Commercial Estates Group Ltd v Secretary of State for Communities And Local Government & Ors

This is the Claimant’s renewed application for permission to bring Judicial Review Proceedings to challenge the Secretary of State’s screening direction of 13 May 2014. The direction was that a residential development proposed by the second and third Interested Parties does not constitute “EIA Development” within the meaning of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 [“the EIA Regulations”]. Relevant parts of the direction are annexed to this judgment as Annexe A, for ease of reference.

Permission was refused on the papers by Lang J on 30 July 2014. At the conclusion of the renewed application I gave my decision, which is to refuse permission, and said that I would provide reasons in writing later. These are my reasons.

There is a pressing need for additional housing, business accommodation and infrastructure in the Leicester and Leicestershire Housing Market Area [“the HMA”] as in other parts of the United Kingdom. The first Interested Party [“the Council”] is geographically situated within the HMA. It is under an obligation pursuant to s. 33A of the Planning and Compulsory Purchase Act 2004 to co-operate with other authorities at a strategic level when planning for the delivery of housing so as to take into account the needs of the wider HMA.

The Council includes within its geographical boundaries 360 hectares of land to the North East of Leicester which it considers suitable for development over the next decade or so. That land has been referred to as “the SUE” which indicates that the Council considers it ripe for Sustainable Urban Expansion. On 11 April 2013 the Council by Cabinet approved a pre-submission Core Strategy. That Draft Core Strategy proposes that the Council should deliver 13,000 houses between 2012 and 2028. Under the Core Strategy as adopted by Cabinet, the SUE was the area identified as delivering the largest contribution to the total requirement, being earmarked to provide approximately 4,500 homes and up to 13 hectares of employment land.

The consultation period for the Core Strategy ended on 22 July 2013. It was submitted for examination on 20 December 2013.

The Claimant [“CEG”] and the Second Interested Party [“DWH”] are rival developers who wish to take advantage of the opportunities that these plans would generate. DWH wishes to develop 150 homes on 8.8 hectares that are within the area of the SUE. It applied to the Council for outline planning permission jointly with the third Interested Party [“TPTL”] on 30 August 2013. On 20 December 2013 the Claimant submitted a hybrid application for planning permission for the whole of the SUE, including an application for outline planning permission for a mixed use residential led development delivering approximately 4,500 residential units and about 13 hectares of employment land.

For present purposes it is sufficient to note four things about the rival applications:

The status of the Draft Core Strategy is central to the Claimant’s submissions. On 23 January 2014 the Inspector wrote to the Council stating that he had identified “significant issues in relation to the duty to co-operate and soundness in terms of the overall provision for housing” within the HMA. He stated his intention to invite representatives from the other local authorities in the HMA to participate at the initial hearing sessions, and that “there are a number of other issues which I have identified in terms of the soundness of the Core Strategy, which will be dealt with, if appropriate, in due course.”

Initial hearing sessions were held on 19 and 20 March 2014. The Inspector then wrote to the Council again, on 1 April 2014, in the following terms:

“17.

I have a number of significant concerns in respect of the use of the HRP as an evidence base for the Core Strategy. Since its publication, key data has emerged from the 2011 Census and updated population and household projections. The HRP does not reach clear and specific conclusions in terms of the appropriate level of housing provision in the HMA or individual authorities and it was not followed up by discussions/agreements regarding the distribution of housing growth across the HMA. I consider that it does not provide an up to date and robust evidence base to conclude that the provision of 790 houses per year in Charnwood is appropriate in the context of the housing needs of the HMA as a whole.

18.

Turning to the Charnwood Housing Requirements Study (the HRS) published in October 2013…Fundamentally though, the HRS only considers the housing needs of Charnwood. Whilst some analysis of how the figure of 790 houses per year would accommodate in migration from Leicester City and elsewhere is undertaken, there is no assessment of the housing needs of the HMA as a whole or the role of Charnwood in accommodating them. The scope of the HRS is therefore inconsistent with Paragraph 159 of the NPPF.

