply as meaning "possible", though that is one of the ordinary meanings of the word. It is tempting to interpret "practicable" as meaning "reasonably possible", though cases, admittedly in very different areas of the law, have drawn a distinction between "practicable" and "the rather more elastic reasonably practicable" (for example, Nikonous v Governor of HMBrixton Prison and Republic of Latvia [2005] EWHC 2405 (Admin) at paragraph 21). Thus normally use of the former rather than the latter word shows that Parliament, or in the case of a statutory instrument the maker, intended a stricter requirement than "reasonably practicable". I believe the correct interpretation here is "feasible" or "doable" or "capable of being accomplished", which is only marginally (if at all) different from "possible".

On the facts of this case, one does not look to whether Python's proposals are likely to go ahead at the present time, but rather asks whether it is feasible to secure safety and health by works of repair or works for affording temporary support.

In the case of this building, works of temporary support would not achieve the result, but works of repair such as those in the Building Notice would do. They are plainly practicable in the sense that they are feasible and could be accomplished.

Therefore the demolition of Billingham House at the present time is not permitted development under Class A of the GPDO and I decline to make the declaration sought.

It is necessary to take up the story since the decision of the Council in early February 2011 to press ahead with the demolition, which was the subject of the first ground of challenge.

On 16 February 2011 Bizzy B made an offer, though the parties disagree on what that offer in fact proposed, which was followed by an offer to mediate in early March. On 15 March Bizzy B offered to demolish the building if Python could not do the works in time. Bizzy B offered to enter a demolition contract and to place funds in an escrow account to pay for demolition if this became necessary. This offer was eventually rejected by the Council on 26 April 2011. At a hearing before the court on 15 March the Council gave an undertaking not to demolish Billingham House while the proceedings were continuing, and a rolled-up hearing was ordered for 10 May.

Then there followed the matters already mentioned in relation to the screening opinion, eventually given on 9 May 2011. The hearing of the judicial review application was adjourned on 10 May. Bizzy B was given permission to amend the grounds to include a challenge to the screening opinion. On 24 May the Council applied for planning permission to demolish Billingham House and the associated car parking structure. Consultation took place with various bodies, including English Nature, which replied on 6 June that the local planning authority should itself assess and consider any ecological impacts.

On 10 June there was a further adjournment of the judicial review proceedings to ensure that the applicants had time to challenge any grant of planning permission.

On 16 June Mr Cooper, a planning consultant acting for the claimant, made representations to the Council relating to the absence of a Design and Access Statement and the development plan context relevant for determining the application. The Council then prepared a Design and Access Statement and submitted this to be considered alongside its application for planning permission. This made reference to the Bat Survey and its findings, which had been taken into account in connection with the screening opinion. The Design and Access Statement was sent to English Nature on 20 June, whose further response of 21 June said that they had no further comment to make on the application.

On 20 June a 19 page Officer's Report was placed on the Council's intranet and members informed, written copies being received by members the following day. This advised that the application accorded with the development plan and government planning policies, that the principle of demolition was acceptable, and that there were no sound planning policies for the building to be retained. The Report explained the background, including the Building Notice and Bizzy B's application for judicial review (whilst advising that the judicial review was not a material planning consideration and should not be taken into account in determining the planning application). Natural England's response was reported (that the application did not appear to fall within the scope of the consultations that Natural England would routinely comment on, but that the local planning authority should itself assess the possible impacts on ecological interests). The representations of Bizzy B were set out at length, including the reasons why it considered the application to be contrary to development plan policy and why demolition should not be permitted since refurbishment and re-use were the preferable, and more sustainable, option. Planning permission subject to conditions was recommended.

Further representations were then made to the local planning authority from both supporters and opponents of the proposal to demolish. The latter included further representations from both Bizzy B and Python, critical of the Officers Report and its recommendations. These were set out at length in a 10 page Update Officer's Report which was made available to members of the Planning Committee on the day of the Planning Committee meeting.

On 23 June one of the Council's lawyers sent an e-mail to all members of the Planning Committee asking each member to ask himself (or herself) whether they might be considered to have pre-determined the issue by previous conduct, and, if so, advising them not to vote. Members were advised to seek legal advice from named individuals before taking part in the vote. As a result of this, none of the members who voted on the planning decision were members who had taken part in relevant earlier Council decision-making concerning demolition of Billingham House. Councillor Beal, who had been present at the Cabinet meeting on 5 August 2010, which had fixed a deadline in default of signature of a development agreement, has made a witness statement in these proceedings that he specifically sought legal advice whether his participation on 5 August fettered his discretion so that he should not vote at the forthcoming Planning Committee. He was advised that there was no reason not to vote since the decision taken by the Cabinet on 5 August had been materially different. The same seems to have happened in respect of one other Committee member.

