Halebank Parish Council, R (on the application of) v Halton Borough Council & Anor

This claim relates to the grant of conditional planning permission on 16^th September 2011 by the First Defendant Halton Borough Council (”HBC”) to a developer the Interested Party Prologis UK Ltd (“PUK”). That permission permitted the erection of a rail served storage and distribution warehouse and related development at a site called HBC Fields, Halebank Road, Halebank, Cheshire, which lies within the Unitary Borough of Halton. The application site is owned by HBC.

The application itself was for a total of 110,769 sq m of floorspace. The main building would have an internal height of at least 11 metres. Its dimensions would be about 430 metres long by 190 metres wide. The proposed buildings’ footprint covered more than 100,000 sq metres, together with 1250 car parking spaces (including overflow). It would lie within structural landscaping (already permitted) and linked by a road to a nearby junction on the primary route network, as described below (also already permitted). It was also indicated that work to nearby railway sidings (which lie outside the site and as described below) would be carried out under Network Rail permitted development rights. The developer informed the Borough Council that the proposed occupier was the well known internet trading company, Amazon.

The Claimant is the Parish Council (“ PC”) for the parish of Halebank, in which the site sits. Halebank lies within an area bounded by the main Crewe/Liverpool railway line and A562/561 Widnes/Liverpool dual carriageway to the north, industrial and urban development to the east, and the rural village of Hale to the west, beyond which lies the urban residential area of Speke, and the eastern end of Liverpool John Lennon Airport. Halebank and its immediate neighbour Hale village lie in an area which is to a significant degree still an undeveloped agricultural landscape separating the two urban areas. The site consists largely of hitherto undeveloped land forming part of that gap, close to Halebank Village, but as I shall describe it has for some time been identified for development in the statutory Development Plan, provided certain criteria are met. Understandably, the proposed development of the site, both as a matter of principle, and by this scheme in particular, has excited some considerable opposition within the village, and is opposed by the PC.

This claim concerns the following issues:

Two further issues have also arisen

On 23^rd February 2012 HH Judge Waksman QC ordered that written submissions be made on the “tailpiece conditions” issue. On 21^st March 2012I ordered a “rolled up hearing” on 28^th May 2012, and directed that there be an oral hearing of the Claimant’s application for a protective costs order. On 3^rd April 2012 Simon J refused the Claimant’s application to have the application for a protective costs order dealt with on paper. HH Judge Raynor QC made a protective costs order on 30^th April 2012. At the time that I made the order of 21^st March 2012 it appeared that the relevant documents had been disclosed, and the factual position was established, and what remained for argument were the legal issues. However as the hearing took place before me, some elements of the HBC case were shown to be unsubstantiated, or significantly changed. Mr Fraser QC, Counsel for HBC very properly drew my attention to these matters as the hearing developed. I shall refer to them below.

I shall deal with matters as follows

The site lies west of Widnes, and immediately south of the London to Liverpool main railway line, which abuts the western end of the northern boundary of the site. It is called site 253 in the UDP. Until that Plan was adopted, the site lay within the statutory Green Belt. To the north east of the site lies an area (called site 256 in the UDP) which lies between the railway line and the site. It consists of railway sidings for the most part, which were operated by Network Rail. To the north of the railway line lies a factory site known as Ditton Works and site No 242 in the UDP. East of site 256, Ditton Road crosses the railway line. East of that point, a site (known as 255) lies south of the railway to the north and was industrial land. It included a timber yard and the West Bank Dock estate. As at October 2004 it contained a 15 hectare intermodal rail depot reached from the sidings described above, and a 40 hectare freight terminal, also involving rail access from the sidings.

Immediately to the east of the site lies Halebank Village which lies between the site and the Hale Road Industrial estate, which separates it from site 255. To the south and west of the site, the area is essentially rural, as the site is in its current form. The site was described by the Council’s consultants in their draft masterplan of October 2004 as

“26 hectares of predominantly greenfield land occupied by a number of agricultural tenant businesses.”

Regional Planning Guidance for the North West (RPG 13; March 2003) contained a policy SD9 which stated that the Regional Transport Strategy should deliver “effective multi-modal solutions to the conveyance of goods, people and services, especially at major hubs.” Policy T7 sought the provision of new strategically located intermodal interchanges to serve the North West. There were similar policies within the North West Regional Freight Strategy. The Regional Economic Strategy proposed a shortlist of 11 regional sites, later increased to 25, including Ditton, which is how the area described above is referred to. (I should add for completeness that the policy to identify intermodal sites had first emerged some years earlier).

That policy background led to a proposal by HBC of allocations in the Halton UDP, whose preparation began in 1999. It proposed what is now (in the adopted Plan of 2005) called the “ Ditton Strategic Rail Freight Park” which covered Site 253, but also included the other areas 255 and 256 for development (as appears below). Unsurprisingly, given the fact that the proposal involved the deletion of a substantial piece of land from the defined Green Belt, the Inspector gave it careful consideration in his report and recommendations following the UDP inquiry in 2003. One question he asked, entirely properly in the context of national policy, was

“ whether …………………….there are sufficiently exceptional circumstances to justify deletion of Site 253 from the Green Belt and its allocation in this UDP……”

He concluded that there were, but went on to recommend tests for its release (paragraphs 10.22.77 and 10.22.78). He rejected a suggested criterion that it was enough that development on Site 253 be capable of being used by Rail Freight , saying

“ in view of the reasons for accepting the allocation of Site 253 this is not enough”

and recommending that the development had to be rail served, with adjacent dedicated rail sidings, and that it should require that the provision of sidings should be a condition of any planning permission.

The approved UDP , which it is agreed constitutes the relevant statutory Development Plan for the purposes of section 38(6) of the Planning and Compulsory Purchase Act 2004 (“PCPA 2004)”) and section 70 of the Town and Country Planning Act 1990 (“ TCPA 1990”) therefore contains the following policy:

“ E7 DITTON STRATEGIC RAIL FREIGHT PARK

1

A phased strategic intermodal rail freight park will be developed on land at Ditton, Widnes in accordance with an overall master plan to be approved as a Supplementary Planning Document. Within the defined park Sites 253, 255 and 256 are allocated for development. Development will be permitted provided it complies with all of the following (and in the case of Site 253 subject also to compliance with paragraph 2 below)

a.

It is for use by businesses that would utilise the railway for the transportation of freight, and uses offering support services to them

b.

………

c.

………

d.

…………

e.

………….

2

Development will not be permitted on (Site) 253……………..unless all the following also apply

a.

It is part of a comprehensive proposal for a strategic rail freight park at Ditton in accordance with an agreed phasing plan

b.

Development of the strategic intermodal rail freight park on the previously developed sites 255 and 256……….has already commenced in accordance with an agreed Phasing Plan set out in a Supplementary Planning Document.

c.

…………………………………………….

d.

A warehouse development proposal comes forward of larger than 25,000 square metres floorspace and of a sufficient size or character that would be incapable of being accommodated within the remaining areas in the defined Park

e.