19.

Taking all the above into account, I consider that the Core Strategy is not based upon an up to date and robust assessment of the housing needs of the MMA. It is not clear how such needs will be met and if there will be unmet needs from authorities that will have to be accommodated elsewhere within the HMA. There is not an effective basis to determine what role Charnwood should have in meeting the needs of the HMA and what the appropriate level of housing provision should be to achieve this.

…

20.

As it stands, the Core Strategy has not been positively prepared, it is not justified or effective and it is not consistent with national policy in respect of overall housing provision. It is therefore not sound.

…

23.

I am prepared to consider a suspension of the examination to enable joint working on the SHMA and housing distribution to be completed. The Council and other participants at the initial hearing sessions, including the other HMA authorities, agreed that although some benefit would be gained from the publication of the technical work on the SHMA, the issue of overall housing distribution and therefore the role of Charnwood in the HMA could only be addressed properly and effectively following further joint working and co-operation between authorities. I share that view although this clearly has an effect on the length of suspension necessary.

24.

The alternatives to a suspension would be that I proceed with my report, reaching the conclusion that the Core Strategy as submitted is not sound and recommending non-adoption, or that the Council chooses to withdraw the Core Strategy.

…

26.

I must stress that a suspension of the examination to allow work on the SHMA and housing distribution to be completed does not guarantee that I shall ultimately reach the conclusion that the Core Strategy is sound in this respect. You will also appreciate that there are a number of other issues of soundness which I will wish to pursue when the examination is resumed.”

The present status of the examination is that it is due to resume in about December 2014 after a suspension of about nine months. No evidence is before the Court about what the future holds. In particular, there is no evidence to establish whether the Council will amend the Draft Core Strategy in an attempt to cater for the Inspector’s concerns or whether it will withdraw the current Draft Core Strategy and start again; and there is no evidence about the Inspector’s other concerns and how, if at all, they are to be met.

Accordingly it may be said that the Draft Core Strategy is in a state of limbo and can at best be described as inchoate. It may reasonably be assumed that, in its present form, the Draft Core Strategy would be held to be unsound; and no alternative or moderated draft has been produced. It remains the Council’s preferred strategy to use SUEs as the main means of housing delivery; but no steps have been taken in response to the Inspector’s comments, which are not limited to the provision within the Council’s area alone but to the strategic considerations that are applicable to the wider HMA.

The Claimant submits that, in the light of the Inspector’s remarks, it can reasonably be assumed or foreseen that the Draft Core Strategy will be revised to provide for more (rather than less) residential dwellings in the SUE. Its argument is that the Inspector’s remarks can lead only to an increase in the predicted requirement for residential provision, which in turn will have to be squeezed into the SUEs in general and the present SUE in particular because the Council has as yet no alternative strategy and no alternative plan for the use of the SUE.

Mr Village QC for CEG accepted that, if the Draft Core Strategy was withdrawn then the future timetable and outcome for the presentation of a different strategy could not be predicted; but he submitted that would not happen. The short answer to his submission is that there is no evidence to support it, and such evidence as there is contemplates that withdrawal would be an option, at least if the Inspector’s concerns could not be met by adjustments to the present draft: see his letter of 1 April 2014 at [24]. To my mind, a more accurate characterisation of the present position is that it is not possible to predict what the outcome will be. While it is possible that the Council might simply try to squeeze more into the existing proposed SUEs, it must also be a possibility that the Council will rethink its proposed strategy more radically, both within individual SUEs and generally. In other words, there are three possible outcomes arising from the Inspector’s intervention. One is that the present Draft Core Strategy will be withdrawn; another is that it will be amended and found to be sound in its amended form; the third is that it will be amended but still found to be unsound. There is no predictable timetable for any of these outcomes save that the process is presently suspended until about the end of 2014.