On 28 June the claimant's solicitor was sent a copy of the Bat Report, though a copy had been previously supplied on 11 May, together with the other documentation considered by the local planning authority in connection with the screening opinion.

Bizzy B requested the Secretary of State for Communities and Local Government to call in the application, but by letter of 29 June this request was refused on the ground that the issues raised did not relate to matters of more than local importance and should be decided by the Council.

Various accounts have been given in witness statement relating to what took place at Planning Committee on 29 June. The following matters are relevant:

Two witness statements have been made on behalf of the claimant criticising as unfair the manner in which the Planning Committee considered the application. Mr Rabinovitch says that the objectors were cut short when making their representations (and indeed it is clear from the note of the Director of Legal Services that Mr Cooper was warned about time by the Chair). Mr Glover (currently Chair of the ruling political group on Southwark Council in London) criticises the layout of the meeting, saying that the applicant, even when a Council officer, should not sit with the decision-makers, and that "the Planning Committee was not conducted in an appropriate semi-judicial manner". Mr Cooper's evidence concentrated on the way the planning issues were dealt with in the Officer's Report and the Update Officers Report and in the consequent debate. 112. Nine members of the Planning Committee, including the Vice-Chair, have made witness statements that they do not consider that the meeting was conducted in a biased manner and that they did not approach the application in a pre-determined manner. They all say that they had read the various reports, and several refer to having received training on probity with particular reference to Planning Committees, including issues on pre-determination and pre-disposition.

On the evening of 29 June (and after the planning permission had actually been issued), a meeting of the full Council took place where Python presented a petition with over 4,000 signatories supporting its scheme to regenerate Billingham House. A lively debate followed and no vote was taken. Mr Glover is critical that the Chair did little to keep order and that councillors gave little attention to the evidence provided by Python at that meeting.

The following propositions to the third Ground were not eventually, I believe, in dispute:

The starting point for consideration by a local planning authority of a

A planning decision affects civil rights and therefore falls within the ambit of Article 6 of the European Convention on Human Rights. As expressed by Lord Hoffmann in Alconbury (at paragraph 79):

".... [W]here an administrative decision is to be taken in the public interest constitutes a determination of a civil right within the meaning of Article 6(1), a review of the decision by a court is sufficient to comply with Article 6(1) notwithstanding that the review does not extend to the merits of the decision .... [A]rticle 6(1) does not guarantee a right to full review by a court of the merits of every administrative decision affecting private rights, but that there is compliance with the article where there is a right of judicial review of such a decision of the nature exercised by the High Court in England." (Alconbury per Lord Hutton at paragraph 189).

A planning permission is subject to challenge on normal public law grounds, including Wednesbury irrationality.

Even where findings of fact by administrative bodies are involved, including those in planning cases, "conventional judicial review .... is sufficient" and "the requirements of Article 6 [do not mandate] a more intensive approach to judicial review of questions of fact" (Runa Begum v Tower Hamlets London BoroughCouncil [2003] UKHL 5; [2003] 2 AC 430, at paragraph 50 per Lord Hoffmann, who at paragraph 59 described "schemes .... for granting planning permission [as falling] within recognised categories of administrative decision making" (see also paragraph 42).

Weight is for the decision maker. As Lord Hoffmann explained in TescoStores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780:

The planning officer's report will always play an important role in the decision-making. Such reports will seldom be perfect documents. The proper approach to review of an officer's report was set out by the Court of Appeal in R(Morge) v Hampshire County Council [2010] EWCA Civ 608; [2010] PTSR 1182, where at paragraph 63 Ward LJ said:

Where issues of predetermination or apparent bias arise, then as said by Pill LJ in R (Lewis) v Redcar and Cleveland Borough Council and PersimmonHomes Teesside Limited [2008] EWCA Civ 746; [2009] 1 WLR 83 (at paragraph 71):

A Design and Access Statement was required in this case by Article 8(2) of the Town and Country Planning (Development Management Procedure) (England) Order 2010 ("the DMPO").