It is designed to be rail served, including the provision of dedicated rail sidings adjacent to it.

f.

The layout of development incorporates measures actively to discourage the direct movement of goods vehicles from the site to the local road network in the Halebank area. In order to achieve this aim a road system shall be provided to connect Sites 253, 255 and 256 where they are divided by public highways or railway lines.”

The policy is followed in the UDP by 11 paragraphs ( 3 to 13) of “ Justification.” Paragraph 11 states that the policy

“ sets out safeguards needed to ensure that the development takes place in a comprehensive manner, including the development of the previously developed areas in advance of development of the greenfield areas. The greenfield site 253 should not be developed in isolation or before the other areas of the proposed Rail Freight park. It is considered to be the key to facilitating the reuse and regeneration of currently contaminated and unattractive previously used land in the immediate area that would otherwise remain as such. The provision of railway sidings will be required as part of any proposal for the development of Site 253. This requirement will be the subject of conditions of any planning permission for Site 253.”

Paragraph 13 addresses, inter alia, the need for landscape buffer zones for site 253, and states that planning conditions and s 106 obligations will be used to ensure that environmental and amenity standards are protected.

As is apparent from Policy E7 of the UDP, there was to be an overall master plan to be approved as a Supplementary Planning Document. At the start of the hearing, HBC was contending that both such documents existed and had been approved by the Council. However by the end of the hearing HBC had accepted that their status was not as first claimed.

I shall deal below with the interpretation of that document. Much confusion was caused at the hearing by a plan referred to as “The Masterplan” in various editions of a newsletter distributed by HBC from at least 2006 onwards. That plan , which appeared on the front of the latest relevant edition of June 2011 and was labelled “The Vision”(sic), showed an illustrative plan of large rail related distribution building on Site 253, described as being approximately one million square feet in size (or almost 100,000 m²). It also showed developments on Site 255 and 256. Indeed at one point HBC was relying on it to show that the PC had a good idea of what had been settled on as the general form of development. However it emerged during the hearing that there was no sign of that plan ever having been approved by HBC, and not even any idea of who had been responsible for drawing it up.

The “Masterplan” referred to in the SPD was not that document. The one referred to in the SPD was one drawn up in 2004. I was informed by HBC at a late stage of the hearing that that 2004 masterplan was never actually approved or adopted by HBC, despite the contentions to the contrary in the SPD. It was published in “Revised Final Draft” form on 27^th October 2004, and was drawn up by the well known Consultants, Messrs Atkins. It contained descriptions of the area, details of site uses and ownerships, relevant policies and public sector funding issues. It contained a “masterplan” which identified the proposed uses for the Park, including “ Rail Related Development (Public Sector Led)” on Sites 253 and 256, and “Intensification of Existing Rail Related Development (Private Sector Led)” on Site 255. Various versions of that Plan exist. One (““3MG Mersey Multimodal Gateway Masterplan” (Drawing No 5013684/002/13)) of December 2007 was exhibited by HBC at page 100 its bundle.

Site 255 contains the former Connors’ Rail terminal, recently purchased by Stobarts. Planning applications were made in 2007-8 to expand the warehouse and distribution facilities by 129,000 sq metres, and add a rail siding. That development has been commenced. Its rail access would be gained from the Ditton sidings, but they are currently operating at full capacity. A permission exists on Site 256 to build four new railway sidings on Site 256. It has not been commenced. Although other development has taken place to the east of Site 255 but encroaches on a small part of it (a Tesco distribution warehouse) Mr Fraser does not argue that that qualifies as development on Site 255 required as the “trigger” to enable Site 253 to be developed.

During 2011, it became known that a developer (PUK) was interested in developing the site (i.e. Site 253). On 22^nd June 2011 HBC distributed a newsletter, which stated that a planning application would be made on the site. No timescale was given for the making of the application. It claimed that it had emerged from the “2006-7 Masterplan and layout” but as noted already that claim is not one supported before me at the hearing. It referred to a scheme of 111,612 square metres, with an illustrative “Masterplan” showing a rectangular building running east to west parallel to the railway line on its northern side. Road access was shown as taken north-northwestwards to the roundabout at the junction of the A 562 east-west dual carriageway and the A 5300 dual carriageway, which runs from that junction northwards to the junction of the M62 and M 57 motorways south east of Huyton.

Evidence before the court showed that on 10^th June 2011, the HBC Programmes Manager Ms Sally Macdonald, who works in the Employment, Economic Regeneration and Business Development Department of HBC advised her colleagues that if the permission were granted and PUK’s prospective occupier entered into contracts, HBC would receive

“ a return of £1.78 million.”

Evidence from Ms Macdonald in her witness statement was that would not represent a profit, but a recoupment of money already spent on the project, or of money which it would spend on it.

An exhibition was held on 20^th June 2011, in Widnes. On 15^th July 2011, Ms Macdonald wrote to those who had attended the exhibition stating that the planning application would be submitted by PUK on 20^th July 2011.

The application itself was, as noted above, for a total of 110,769 sq m of development. The building would have an internal height of at least 11 metres. Its dimensions would be about 430 metres long by 190 metres wide. The proposed buildings’ footprint covered more than 100,000 sq metres, together with 1250 car parking spaces (including overflow spaces). It would lie within structural landscaping (already permitted) and linked by road as described above (also already permitted). It was also indicated that work to the railway sidings (which lie outside the site) would be carried out under Network Rail permitted development rights.

Given the very substantial scale of the proposal, it required the submission of an Environmental Statement (“ES”). It ran to several hundred pages. It is unfortunate that in the Transport section of the ES, where Planning Policy is addressed, the UDP is misquoted, by omitting all reference to the condition precedent in Policy E7 (2)(a) and (b) and to the phasing policy in SPD (Claimant’s second bundle pages 737 to 740). However other material put forward by the developers quoted Policy E7 accurately.

The application was sent to the PC on 21^st July 2011, the day after its July meeting on 20^th July 2011. Its response was invited within 21 days. The Council officers had originally anticipated on 9^th June 2011 that the application would be made on 20^th July 2011, and be considered at Committee on 12^th September 2011 (see Macdonald E mail of 9^th June 2011). The Council members were to have been briefed on the application on 16^th June 2011.