Before submitting the planning application for its proposed development, DWH requested a screening opinion from the Council. On 30 July 2013 (after the adoption by Cabinet of the Draft Core Strategy) the Council issued a screening opinion that the development was not an EIA development. In November 2011 CEG provided the Council with an opinion which suggested (amongst other things) that its July 2013 screening opinion should have considered the environmental impact of DWH’s scheme in conjunction with the proposal for the SUE in the draft Core Strategy. As a result, on 10 January 2014 DWH applied to the Secretary of State for a Screening Direction in relation to its proposed development. That application led to the Screening Direction which is in issue in these proceedings.

CEG submits that the decision of the Secretary of State was unlawful on two grounds:

Though the case is framed as two separate arguments, each depends upon whether it was open to the decision maker to conclude that the implementation of the SUE proposal was not “reasonably foreseeable”. It is common ground that he purported to apply the correct test by asking himself whether the DWH proposal was “likely to have significant effects cumulatively with any other reasonably foreseeable development in the locality” and in concluding that “at this stage ... the likelihood of the SUE proposal in the plan reaching adoption stage is not reasonably foreseeable ... .” It is therefore necessary to see those words in their legal and procedural context before considering their application by the Secretary of State.

The legal framework is largely if not entirely common ground as between the represented parties.

Article 2.1 of Directive 85/337 on Environmental Impact Assessment, as amended and codified by Directive 2011/92/EC provides that:

“Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects.”

As originally implemented, Annex 3 of the 2011 Directive provided that the criteria for making an initial assessment whether a project is likely to have significant environmental effects included “the cumulation with other projects.” That provision has now been amended by Directive 2014/52/EU by the addition of words so that the criteria now include “the cumulation with other existing or approved projects.”

The requirements of the Directive are incorporated in domestic law by the EIA Regulations in the following way. A development is an “EIA development” if it is a development within Schedule 2 which is “likely to have significant effects on the environment by reason of factors such as its nature, size or location”: Regulation 2(1). A screening direction is defined in Regulation 2(1) as “a direction made by the Secretary of State as to whether development is EIA development”. By Regulation 4(3), “a direction of the Secretary of State shall determine for the purpose of these Regulations whether development is or is not EIA development”. In making that direction, the Secretary of State is required to take into account such of the selection criteria set out in Schedule 3 as are relevant to the development: Regulation 4 (6). Paragraph 1(b) of Schedule 3 requires the decision maker to take into consideration cumulation with other developments.” Where the Secretary of State makes a screening direction, it shall be accompanied by a written statement “giving clearly and precisely the full reasons for that conclusion.”

Document EC DG XI entitled “Guidelines for the Assessment of Indirect and Cumulative Impacts as well as Impact Interactions” (May 1999) describes cumulative impacts as “impacts that result from incremental changes caused by other past, present or reasonably foreseeable actions together with the project.” It provides detailed guidance as follows:

“Activities in the past, present and future can all have a bearing on the project being assessed and will influence the time frame set for the EIA. Setting time frames or ‘boundaries’ will allow for the inclusion of past and future developments which could lead to indirect or cumulative impacts or impact interactions.

Time boundaries will depend upon:

•

Historical use of the area, e.g. industrial activities or landfill;

•

Information available;

•

The local, or national planning horizons for future development;

•

Lifespan of the project from construction to decommissioning.

These are considered in more detail below.

In practical terms the extent of the assessment in terms of how far into the past and into the future will be dependant upon the availability and quality of information. Past activities can often be identified from historical maps, present activities from current maps, and future development activities from development plans.

…

Setting the time boundary in terms of future developments can be based on information provided from the relevant planning authorities during consultation and from information contained within development plans produced by local or perhaps national authorities. In setting the future time boundary it is suggested that in general, beyond 5 years there is too much uncertainty associated with most development proposals. It is therefore recommended that in the majority of cases the limit does not exceed 5 years into the future.

