Nirah Holdings Ltd v British Agricultural Services Ltd & Anor

On 22 December 2005 the defendants, British Agricultural Services Limited and Hanson Building Products Limited (hereafter “Hanson”), formerly the London Brick Company, granted the claimant NIRAH Holdings Limited (hereafter “NIRAH”) an option to purchase approximately 180 acres of a clay pit in Marston Vale in Bedfordshire known as Quest Pit. NIRAH stands for National Institute for Research into Aquatic Habitats. The option was granted to enable it to build a major visitor attraction and science research park both focussed on the study and understanding of all aspects of freshwater (hereafter “NIRAH’s project”).

The core of the visitor centre is to be a 15,000 square metres freshwater aquarium biotope and there are to be ancillary retail and food and drink facilities, a spa, hotels, and exhibition and conference facilities. NIRAH estimates the total cost of the project will be in excess of £375 million. The consideration agreed for the option was a nominal sum of £1. Clay was no longer being extracted from the part of the pit subject to the option and Hanson was subject to an obligation to remediate it. The option did not include the northern part of the pit where at that time Hanson was still extracting clay. The option agreement also contained an option for NIRAH to purchase that part of the pit, once Hanson ceased clay extraction there but these proceedings are not concerned with that option.

The agreement provided that NIRAH would apply for planning permission, the draft application to be approved by Hanson, which has other substantial property holdings in Marston Vale, mainly used or formerly used to extract clay and for brick making, which they are concerned to protect. The agreement contains other provisions to safeguard the respective aims of the parties as specified in the agreement. It was clear that one of the important issues to be dealt with in the planning process would be access and the impact of traffic generated by NIRAH’s project on the road network. Initially NIRAH and its advisers contemplated a direct route from the A6 to the site but by February 2006 they were considering a shuttle bus option. This was to be from a Council-owned landfill site at North Elstow, over 3 kilometres away from Quest Pit, just south of the south western quadrant of the junction of the A6 and the A421, which NIRAH has agreed to lease from Bedfordshire County Council. The land between Quest Pit and North Elstow is owned by Gallagher Estates Limited (hereafter “Gallaghers) and O & H Properties Limited (hereafter “O & H”).

Hanson gave its consent to NIRAH submitting an application for outline planning permission in a letter dated 29 November 2006 and NIRAH submitted the application on 1 December 2006. In October 2007 the local planning authority resolved that it was “minded to approve” NIRAH’s application for outline planning permission for the development, subject to a number of conditions and planning obligations it required pursuant to section 106 of the Town and Country Planning Act 1990, one of which concerns the shuttle bus service and route. Since then there have been negotiations about the terms of the proposed section 106 agreement, and many drafts of it. On 30 January 2009 the Council sent NIRAH an engrossed section 106 agreement.

These proceedings, instituted on 10 June 2009, concern whether Hanson is obliged under clause 5.1 of the agreement to consent to the form and contents of the final draft section 106 agreement. “Satisfactory planning permission” is a pre-condition to the exercise of the option, and without the section 106 agreements required, it will not be granted. The issue at the core of the case, broadly stated, is whether NIRAH has provided Hanson with sufficient information principally about the route of the proposed shuttle bus link between a park and ride facility and Quest Pit, but also about travel plans and highway mitigation measures to enable Hanson to decide whether to approve a draft section 106 agreement.

NIRAH seeks a declaration that it has provided Hanson with sufficient information and that Hanson is obliged by clause 5.1 of the option agreement to approve the form of the draft section 106 agreement. It also seeks specific performance by Hanson of obligations in clause 5.1 of the option agreement to approve the form of and enter into the final draft section 106 agreement. Hanson maintain that they have insufficient information to decide whether to approve the draft agreement because they have insufficient information to make an assessment as to whether its terms will be detrimental to their own development aims in Marston Vale. Hanson have also brought a counterclaim alleging that NIRAH has materially breached the option agreement by failing to (a) supply it with information, (b) give it notice of relevant meetings, (c) take account of and comply with its representations, and (d) to comply with the provisions of the agreed position evidenced in the letter dated 29 November 2006. Hanson seek declarations that they are entitled to terminate the option agreement; alternatively that they have done so.

On 6 July 2009 (the date on which the defence and counterclaim were signed) Hanson’s solicitors wrote giving NIRAH notice to rectify the alleged breaches of contract referred to in their pleading. On 4 August they wrote a letter stating that they were terminating the option agreement with immediate effect. Hanson seek declarations that they are entitled to terminate the option agreement, or alternatively that they have done so and that the agreement is of no continuing effect.

On 25 June Andrew Smith J ordered expedition. He did so because the option must be exercised by 31 December 2009 and, if planning permission is not obtained by 29 September, it will be impossible for NIRAH to do so before it expires.

The material terms of the option agreement are: Clause 1, definitions; Clause 2, the background to the agreement; Clause 3 the grant of the option; Clause 4, headed “Planning Application”; and clause 5, headed “Planning Obligations”. Clause 7 is headed “Determination of Satisfactory Planning Permission” by an independent surveyor acting as an expert, and clause 8 deals with the exercise of the option. The agreement thus has four stages; the submission of the planning application; the negotiation of planning obligations; the determination whether planning permission granted or to be granted is “satisfactory” within the terms of the option agreement; and the exercise of the option. There is an overlap between the first three stages.

The agreement contains provisions designed to protect the parties’ respective aims. Broadly speaking, see in particular clause 2.1, these are; NIRAH’s aim in undertaking the development of the visitor attraction and science research park in such a way that maximises its value and amenity, and Hanson’s aim to have the “ability” “to continue its business activities” at Quest Pit and elsewhere in the Marston Vale and “to enhance the value and promote and subsequently undertake the development or redevelopment of its land in Marston Vale”.

Clause 2.3 states that NIRAH and Hanson acknowledge each other’s stated aims and intend to pursue their respective obligations under this agreement in accordance with such stated aims. Clause 2.2 states that NIRAH wished to undertake the project at Quest Pit “but always recognising and in a manner which is consistent with” Hanson’s aims and wishes as stated in clause 2.1. One of those stated aims is that, following the exercise of the option, NIRAH will restore the property it requires by undertaking the project, thus relieving Hanson of an obligation which would have been very expensive to perform.

Clause 3.2.3 provides that, if “… at any time the planning application is withdrawn or amended without [Hanson’s] consent”, Hanson “may determine this agreement forthwith upon written notice served on NIRAH”.

Clause 4.1 obliges NIRAH to use all reasonable endeavours to obtain satisfactory planning permission within the option period and to pursue the planning application and any ancillary agreements and appeals expeditiously and diligently. NIRAH is required to submit a draft planning application to Hanson for its approval, such approval, having regard to Hanson’s stated aims at clause 2.1, not to be unreasonably withheld or delayed: see clause 4.3 and the definition of “planning application”.

Clause 4.2 requires NIRAH to do a number of things. It is (clause 4.2.1) required to attend a monthly meeting with Hanson to appraise Hanson of progress in finalising the extent of the project and the preparation of the planning application. It is (clause 4.2.2) required to take account of Hanson’s aims as stated in clause 2.1 and not to object to any planning applications made by Hanson in respect of those stated aims. It is (clause 4.2.3) required to give Hanson notice of any meetings in respect of the planning application and the project with the planning authority or any other relevant body involved in the process, and, if reasonably required by Hanson, to allow Hanson to attend such meetings, and in any event, if Hanson is not present, to advise Hanson of the outcome of such meetings.

Clause 4.3 requires NIRAH to submit a full copy of the draft planning application to Hanson for their approval within four months. On 19 July 2006 Hanson agreed to extend this period until the end of October 2006. Hanson was required (clause 4.3.1) to confirm to NIRAH as soon as reasonably practicable whether or not it was satisfied with the application. If it did not do so within a month, it would (clause 4.4.) be deemed to have approved the application.

Clause 4.6 prevents NIRAH from amending the planning application without Hanson’s consent, said consent not to be unreasonably withheld. It also requires NIRAH to make reasonable amendments to any planning application and ancillary documentation to take account of reasonable comments made inter alia by Hanson.

The agreement obliges NIRAH to supply Hanson with copies of the application and all correspondence between it and the planning and highways authorities, and others listed in clause 4.7 and to keep Hanson regularly informed as to the progress of the planning application.

The agreement also requires (clause 4.8) NIRAH to give Hanson notice of and an opportunity to attend all meetings in respect of the planning application and (clause 4.9) to take account of and comply with representations made by Hanson in respect of matters arising during the planning application which impact or affect its business activities or impact upon the aims stated in clause 2.1.