The effect of section 327A of the Town and Country Planning Act 1990 is that a local planning authority "must not entertain" a planning application for demolition in the absence of a Design and Access Statement.

Article 8(3)(b) provides that a Design and Access Statement shall (amongst other things):

Before turning to his standard public challenge to the planning decision Mr Clarke takes two preliminary points.

First, he raises the application of Article 6, taken together with Article 1 of the First Protocol. An unusual feature of this case is that it involves a grant of planning permission that will deprive a property owner of its property but in respect of which the property owner has no right of appeal. The unexercised right of appeal against the Building Notice is not relevant, since the planning decision is a distinct decision. Alconbury, even as modified by Runa Begum, does not deal with this unusual situation. Therefore the court can and should take a positive approach to the protection of the claimant's Convention rights, by assessing the planning application on its merits, as would happen on an appeal. The expert evidence of Mr Cooper explains why the planning decision is a bad one.

Second, the decision should be quashed for apparent bias. This should be assessed not simply by reference to the Council having an interest in the outcome of the application (something Mr Clarke did not expand upon), but by reference to the particular context in which the Council, having clearly determined that the building should be demolished, and having been challenged on that decision and finding that it needed planning consent, effectively waved through the accelerated application. The Council had made its position very plain: it insisted on demolition and had told the press and public of this in no uncertain terms. The suggestion that the Committee members were able to view the planning application in isolation and only by reference to its planning merits is not realistic, notwithstanding the evidence provided by the councillors. Applying the "fair-minded observer" test, it was scarcely conceivable that the application would have been refused. In his oral submissions Mr Clarke placed particular reliance on the approach and decision to quash in Georgiou v Enfield Borough Council [2004] EWHC 779 (Admin); [2004] LGR 497. Bizzy B's case, said Mr Clarke, was straightforward, as had been the claimant's in Georgiou.

In relation to a standard public law challenge, Mr Clarke takes in effect three points.

First, the absence of careful balancing in the Officer's Report of the merits of regeneration as opposed to demolition. Sustainability, he says, played no apparent part in the decision. This Mr Clarke described orally as the "key omission in the weighting". The reservation of the site for employment use was skipped over. There was no analysis of how the two options compared in terms of compliance with the Planning for Growth Agenda. The Officer's Report was wrong to refer to the fact that demolition was subject to the court's decision, since this implied that the planning decision did not have to weigh the alternatives of demolition and regeneration. Mr Clarke boldly puts irrationality at the heart of his challenge under this head. He says that the case for refurbishment was overwhelming, so that the only sensible course open to the local planning authority was to refuse the planning application for demolition. He accepts that there is therefore a considerable overlap between the argument on grounds 1 and 3. But he draws attention also to changes which had taken place since early February, including the escrow offer of March 2011, which (to use his own phrase in oral submissions) "did not get proper consideration".

Second, Natural England should have been specifically informed that a Bat Survey had been carried out and that the claimant had raised concerns about protected habitats. It is unsurprising, he says, that Natural England expressed no views on the matter given that it had not been provided with relevant information.

Third, the Council should not have registered or consulted upon the planning application in the absence of the Design and Access Statement. If "entertain" in the DMPO meant "determine", Parliament would have used that word. Even when provided, the Design and Access Statement was defective in failing to comply with Article 8(3)(b) of the DMPO and therefore the planning permission had been unlawfully determined.

In the Re-re-amended Grounds, the conduct of the Planning Committee meeting was taken as a separate planning ground, specific points being made in relation to the seating arrangements, restrictions of time placed on objectors, and that officers declined to allow discussion of allowing Python time to work on the building, with demolition to follow if Python failed. These specific points were not raised in Mr Clarke's Skeleton Argument, where complaint was made in more general terms about unfairness, undue haste and cursory condition. It seems that, in the light of the latest evidence from the Council, the conduct of the Committee meeting no longer plays a major role in the way the claimant's case was being put, the issue of apparent bias/predisposition apart. Mr Clarke also placed some reliance on the way in which the full Council meeting later the same day was conducted which was an indication of the generally unsatisfactory nature of the Council's decision-making. Mr Clarke says that this showed the Council was set against his client. He conceded, however, that this was not a matter which would justify a judicial review challenge in its own right.