…

There are limitations in defining the area and time boundary that would be affected by the project. For example, it is only reasonable to consider current events and those that will take place in the foreseeable future. Furthermore, the assessment can only be based on the date that is readily available. There needs to be a cut off point at which it can be said that the impacts cannot be reasonably attributed to the project. This should be established. For example, this may be the point beyond which there can no longer be any reasonable mitigation. Within the Environment Statement the cut off point used for the assessment should be defined.”

Guidance is also provided by the DCLG, as follows:

“When should cumulative effects be assessed?

Each application (or request for a screening opinion) should be considered on its own merits. There are occasions where other existing or approved development may be relevant in determining whether significant effects are likely as a consequence of a proposed development. The local planning authorities should always have regard to the possible cumulative effects arising from any existing or approved development. There could also be circumstances where two or more applications for development should be considered together. For example, where the applications in question are not directly in competition with one another, so that both or all of them might be approved, and where the overall combined environmental impact of the proposals might be greater or have different effects than the sum of their separate parts.”

The position thus far can therefore be summarised as follows:

The test to be applied on screening is well established. In Loader v SSCLG [2012] EWCA Civ 869 at [43-44] Pill LJ (with whom Toulson and Sullivan LJJ agreed) said:

“43.

What emerges is that the test to be applied is:

"Is this project likely to have significant effects on the environment?"

... . The criteria to be applied are set out in the Regulations and judgment is to be exercised by planning authorities focusing on the circumstances of the particular case. The Commission Guidance recognises the value of national guidance and planning authorities have a degree of freedom in appraising whether or not a particular project must be made subject to an assessment. ...

44.

The criteria in the annexes to the Regulations justify the approach to the question proposed in Circular 02/99, paragraphs 33, 34 and annex A (cited at paragraphs 17 and 18 above). It is stated, at paragraph 34, that the number of cases of schedule 2 development which are EIA developments will be "a very small proportion of the total number of schedule 2 developments".”

A challenge to the decision is on normal Wednesbury principles, reflecting the fact that the Secretary of State’s decision is a fact finding exercise which requires the exercise of planning judgment: Evans v SSCLG [2013] Civ 114 at [22], [36]; Loader at [31]. Matters of planning judgment are within the exclusive jurisdiction of the Secretary of State: Tesco Stores v Secretary of State [1995] 1 WLR 759 at [57].

In two recent cases, Lindblom J has considered the approach to be adopted by the decision maker when addressing the issue of cumulative impact. In R (Ex parte Catt) v Brighton & Hove City Council [2013] EWHC (Admin) 977 at [69] he said:

“The project itself will not generally include development that was once on the site but has now been removed or whose use has come to an end, or further development that might – or might not – later come forward. When identifying the project it has to screen an authority does not have to resurrect the past or speculate about proposals the future may bring.”

In R (ex parte Hockley) v Essex County Council and anr [2013] EWHC 4051 (Admin), Lindblom J reviewed a number of the leading authorities on the approach to be adopted in screening direction cases. At [102] he said:

“102.

There has to be a sensible limit to what a screening decision-maker is expected to do. This view is supported in the cases to which I have referred, notably, for example, in Bateman (see paragraph 24 above). Conjecture about future development on other sites that might or might not act with the development in question to produce indirect, secondary or cumulative effects is not in the screening decision-maker's remit. I do not think the precautionary approach extends to that. And when it is suggested in a claim for judicial review that a screening decision was deficient because some potential cumulative effect was left out, it is not enough for a claimant simply to point to other developments in the locality that have been or might be approved, and to leave it to the court to work out whether any aggregate effects were unlikely to be significant. Unless it is obvious that relevant and potentially significant effects on the environment have been overlooked, the court will need some objective evidence to show this was so. It will need to be satisfied that the authority responsible for the screening decision was aware, or ought to have been, of the potential cumulative effects; that the screening opinion could not reasonably have been negative if those potential effects had been considered; and that this was, or should have been, apparent to the authority at the time.”

I respectfully agree with these extracts from both judgments.