Clause 5.1 of the option agreement it at the centre of the dispute. It obliges Hanson, “if requested by NIRAH and provided that to do so would not directly or indirectly adversely impact upon or adversely interfere with or in any way prevent” Hanson’s business activities or the other stated aims at clause 2.1 in respect of its land in Marston Vale, to enter into any ancillary agreements in a form approved by Hanson, such approval (see clause 5.1.1) not to be unreasonably withheld or delayed.

Clause 8 provides that “subject to the option conditions having been satisfied Nirah may exercise the option at any time during the option period by serving an option notice on [Hanson]”. The option condition that is relevant to the issues in this case is “the grant of satisfactory planning permission”. “Satisfactory planning permission” is defined in clause 1 inter alia as permission and/or ancillary agreements granted in respect of the planning application which contains in Hanson’s reasonable opinion “no conditions, time limits or other aspects whatsoever relating to its implementation which might directly or indirectly impact upon, interfere with or in any way prevent [Hanson’s] Business Activities [at Quest Pit] … or impact upon the achievement of the stated aims at clause 2.1.” It is common ground that a section 106 agreement is an “ancillary agreement” within the option agreement.

Clause 16 provides that NIRAH “shall be responsible for and indemnify [Hanson] in respect of all its reasonable and proper legal and planning costs reasonably incurred in connection with” the option agreement. Clause 17 deals with termination. It empowers Hanson to terminate the agreement if NIRAH is in substantial material breach of any of its obligations and has failed to rectify them within a reasonable time after receiving notice to rectify (17.1.1), on the occurrence of a number of events relating to the solvency of NIRAH including the appointment of an administrator, a receiver, or a liquidator, or a petition for its winding up, and its removal from the Register of Companies.

Factual evidence in support of the claim was given by Mr Edelman, Nirah’s Executive Chairman since 2007 and a Director, Mr Murning, Nirah’s Project Director, Mr Dyer, an Associate Director at Ove Arup & Partners Ltd (“Arup”) Nirah’s Town and Country Planning, Transport and Environment Consultant and Mr Gabbitas, a Senior Planner at Arup, whose statement was read. Mr Murning has had long experience in construction and design and was the Design and Development Director of the Eden Project in Cornwall. Mr Edelman has had substantial business experience including serving as Managing Director of Carlton Communications, Chief Executive of Storehouse, and Managing Director of Arsenal Football Club.

Factual evidence on behalf of Hanson was given by Mr Szymanski, Managing Director of the second defendant, Mr Stubbs, the National Business Development Officer for Hanson UK, Mr Williams, Chief Executive of Arnold White Estates Limited, a land promotion company, and Mr Gardner, of Hives Planning Limited. Mr Szymanski has worked for the Hanson Group or its predecessor companies (in particular the London Brick Company) since 1976. He left the day to day management of Hanson’s relationship with NIRAH to Mr Williams, but he approved and authorised all major decisions including entering into the option agreement.

Mr Williams has had over 40 years experience in property development and management, including serving as Chief Executive of Grand Metropolitan Estates Limited. He was Hanson’s Development Consultant about its land in Marston Vale and took the lead role on behalf of Hanson in connection with the Nirah project and dealing with Nirah. Mr Gardner is an experienced Town Planner and was formerly Head of Planning at Essex County Council. Hives Planning was instructed by Hanson and Arnold White Estates in 2006 to evaluate and prepare proposals for the development of Hanson’s land in the Northern Marston Vale and to advise on matters associated with the proposed Nirah development.

Mr Dyer and Mr Stubbs were plainly trying to assist the court to the best of their ability. I have no doubt as to the reliability of their evidence. Subject to the comments below, Mr Murning, Mr Edelman and Mr Gardner were also trying to assist the court. Although Mr Murning was not always accurate on detail, he corrected himself willingly, for example as to whether he erred in stating in his statement that Gallaghers and O & H were to be parties to NIRAH’s section 106 agreement and whether a letter from NIRAH’s solicitors dated 21 August 2008 related to routes other than the one referred to at the time of the application. I consider, however, that he underplayed the impact of Gallaghers initial objections to having the shuttle bus route through the Wixams and NIRAH’s reasons for proposing that route when preparing its application for outline planning permission. In correspondence he had a tendency to present the state of the negotiations Gallaghers in an optimistic fashion. No agreement has yet been concluded with Gallaghers about a shuttle bus route, and, in the light of the two year period that NIRAH has been negotiating, the evidence of Mr Murning and Mr Edelman on this was at times over-confident about the negotiations with Gallaghers and what would be agreed with them. However, I accept their evidence that the negotiations with Gallaghers have been constructive since Gallaghers formed the view that the development prospects for their own land might benefit if they can provide the shuttle bus route to NIRAH’s proposed development.

Although Mr Gardner’s evidence was generally reliable, I do not accept his evidence that the condition regarding the required shuttle bus service and route was that it be in place before construction began. His evidence on this did not take sufficient account of what Mr Dyer had said at a meeting on 6 May 2006 attended by his firm Hives, the failure of anyone advising Hanson to raise the point at that meeting or after its minutes were circulated, the terms of the response of NIRAH’s financial adviser Mr Perkin to a letter dated 24 November 2006 from Jones Day, then Hanson’s solicitors, and the absence of reference to the condition being in respect of the commencement of construction in AWE’s letter dated 29 November consenting on behalf of Hanson to NIRAH submitting the planning application.

Mr Szymanski was also generally a reliable and straightforward witness. After Mr Williams and the other consultants were engaged, Mr Szymanski was guided in his approach to discussions with NIRAH by Mr Williams. I accept Mr Szymanski’s evidence that once he formed the view, as he did as Hanson’s own redevelopment project for its land in Marston Vale was put together, that the option agreement with NIRAH was not in Hanson’s best interests, he did not simply try to get out of what he considered to be a bad bargain. But after he came to that conclusion, his and Hanson’s approach to the contractual obligations changed from one that was supportive to NIRAH in general terms to one guided by Mr Williams in which a very wide view of what Hanson was entitled to do under the contract to protect its interests was taken and pursued. Acting on such a view, however, carries risks.

I did not consider Mr Williams to be an entirely satisfactory witness. He was alive to the areas in which the documents were not helpful to Hanson’s case, was at times non-responsive to questions, and took an approach to the contents of emails and other documents that was at times strained and unrealistic. This was so, for example, in relation to whether Hanson had been given notice of certain meetings with the planning authorities, whether the minutes of a meeting with the Highways Authority had been “offered” to Hanson, and the reason Hanson did not take the opportunity at the pre-application stage to comment outside meetings it attended as an observer. Notwithstanding Mr Gardner’s evidence, Mr Williams was reluctant to accept that Hanson’s team had been provided with all drafts of the section 106 agreement and his answers to questions about his June 2006 note which he said he made after NIRAH sought funding from AWE were defensive.

Mr Williams’s evidence on the Grampian condition was also not satisfactory. He said at the time NIRAH’s application for planning permission was submitted it was agreed that the Grampian condition about the shuttle bus service would relate to the commencement of construction and not, as provided in the draft section 106 agreements, to the opening of NIRAH. He maintained this complaint about the draft section 106 agreements despite what Mr Dyer had said at a pre-application meeting on 6 May attended by him, his own failure to raise the point at that meeting, and the other matters I have referred to in relation to Mr Gardner’s evidence on this point. These matters have led me to approach Mr Williams’s evidence with some caution except where it is supported in the documents.

Expert evidence on behalf of the claimant was given by Mr Knowles, a highway and transport expert, and Mr Tant, a planning expert. Expert evidence on behalf of the defendants was given by Mr Bowhill. Mr Knowles has had over 35 years experience in the field of traffic engineering and transport planning and is Divisional Director of RPS Transport, part of the Planning and Development Division of the RPS Group plc, a very substantial independent environment consultancy. Mr Tant is the Senior Partner of Barton Willmore LLP with 30 years experience in town and country planning. Mr Bowhill has over 45 years experience as a surveyor and town planner. Between 1984 and 2004 he was the principal of Anthony Bowhill Associates, which then merged into another firm. Mr Bowhill initially became a consultant to the new firm but now works as an independent planning and development consultant.

Mr Bowhill’s report was prepared without sight of the statements of the factual witnesses served on behalf of NIRAH. Importantly, he had not seen the evidence about NIRAH’s negotiations with Gallagher Estates about a shuttle bus route on Gallaghers land since the Council resolved in October 2007 that it was minded to grant outline planning permission for NIRAH’s project. His report stated that he had seen nothing to suggest Gallaghers’ attitude had changed since it objected to NIRAH’s application in 2007.