However, it has been stated by HBC in an open letter in connection with these proceedings that on 30^th June 2011, the Chief Executive of HBC had actually agreed to work to a Development Control Committee date of 30^th August 2011 for the determination of the application. It follows that as at the 9^th June 2011, a Committee date was anticipated of 12^th September 2011, allowing just under 8 weeks from the date of submission before it was determined. However the revised date gave a period of just under 6 weeks. Indeed, evidence from Ms Macdonald to the court showed that as at 9^th June 2011, HBC had informed PUK that the Committee would meet on 12^th September 2011. However she also describes what then happened

“On 20th June the Council Leader and Council Officers met with (PUK) and the (unsecured) Customer. Developments of this kind are very rare in the Borough and as such, high importance is placed on them and they are afforded priority status as there are few opportunities available to create this number of jobs. Developments of this kind are time critical particularly due to retail trading patterns but also in this case as work needs to be undertaken on the national Rail Network and obtaining rail possessions have to be programmed into the project well in advance. The Customer and (PUK) expressed concern over the tight construction programme and asked if the Council were in a position to bring forward the Planning decision. The Council Leader agreed he would discuss the matter with colleagues. Following which I asked the Planning Officers A Plant and G Henry to consider the timetable and ascertain if the planning process could be progressed more speedily. It was agreed it could and still comply with the planning process. Consultation with the Chairman of the Development Committee Cllr P Nolan took place on 29^th June and Cllr Nolan agreed that the Development Control Committee would be called on 30^th August 2011 and that Officers would work to a new timetable.”

She then goes on to describe how an officer from Committee Services contacted members of the Committee to check their diaries. All officers were then told that the meeting was to be on 30^th August 2011. However, significantly Mrs Macdonald says this

“A meeting is formally called when the agenda is published. This was on 19^th August 2011 for 30^th August 2011.”

There was in fact no Development Control Committee date scheduled for August 2011. The next scheduled dates were 12^th September 2011 and 10^th October 2011. In accordance with what Mrs Macdonald describes, it was not until 19^th August 2011 that notice was given that the meeting would be on 30^th August 2011. In other words the Chairman of the Development Control Committee had decided on 29^th June 2011 to hold a special meeting on 30^th August 2011. It follows that Council members and officers were aware of the fact that the application would be dealt with at the special meeting, some 9 weeks before it was held, 3 weeks before the planning application was made and over 7 weeks before informing the public, including those opposed to the proposal.

On 2^nd August 2011 purported formal notice was given that the application had been made, but the site notices had not been displayed as required. However the correct site notices were placed on 8^th August 2011, and the correct advertisements placed in local papers on 10^th August 2011. (Of course the PC had known of the application since receipt of the letter of 21^st July)

On 6^th August 2011 Mrs Julie Egan, the Clerk of the PC , had written to Mr Tim Gibbs MRTPI MRICS, the Divisional Manager (Policy and Development Services) who was identified as the officer dealing with the application (and had written the letter of 21^st July 2011). At that time she was unaware of the proposal to have a Committee meeting on 30^th August. She asked for an extension of the 21 day period given to the PC, and said that the window for consultation responses was “ very narrow.” She said that there were compelling reasons why the PC needed more time to consider the application and formulate its response to HBC. They were

On 8^th August 2011 Mrs Egan informed Mr Gibbs (and various Councillors, including the Chairman and Vice Chairman of the Committee) that PUK had now agreed to come to the next meeting of the PC and answer questions. She asked that the application not be determined before that had taken place.

It is right to record that when this topic was first addressed at the hearing, it was thought that the new date of 30^th August 2011 was then known. It transpired during the hearing that it was not, and indeed had not yet been notified. Mr Gibbs responded on 9^th August 2011 by E mail. As I shall come to, it was also conceded at the hearing by HBC that no authority had been delegated to Mr Gibbs to deal with requests for an extension of the consultation period. He contended that

Mrs Egan repeated the request for deferment on 10^th August, but Mr Gibbs did not reply.

Meanwhile (still at a time when the PC thought that the Committee meeting was on 12th September 2011) Mrs Egan informed PUK that the earliest date when the whole PC could be present to meet PUK was 6^th September 2011. PUK now, by letter of 11^th August 2011 said that it considered that the PC had enough information to comment to the Planning Authority on the application.

The PC now considered the holding of a Parish Council meeting in the light of Mr Gibbs’ response. Mrs Egan’s evidence explains that of the five PC members, three were away for most of August, and she herself was away on a pre booked holiday with her children from 9^th to 24^th August. Given the fact that PC members are simply ordinary members of the public, elected to serve on the Council, it is unsurprising that the holding of a meeting in August presents difficulties (as I shall come to, the issue of Council policy on consultations in holiday periods is relevant on this issue). Mrs Egan’s evidence is also that their Planning Consultant required more time to give advice. The vice chair, Councillor Woodward, describes in evidence that she was asked to contact the Chief Officer of the Cheshire Association of Local Councils (CHALC) for advice. CHALC advised Mrs Woodward to seek to hold a meeting, but raised the issue that there could be a question of the members having a pecuniary interest. That might arise from the fact that, as near neighbours of the proposed warehouse, the value of their properties could be affected. However a dispensation could be obtained from the Standards Committee of HBC pursuant to section 55 of the Local Government Act 2000. According to Mrs Woodward, she was told by the HBC Monitoring Officer Mr Mark Reaney on 18^th August 2011 that he could only consider the matter if each Parish Councillor wrote to him. Mrs Woodward said that she could do that on 19^th August, whereupon she was told that the application for a dispensation would have to go before a Standards’ Board whose next meeting was on 7^th September 2011. However she goes on to say that Mr Reaney would contact the Democratic Services Manager and Parish Council Liaison Officer to see what could be done.

Mrs Lawley did not telephone on 18^th August 2011. She telephoned when Mrs Woodward was out on 19^th August 2011, and left a message to call her. Mrs Woodward was now in a dilemma as 3 days’ notice had to be given of a PC meeting, and she was about to go on holiday. She did not respond to the message and left for her holiday on 20^th August. The evidence for HBC from Mr Reaney is to the effect that a Standards Board could have been arranged.

Meanwhile, the time before the Committee meeting on 30^th August was reducing. Mrs Egan, the Parish Council clerk, was on pre-booked holiday until 24^th August. On 19^th August 2011 the report of the Strategic Director, Policy and Resources, was issued. It had been written by the Area Planning Officer, Glen Henry. As will become apparent, the statutory consultation period for the application had not yet expired. At the time that report was written only three letters of objection are recorded as having been received. As appears below, that position had changed substantially by the date of the Development Control Committee meeting. As will also become apparent, that report failed to deal with the tests in Policy E7 of the UDP by anything other than passing reference. I set out the relevant parts below.

On 30^th August 2011 Mrs Egan made a request that the application be deferred until the Committee’s next meeting to allow the PC to “ properly consider it and forward you our views.” She contended that it was unreasonable for HBC to proceed to a determination later that day, saying that

The Development Control Committee meeting took place that evening. The Minute records that the letter had been received. The Minute is silent on what if anything the Committee resolved to do about the request for deferment. Mr Andrew Plant, the principal Development Control officer states in his evidence that he informed the Committee of the exchanges with Mr Gibbs in early August. He recites that the Committee was informed of the latest letter but gives no evidence of any decision by the Committee. All he says is that it continued to consider the application. As Mr Fraser QC accepted, this means that of the three requests by the Parish Council

At that meeting the Planning Officer Mr Henry now spoke to a note which addressed a number of issues raised by objectors. By 30^th August 2011 another 546 letters of objection had been received (and were all individually signed copies of a distributed objection letter). The objections took 4 points. The first and second related to Policy E7:

It should be noted that the account of those points of objection in the Council Minutes bears little relation to the terms of the letter. The Minutes state that, on those two points, the objectors were raising objections that, inter alia:

“It was considered that the Policy context as a whole needed reviewing in terms of the aims and principles of the Policy,”

and

“ The lack of access via rail to the 3MG park.”