In the present case, CEG does not address its challenge directly to the question whether DWH’s proposal would be likely to have significant effects on the environment (Footnote: ¹). In particular, it accepts the Secretary of State’s decision that, considered on its own, the DWH proposal was not likely to do so. Instead, it challenges the decision of the Secretary of State not to bring into account the development contemplated by the SUE proposal, which it submits was a material consideration the omission of which was irrational. It advances its case squarely on the basis that development in accordance with the SUE proposal is a “reasonably foreseeable action” in the sense in which that term is used in the European Guidance to which I have referred above, so that the decision to leave it out of account renders his decision unlawful.

There is no authority on the meaning of “reasonably foreseeable” in the European Guidance and it is not used either in the EIA Regulations themselves or in domestic guidance. CEG submitted that it should be given the same meaning as when the words “reasonably foreseeable” are used in the common law of negligence. It adopted what was said by Lord Reid in giving the decision of the Privy Council in Overseas Tankship (UK) Ltd v The Miller Steamship Co. Pty. and Anr (The Wagon Mound No. 2) [1967] AC 617, 643:

“In their Lordship’s view a properly qualified and alert chief engineer would have realised there was a real risk here….he appears to have held that if a real risk can properly be described as remote it must be held to be not reasonable foreseeable. That is a possible interpretation of some of the authorities. But this is still an open question and on principle their Lordships cannot accept this view. If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant’s servant and which would not brush aside as far-fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage and involved no expense.”

Relying upon that passage, CEG submitted that the words “reasonably foreseeable” in the European Guidance mean “a real risk which would occur to the mind of a reasonable man ... and which he would not brush aside as far fetched.”

I reject that submission for a number of reasons, which can be shortly stated. First, there is no reason why words used in the context of European Guidance relating to a legal concept which has its origins in a European Directive should have the same meaning as when used in the context of decisions of the common law courts developing common law concepts over time. Second, the unlikelihood of the words having the same meaning when originating in such different jurisdictions is greatly increased by the fact that the European Guidance relates to public law concepts and procedures whereas The Wagon Mound (No. 2) related to the private law torts of nuisance and negligence. The context and application of the words are not even similar: the common law torts of negligence and nuisance are concerned with the risk of injury or damage to persons or property, the requisite standard of care to be displayed towards others who may be affected, and the allocation of responsibility if such injury or damage occurs; the European Guidance is concerned with the likelihood of future development, its likely impact on the environment and its regulation, which is different and gives rise to different legal and policy considerations. Third, as the cited passage makes clear, when considering whether an alleged tortfeasor owed a duty of care and, if so, the standard of care to which he was subject and whether his conduct should be regarded as careless, the reasonable foreseeability of harm is a necessary but not sufficient prerequisite: the standard of care (and therefore whether the alleged tortfeasor was obliged to do anything to obviate the risk) is dependent upon the degree of risk and the difficulty of addressing it. No such considerations apply in the context of deciding whether or not the Secretary of State should decide that a development is an EIA Development for the purposes of making a Screening Direction. Fourth, to adopt such a low threshold of future likelihood would, to my mind, be inconsistent with the general thrust of (a) the EU Directive as amended (“cumulation with other existing and/or approved projects”); (b) the references in the European Guidance to the setting of boundaries and cut off points; (c) the absence of any reference to “reasonably foreseeable” in any relevant document having its origins in the United Kingdom rather than in Europe; (d) the domestic guidance that only a very small proportion of Schedule 2 development will require an assessment – if every other development the possibility of which was “not far fetched” had to be brought into account, it seems extremely doubtful whether that guidance could hold good; and (e) the fact that a decision maker is not required to speculate about proposals the future may bring or engage in conjecture about future development on other sites that might or might not act with the development in question to produce cumulative effects: see Catt and Hockley cited above.