Mr Broome emphasised the importance of the March offer of an independently administered escrow account which would, in his phrase, "guarantee closure". According to Mr Broome, the view of Python's planning consultant who attended the Planning Committee meeting (but from whom there is no witness statement) was that he had never in all his experience seen a more biased and misleading report presented by a planning officer. Mr Broome complains that the Council gave itself planning permission contrary to its own planning policy. Python sought the court's protection and support so that its much needed scheme could be brought forward at the earliest possible opportunity.

Mr Tabachnik relies on Alconbury and Runa Begum as showing that the court is not empowered to conduct a "merits review" of the decision to grant planning permission, and that this would be profoundly undemocratic. He accepts that it is rare for an application made by a council to itself to be refused, but that is no reason for a different approach in judicial review, nor is it decisive that the planning application is in respect of Bizzy B's land and that (as a result of the Building Notice) planning permission once granted can be implemented without Bizzy B's consent. Planning, says Mr Tabachnik, is concerned with impacts on land use, not with questions of ownership. In any event, Bizzy B had a full opportunity for a "merits review" of the Building Notice by way of appeal to the magistrates' court. It failed to take advantage of this right of appeal, because it had undertaken to elect for demolition and not appeal.

He relies on the Council's evidence as showing that there was no bias, apparent bias or predisposition. The consideration by councillors focused on the key planning issues. He relies principally on various passages in Persimmon, in the judgment of Pill and Rix LJJ.

Far from the decision to grant planning permission being Wednesbury irrational, there was nothing in the Officer's Report and Update Officer's Report to suggest that members of the Committee had been misled or not properly informed (the test in Morge). Nothing had been left out of account and weight was entirely for the local planning authority (Tesco). The Council did weigh demolition against regeneration and Python's proposals were uppermost in the councillors' minds. They had been specifically advised in the Officer's Report that the refurbishment scheme was a material consideration and the various written and oral representations from Bizzy B and Python had largely focused on the advantages of refurbishment. There was nothing perverse or irrational in the view taken by the majority of the Planning Committee that the refurbishment proposals lacked sufficient certainty to weigh significantly in the decision. The promotion of sustainability was drawn to members' attention and self-evidently considered by members. Core Strategy policy CS4 was directed at retaining the site in employment use; it was not a policy for retention of the buildings presently on site per se. Planning for growth was plainly taken into account; councillors' attention was directed to it in the Officer's Report. Councillors were expressly advised in the Officer's Report that "the judicial review is not a material planning consideration and should not be taken into account in determining the planning application". There was therefore no suggestion that the application could simply be rubber-stamped because the High Court would be the ultimate arbiter of decision.

There was no error of law in respect of the Bat Report. In its initial response, Natural England did not ask to be provided with any ecological surveys or comment on the fact that none had been provided to it. When sent the Design and Access Statement, which made reference to the Bat Survey, Natural England did not ask to be provided with this prior to its second consultation response or at all. The Council had also consulted Tees Valley Wildlife Trust because of their familiarity with the site, and they did not oppose demolition. The Bat Report was not defective, but in any event Bizzy B had a full and fair opportunity to make whatever representations it wanted to as part of its representations against the planning application. No specific criticisms of the content of the Bat Report were advanced by Mr Cooper in his lengthy written representation to the local planning authority, notwithstanding that Mr Cooper admits that he had been informed by Mr Rabinovitch that a bat survey had been commissioned which the latter regarded as defective.

So far as concerns the Design and Access Statement, "must not entertain" meant "must not decide". It was enough that the application was accompanied by a Design and Access Statement when it was decided. If that was wrong, it was permissible to supplement the application at a time consequent to its initial presentation, since the provisions were merely directory. In any event there was no prejudice. In respect of the content of the Design and Access Statement, the application was to demolish the buildings on site and leave a cleared site. The requirements of Article 8(3) of the DMPO were complied with so far as it was sensibly possible given the nature of the application. In any event, any omission did not go to the heart of the planning permission or provide a basis for quashing it. Amongst other cases, he cited Parker v Secretary of State forCommunities and Local Government [2009] EWHC 2330 (Admin) (at paragraph 21), a case specifically relating to Design and Access Statements.

As Mr Archer's second witness statement showed, there was nothing unusual about the seating arrangement; everyone knew the application was submitted by the Council. No one complained about being cut off or requested more time to speak. The likelihood or otherwise of the Python proposals was a key matter grappled with by the Planning Committee. Councillors were (quite properly) advised that those who favoured the option of allowing an opportunity for the refurbishment to proceed should vote against the application.