It is concerning that the author of the Minutes could imagine that that is a fair summary. In fact Mr Henry had addressed the two issues raised; whether he did so in a way consistent with policy E7 and the SPD is a subject I shall return to.

In the context of this case, I need only refer to the parts of the speaking note dealing with the interpretation and application of policy E7. I do so below.

The Committee resolved that the Operational Director – Policy Planning and Transportation, in consultation with the Vice Chair, be granted delegated authority to approve the application, subject to receiving confirmation from a body called MEAS on obligations concerning the Habitats Regulations, and subject to conditions relating to 35 identified topics. The decision notice was issued on 16^th September 2011, including certain conditions. I deal with those conditions in issue in a later section of this judgement.

No agreement or obligation under s 106 TCPA 1990 was entered into. The advice given to the Committee in the written report was that the applicant PUK and the Council

“have committed (sic)to make substantial contributions by means of a Development Agreement. The position of the Council as landowner is considered to afford a significant degree of control in this regard.”

In Mr Henry’s speaking note it was argued, and was HBC’s case before me, that no section 106 obligation could be entered into because HBC was the landowner. Mr Henry advised the Committee (my italics) that

“ The Council is anxious to put on record the same conditions that would apply to any other landowner or developer and these will therefore be covered by a development agreement. The terms of that development agreement will therefore include requirements to construct the principle (sic) access road and rail connectivity to the site ;costs for off site highway works…………….off site landscaping and habitat creation……….”

In fact, on 30^th June 2011, a meeting had taken place of the 3MG Executive Sub Board, a Committee of HBC, where the report of the Chief Executive, which described the development agreement, was made the subject of a resolution preventing disclosure pursuant to section 100A(4) of the Local Government Act 1972. No copy of that development agreement has actually been disclosed by HBC at any stage.

It is necessary to put this into the context of European Union Directives and domestic law. It is also necessary to refer to the HBC statement of community involvement issued pursuant to section 18 of the Planning and Compulsory Purchase Act 2004.

Because this is a development where environmental assessment was required Council Directive 85/337/EEC (The assessment of the effects of certain public and private projects on the environment), as amended by Directives 97/11/EC and 2003/35/EC. (There is now a consolidated Directive 2011/92/EU which came into effect in February 2012) Articles 4 and 6 are relevant

In domestic law, I must refer to the Town and Country Planning (Development Management Procedure) England) Order 2010 No 2184 (“DMPO 2010”) and the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 No 293 (EIA Regs). As this was an EIA application accompanied by an environmental statement, Articles 13 (1)- ((3) , 23, 28 and 29 of DMPO 2010 are relevant

By Regulation 13 of the EIA Regs the local planning authority must not determine a planning application in an EIA case until the expiry of 14 days from the date of service of the environmental statement, in this case on the PC.

HBC had also published in 2006 its statement of community involvement pursuant to section 18 of the Planning and Compulsory Purchase Act 2004. It includes these passages

The Cabinet Office Code of Practice on Consultation, referred to in the HBC Statement of Community Involvement, was published in June 2008. It contains 7 “Consultation Criteria.” The second reads

“Duration of consultation exercises: Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible.”

That is repeated at section 2, which includes paragraph 2.1

“If a consultation exercise is to take place over a period when consultees are less able to respond, e.g. over the summer or Christmas break, or if the policy under consideration is particularly complex, consideration should be given to the feasibility of allowing a longer period for the consultation.”

Mr Kolinsky submits as follows

For HBC , Mr Vincent Fraser QC submitted that

Before turning to the legal submissions made to me, it is sensible to start with some basic facts, and then some basic objectives.

However it is put, this was a major proposal involving the construction of a distribution warehouse of a scale found in only a very few locations, on a large greenfield site next to a small settlement, and in what had been Green Belt, to be served by both road and rail, and on a site to whose development the relevant Development Plan policy applied important threshold tests. The Environmental Statement consisted of no fewer than 974 pages, including technical data. In that context, I cannot attribute much realism to HBC’s submission that it was “not particularly complex.” It may not have been complex if compared to some of the very largest proposals for development (a new airport terminal or runway, a new settlement, or in terms of environmental effects a major piece of infrastructure like a large quarry or port project) but it was very substantial indeed when compared to the vast majority of development projects. Even those of us whose professional life is or was spent grappling with such projects would have found that this one required some study and reflection if one were to comment properly upon it. Lay people such as members of the Parish Council would have required it too, unassisted (unlike the HBC members) by professional advice.

It is essential to the Town and Country Planning system in this country that such projects are the subject of public consultation. Indeed as an EIA development, the responses by consultees are part of the environmental information which was to be taken into account. Consultation serves much less purpose if it is not informed by a proper understanding of the issues involved. HBC’s adopted SCI is itself (and properly so) committed to the principle of effective consultation. I shall consider the status and effect of what it said below.

The proposal was also on a site owned by the planning authority, who would receive a return if the development went ahead. Its interest in the outcome was not altered simply because that return would not amount to a profit. It followed that it was especially important that the process was conducted and seen to be a fair one.

Against that background, the way in which this application was handled was on any view unusual. One must start with a dash of realism. Representations by consultees are considered by a local planning authority even if received after the end of the statutory consultation period: as HBC says is also its practice. That will be especially likely in periods affected by holidays, and in cases where the scale of the proposal and of its accompanying ES is so substantial that time for reflection is required. So anyone being informed of the application on 21^st July 2011 would have been able to think that the next Committee meeting was, as stated in the schedule, to be on 12th September 2011. It is a remarkable fact that by that date in July, a decision had been made, as a result of a meeting by officers with the developer and its customer, that a new committee date had already been fixed on an earlier date, but that HBC took no steps to warn any consultee that the date of the meeting had been brought forward, even though officers and the Chairman of the Development Control Committee had known of the change for at least 3 weeks. That is especially remarkable given the fact that it was a known holiday period. Notice of the Committee meeting was not given until 4 weeks after the application had been notified. The exchanges with Mr Gibbs in early August demonstrate that the PC had genuine concerns about the time for consultation, raised promptly. It is now conceded by HBC that Mr Gibbs had no authority to decide whether the consultation period could be extended, but whether or not he did, it is still most unfortunate that there was omitted from his E mail of 9^th August 2011 any intimation to the PC that, so far as the making of representation was concerned, it did not have almost 5 weeks left before the Committee date, but as HBC knew, just 3 weeks. I have no evidence that the conduct by HBC officers in June to August 2011 by HBC was part of any plan to keep the PC or others in the dark, or to constrain their ability to make representations, but that was plainly the potential and actual effect.