Only Mr Knowles gave oral evidence and he was not cross-examined by Mr Milner on behalf of Hanson. Although Mr Milner did not cross-examine Mr Knowles he said he did not want to be taken as accepting all that he said. He submitted that the issues in this case turn on matters of fact and law rather than expert evidence and that the matters of fact and law are largely not disputed. Mr Matovu, however, relied on the expert evidence, including Mr Knowles’s oral evidence which was undisputed.

Mr Matovu, on behalf of NIRAH, called Mr Knowles to deal with points that arose in the factual evidence given during the trial about the nature of the B530 and its capacity to carry the volume of bendy buses contemplated for the shuttle buses for the NIRAH project. His evidence was that the 26 additional vehicle movements per hour for the shuttle bus on a road which is going to be carrying about 1,400 vehicles per hour will make no material difference. He also gave evidence on what would be involved in modelling the impact of the shuttle bus on the access points to the B530 under discussion between Gallaghers and Nirah and its cost. His evidence was that in view of the information available there was no need to re-run the area-wide and local models, and that it is a straight forward exercise manually to transfer the additional buses onto the models already available for the three potential junctions. He stated the cost would be in the order of £4,000 to £5,000.

In their joint memorandum the experts agreed that the Nirah scheme would not adversely affect Hanson’s “business activities” as defined in the option agreement and would have no realistic adverse effects on Hanson’s Marston Vale land save in respect of access along the B530. They also agreed that travel plans are “living documents” and it would be difficult to produce more information on the detail of the travel plans at this stage of the planning process. Thirdly, the experts agreed that it could not be said that there was no prospect of delivery of a shuttle bus route and, therefore that draft condition 10 in the draft section 106 agreement was valid.

Save in respect of the park and shuttle bus link road the experts also agreed that the planning application broadly complies with the option agreement and that it met the conditions in the letter dated 29 November 2006 about the scale and nature of the science park and with regard to the A421 improvements.

The important disagreements between the experts about the shuttle bus route concern whether the route through the Wixams should have been part of the application for planning permission, the adequacy of the detail and information available in this case, the deliverability of the route, and whether draft section 106 agreement adversely impacts on Hanson’s ability to enhance the value and promote and undertake the development of its remaining land.

Mr Bowhill considered that the route through the Wixams should have been part of the application for planning permission while Mr Tant understood the letter dated 29 November to accept the use of a Grampian condition to secure the delivery of the third party road. Mr Tant and Mr Knowles regard the condition as a suitable mechanism to meet Hanson’s concerns and to secure the delivery of a direct shuttle bus link from the car park to NIRAH.

As to deliverability, Mr Bowhill considered there was no prospect of a road through the Wixams and little likelihood of another direct route. Mr Tant considered that, in the light of the continuing negotiations between NIRAH, Gallaghers and O & H it was appropriate to secure a direct shuttle bus route by the Grampian condition in condition 10 of the draft section 106 agreement.

The experts agreed that any route other than that through the Wixams would require an application under section 73 of the Town and Country Planning Act to amend condition 5 of the outline planning permission and that Hanson would have the opportunity to make representations on any such application. Mr Bowhill, however, was concerned that Hanson would not be able sufficiently to influence the new application even though it affected its interests adversely. With regard to the highway mitigation measures, Mr Bowhill was of the view that there was a lack of detail about the nature and location of the measures that might be provided and no information to confirm that the £2million fund would be sufficient. As far as the travel plans are concerned, Mr Bowhill considered that the insufficient detail means Hanson would want a continuing involvement as the travel plans were refined but the draft section 106 obligations do not allow for this.

There was also disagreement on Hanson’s ability to assess the effect of the use of alternative routing to the route through the Wixams. Mr Bowhill took the view that Hanson had little or no information on the alternative routes and no information on their effects. Mr Tant and Mr Knowles considered that the number of shuttle buses using the route was clearly set out and that on that basis it was possible for Hanson’s transport consultants who had prepared a transport assessment for the planning application in respect of the Stewartby brickworks to form a view about the potential impacts of a link road joining the B530 at the three proposed alternative locations.

Mr Bowhill and Mr Tant also disagreed about whether the draft agreement adversely impacts Hanson’s ability to pursue the aims stated in clause 2.1. Mr Bowhill considers that the uncertainty of the bus link and the lack of detail on the route means that there are grounds for resisting the draft section 106 agreement that has been presented. Mr Tant (in agreement with the County Council) considers that the traffic that will be generated by the NIRAH project will not constrain Hanson’s redevelopment proposals for its Stewartby brickworks and that the Borough Council’s response to Hanson’s early suggestions about its land at Kempston Hardwick demonstrate that the existence of NIRAH’s project has not adversely affected Hanson’s ability to promote the development of its remaining land.

I turn to the facts. I record my findings in a broadly chronological way.

The background

Marston Vale has been a centre of the brick making industry for over 100 years but the industry has declined and the area has a significant number of disused quarries and landfill sites. The owner of land used for the extraction of clay is obliged to remediate the land after clay extraction ceases. The costs of remediation can be very substantial.

Hanson and its associated companies own some 1,300 acres in Marston Vale, much of which has been used for clay extraction and brick making. Although Hanson’s licences to use the land for these activities will be valid for many years, as a result of current economic circumstances, at present they are not doing so.

The land between Quest Pit and North Elstow is owned by Gallaghers Estates (“Gallaghers”) and O & H Properties Limited (hereafter O & H”). Gallaghers is engaged in a substantial development known as the Wixams on an approximately 600 acre site on a former industrial estate between the A6 and the B530 The plans for the Wixams provide for four villages (with up to 4,500 dwellings), a business and employment area, a town centre, and a station quarter near a new railway station. Construction on the first phase, villages 1 and 4, has started but progress has been delayed because of the economic situation. Save where construction has started there is no fixed layout yet. There are expansion areas to the north and to the south of the Wixams. Much of the land in the northern expansion area is owned by Gallaghers and O & H. The B530 is to the west of the Wixams and access to it from the development is to be via what has been called a “Western Gateway”. Hanson’s substantial land holdings in this part of Marston Vale include three sites (Kempston Hardwick, Broadmead, and Stewartby) to the west of the Midland Mainline railway, the B530, Quest Pit and the land owned by Gallaghers Estates and O & H, and two (the Camel Field sites) adjacent to the south east side of Quest Pit.

As is usual in complex developments, the parties were advised by specialist consultants. NIRAH’s financial advisers were MacArthur, its planning consultants were Ove Arup & Partners Limited (“Arup”), and its transport consultants were Hyder Consulting. Hanson’s development consultant about its land in Marston Vale including the Nirah project was Arnold White Estates (“AWE”), in particular Mr Williams. Hanson’s planning consultants were Hives Planning and their highways consultants were Stuart Michael Associates (“SMA”).

The concept of a project to develop a visitor destination and research park involving freshwater habitats and the species that live in them was mooted in the late 1990s. Mr Murning was involved at an early stage and Arup were involved in the identification of potential sites in different parts of the country in 2001 and 2002. Bedfordshire was chosen because of the number of worked out clay extraction sites, the large population within 2 hours drive of the potential sites, being in an area known as the “Cambridge-Oxford arc” with what Mr Murning described as strong credentials for biotechnology, and strong support from regional and local government authorities. Six sites were considered in Bedfordshire. Mr Murning states that Quest Pit was the site which best met NIRAH’s operational requirements. NIRAH was incorporated in January 2004 to undertake the project. Quest Pit was partly in the area of Bedford Borough Council and partly in the area of Mid-Bedfordshire District Council and the planning authority at that time was Bedfordshire County Council. In April 2009, with the introduction of new unitary authorities, Central Bedfordshire County Council and Bedford Borough Council became the planning authorities for the land.

Support for the NIRAH project from public authorities was channelled through the Bedfordshire Consortium Limited, a consortium between the East of England Development Agency, Bedfordshire County Council, Bedford Borough Council, and Mid-Bedfordshire District Council. Funding for the project was also received from O & H (which is now a shareholder in NIRAH), from the claimant’s directors and management, and from private investors including the late Mr Branston, then Mayor of Bedford. By June 2009 when these proceedings were instituted approximately £7million had been raised for the project in the form of loans. On 1 July 2009, after the institution of these proceedings, Central Bedfordshire refused to commit more funds to the project.

From the summer of 2004 there were discussions between NIRAH and Hanson in which NIRAH sought to acquire Quest Pit for a nominal consideration in view of the substantial restoration costs Hanson would otherwise incur for the site. Hanson supported the project because they judged it would bring benefits to their business if delivered as planned, provided it was not to the detriment of their other holdings in Marston Vale. Both Mr Szymanski and Mr Williams referred to the overage provisions for the business park contained in the option agreement which Mr Williams considered would generate significant sums for Hanson. In November 2004 NIRAH’s agents, Strutt and Parker, proposed draft heads of agreement. One of Hanson’s requirements was for their activities on the northern part of the site to be protected.