Bizzy B's complaint about the Petition debate in full Council has no bearing on the challenge to the planning permission.

Although the alternative option of refurbishment was plainly a matter which members could take into account in connection with the planning application, this was a decision whether, on planning grounds, the development should be permitted or refused. The building and site were agreed to present a neglected and dilapidated appearance and to be in a condition seriously detrimental to the amenities of the area; the demolition proposal had been held not to be likely to have significant environmental effects (hence the negative screening opinion); demolition would be a one-off building operation, of free-standing buildings within a 3.2 hectare site, to be conducted during controlled daytime hours (condition 03 to the planning permission); it would leave a "site left in a clean and tidy condition" (the phrase in the Demolition Method Statement and a mitigation measure required by condition 05 to the planning permission); and finally the cleared site would provide potential for future development in line with the current employment use. In these circumstances it is not easy to see how planning permission could have been reasonably refused.

That approach of course involves looking at the planning merits as, ironically, I am urged to do so by Mr Clarke, in reliance on Bizzy B's rights under Article 6 and Article 1 of the First Protocol. But that is not a legitimate approach. Judicial review can be intensive (and should be in a case such as this), but it still falls short of reviewing the merits. I can find nothing in the decisions in Alconbury or Runa Begum (or the other authorities to which I was referred by both parties) to suggest that judicial review of this nature will not be sufficient to protect Bizzy B's rights. I accept that in Runa Begum (at paragraph 54) Lord Hoffmann's statement that "In the normal case of an administrative decision, however, fairness and rationality should be enough", leaves open the possibility of a different approach in an exceptional case, but I am not convinced that this is such a case, despite the rareness of its factual circumstances. In any case, Mr Clarke did not suggest that the local planning authority should itself have appointed an Inspector to hold a Public Inquiry under section 111 of the Local Government Act; or that it should have joined in Bizzy B's request to the Secretary of State to call the application in for his determination, though he reserved Bizzy B's right to challenge the Secretary of State's decision not to call the application in (accepting the difficulties in the light of Adlard v Secretary of State for theEnvironment, Transport and the Regions [2002] EWCA Civ 671).

So far as Mr Clarke's reliance on certain passages in R (Kathro) v Rhondda Cynan TaftCounty Borough Council [2001] EWHC 527 (Admin) (especially paragraph 29), and his contention that there were here disputed facts (which would no longer be material, in my view, in the light of Lord Hoffmann's clarification in Runa Begum of what he there described at paragraph 40 as "an incautious remark" he had himself made in Alconbury at paragraph 117), I do not agree. The questions which arose in relation to the viability and timescale of the Python proposals all involved ultimately opinion and judgment rather than hard facts, which had to be approached within a policy framework as with all planning decisions. Indeed at the conclusion of his oral submissions I do not think that Mr Clarke was asking anything more of the court than that it adopt a sceptical approach to the Council's evidence, because it was the promoter of demolition. I have endeavoured to approach all the evidence (including that of the claimant) critically, because plainly there is considerable antagonism on both sides.

Whilst I can readily understand the concern of Bizzy B that the Planning Committee might not act independently towards the council's planning application, I am satisfied that it did consider the matter in such a way that it was not infected by bias, apparent bias or predisposition. The case of Georgiou to which Mr Clarke referred me was very much one on its own fact. Three members of the Planning Committee which resolved to grant the listed building and planning contents had also participated in meetings of the defendant's conservation advisory group which had considered and supported the applications. This gave rise to what Richards J described as "the possibility that the three members .... approached the matter with closed minds" (paragraphs 34-35). No such problem of dual membership arises in the present case. Furthermore, the scrupulous way in which members were advised in relation to predisposition, and the way in which Councillor Beal and one other demonstrably complied with this by seeking guidance in relation to their role in the Cabinet meeting almost a year earlier in August 2010, shows that positive steps were taken to prevent anything approaching a Georgiou situation arising. It is clear from the decisions of the Court of Appeal in Condron v National Assembly forWales [2006] EWCA Civ 1573; [2007] LCR 87 and Persimmon that account can be taken of matters such as the training undertaken by members of a planning committee and that they have agreed to be bound by a code of conduct; and that even where they have, as elected members, expressed views in the past this is now treated with understanding by the courts. I do not think it helpful any longer to go back to authorities decided before those two cases, which appear to me to be definitive for this (and for most) challenges to planning permissions on grounds of apparent bias/predisposition. I do not consider that Bizzy B's case gets off the ground on this issue.