The Committee, notwithstanding the submissions made to me for HBC, is not recorded in the Minutes as giving any actual consideration at all to the third request by the PC for a deferment, and Mr Plant’s evidence for HBC does not describe any. It is therefore impossible to accept Mr Fraser QC’s submission that “HBC was entitled to consider that the PC had sufficient time to make representations.” I have no actual evidence that the Committee ever did anything more than have the letter put before it, and Mr Gibb’s unauthorised response of 9^th August 2010, and that, in the event, the Committee proceeded to determine the application. Beyond knowing that it had the exchanges between the PC and Mr Gibbs before it, I have no evidence that the Committee considered that, nor why. I must record my surprise that, if the Committee did discuss the PC request, and did have reasons for rejecting it, that no evidence to that effect was filed by HBC.

This is therefore not a case where the Court is being asked to consider the merits or adequacy of the reasons given for HBC declining to grant an extension. It gave none at all. I must therefore consider whether, on the facts put before me, there was either

As to the issue of the breach of the Directive, the central issue raised in argument is whether the duty in Article 6 that

“1.

Member States shall take the measures necessary to ensure that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities are given an opportunity to express their opinion on the request for development consent,

and that

In my judgement the answer to that question depends on whether, in the particular circumstances of a particular development, the consultation has been such as to permit “early and effective opportunities to participate,” as per Article 6(4). It is not enough that some comment or opinion could be expressed: the Article anticipates that the maker has had sufficient opportunity to be able to make an informed comment or opinion. If not, then it could not be said to be an “effective” opportunity to participate or to make a comment of utility for consideration when the authority makes its decision.

I therefore decline to regard the setting of the consultation period in the domestic regulations as conclusive on the issue of adequacy. If the circumstances prevented the consultation from being effective, then there could be a breach of Article 6. Mr Fraser accepted that the local planning authority had the power to extend the period (or to put it another way, postpone the Committee meeting). The rationale of that power can only be based in the concept that in some cases circumstances may be considered to require longer periods for representations to be made.

But even if I am wrong about the effect of Article 6, HBC was under a duty to address arguments raised before it about the extension of consultation periods. It was not entitled to assume that because it had expected in advance that a period of 21 days would be enough, therefore it must still be so regarded when it had now received evidence to the contrary. Mr Gibbs had no authority to write as he did on 9^th August 2011, and it was incumbent on the Committee to consider the matter anyway.

I turn now to consider the SCI. It is plain that if the Cabinet Office document is incorporated, then HBC was holding out as its policy that

“ If a consultation exercise is to take place over a period when consultees are less able to respond, e.g. over the summer or Christmas break, or if the policy under consideration is particularly complex, consideration should be given to the feasibility of allowing a longer period for the consultation.”

I can see no reason for including the reference to the Cabinet Office document unless it was being incorporated. It follows that HBC policy was that if consultees were less able to respond (NB not unable), or if the proposal under consideration were particularly complex, consideration would be given to the feasibility of allowing a longer period. I accept that it does not follow that it must be granted, but there is a clear policy held out that such circumstances will be regarded as potentially justifying an extension, and will be considered. The PC put forward arguments that it needed advice from Planning Consultants, and that members of the Council were or would be on holiday. However there is nothing whatever in the papers which shows that the Committee ever addressed the questions raised in its own adopted policy. That was a breach of a legitimate expectation.

But that is not the end of the matter. Mr Fraser contends that as a matter of fact

I do not accept his point about the meeting. While I am prepared to accept that members could have met, had some returned from holidays to do so (although whether it would be reasonable to expect that to occur is another matter), the unchallenged fact that some were on holiday must mean that the ability of the Council members to be able to consider the application was constrained. Getting to grips with an Environmental Statement of almost 1000 pages and achieving an understanding of a scheme of this size and scale is not a matter for holiday reading. The public consultation by the developer would have assisted the PC, as would the newsletter, but no-one could fairly claim that that meant that the full Environmental Statement and any supporting material did not have to be read and considered. It is true that, in the event, points are not being taken in the judicial review proceedings on matters of environmental impact, but that does not overcome the difficulty that the material had to be considered in the period in question.

As to the interpretation of the UDP, I agree with Mr Fraser that the issue of interpretation could be shortly addressed. However it too was not a subject to be addressed without some reflection, and as the dealings with that aspect of the case by HBC demonstrate (see below), first thoughts could well be misleading.

I reject Mr Fraser’s point that later representations would have been entertained by HBC. The terms of its resolution showed that the decision had been taken, subject only to dealing with some issues that did not go to questions of principle.

I am therefore of the view that this consultation was not conducted fairly or effectively. Those who disagreed with the proposal were put at a considerable disadvantage, and (knowingly or otherwise) not informed that they had even less time to have their comments made than they had anticipated. When they asked for more time, their requests were dismissed without authorised consideration, and when put to the Committee were rejected without any known consideration, let alone reasons, despite the terms of HBC’s own adopted policy. It amounted to a breach of Article 6 and was in any event contrary to the legitimate expectation the PC had as to the conduct of the consultation process.

The first report (which was written) was that put forward on 19^th August. It is a substantial document running to 26 pages. It dealt with Policy E7 as follows

“SITE/LOCATION

The site is approximately 32 ha …….and identified as Site 253 with surrounding land contained within the Potential Extent (sic) of the DSRFP (Footnote: ²) as defined by the Halton (UDP)……………………………

(UDP)DESIGNATION, KEY POLICIES AND SUSTAINABILITY OBJECTIVES

The site lies within an area designated as a Regional Investment Site for the development of the Ditton Strategic Rail Freight Park in the (UDP). ………………….Policies………E7 Ditton Strategic Rail Freight Park……….(is) considered to be of relevance……………….Supplementary Planning Documents relating to 3MG Mersey Multimodal Gateway……………..(is) also of relevance.

OBSERVATIONS AND ISSUES

The proposed development site forms the western area of the ……..(DSFRP) as defined by the (UDP)…………

Policy Implications

The site is identified in the (UDP) on the proposals map and by Policy S 20 as within an area identified as a Regional Investment Site for the development of Ditton Strategic Rail Freight Park.”

After referring to the UDP Inquiry Inspector’s report it went on to describe a “detailed planning policy framework” including a “Masterplan and Supplementary Planning Document covering the 3MG area. It then continued

“ UDP Policy E7 supports the phased development of a strategic intermodal rail freight park identifying a core area of three key sites for development subject to clearly defined criteria. These can be summarised as follows

•

It is for use by businesses which utilise rail and support services

•

High quality development suited to companies of regional and national distribution importance giving rise to new employment

•

………………………………………………………….

•

It would not prejudice wider rail improvements

•

Demonstration that it would not have a significant adverse impact on the local transport networks and trunk road network

•

Detailed Policy Tests in relation to Site 253.

A detailed Rail Report…………………..describes how the rail sidings proposed as part of the application for the ……site and describes how this will relate to and function along side the rail reception sidings that have already been approved.”