To my mind, the submission that the common law meaning of “reasonably foreseeable” should be transposed to apply in the context of the European Guidance is entirely without justification and unarguable. I am confident that the threshold of likelihood when the term is used in the context of the European Guidance is significantly higher than when it is applied in the assessment of the foreseeability of risk in the law of tort. Because of the innate flexibility of language I would not attempt to paraphrase or restate the meaning of the test. If it were necessary to attempt any further analysis I would suggest that the question could be phrased as whether it would be reasonable to foresee that another development would occur: that at least has the advantage of distinguishing the public law approach (which is concerned to avoid conjecture and speculation) from that of the private law (which is expressly concerned with the assessment of risk). However, for the purposes of this judgment it is neither necessary nor desirable to attempt to define a clear line when both the European and domestic enactments and guidance have been expressed in flexible language, leaving a significant degree of freedom to the decision maker.

The Secretary of State noted that the proposal in “the emerging Charnwood Local Plan” was also the subject of CEG’s planning application. His starting point was that neither the Development Plan allocation nor the CEG proposal was yet approved. That was rational because the fact that the Development Plan was not approved inevitably affected that likelihood of CEG’s application (or any similar proposal) coming to fruition. He then went on specifically to consider whether the development identified in the SUE would come forward. In doing so, he asked himself the right question. He then correctly identified the current status of the Draft Core Strategy and the possible outcomes, namely further work (in the hope of rendering it sound), withdrawal or a finding it was unsound. On a fair reading of the decision, his use of the word “therefore” shows that the current state of the Draft Core Strategy (and any applications reflecting it) was the reason for him to conclude that the implementation of development in accordance with it was not reasonably foreseeable.

The assessment of the likelihood of the SUE proposals coming to fruition was a planning judgment for the Secretary of State to take and one with which the Court can only interfere if it is shown to be Wednesbury unreasonable. CEG asserts vigorously that “the level [of housing provision in the SUE] will undoubtedly not be less than the figures identified in the Draft Core Strategy.” That may be the way in which CEG would seek to address the Inspector’s concerns about the Draft Core Strategy but that can be no more than their planning judgment. A number of features indicate that CEG’s use of the word “undoubtedly” is misplaced. First, on a fair reading, the Inspector’s concerns as set out in his letter of 1 April 2014 were not merely that there were, or might be, too few houses in the SUE. His concerns were more fundamental and went to the Council’s provision overall and in the wider context of the HMA. Once it is accepted that his concerns were more wide ranging than merely the provision of houses in the particular SUE, it is obvious that meeting his concerns may involve a more radical and fundamental reassessment of the strategic approach underpinning the Draft Core Strategy both at Council level and in the context of the wider needs of the HMA. It is not to be presumed that the Council will simply squeeze more dwellings into the SUE and there is no evidence whatsoever about whether such an approach would be acceptable to the Council or the Secretary of State. It is plain that a substantial rethink may be required, not least because CEG asserts that “additional housing can be accommodated on the site controlled by CEG and/or the site can be extended.” Once it is accepted that additional provision of land may be required, there is no basis for asserting to the Court that a revised Draft Core Strategy would inevitably achieve that by extending CEG’s site (even if it were to be assumed that CEG controlled the putative extended site, about which there is no evidence). At present it is equally possible that the amendment or redrawing of the Draft Core Strategy may be much more radical or fundamental than that.

Second, CEG accepts that, if the DWH scheme went ahead, the CEG scheme (and by implication the current Draft Core Strategy) would be frustrated. It is therefore illogical to treat the present SUE proposals as reasonably foreseeable when assessing the environmental impact of the DWH scheme, since they will not co-exist. There is no evidence about how the Draft Core Strategy would be amended or how the Council would formulate its planning policies for the future if the DWH scheme were to go ahead.