This then leaves Bizzy B's challenge on conventional public law grounds.

It is convenient to take first the allegation of illegality (or perhaps procedural impropriety) in respect of the Design and Access Statement. At first blush, one would not expect that pure works of demolition would require such a statement, though obviously the method of demolition could be embraced by the term design (and also the restoration proposals), and lorry movements in connection with removing the spoil could give rise to access issues. "Engineering or mining operations" are specifically excluded from the need for a Design and Access Statement by regulation of 8(1)(b) of the DMPO, and demolition might be considered to have more in common with engineering operations than with building operations. However, Parliament in enacting section 55(1A) of the 1990 Act has chosen to categorise demolition as part of building operations. Thus a planning application for demolition such as that of Billingham House and its carport does require a Design and Access Statement, which needs to cover not just design principles and how access will be dealt with (see Article 8(2)(a) and (b) of the DMPO), but also "demonstrate the steps taken to appraise the context of the development etc" under Article

I consider that Mr Clarke is right that "must not entertain" in section 327A(2) of the 1990 Act cannot mean "must not determine", and relates to an earlier stage. The planning application is not complete without a Design and Access Statement and should not be dealt with as a planning application until the Design and Access Statement is supplied.

On the other hand where, as here, in error the application was not accompanied by a Design and Access Statement, the deficiency was not identified by the local planning authority at the outset, and where processing of the application began before the error was identified, the entire process does not have to recommence. A late Design and Access Statement can be fed into the process, provided that this can be done without prejudice to anyone. That was what happened here. Indeed Mr Clarke did not urge that the permission should be quashed simply because there had not been a Design and Access Statement at the outset. On the facts of this case I do not need to consider what would be the position if planning permission had been granted in the entire absence of a Design and Access Statement.

Mr Clarke's is a more subtle point, that even the late Design and Access Statement was deficient, because it failed to "demonstrate the steps taken to appraise the context of the development and how the design of the development takes that context into account in relation to its proposed use" (see Article 8(3)(b)). There is no dispute that it failed to do so in some respects. But it did not fail in all respects. Applying the definition of "context" in Article 8(5), the Council's Design and Access Statement described the "physical context of the demolition", describing its physical condition, the "natural environment" and the relationship to (for example) roads and the local nature reserve. It referred to the fact that the building had been vacant since 1995, to the negative impact of the existing situation on local residents and the local business community, and that the consequence of development would be "the provision of a cleared 3.2 hectare site for development, possibly for the adjacent chemical industry process". This was sufficient to demonstrate the steps taken to appraise also the social and economic context.

I find some difficulty in understanding what the Design and Access Statement should have contained by way of demonstrating the steps taken to appraise the policy context of the proposed demolition, given that there were no specific policies in the Core Strategy relating to demolition. Reference could have been made to the various policies later set out in the Officer's Report. This was not done. Given that there was no "proposed use", since any development on the cleared site would require a new planning permission, neither counsel was able to explain to me what steps could have been taken, and included in the Design and Access Statement, to appraise "how the design of the development takes that [physical, social, economic and policy] context into account in relation to its proposed use". Mr Archer, in his second witness statement, says that the meaning of "design principles and concepts" must be considered in the context of the nature of the development in this case, namely a demolition, but this does not entirely meet Mr Clarke's point. Mr Archer does not accept that the Design and Access Statement is deficient (which technically it is), and says (which I agree) that the Design and Access Statement does not lack any information that was required to determine the application, and that his report and the representations to the Committee clearly demonstrate that the context of the site was considered.

Mr Tabachnik refers me to the view put forward on the Secretary of State's behalf in Parker (at paragraph 21) that even an application which failed the equivalent procedural requirements in the predecessor to the DMPO was not necessarily void, and that in the case of all such procedural defaults, even those relating to mandatory requirements, the question for the court is whether their being enforced would cause prejudice. As a simple statement of principle this was accepted by Mr Keith Lindblom QC, sitting as a Deputy High Court Judge, although he did not have to determine the issue on the facts of that case. This was because that case involved an appeal to the Secretary of State, where the Secretary of State (through the Planning Inspectorate), once seized of the appeal, had the power to deal with the application even if the Council as local planning authority might have had to refuse to determine it.