At a later stage it continued

“ Policy considerations have been subject to detailed assessment by the Councils Local Development Framework Principle (sic) Officer who has confirmed that …………..the proposal has had good regard to the site specific polices of the UDP and will therefore assist in achieving the aims of E7 in particular………………..

……..The application proposals are considered to be a natural progression of a lengthy planning process which resulted in the allocation of the site through the UDP process and the subsequent and emerging planning policy documents and statements. The proposals are considered to accord with the planning policy framework both current and emerging for the Borough, at a regional and at a national level and it is not considered that objections could be sustained on policy grounds.”

After considering various aspects of the development and its impacts, the Report concluded as follows

“ Policy E7 locates the site within the DSRFP, a phased strategic inter-modal freight park to be used by businesses of national or regional distribution importance deigned to have the capability to utilise the railway for the transportation of freight or provide supporting services. Development within the DSFRP is required to demonstrate that it will create employment opportunities for local residents and contribute to urban regeneration without adverse impact on the environment, the amenity of the local population or local transport, trunk and rail networks. In addition Policy E7 sets down a range of respective policies specific to Site 253 intended to ensure the proper planning and character of the development and to minimise the impact of the development on local communities, the environment and the surrounding road network. ……………………………………………………………………………………………………………………………………………………………………………….The applicant and the Council have committed to make substantial contributions by means of a Development Agreement. The position of the landowner is considered to afford a significant degree of control in this regard. The proposals are considered to accord with local and national policy and the application is therefore recommended for approval.”

It will be noted, perhaps surprisingly, that the report never addressed the tests set in Policy E7. In the light of the substantial number of objections which took the point about the terms of E7, Mr Henry now prepared a speaking note, which he read to the Committee meeting.

Having recited the two points of objection noted above at paragraph 40, he continued

“ …….In this regard it is considered that we need to review the policy context as a whole in terms of the aims and principles of the wider policy context and the application proposals have been assessed on that basis. The policy tests in the UDP must themselves be considered in (the) context of the adopted Supplementary Planning Document and the phasing plan contained within that document. That SPD was adopted by the Council in 2009, is considered to provide allowance for flexibility in phasing and has not been challenged. Planning permission is in place for dedicated rail sidings to serve the whole of the 3MG Park and the site is linked to the wider park by the highway network. The application contains a dedicated siding within the site and workable proposals for rail connectivity……………….operational connectivity is subject to procedures and agreement by Network Rail ……….……………………

Rail related development is considered to have commenced on Site 255 through development of the O’Connors Rail Terminal. The Council is currently considering a planning application by Stobarts for the remainder of site 255 relating to approximately 33 ha of warehouse provision. That application is in outline but …………….must be viewed as commitment to ongoing development on that site.

It is against that backdrop that the development has been considered to accord with the development plan and planning p[policy at a local and national level.”

The Minutes, as noted above, misstate the objections made. They also record a summary of Mr Henry’s contribution, and that of a Mr Holmes who spoke on behalf of the Applicant, and argued, inter alia, that the proposal was in accordance with adopted policy, and tied in with existing planning permissions for road and rail connections.

The Notice of Approval records that the decision to grant permission

“had been taken having regard to the relevant policies and proposals in the Halton (UDP) and to further material planning considerations”

and

“In particular the development would make a significant contribution to the sustainable growth and regeneration of the area, creating significant employment opportunities and encouraging transportation of goods by rail through the ongoing development and expansion of the DSFRP in accordance with Policy E7……………of the Halton (UDP)…..”

For the Claimant PC, Mr Kolinsky argues that

Mr Fraser QC for HBC submitted that

The starting point must be the status of the development plan. The statutory development plan for the purposes of section 38(6) of PCPA 2004 and section 70 of TCPA 1990 is the UDP. It follows that a planning application must be determined in accordance with it unless material considerations indicate otherwise (section 38(6) PCPA 2004)

I accept Mr Kolinsky’s submission (which was not challenged by Mr Fraser) that a local planning authority must proceed on a proper understanding of the development plan: see Lord Reed in the very recent (March 2012) decision in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 at paragraphs 17- 23. That decision has restored the effect of the clear line on interpretation in authorities such as Gransden and Co v Secretary of State for the Environment [1985] 54 P & CR 86 @94 per Woolf J and Horsham DC v Secretary of State for the Environment [1991] 63 P & CR 219 @225-6 per Nolan LJ, before that was supplanted by the alternative and now discarded approach in R v Derbyshire CC ex p Woods [1997] JPL 958@967 per Brooke LJ. A failure by a decision maker to interpret policy properly makes the decision open to challenge – see City of Edinburgh Council v Secretary of State for Scotland [1998] SC (HL 33, [1997] 1 WLR 1447 at 44 /1459 per Lord Clyde. Policy statements must be interpreted objectively in accordance with the language used, and always in its proper context. But as Tesco Stores Ltd v Dundee City Council makes plain, the application to the facts before it is a matter for the decision making authority. However one must be careful. It is impermissible to use SPD to change the effect of properly interpreted Development Plan policy, and one cannot use SPD to alter its meaning. Mr Fraser accepted that the SPD is a material consideration, but also that it cannot have the status of the development plan, and one cannot use it to interpret the Development Plan.

In my judgement the critical questions on interpretation are

On the first question, in my judgement the embarrassing confusions at HBC about plans and the adoption of the “masterplan” should not distract one from the main issue. The SPD does contain proposals for the allocation of sites to uses within the area covered by E7. It also cross refers to the “masterplan” (the one published in draft). It may very well be that HBC could have taken more care, and replaced some of the less considered publicity for the project with some rather more careful planning work, but one cannot fairly conclude that there is not a comprehensive proposal of which this proposal forms part. What SPD does not do is to propose actual developments, unlike the unauthorised plan appearing in the Newsletter, but I do not consider that that amounts to an approach inconsistent with the UDP.

But on the second question, the ingenious attempt to argue that development of either Site 256 or Site 255 suffices to satisfy the precondition is not one which I can accept. The UDP policy refers to development on sites (plural) 253 and 256 as required for the pre condition to be met, and paragraph 11 of the reasons and explanation shows that the previously developed areas (again note the plural) are to be developed before the greenfield Site 253. That is not simply a matter of the choice of conjunction. As the terms of the Inspector’s report and of the UDP itself show, the rationale of the policy, and an important one in planning terms, is that all the brownfield sites must have come forward before one uses the greenfield site. However I do accept on the evidence put before me that development had started on Site 255 within the meaning of the UDP policy.

If HBC had approached this issue on the basis that although the Development Plan required that development on Site 256 had commenced, there were good reasons why it was not necessary to insist on that, then the case would be very different. But HBC has stated quite firmly on the planning decision notice that the scheme has been granted permission on the basis that it was in accordance with the development plan. Further, the account given in the Minutes of the objection on this ground that “the objectors were urging that (a) “the policy context as a whole needed reviewing in terms of the aims and principles of the Policy,” reveals that there was at the very least considerable confusion in the Committee’s mind about the policy.