Third, on the basis of the information available to the Secretary of State when making his decision on 13 May 2014, the Draft Core Strategy might be amended, or withdrawn or found to be unsound. The uncertainty was emphasised by the Inspector’s statement that suspending the examination to allow further work to be done did not guarantee that he would ultimately reach the conclusion that the Draft Core Strategy was sound in the respects he had identified. In the course of immaculate submissions, Ms Thornton (for the Secretary of State) referred to Hockley at [24], where Lindblom J said:

“In R. (on the application of Bateman) v South Cambridgeshire District Council[2011] EWCA Civ 157 Moore-Bick L.J. said (in paragraph 20 of his judgment) that it was important to bear in mind "the nature of what is involved in giving a screening opinion". A screening opinion, he said, "is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others". Nor does it require "a full assessment of any identifiable environmental effects". What is involved in a screening process is "only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all". The court should not, therefore, impose too high a burden on planning authorities in what is simply "a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment …".”

What CEG is requiring of the Secretary of State is that the decision maker should have undertaken a detailed independent investigation of the likelihood of development equivalent to that proposed in the Draft Core Strategy being undertaken in the foreseeable future. That goes beyond what is required of a decision maker in these circumstances, for the reasons given by Lindblom J in the passage I have just cited. On the material available to the Secretary of State when he made his decision, the Draft Core Strategy had stalled and its future progress (if any) was unpredictable.

Fourth, even assuming for the purposes of argument that the Draft Core Strategy will be held to be sound at some unpredictable date in the future and that the sound Core Strategy will be generally along the same lines in the same form as that now proposed, it is clear that attempts to bring CEG’s proposal to fruition faces uncertainties in the form of land control and objections by others, including but not limited to DWH.

In these circumstances and for these reasons, CEG has failed to show an arguable case that the Secretary of State acted unlawfully in excluding consideration of the proposals for the SUE in the Draft Core Strategy and the CEG proposal as set out in its application for planning permission. The Secretary of State’s decision was a classic case of a planning judgment. The decision maker asked himself the correct question and answered it by reference to the correct criteria. There is no material upon which CEG can properly argue that, although he addressed and applied the correct criteria, he misinterpreted their meaning so as to vitiate his decision. I therefore refuse permission.

Two additional points may be made. First, CEG submitted that various opinions from Counsel supported its position. With suitable reticence, Mr Village QC did not refer to his own opinion; but he did refer to two others, from Mr Bird QC (provided in December 2013) and Mr Tucker QC (provided in February 2014). I do not consider that either Opinion provides material support for the arguments being advanced by CEG. Counsel’s opinions could not be determinative of the issue that is now before the Court: at their highest they may indicate the likelihood of a legal challenge in given circumstances, the considerations that would arise if such a challenge were made, and Counsel’s views of the merits of those considerations. More importantly, both were written before the Inspector’s letter of 1 April 2014 and the suspension of the examination. For that reason, neither addresses the position as it existed on 13 May 2014. Despite that, the opinion of Mr Tucker QC, which was prepared for the Council in February 2014, is adverse to the position now being adopted by CEG.

Having defined the issue on which he was required to advise as being “whether in the circumstances which now prevail is the development of the North East of Leicester SUE reasonably foreseeable”, he continued as follows:

“The only endorsement of such a development lies in a Core Strategy which is at an advanced stage, albeit that relevant policies appear to be the subject of objection, and thus in a development management situation ordinarily one would seek to attach more than limited weight to such a policy. Thus if matters rested there it would be difficult to conclude that such a development was not then a reasonably foreseeable one (Footnote: ²).

However development plan preparation in Leicestershire is far from straightforward even as one sits two weeks before the commencement of an examination. The letter [of 24 January 2014] from the Inspector appointed to examine the plan on any rational view casts a dark shadow over the prospect of this plan being ever found to be sound in its current form. Failures over the assessment of the housing land requirement, the deliverability of housing and the duty to co-operate raised in the Inspector’s letter are not matters of academic interest only. Rather they go to the very heart of plan preparation such that resolution of each looks set to prompt a substantial rethink on the part of the LPA and a return to the metaphorical forward planners drawing board.

That is not an idle fear since it has been experienced in other parts of Leicestershire, and other core strategy examinations involving the same Inspector. It is unlikely that the forward planning team of Charnwood will be looking forward to the forthcoming examination with any degree of optimism.