Mr Williams met Mr Szymanski for the first time in January 2005. In March Mr Szymanski invited him to a meeting at which the possible closure of Hanson’s brickmaking facility at Stewartby because of air quality problems and Hanson’s negotiations with NIRAH were discussed. In view of the possible closure of the brickworks, Mr Szymanski wished to consider at the position of all of Hanson’s land in Marston Vale. He thought Mr Williams and Arnold White Estates, with its experience in land promotion could help. As a consequence of stock exchange regulations these discussions were confidential. During this period there were also further negotiations between NIRAH and Hanson, and on 3 June 2005 they agreed heads of agreement about the proposed option for NIRAH’s project for which the consideration was to be £1.

It was clear from an early stage that, given the size of the project, access would be a problem. At a meeting between Bedfordshire County Council and Arup representatives on 7 June 2005 the Council stated because of the location of the site and the consequent potential for “horrendous traffic problems” it was necessary to demonstrate a transport package for the scheme that worked. The idea that access be by a shuttle bus link emerged in February 2006 as a way of doing this.

After Mr Williams’ meeting with Mr Szymanski he and AWE began to be involved with Hanson although a formal agreement was not entered into until September. At the beginning of July 2005 Mr Williams told Mr Malynn, the Strategic Director (Environment) of Bedfordshire County Council, it was likely that he would be working with Hanson on their Marston Vale land and coordinating Hanson’s negotiations with NIRAH.

A meeting on 11 July between NIRAH and Gallaghers Estates considered access options. One option discussed was a road attaching the site to the A6 around the southern boundary of Gallaghers’ Wixams development. Mr Blincoe of Gallaghers stated that Gallaghers did not wish to make radical changes to the layouts on their development but was happy to explore options for possible routes into the NIRAH that run adjacent to the development and that a route following its southern boundary was a possibility. This was one of several possible access options considered in a transport scoping report dated 28 July 2005 prepared by Arup.

In August 2005 AWE made a presentation to Hanson indicating how the companies could work together to realise development value from Hanson’s land in the area. Mr Williams also introduced Hanson to Hives, with whom AWE had worked for many years, and to SMA. Thereafter AWE was appointed as Hanson’s development consultant in relation to its land in Marston Vale. The project became known as Project Percy. AWE’s responsibilities included the possibilities for developing the brickworks at Stewartby, coordinating Hanson’s contact with NIRAH and Hanson’s other consultants, and advising Hanson on its approach. In relation to Hanson’s application for planning permission for redeveloping the brickworks at Stewartby Mr Williams appears to have been more than a simple consultant, and was later described by Mr Murning as a “co-principal”. On 2 September Mr Williams explained his involvement to Andrew Perkin, one of NIRAH’s Financial Advisers.

While the option agreement was being negotiated with NIRAH, Hanson and Mr Williams were considering potential future options for Hanson’s land but they had no definite plans. Mr Williams said this meant it was important that the option agreement acknowledged the importance to Hanson of its land in Marston Vale and the impact of NIRAH’s project on that land. Mr Williams said that the land NIRAH wished to acquire was clearly worth more than £1 and the price could not be justified commercially even taking account of Hanson’s remediation obligations. However, as Hanson made it clear that it wished to honour the moral commitment in the Heads of Agreement, this was a “given” and he did not tell Hanson that an agreement at that price was not a good deal for Hanson.

NIRAH’s business plan, dated 15 November 2005, sets out the project in detail in language appropriate to a business plan, some of which is aspirational. It envisages seeking major fundraising after obtaining outline planning permission. The scale of the project and the work required has meant that NIRAH’s financial position has been fragile. The business plan was criticised by Price Waterhouse. NIRAH’s financial position has led it to approach others for funding during the course of the project, including a request for further phased funding of up to £400,000 from Bedfordshire County Council to be matched with private funds which the Council considered on 8 May 2008. Notwithstanding the continuing funding difficulties, a letter from Panmure Gordon dated 16 June 2009, that is after proceedings were instituted, states that, subject to caveats about current market conditions and uncertainties, there are reasonable prospects of securing funding.

NIRAH’s business plan recognised that one of the risks of the project is that the access route to the proposed centre would be either uneconomic or unobtainable. Mr Edelman’s evidence was that the risk identified at that time concerned direct access to NIRAH by visitors. He said the agreement made with the Council for the use of North Elstow as the carpark for a park and shuttle service removed that risk. The decision that access be by a park and shuttle service has, however, produced other difficulties.

The period between the option agreement and the planning application

Following the option agreement on 22 December 2005, in the early months of 2006 there were many meetings between NIRAH, the Council, in particular the Bedfordshire Planning Officers’Liaison Committee, and also with others including the Highway Authority and Gallaghers to discuss the information that would be required for the application. Hanson contends it was not given due notice of meetings with planning officers and others either before the submission of the application for planning permission in December 2006 or thereafter. At my request Mr Milner and Mr Matovu provided me with schedules setting out the meetings they consider relevant and whether and, if so, how notice was given of them.

Hanson and its consultants were not given notice of a Planning Officers’ Liaison committee meeting on 9 January 2006. Thereafter, however, either Hanson or its consultants were on the distribution lists for all documents from that body and for the minutes, which included the dates of future meetings. Some meetings were attended by Mr Williams, some by his colleague Mr Denvir, and some by representatives of Hives Planning, most frequently Mr Docherty. The evidence of Mr Gardner of Hives Planning was that, before the submission of NIRAH’s application for outline planning permission, Hives attended or had an opportunity to attend the regular monthly meetings with the Planning Officers of the relevant Councils.

Hives (or others in Hanson’s team of consultants and advisers) were also notified of some other meetings, including an important meeting with the Highways Authority on 2 May 2006 and (on 22 August) of a meeting on 6 September 2006 to consider transport. It does not appear that they were notified of all other meetings, for example a meeting on 24 February 2006 to negotiate the lease of the North Elstow site (which is not on Mr Milner’s schedule of meetings to which Hanson was not invited).

In his evidence Mr Williams said that the informal way of learning of meetings through what was said at a meeting or from the minutes was not what was required by clause 4.2.3 of the option agreement but agreed that he, his firm and Hanson had not complained about learning of the dates of meetings of the Planning Officers’ Liaison committee at meetings or from the minutes of earlier meetings. Mr Williams’ approach to the documentation was formalistic and at times unrealistic in seeking to justify the position taken by Hanson in these proceedings. For example, he did not think that a statement on 10 April 2006 at a meeting attended by Hives and in the minutes of that meeting that there was to be a meeting with the Highways Authority on 2 May was “advice of the meeting” in the sense contemplated in the option agreement. He did not consider the email Mr Dyer sent him, Mr Denvir and others in Hanson’s team after NIRAH’s meeting with the Highways Authority which stated that the minutes could be emailed was an offer to do so but only a statement of fact.

Although Mr Williams complained that Hanson and its representatives were required to be at the planning meetings as observers, with one exception, it does not appear they took the opportunity to provide input to NIRAH outside the meetings about what had been said. Mr Williams said they did not do so even when comments were invited, as they were in relation to the planning statement or in relation to the proposal on 27 February 2006 to deal with access and siting in the application and to reserve all other matters. Mr Williams said this was also because their role was as an observer, because of Mr Murning’s insistence that Hanson did not become involved in its negotiations with the planning authorities, and because he did not believe that it was Hanson’s role to have formal input into the preparation of the application before NIRAH submitted a draft application for approval. The exception to the stance Mr Williams said he took as a result of Hanson’s observer status in about August 2006 concerned a meeting between Hives and Arup to discuss traffic management he requested. He said he did so because time was getting short and Hanson had to respond to a draft application within a short period, a month, of receiving it.

After the submission of the application, the important issues were settling the terms of the section 106 agreements, including those concerning the shuttle bus. Hanson was informed about the first meeting about the section 106 agreements. It stated it did not need to attend and asked only that it be kept informed of developments. A communication from Mr Romans of the Council said that all versions of the draft agreement would be sent to Hanson and Mr Gardner said that if Mr Romans said that he was sure it was done. I later refer to a number of versions of the draft agreement being sent to Hanson or its advisers either by the Council or by NIRAH and I find that they were sent at least the great majority of the drafts often with invitations to comment.