I suspect that one reason why this has come about is that the hasty way in which HBC dealt with the application also affected the ability of the professional planning officers to grapple with the policies in a more considered fashion, and then give considered advice to the Committee. By the time the written report was prepared, almost no representations had been received, and the arguments about the meaning of the UDP were not addressed within that report. Indeed the original report’s failure to address the E7 policy tests for release (save by noting the existence of unspecified tests) could fairly be described as a serious omission. By the 30^th August Mr Henry was having to deal with the substantial volume of objections on that very issue. He then made the basic error of thinking that one could use the SPD to interpret the UDP. It was accepted at the hearing by Mr Fraser that such an approach was impermissible. The fact that he sought to rely on a development at Site 256 which had been permitted but not commenced, and that the Committee considered that the proposal accorded with the Development Plan, demonstrates neatly that the policy was misunderstood, and certainly applied in a way which is not consistent with its correct interpretation.

I should add for completeness that I think there is nothing in the PC point about the road. The policy requirement seeks to prevent access being taken via the local road network, and wants a connection between sites 253, 255 and 256. It does not specify a direct connection. The effect of the road link to the primary road network enables traffic to pass to Site 255 without encountering the local road network.

Given the fact that development had occurred on Site 255, it follows that the effect of what the UDP required would be met if some development had been started on Site 256 which complied with Policy E7(1). This proposal involves linkage between the railway sidings within Site 253 and the railway sidings to be provided on Site 256. It is also part of the comprehensive development of the SRF area, in accordance with the adopted SPD, and the masterplan to which it refers, albeit that the latter had not proceeded through all its stages. It follows in my judgement that, provided that this development would function as part of the strategic rail freight park, and provided that it would satisfy the test in policy E7(2)(b), the other tests in Policy E7 are met.

I shall return in due course to consider whether this failure by HBC justifies me in the exercise of my discretion to quash the consent.

The permission contained a number of conditions. They included the following

The Committee was advised that (see Minutes page 206-7) as the Council owned the land it could not enter into an agreement for planning obligations under section 106 of the Town and Country Planning Act 1990. It was then advised that the matters which would have been covered by a section 106 agreement would be dealt with instead by a development agreement made between HBC and the developer. It would include

“ requirements to construct the principle (sic) access road and rail connectivity to the site, costs for highway works including cycle and pedestrian linkage, off site landscaping and habitat creation and management for ground nesting birds”

Mr Kolinsky submitted for the PC that

Mr Fraser submitted that

As to the conditions, there can be no doubt that negative “ Grampian” conditions are widely used. They have a particular role to play where steps have to be taken, or activities controlled, outside the application site, or where another authority (such as the Highway Authority or the Environment Agency) have jurisdiction. However there is also nothing wrong in principle with conditions framed in negative form even where such circumstances do not arise.

Two tailpiece conditions in Midcounties Co-Op v Wyre Forest DC were challenged, one unsuccessfully and the other not;

In the case of the first condition, Ouseley J held (see paragraph 70) that the effect of the tailpiece was to enable development to take place

“ which could be very different in scale or impact from that applied for, assessed or permitted, and it enables it to be created by means wholly outside any statutory process”

In the case of the second condition, Ouseley J referred to Henry Boot Homes ltd v Bassetlaw DC [2002] EWCA Civ 2003 [2003] 1 P & CR 23 @ paragraphs 51-54. He concluded that

Henry Boot is a case concerned with whether or not a planning permission had been implemented in accordance with its conditions. It is principally concerned with whether a local planning authority could waive the need to comply with a condition. However in his judgement Keene LJ (who had unrivalled experience in matters relating to Planning Law) said this at paragraphs 46-52

In R(Warley) v Wealden DC [2011] EWHC 2083 (Admin) permission was granted for lighting at a tennis court at the Wadhurst Tennis Club in the East Sussex Weald with a condition 2 reading

Mr Rabinder Singh QC (as he then was) sitting as a deputy High Court Judge, having cited the judgement of Ouseley J at paragraphs 66 and 70 of the Mid Counties Cooperative v Wyre Forest decision went on at paragraphs 88-91

I do not find myself able to follow the approach of Mr Rabinder Singh QC in that first instance decision. Nothing about the condition in that case altered the nature of the development applied for, nor affected the principle of the opening hours being controlled. The condition set out the regime that was to apply, and permitted small scale relaxations to be made on an occasional basis. I do not consider that that approach risks any significant infraction of the rule of law. I prefer to test the tailpiece conditions here against the approach in Henry Boot and in MidCounties Cooperative v Wyre Forest DC.

To my mind, in the instant case the matters of importance about these conditions is that they related to the execution of works required to effect noise attenuation, road access and rail access. All of those are matters of significance which could have a permanent effect on the control of potential environmental impacts, and of the way in which the developed warehouse would function in land use terms. There is a strong public interest to be protected of the public being able to comment on matters which affect it. In my judgement they offend against the principles adumbrated in Henry Boot by Keene LJ and applied in MidCounties Cooperative v Wyre Forest DC by Ouseley J .

It was however common ground that the offending parts of the conditions were capable of being excised.

As to the issue of section 106 agreement, I consider that HBC was quite entitled to decide whether or not to enter into an obligation under section 106 of TCPA 1990 . The section reads, so far as is relevant

“106 Planning obligations.E+W

(1)

Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section and sections 106A and 106B as “a planning obligation”), enforceable to the extent mentioned in subsection (3)—

(a)

restricting the development or use of the land in any specified way;

(b)

requiring specified operations or activities to be carried out in, on, under or over the land;

(c)

requiring the land to be used in any specified way; or

(d)

requiring a sum or sums to be paid to the authority…… on a specified date or dates or periodically.

(2)

A planning obligation may—

(a)

be unconditional or subject to conditions;

(b)

impose any restriction or requirement mentioned in subsection (1)(a) to (c) either indefinitely or for such period or periods as may be specified; and

(c)

if it requires a sum or sums to be paid, require the payment of a specified amount or an amount determined in accordance with the instrument by which the obligation is entered into and, if it requires the payment of periodical sums, require them to be paid indefinitely or for a specified period.

(3)

Subject to subsection (4) a planning obligation is enforceable by the authority identified in accordance with subsection (9)(d)—

(a)

against the person entering into the obligation; and

(b)

against any person deriving title from that person.

(4)……………….

(5)

A restriction or requirement imposed under a planning obligation is enforceable by injunction.

(6)

Without prejudice to subsection (5), if there is a breach of a requirement in a planning obligation to carry out any operations in, on, under or over the land to which the obligation relates, the authority by whom the obligation is enforceable may—

(a)

enter the land and carry out the operations; and

(b)

recover from the person or persons against whom the obligation is enforceable any expenses reasonably incurred by them in doing so.

(7)…………………………………...

(8)………………….