Inspector’s [sic] charged with the duty to examine plans on behalf of the Secretary of State do not raise such issues or write such letter lightly, and in my view that comprises something of a ‘game changer’ when assessing whether it can be said that the endorsement of the SUE in the Core Strategy and its subsequent delivery are at this stage reasonably foreseeable. Rather, were one to have to form a view at this stage, then I would assess the probability of such being delivered, as being highly uncertain.”

As I have said, the opinions of Counsel, however distinguished, cannot be determinative. To my mind the significance of Mr Tucker QC’s opinion is that it shows that different people may rationally take different views of the likely effect of the Inspector’s intervention (which at that time was limited to his preliminary letter). To that extent, it supports the conclusion I have already reached: the decision maker’s conclusion that the current SUE proposal was not reasonably foreseeable is not arguably irrational or susceptible to challenge. However, I emphasise that my conclusion is not dependant upon the existence or terms of Mr Tucker QC’s opinion.

Second, I was predictably referred to R (The Noble Organisation) v Thanet District Council [2004] EWCA Civ 782 at [68] where Auld LJ said that applications such as this, which may be characterised as part of a commercial struggle between rival developers, “should be subject to rigorous examination by the single judge at the permission stage of a claim for judicial review.” I do not understand that passage to impose any different standard or test for the granting of permission. Whether my examination of the facts and grounds supporting CEG’s claim for judicial review qualifies as “rigorous” is for others to decide.

When refusing permission on the papers, Lang J included in her reasons that “the Claimant has no prospect of success in establishing that relevant considerations were not taken into account and the conclusion cannot be characterised as irrational.” She did not certify that the claim was totally without merit [“TWM”]. DWH now submits that the phrase “no prospect of success” is the same as “bound to fail” and that therefore Lang J should have certified the claim as being TWM: see R (Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1091. Had she done so, it would have prevented the present renewal application but would not have prevented CEG from appealing to the Court of Appeal against her refusal of permission.

DWH submits that, as part of my order today, I should certify the application as being TWM.

I reject that submission for the following reasons:

Lang J directed the CEG should pay the Secretary of State’s costs of preparing the Acknowledgment of Service, summarily assessed in the sum of £3,000 inclusive of VAT. CEG submits that the order should not have been made because, although the Secretary of State indicated that it applied for its costs, no Schedule of Costs had been submitted.

A schedule has now been submitted, and CEG has been given an opportunity to comment on it. The schedule states that the Secretary of State’s costs of preparing the Acknowledgment of Service and summary grounds were slightly over £3,500.

Although it would have been better practice (and in accordance with the notes at CPR 54.12.5) for the Secretary of State to have provided the details of the costs that he was claiming, that omission has been remedied. I do not accept that a Defendant in Judicial Review proceedings is required to submit a full estimate of costs within the meaning of PD 44 para. 9.5 at the permission stage or that PD 44 para. 9.6 is applicable in the present circumstances. In principle there can be no doubt that the Secretary of State should be entitled to his costs of preparing the Acknowledgment of Service. There is no basis for interfering with Lang J’s assessment of £3,000 inclusive of VAT.

Lang J also directed that CEG should pay the Second and Third Party’s costs of preparing their Acknowledgment of Service, summarily assessed in each case in the sum of £1,500 inclusive of VAT. CEG submits that these orders should be set aside applying the well established principles set out in Bolton MDC v Secretary of State for the Environment [1995] 1 WLR 1176.

Bolton is direct authority for the proposition that, if this case went further, and the Third Parties attended at a substantive Judicial Review hearing (or beyond) without being able to show that they had any discrete interest that could not be covered adequately by the Secretary of State, then they should not recover their costs of that attendance. However, that does not preclude the recovery of reasonable costs associated with the filing of an Acknowledgment of Service: see R (Roundham and Larling Parish Council) v Breckland Council 2008 EWCA Civ 714 at [28–29] per Buxton LJ (with whom Rix and Toulson LJJ agreed). I see no principled reason to interfere with Lang J’s order.