Mr Gardner attended a meeting with the Council to discuss the application on 16 April 2007 and was told at the meeting that a meeting scheduled for 25 April would take place. Of the meetings with the Council at this stage of which notice was not given, that on 11 June 2007 was mainly about NIRAH’s funding although there were references to transport. But overall, the reality is that Hanson took the view that it was informed of many meetings at meetings or through the minutes both before and after the submission of the planning application. Mr Williams took the view that there was no need to attend the first one on the draft section 106 agreements and Hanson has declined or deferred a number of suggestions by NIRAH for meetings about the developing draft agreement.

A minute of an access road meeting on 7 February 2006 attended by NIRAH, Gallaghers and the Council states that Gallaghers had raised no objections to routes north and south of the Wixams. The shuttle bus option was first raised at a Planning Officers’ Liaison meeting on 13 February 2006 attended by Mr Williams and is referred to in the minutes. It, however, appears from the minutes of NIRAH’s Board meeting on 4 May that this had not been discussed with Gallaghers by then. By 27 June it is clear from a meeting (not involving NIRAH) that Gallaghers were aware that consideration was being given to a shuttle bus through the Wixams. Hanson became aware of Gallaghers opposition to a shuttle bus through the Wixams and to an application relying on such an option by early 2007. On 17 March Mr Perkin wrote to Mr Williams stating that the Wixam park and ride route was only one solution and that NIRAH was comfortable that there would not be a ransom situation.

At a meeting on 6 May 2006 attended by Hives, Mr Dyer said that it was difficult to set out specific horizontal and vertical alignments for the access road and that the solution was to indicate a corridor and leave detailed design until the design of the villages allowed this to be done. He proposed dealing with a point by a Grampian condition providing that NIRAH’s development should not open until an acceptable access route was constructed. A “Grampian” condition, derived from the decision in Grampian RC v City of Aberdeen [1984] JPL 371, is a condition which provides that a development cannot be started or opened and occupied until certain works have been carried out or other requirements met on land not under the control of the applicant for planning permission. Neither Hives nor Mr Williams, who received a copy of the minutes, raised concerns about the fact that the Grampian condition was to refer to the opening of NIRAH as opposed to the beginning of construction. Mr Williams said they were not considering that level of detail and did not discuss this because the contents of the application for planning permission were most important.

NIRAH and its financial advisers met Mr Williams on 22 June 2006. Following this meeting Mr Williams wrote a note which stated NIRAH had effectively run out of cash. Mr Williams said this was prepared after NIRAH sought funding from AWE. At first he said it was an aide memoire for something he wanted to discuss with AWE’s Board but in the light of the reference to the document as an “interim report” accepted that it might have been a report. A section of the document headed “The Hanson Perspective” refers to a decision that the grant of outline planning permission for NIRAH would improve the chance of success on the rest of the site. Mr Williams said there was not a decision to be taken but that was his view. The document also states that “there is clearly a commercial justification for keeping the NIRAH project alive at least until such time as there is a recommendation to grant planning consent”. Mr Williams denied this was a strategy. He said the document had nothing to do with Hanson and a reference asking whether there is anything in it for Hanson was because, given AWE’s position with Hanson, it could not invest without Hanson’s consent. He said Hanson was separately considering an approach by NIRAH for funding. I do not consider that this document shows that Hanson and AWE’s strategy was to keep NIRAH’s project alive until the Council decided that it was “minded to” approve NIRAH’s planning application, and then to change tack. However, what Mr Williams records is a clear indication of his thinking about the relationship of the NIRAH project and Hanson and the impact of a “minded to” approve resolution.

On 19 July 2006 Hanson agreed to extend the period under the option agreement for the submission of an application for planning permission until the end of October. In that period work was being done on the impact of the project on traffic and the transport infrastructure. Hanson and its consultants were informed of this work by Hyder who were assisting Arup with modelling. An exchange between Mr Denvir of AWE and Mr Jones of Arup on 17 and 19 July show Mr Denvir requesting the transport assessment and travel plan statement for the initial highway appraisal, the trip generation report and other documents and Mr Jones saying he would get them together.

An outline draft travel plan was tabled by Mr Dyer at the Planning Officers’ Liaison meeting on 25 July which was attended by Mr Docherty of Hives. Mr Dyer said a more detailed plan was not possible at that stage and asked for comments. None were given by Hanson’s team.

At some stage in August Mr Williams sought a meeting between consultants to discuss traffic management. In an email dated 21 September 2006, Mr Murning suggested the consultants should meet at the end of September or the beginning of October. He also informed Mr Williams of a meeting with the Highway Authority scheduled for 26 September about modelling. In the light of his contact with Mr Williams on the same day Mr Murning sought a meeting with Mr Hewitt of SMA.

As well as the meeting with the Highway Authority on 26 September there was a meeting of the Planning Officers’ Liaison Committee. It was attended by a representative of Hives and AWE was sent the minutes. The minutes record that the target for Arup’s traffic assessment was mid October. Mr Murning referred to the need for discussions with Hanson and the desirability of its consultants meeting Hives and SMA who would be undertaking a technical review of the traffic assessment. It was also stated that “the junction” with the B530 would be dealt with by a Grampian condition and that there would be a reserve sum for traffic improvements. The production of the traffic assessment was delayed to 30 October. As Hanson had asked SMA to examine and comment on the assessment, on 18 October Mr Hewitt asked for a copy and for a discussion with NIRAH’s consultants before then.

The draft planning application

On 30 October 2006 NIRAH provided Hanson with a copy of the draft planning application for Hanson’s approval. The application provides for a shuttle bus link to transport visitors to NIRAH from the car park to be located at North Elstow. NIRAH’s planning statement states that of the nine options for the shuttle bus link considered, the one “through the Wixams” is the preferred and is the best on environmental grounds. The traffic assessment refers to a link “through the Wixams development”. One of the drawings provided with the application and marked “drawing for approval” shows an indicative corridor for the route joining the B530 at the “Western Gateway”, about 1 kilometre from the entrance to NIRAH’s proposed development. Paragraph 4.9.2 of the planning statement estimates the frequency of the shuttle service on weekdays as 13 movements per hour in each direction between 9 am and 5 pm and 7 per hour between 5 and 10 pm. For weekends the estimate was 18 movements per hour in the peak hours and 10 per hour between 5 and 10 pm.

Arup’s Transport Assessment and Travel Plan Statement is a substantial (146 page) document. It is dated 23 November 2006 but Hanson’s consultants, SMA and Hives, received it or an advance draft at the end of October. SMA’s review only dated “November”, and Hives’ review, which relies on and substantially agrees with SMA’s is dated 17 November.

The transport assessment deals with the impact of NIRAH’s proposed development on the highway network, referring to the modelling done to assess the impact and the methods used. It states that significant increases in traffic flows through the established villages of Stewartby and Kempson Hardwick are anticipated. One of the options envisaged in it for access from the North Elstow park and ride to the facility is for the shuttle bus to use the roads that would be created in the Wixams. The assessment describes an approximate route but states that the exact route “would be decided during the detailed design stages of Wixams” and shows the route as a corridor with an approximate highway alignment. Mr Gardner of Hives described the corridor as reasonably precise although he accepted the internal road infrastructure of the Wixams was uncertain at that time. Mr Williams said he did not expect the corridor to move a lot. At first he said that Hanson needed a high degree of certainty as to how the corridor would actually work and that the precise position of the corridor would affect the impact on Hanson’s land if traffic orders restricted for example road width and types of vehicles that could use the road. However, he accepted that there was not a high degree of certainty in what Hanson had approved and that the significant, and probably the most important, issue was the point where the shuttle buses emerge onto the B530 and that the precise route through the Wixams to that point did not matter.

SMA’s document about the traffic assessment is described as a “review” on the first page but the header on the other pages states “Assessment of NIRAH’s assessment”. The document states that it is not a detailed assessment of the proposals or a critical look at the merits of the proposal. It states the visitor centre in itself is not a problem, that there is most concern about the consequence of the science park’s size and density on trip generation, and (paragraph 7.8) that without a shuttle bus route on third party land the impact on the highway system would be significantly increased. “The park and ride element of the NIRAH scheme is an essential element without which the NIRAH project would have significantly greater impact.” SMA’s recommendation was that Hanson seek to impose a cap on employment in the science park. Hives largely agreed with SMA’s assessment and recommendations. These documents are themselves not full traffic assessments, but they do gauge the traffic impact of NIRAH’s application on Hanson’s holdings and raised points on which Hanson sought additional information from NIRAH. Mr Williams’ evidence was that if NIRAH provided a proposal of an alternative access considered to the same level of detail as in the draft application in November 2006, Hanson would look at it.