(9)

A planning obligation may not be entered into except by an instrument executed as a deed which—

(a)

states that the obligation is a planning obligation for the purposes of this section;

(b)

identifies the land in which the person entering into the obligation is interested;

(c)

identifies the person entering into the obligation and states what his interest in the land is; and

(d)

identifies the local planning authority by whom the obligation is enforceable………

(10)

A copy of any such instrument shall be given to the local planning authority so identified ………………….

(11)

A planning obligation shall be a local land charge and for the purposes of the Local Land Charges Act 1975 the authority by whom the obligation is enforceable shall be treated as the originating authority as respects such a charge.

(12)

…………………

(13)

…………………………..”

As Mr Fraser points out, the section is written that an agreement will be made with the Local Planning Authority, or an obligation entered into, enforceable as if it had been agreed. The section is written on the assumption that the agreement is made by the Local Planning Authority with a person interested in the land, or that, in the absence of an agreement, that such a person enters into an obligation, in both cases enforceable by the authority.

Here the view of HBC, which is unchallenged, was that at the time the Committee considered the application, no other person was interested in the land. It may be that another local planning authority would have wanted to find a way of creating a legal situation where a section 106 obligation could be entered into, but in my judgement it cannot be regarded as unlawful for HBC to decide that, in the absence of being able to enter into a section 106 agreement, it would follow a different route.

I accept that the development agreement route does not provide the same transparency as the section 106 route, for a section 106 agreement would have to be kept on the register. The 3MG Executive Sub-Board of HBC has decided to make none of the development agreement available for inspection, by resolution of 30th June 2011 identifying the whole agreement as exempt under section 100A (4) and Schedule 12A paragraph 3 of the Local Government Act 1972(as amended., i.e. that it contained

“information relating to the financial or business affairs of any particular person (including the authority holding that information). (Sched 12A Part 1 paragraph 3)”

But a redacted version of the development agreement, which identified the provisions dealing with the controls which would have been in a section 106 obligation, could have been made available. However the legality of that resolution is not before me, and its validity has not been challenged by the PC in these proceedings. That lack of the ability to inspect the Development Agreement is not enough for me to conclude that the HBC approach to the use of section 106 obligations was unlawful. If any works involving development are required which are not included within the application for planning permission, then other permissions are likely to be required, unless it could be carried out subject to permitted development rights.

The challenge relating to the section 106 agreement therefore fails, while the arguments relating to the legality of the tailpiece conditions succeed. I shall consider the effect below on the granting of relief.

Mr Fraser argues that four members of the PC have a pecuniary interest in the development the subject of these proceedings, on the basis that the development could affect their well being and/or financial position. He contends that the decision to institute proceedings was unlawful. At the hearing he argued that the decision of the PC to take proceedings offended s 94 of the Local Government Act 1972, but did not submit that that rendered the decision unlawful. I invited further written submissions on whether a failure to declare the interest alleged in this case would have the effect of vitiating the decision to conduct these proceedings.

Mr Fraser has now submitted that:

On the issue of delay Mr Fraser submitted that

Mr Kolinsky submitted that

On delay he submitted that

I accept Mr Kolinsky’s submission that the decision of the PC stands unless and until impugned by a court, even if the HBC arguments on members’ interests are sound. Mr Fraser has cited no authority against that proposition. I therefore have no power to decline relief on the basis argued by HBC.

I also consider it important to consider the context in which this issue arises. The relevance of the interests of a member of a Council may cover a wide spectrum, running from decisions by a planning authority to exercise compulsory purchase powers, or enter into a contract, or grant or refuse planning permission, down to very simple neighbourhood issues. The smaller a Council area gets, the more likely it is that its members will be affected in some way by a decision, and in planning cases, especially so the larger the development. In this case this was not a decision to grant or withhold some consent, nor to bestow or withhold contractual rights, but to make comment for consideration. However the application for development upon which the PC had the right to express a view was one which had the potential to have a very substantial effect on the whole Parish. The implication of the HBC argument is that members of a Parish Council such as Halebank, which is a small community affected by a very large proposed development, should be unable to take decisions, including the right to decide to make representations as a Parish Council, because they would be more seriously affected personally than they would be in the case of a less substantial development. The effect of that is that the requirement to consult statutory authorities in the form of Parish Councils will be frustrated.

Whether or not that means that they were interests which should have been declared, and disqualified members from voting, is unclear. However given my conclusions on the question of the issue of proceedings, I shall not reach a concluded view. I note also that a new code is likely to be issued pursuant to the Localism Act 2011 when it is in force.

I should add in postscript that no suggestion is made by HBC that the PC should not have made representations on the original consultation. Indeed a large part of HBC’s case has been to argue that the PC was consulted and that HBC wanted to receive its views. It argued strongly before me that the PC could and should have made representations even though the issue of the question of members’ interests had not been resolved. It should be noted that while HBC argued in the summary grounds of resistance to the claim that it required the PC to prove that the proceedings were properly authorised, it nowhere asserted at that stage of the proceedings that it had no authority to do so. Yet once the rolled up hearing had been ordered, HBC then wished to argue at the hearing that the PC had no right to reach any decision with regard to the development, including a decision to issue a claim to uphold its right to be consulted effectively. While legally not a contradictory stance, it was not an attractive one.

As to delay, this is not one of those cases where the effect of waiting for the proceedings to be issued has caused any significant prejudice, given the developer’s stated intention not to implement this permission, but to apply for another. I am also of the view that the PC gave ample notice at an early stage of an impending claim for judicial review. It did so on 17^th October 2011, although not on the issues of the misinterpretation of UDP policy E7 or on the tailpiece conditions. The original solicitors ceased trading, and the matter was transferred to another firm. There were requests for information between the PC and HBC by a correspondence starting on 17^th October 2011, which ended with an HBC response on 9^th December 2011 to a letter sent on 25^th November 2011. PUK’s solicitors were aware throughout of the impending challenge.

In my judgement the PC acted with reasonable promptness. I accept and agree that it was not until the claim was made that the points were taken about the UDP and the tailpiece conditions. The former however is a point of substance, where I have concluded that HBC did misinterpret the policy. It was also one known since the representations made at the planning application stage. In the latter case, the conditions were unlawful, but it is conceded that they can have the offending parts removed.

I have concluded that

One question therefore remains. Should I exercise my discretion to grant the relief claimed and quash the permission, or limit myself to making an order relating to the conditions ?

There are two arguments which support a refusal to quash the permission

In my judgement those arguments should fail because

I therefore consider that I should exercise my discretion in favour of the grant of relief. I grant permission to apply for judicial review, and quash the permission.

I must add in conclusion that nothing in this judgement should be read as indicating any view on the planning merits of the scheme, nor how HBC should determine any future application for planning permission.

There was a protective order made in this case by HH Judge Raynor QC on 30^th April 2012, varied by me by consent on 30^th May 2012. I am satisfied from the material put before me that the Claimant’s costs exceed the reciprocal cap. Accordingly I order that the Defendant pay the Claimant’s summarily assessed costs of £ 30,000 including VAT, within a period of 2 months of today’s date.

I asked for any application for permission to appeal to be submitted in writing. I have received none.