I am satisfied that there was here a Design and Access Statement, and that the deficiency in respect of part only of Article 8(3)(b) did not prevent the local planning authority from entertaining and deciding the application, in the situation that no prejudice was caused to anyone. If I am wrong on this, I would, in my discretion, certainly not quash the planning permission on this account.

Turning to the other planning points made on Bizzy B's behalf, some of them fall away entirely on close examination and in the light of all the evidence. I am satisfied that the way the meeting was held was not unfair, and I do not see how the question of the procedures adopted at the full Council, later the same day, in relation to Python's Petition, bear on the matter of the lawfulness of the planning permission. There is nothing in the suggestion that English Nature should have been specifically invited to comment on the Bat Report, or that the consideration of ecological issues was inadequate. For the reasons I have already explained in relation to the screening opinion, there is an entire absence of evidence of any potential harm to flora or fauna from the demolition proposal. I also consider that Bizzy B was wrong to suggest that demolition was contrary to Core Strategy Policy 4 (CS4) on Economic Regeneration. This objection was specifically referred to in the Officer's Report and Update Officer's Report, and the point was correctly made that the land would be retained for employment use. As Mr Archer explains in his second witness statement, the demolition of Billingham House will not affect the designation under CS4 of the land as employment land. To Mr Clarke's fall-back position, that implicitly office buildings such as Billingham House should be retained rather than demolished, the simple answer is that this was not a policy requirement, nor in any case has any office (or other) use been carried out at Billingham House for very many years.

On the other hand the Officer's Report was a far from perfect document, even when supplemented by the Update Officer's Report. It would, for example, have been more helpful to have had a rigorous examination of why the application was said to accord with the development plan, and why the objectors' view to the contrary was rejected. In reality, as Mr Tabachnik conceded, there were no specific policies in the development plan which dealt with demolition, and therefore the matter turned on balancing the material considerations. The references in the Officer's Report to the judicial review application were potentially confusing. I also consider that there was overstatement in the final sentence of paragraph 38 of the Officer's Report that "there are no circumstances in this case that should warrant the local planning authority refusing planning permission for demolition on the grounds of the alternative scheme and therefore play a role in determining the future use of the building on site", a passage criticised by Mr Cooper in his further representations made on behalf of Bizzy B. Once it had been conceded that the alternative of refurbishment was a relevant matter, its merits as well as demerits had to be considered by the Planning Committee; and a case could be made that refurbishment, or at least a

Nevertheless, all the arguments raised on behalf of Bizzy B and Python were drawn to Committee members' attention, both in the Officer's Report and in the Update Officer's Report; and on 29 June the members also had the benefit of hearing from two representatives of Bizzy B and two of Python. It is plain that the likelihood or otherwise of Python's refurbishment proposals was central to members' consideration, even without reference to the witness statements from so many Committee members confirming that this was so. The note of the proceedings taken by the Council's Head of Legal Services shows that the matter of the escrow account was expressly raised in discussion by a member of the Committee, eliciting a reply from Mr Rabinovitch. This makes it difficult to understand Mr Cooper's suggestion in his first witness statement that members "were not aware of the significance of the offer". Given that the Update Officer's Report, in its first paragraph under the heading "Material Considerations", expressly referred to the objection that "demolition represents an unsustainable form of development", and went on in the following sentence to state that "the sustainability of a development is clearly [a] material planning consideration", it cannot be said that the sustainability issue was not addressed. The opinion of Mr Archer was that demolition and clearance of the site would provide greater opportunities for an appropriate development scheme. That was a planning judgment which members appear to have endorsed.

The Re-re-amended Grounds, and Mr Clarke's Skeleton Argument and submissions, made no reference to section 38(6) of the 2004 Act. I am not dealing with a challenge that there was illegality in the way that provision was addressed. Rather the complaint is that the whole approach was unfair and irrational, and that the weighing of relevant factors, including development plan policies, was done in a way that no sensible local planning authority could have done. That challenge is always extraordinarily difficult to mount, not least because of the principle enunciated by Lord Hoffmann in Tesco which I have set out above. Despite the plethora of arguments raised, the claimant comes nowhere near to establishing any of the aspects of Wednesbury unreasonableness.

I do not consider Ground 3 to be arguable.

Permission is refused on Grounds 2 and 3. Permission is granted on Ground 1, but judicial review is refused. The defendant's application for a declaration is also refused.