AWE and Hanson’s then solicitors, Jones Day, sought additional information from NIRAH about the density of the science research park, the hotels, highway improvements, and the shuttle bus link. Jones Day’s letter dated 24 November asked for confirmation that the preconditions for the opening and operating of NIRAH was dualling the A421, the park and ride facility, and the third party road at the Wixams. Mr Perkin of MacArthur & Co and Mr Murning responded on behalf of NIRAH and provided additional information. Mr Perkin’s letter referred to the Grampian condition about the shuttle bus service requiring it to be operational prior to the opening of NIRAH.

In a letter dated 29 November 2006, Arnold White Estates, on behalf of Hanson, consented to NIRAH’s “…planning application being submitted on the basis of the draft application, as amended by [the letters from Mr Perkin and Mr Murning] and subject to the comments in this letter”. The letter stated inter alia that:

“We have noted that there will be a Grampian Condition in respect of the commencement of work for the construction of the A421 dual carriageway improvements and that you will be providing a park and shuttle facility as part of your scheme. It is also noted your acceptance of a Grampian condition in respect of the provision of the third party road at the Wixams. We agree that these aspects are an essential pre-cursor to the proposed development scheme.”

A copy of this letter was signed by both parties indicating it was their joint agreed position. Mr Williams evidence was that, although this letter does not say the road is to be “through” the Wixams, the letter was written in the light of the draft planning application and the reference in the planning statement to the route “through the Wixams”. Notwithstanding the terms of Mr Perkin’s letter and the absence of a specific reference in AWE’s letter in relation to the Grampian condition about the shuttle bus service requiring it to be operational prior to the commencement of construction, Mr Williams evidence is that was what had been agreed. I, however, accept Mr Matovu’s submission that AWE indicated its approval on behalf of Hanson to an application in which NIRAH accepted a condition that the shuttle bus route should be operational prior to the opening of NIRAH to visitors.

At the time the application was submitted no agreement had been reached with Gallaghers permitting the shuttle bus route to use what were planned to be unadopted roads in the Wixams. NIRAH knew that the indications were that Gallaghers would not countenance a route through the development. It had not informed Hanson. Later, in early 2007 Gallaghers objected to NIRAH’s application, inter alia because of the proposed shuttle bus route and Hanson knew the position by the time of Mr Perkin’s letter dated 17 March 2007. The negotiations with Gallaghers were discussed at a meeting of the Planning Officers’ Liaison committee on 16 April 2007 attended by Mr Gardner. It was stated that the planning application should be determined on the basis of the submission and that other routes were not going to be explored at that stage. Mr Williams accepted that Hanson knew of Gallaghers objection several months before the meeting of the planning authority’s Development Control Committee on 19 October 2007 to consider NIRAH’s application. Hanson and its advisers did not in that period say that without a definite route, Hanson would not be able to assess the impact of NIRAH’s proposals on its holdings. Mr Williams said that they did not comment because this was an issue for NIRAH to resolve and their wading in was not going to make NIRAH’s position easier, but a private comment by Hanson to NIRAH would not have had that effect.

Gallaghers have subsequently entered into discussions with NIRAH about possible alternatives for the shuttle bus, via the Northern Expansion Area and skirting but not going through the Wixams to join the B530 at points other than the Western Gateway. I deal with this later in this judgment.

By the time NIRAH’s application for outline planning permission was submitted on 1 December Hanson and AWE’s thinking about redevelopment of the Stewartby brick works had progressed. On 20 November Mr Szymanski wrote to Bedfordshire County Council about an employment led redevelopment scheme for the site. The Council responded, encouraging Hanson to submit a formal approach for the scheme contemplated. In January 2007 Hives, on behalf of Hanson, did so, referring to the material in NIRAH’s documents to show the opportunities and constraints of the site.

The period between December 2006 and the “minded to approve resolution”

The objectors to NIRAH’s application included Bedfordshire Borough Council and Mid Bedfordshire District Council who were concerned that in the light of anticipated increases in traffic from other developments in the area, NIRAH’s project would use up highway capacity. Gallaghers also objected. They stated they were concerned about the impact of NIRAH’s development on the Wixams. The access to NIRAH’s development relied on the Wixams but the infrastructure in the Wixams was not designed to accommodate NIRAH and would not be delivered to meet NIRAH’s timetable. Gallaghers stated that discussions between the parties had been limited, cursory, and not detailed and that no agreement was discussed to allow access to the Wixams roads. Gallaghers did not intend to offer the roads for adoption and NIRAH’s access scheme could therefore not be implemented as proposed. The objection also stated that Gallaghers did not want NIRAH’s project to undermine the high quality residential development planned at the Wixams and that despite the effect on the Wixams, NIRAH was expecting Gallaghers to provide the mitigation measures. It is stated that “Gallaghers Estates has no intention of allowing NIRAH to access its site through Wixams particularly when NIRAH would not contribute finance towards highway and public and transport improvement it requires”. During the consultation period, Gallaghers also threatened to apply for judicial review of any permission on the basis of the application.

In the first months of 2007 the Council considered consultees’ responses to NIRAH’s application. In the light of those responses, on 24 May it requested further information and clarification from NIRAH. Between mid May and mid August 2007 there were also negotiations between NIRAH and Hanson about the clause to go into the section 106 agreement concerning the restriction of the use of the science park. This shows that, although Hanson did not contribute to the discussions about the route for the park and shuttle service or let NIRAH know its position on the need for a definite route, it did contribute to the development of the section 106 agreement on the use of the science park. In the light of the commercial significance of the overage provisions, this may have been its main concern at that time, as it had been when it was considering the draft planning application.

The consideration of possible redevelopments for Hanson’s land in Marston Vale continued. In July 2007 Roger Evans Associates produced a report entitled “Vision for Marston Vale”. This report refers to NIRAH’s development as a “development of particular significance”, recognises that there will be a park and ride scheme to bring visitors to the site and states that the presence of Hanson, the Forest of Marston Vale and the potential presence of NIRAH lay the foundation for creating an enterprise hub for sustainable technology at Stewartby”. It states the strategy in the document is compatible with the position of the relevant highways and with other developments, including Wixams and NIRAH. The report considers and advises on Hanson’s development opportunities taking account of NIRAH’s proposals. Mr Williams said this document was very superficial, a “high level strategic” document, not an assessment which implies a more detailed level of consideration.

Mr Murning sent Mr Gardner further versions of the draft conditions and draft section 106 agreement on 1 August 2007. Copies were sent to Ms Hassall at Hanson. On 10 August Arup responded to the Council’s request for further information about the application.

The meeting of Bedfordshire’s Development Control Committee to consider NIRAH’s application was to take place on 19 October 2007. In the immediate run up to the meeting matters between NIRAH and Gallaghers were tense. Mr Edelman is recorded as saying to Gallaghers at a meeting on 4 October that he hoped they would support the project, but if not NIRAH could make things difficult for Gallaghers in the future.

Bedfordshire’s Deputy Director of Environment prepared a report on the application for the Development Control Committee. In the light of that report and its discussion the Committee, which was addressed inter alia by Mr Dyer and Mr Edelman, resolved that it was “minded to approve” the grant planning permission. Mr Gardner was present at the meeting and prepared a note of it Mr Szymanski, Mr Hewitt, Mr Williams and others at Hanson, AWE and Hives.

The Deputy Director’s report addressed the issue of the uncertainty concerning the access route. This states (paragraph 6.4.14) that “the efficient operation of the P & S site clearly depends on the use of a route through the Wixams development site as proposed”. The report also states that no park and ride use can be contemplated before the link is approved and provided. As to the route, the report states that an access route is not included as part of NIRAH’s application which only gives an indicative route. The report refers to the fact that there is no obligation on the developer (Gallaghers) to provide a suitable route for NIRAH. However, the report states that despite the uncertainties there are no known factors to enable the conclusion that the park and ride approach could not be achieved although there are concerns that it might not be. He also states (paragraph 5.68) that on the basis of constraints on the area, it was impossible to achieve a set of route options designed and tested to prove that in any and every eventually a route would be achieved and that overall there was no reason to withhold consent on the basis of this issue. Draft planning obligations (to be contained in a section 106 agreement) and draft conditions to any grant of planning permission are contained in two appendices to the report.

NIRAH’s application proposed that concerns that a route may not become available could be dealt with by a Grampian condition. The report states that the Highway Authority would not object to such a condition as a means of insuring a satisfactory link. At the meeting Mr Dyer said that although Gallaghers had suggested that the Wixams route could be retained as a private road network and access to NIRAH would be denied, the non-adoption of the road would be extremely unusual in a development on the scale of Wixams. He did not think it was realistic that the road would remain private. Mr Edelman told the committee that he considered there was a real potential for ongoing discussion to resolve Gallaghers objections. The minutes of the meeting record the Deputy Director confirming that Gallaghers had indicated that they were prepared to discuss the proposal further to try to reach agreement. The committee report notes that Gallaghers had indicated that they were prepared to discuss the proposal further to try to reach agreement.

The Council’s “minded to approve” resolution was subject to the Secretary of State not calling in the application, which she did not. It was also subject to the prior completion of the section 106 planning obligation and conditions set out in two appendices to the Council’s report. The first of the requirements to be addressed in a section 106 agreement is the provision of a bus service from the park and ride site to the main site “via Wixams and B530”. It is stated that details of the service are to be agreed with the Council, and the route is listed as one of the details. It is also stated that the service is “to be fully completed and operational in accordance with approved details before development is open to the public” and “to minimise impact on the highway network and minimise number of cars going direct to the main site”.

Condition 5 provides that the development shall not materially depart from a number of specified matters including (g), the proposed park and shuttle bus route identified by a reference to one of the drawings submitted with the application. Condition 10 provides that “the development shall not be open to the public unless and until a (direct) route for the park and shuttle bus service has been provided which links the park and shuttle site on the A6 with the B530, full details of which shall have first been submitted to and approved by the local planning authority”.

Mr Gardner’s note of the meeting stated “the Council will require clear proof that the Wixams link can be achieved and unless Gallaghers changes its position and accept buses through the development, NIRAH will not get planning permission.”

The Council’s resolution that it was minded to grant planning permission increased the value of the land. Mr Szymanski accepted that that it did so substantially. Mr Williams said that getting this resolution was of “some assistance” in getting planning permission for another development on the land. His June 2006 note to which I have referred said this would improve the chances of succeeding on the rest of the site. However, in his oral evidence he said he did not consider that the value of the land would substantially increase.

Events after the “minded to approve” resolution

After the meeting the Council wrote to NIRAH to arrange meetings about access. By 12 November a provisional meeting between Mr Murning and the Council’s planning officers had been arranged for 4^th December to discuss the section 106 agreement and conditions to be attached to the outline planning consent. Mr Murning emailed Mr Hassall and Mr Williams on 12 November informing them of this, asking whether a representative of Hanson wished to attend, and whether they wished him to meet them to bring them up to date on where they were and how NIRAH intended to move forward. This was the occasion to which I have referred when Mr Gardner, who had been copied in on the email, replied saying that he had consulted Hanson and Mr Williams and they did not need to be at the meeting but would “like to be kept informed of the outcome and any other news”. It does not appear that the offer of a meeting was taken up. Mr Williams said they did not go because his experience is that the first meeting is often not substantial and attending would be a waste of time. Mr Gardner’s email also asked whether NIRAH had reached agreement with Gallaghers yet on any other scheme which overcomes the access objection. So, very soon after the planning committee’s meeting Mr Gardner on behalf of Hanson asked NIRAH about an access scheme other than that through the Wixams. He gave no indication that such a scheme would not be acceptable or possible in the light of the terms of Hanson’s approval of the application for outline planning permission. This email also deals with the restriction on the use of the science park.

Bedfordshire County Council discussed access with NIRAH and Gallaghers at a meeting on 19 November which the Council arranged. Both a letter from Mr Mitchell, Gallaghers Planning Director, dated 26 November and the minutes of NIRAH’s Board Meeting on 6 December state the meeting was constructive and worthwhile. Mr Mitchell’s letter states it was particularly encouraging to have established the willingness of all parties to consider an alternative access that does not pass through Wixams. He sought confirmation that a route through the Wixams was not part of the minded to approve resolution and said that there was a consensus at the meeting that whatever route eventually emerged would require a further approval following submission of a new application. The letter states that alternative options are to be investigated jointly by O & H, NIRAH, and Gallaghers.

NIRAH and Bedfordshire County Council exchanged the agreement for the lease of the Elstow North landfill site for the park and ride facility on 20 December 2007. The following day the Secretary of State confirmed that she would not be calling in NIRAH’s planning application.

I have referred to exchanges between NIRAH and Hanson about the terms of the proposed section 106 agreement before the Development Control Committee’s meeting on 19 October and to the meeting on 19 November. Since that meeting there have been further and extensive negotiations about it between NIRAH and the Council and many drafts. I have found that at least the great majority of these were sent to Hanson or its consultants and their comments sought.

Jumping forward in time: on 30 January 2009 the Council sent NIRAH an engrossed section 106 agreement. Obligations 7 – 9 concern travel plans, obligation 10 concerns highway mitigation measures, and obligation 11 concerns the park and shuttle service. Obligation 11 states:

“11.1

The Covenantors hereby covenant with the Council that:-

11.1.1

They will not open or permit the opening of the [visitor destination leisure centre] to the public without having agreed the Park and Shuttle Bus Service Plan with the Council

11.1.2

They will operate the Park and Shuttle Bus Service strictly in accordance with the Park and Shuttle Bus Service Plan and

11.1.3

They will not alter or amend the Park and Shuttle Bus Service Plan without having received in writing the agreement of the Council to such alteration or amendment”

A “Park and Shuttle Bus Service Plan” is defined as a plan for the operation of the dedicated Park and Shuttle Bus Service to include the route, priority measures, frequency, hours of operation, and capacity.

Draft condition 10 provides:

“The development shall not be open to the public unless and until a (direct) route for the park and shuttle service has been provided which links the park and shuttle site on he A6 with the B530, full details of which shall have first been submitted to and approved by the local planning authority.”

Mr Murning emailed Mr Gardner on 4 January 2008 informing him that NIRAH was meeting the Council on 28 January with a view to agreeing the conditions and section 106 agreement. The email also informed Mr Gardner that “O & H and Gallaghers Estates are jointly funding a study on the access and hopefully we will achieve the solution that we could not progress at application stage due to time and financial constraints. I feel that Gallaghers are now of the view, due to the politics, that NIRAH will have to be accommodated in the overall scheme”. In his evidence Mr Murning said that the financial constraints at the time of the application were that Gallaghers had NIRAH over a barrel. He also said that that, by January 2008, Gallaghers saw the advantages of having NIRAH nearby and were saying they would resolve NIRAH’s access problem in a way satisfactory for both parties. He said this was not a strategy to get planning permission within the option period and because of the Grampian conditions it was not inconsistent with AWE’s letter dated 29 November 2006.

In an email in mid-April Mr Williams referred to Gallaghers change of stance as “miraculous”. The reason may have been due to Gallaghers own development plans for the northern expansion area. Whatever the reason, Gallaghers wanted WSP’s feasibility study to be confidential. The reason for this was not in evidence but it may well be that its plans were commercially sensitive and it did not want them to become public. Hanson had kept its early consideration of its plans confidential, because it said of Stock Exchange requirements. However, while Hanson was not given a copy of the study and the drawings contained in it, NIRAH showed some of the drawings and an extract from the report to Hanson at meetings.

Between January and June 2008 there were further negotiations between NIRAH and the Council about the section 106 agreement and the conditions. Mr Murning reported to Mr Gardner about progress on this in a number of communications, including an email dated 11 January attaching the officer’s report to the committee and the headline conditions and framework for the section 106 agreement and inviting any comments that Hanson wished to make. Mr Gardner forwarded this email to a number of others, including Mr Hewitt and Mr Williams, giving his comments on the restriction on the use of the science park and asking them whether, subject to seeing the highway report and any subsequent changes, they had any other comments. He asked Mr Murning to send him the highways report and any changes to the drafts.

On 1 February NIRAH met Gallaghers and O & H. WSP presented six possible routes which were narrowed down to three. WSP’s final report was due about two weeks later.

On 18 February Mr Gardner informed Mr Murning that the draft section 106 agreement was not acceptable to Hanson. Four reasons were given, including the need to see the “park and shuttle service plan” before the agreement is signed, that “this facility shall be operative concurrently with the opening of the visitors’ centre”. Mr Gardner stated Hanson reserved the right to make further points when they saw the full draft section 106 agreement and asked for a copy of the transport assessment regarding options for access routes.

Mr Murning responded to the four points made on the same day. He states of the park and shuttle site that it is a condition that it “will be fully completed and be operational concurrent with the opening of the NIRAH park to visitors. We will not have a definitive plan in place until further down the line when we incorporate all of this into the field management techniques that will be applied to the whole attraction. On the basis of car parking spaces we have already defined the maximum trips which was contained in the documentation which was approved when we submitted the application.”

As to the transport assessment, a reference to WSP’s feasibility study, Mr Murning said with if O & H and Gallaghers approved, he would forward it when it was agreed. But he also said that, as the access was not the subject of the outline planning permission which was restricted to the North Elstow and Quest Pit sites, this was an issue that lay outside the option agreement between NIRAH and Hanson.

At a later stage Hanson suggested that it was necessary for the park and shuttle route to be determined before construction began. Mr Gardner said that this was implicit and that the considerations were the same as for the A421 improvements which did require that. Neither he nor SMA who he consulted, raised an objection to the condition about the shuttle bus route relating to the opening of NIRAH.

Mr Murning attached the draft travel plan to his email of 18 February. On 18 March he sent Hanson and its consultants a further draft of the section 106 agreement, inviting comments and saying they would appreciate an early response and that a committee meeting had been arranged for 3 April to consider the draft agreement and conditions.

On 18 March Mr Gardner sought the views of Mr Williams, Ms Hassall, Mr Hewitt and Mr Llewellyn of Gosschalks, Hanson’s solicitors. That day an email was sent on behalf of Mr Williams to Messrs Gardner, Hewitt and Llewellyn asking them to provide their comments by the end of April and stating they were not going to be able to get together to discuss the matter until early May, some six weeks later. NIRAH was told that comments would not be given for some time a week later, only shortly before the meeting arranged for 3 April and only after a chasing email from Mr Murning on 25 March saying he had expected a response by then since there was no material change from the outline application that had been agreed and approved by Hanson. Mr Gardner responded saying that the latest version of the draft (apparently received from the Council not NIRAH) had been circulated to the team and he would arrange a response as soon as they had gone through it but that this may take time. Mr Gardner stated he was surprised that NIRAH is still unable to supply the access information and transport study “as this is critical” and that they will need it to enable them fully to consider the section 106. Mr Murning replied on the same day saying that the access study requested (ie the WSP feasibility study) did not include a new transportation study but is a solution over private land restricted to the shuttle bus service. He referred to the transportation work undertaken by Arup before the application which had been forwarded on disc to Hanson and stated that he did not agree the access study was critical because nothing had materially changed on the issue. Mr Gardner said he was never offered the WSP study which he knew was described as confidential.

On 2 April, the day before the scheduled meeting of the Committee, Mr Murning emailed Mr Gardner, again copying the email to others in the Hanson team, asking whether there are any questions that required an answer from NIRAH and asking whether Hanson required a meeting to discuss any issues in particular on access. He explained that Gallaghers and O & H paid for the feasibility study and that Gallaghers wished it to remain confidential. He informed Mr Gardner that WSP’s report had been discussed with Bedford Borough Council and the County Council. His email states: “there were two routes proposed for a partially private access for the shuttle buses. The preferred solution involves private land and the ownership of Gallaghers and the other option involves land owned by Gallaghers and O & H”. He told Mr Gardner that Gallaghers and O & H would be making an application for outline planning permission to the County Council. Mr Gardner responded an hour and a half later stating that he was awaiting instructions. Mr Murning then informed him that the committee meeting had been deferred (from 3^rd) until 24 April.

On 20 February Gallaghers solicitors Pinsent Curtis had written to Bedford County Council informing them that Gallaghers, O & H and NIRAH were all working in evaluating possible routes and that a joint report which they commissioned was expected shortly. The letter states that “to date, Gallaghers has maintained their objection to any route that impacts upon the Wixams, but it would appear that a credible alternative route is emerging through the study which needs careful consideration.” The letter states that the study evaluates the impact on the Wixams of a park and shuttle service route and NIRAH’s proposals more generally and that suitable financial position should be made in this respect within NIRAH’s section 106 agreement.

By this time Hanson was preparing its planning application for the Stewartby brickworks. On 23 April Mr Szymanski sent an email to Mr Williams, Hanson’s PR Manager, Mr Weekes and others within Hanson on the subject of “NIRAH/Percy PR discussions”. Percy was a reference to Project Percy, Hanson’s development proposal for the whole of the Marston Vale. Mr Szymanski’s email states he was setting out a few facts so they can start to put together a view on how to handle the press if the issues become public. His email refers to having a “clear plan of action to develop” Hanson’s land holdings in the Marston Vale starting with an application for the Stewartby site that he says will be submitted within a couple of months. The application was submitted on 16 June. Mr Szymanski’s email also states that that “in hindsight, the NIRAH agreement is not necessarily in our best interests, but it was signed before the Percy project was conceived” and that Hanson has “a legal obligation to be supportive to NIRAH in general terms, including helping their application” but that Hanson still has to protect “our best interest and we can oppose any issues that affect our ability to develop as we wish. This could be complicated legally”.

Mr Szymanski’s email states that NIRAH was pressing Hanson to agree to the section 106 agreements but that Hanson was resisting as it felt it did not have enough detailed information. He states that in view of the likelihood of Mr Murning, who he described as “volatile”, involving the mayor and the press, “we need to have a clear view as to our public position if asked, as opposed to our private stance. This public view must match our obligations in the agreement”. Mr Szymanski states that his view “would be that as far as NIRAH is concerned we continue to reiterate that we support the project, but as always there are contractual details that have to be agreed before we can move forward. The details are confidential. I am sure David [Weekes, the PR Manager] can put some spin around this”. Even if the email was, as Mr Szymanski said when giving evidence, prepared purely for PR purposes, the inference from his statement contrasting Hanson’s private stance and its public position, the latter of which had to match its obligations in the agreement, was that its private stance either did not match those obligations or was to take a very broad view of its entitlements. Mr Szymanski’s evidence was that, as Project Percy emerged, he formed the view that the agreement Hanson had made with NIRAH was not in its best interests and that between December 2005 when the option was granted and the spring of 2008 Hanson’s circumstances in Marston Vale had changed significantly.

It would appear that NIRAH’s 2 April request to have a meeting with Hanson had not led to anything. On 8 May 2008 Mr Murning emailed Mr Gardner expressing surprise that they could not agree to have a meeting to discuss any reservations he and Hanson had in relation to the section 106 agreement and the conditions. This email states that NIRAH had informed Hives of all meetings with planning officers over the year prior to the determination, that Hives attended the majority of these meetings as an observer but NIRAH received no feedback on issues during the period. He says that they thought that had there been any further concerns leading up to the determination of the application, Hanson would have asked NIRAH to meet it. Mr Murning refers to a change in tone and the fact that Hanson’s comments were to be given through its solicitors. He requested a date for a meeting.

On 12 May Gosschalks emailed a letter to NIRAH stating they assumed the emails Mr Murning had sent Hanson and Mr Gardner were formal requests for agreement to the draft section 106 agreement pursuant to clause 5.1 of the option agreement. Mr Murning replied that evening stating that he considered that Hanson was unreasonably withholding consent to the draft section 106 agreement and conditions and that NIRAH “have reached agreement with Gallaghers Estates and have given you all information of relevance in this matter”. Mr Murning said that the agreement with Gallaghers as to the hierarchy of the alternative routes.

Mr Murning met Mr Szymanski on 16 May and following the meeting wrote to him about the points that were discussed. The letter (dated 19 May) states that he gave Mr Szymanski sight of part of the WSP feasibility study at the meeting and explained that Gallaghers had only agreed that it could be released to the Borough and County Councils. He said he believed NIRAH had answered Mr Gardner’s questions in sufficient depth but that in the light of the meeting he would do so again. The letter states the access route would be based on private land from North Elstow and that “the only point that may be of issue is the point at which the shuttle buses join the B530 from the private land”. He states that one proposal is over the Hardwick bridge and the other is through land owned by O & H just north of the proposed new roundabout which will serve Wixams from the B530 (the hostel site). The letter states that the study was based on the peak frequency of buses contained in the application for planning permission and the supporting documents prepared by ARUP which Hanson had approved prior to submission of the application. The letter also discusses the density issues concerning the science park, the £2 mllion for mitigation contingencies and the travel plan. Mr Szymanski agreed that the letter was quite a detailed status report and recalled being shown a map.

In a letter dated 21 May Gosschalks informed NIRAH of Hanson’s concerns about version 6 of the draft section 106 agreement. Gosschalks state that, because parts of the draft agreement provide for information on transportation matters to be provided at some time in the future rather than scoping and designing these matters before implementation, Hanson is not in a position to judge how the matters will impact on its land and development proposals. The letter refers to the fact that one of the travel plans would be made just before implementation and the other within two years of implementation, and describes the highway mitigation measures as having a complete lack of detail, and relying on post-implementation assessment and a very low level of financial contribution. With regard to the park and shuttle service the letter states that neither Hanson nor their planning consultants had received details of the site itself or its connection to the main site, or details of an agreement which they understand has been reached with the land owners. The letter also states that they wish to see a copy of the transportation study undertaken by the landowners and NIRAH (that is the WSP feasibility study).

The meeting of the Development Control Committee on 22 May considered a report from the Deputy Director of Environment referring to positive discussions between NIRAH and Gallaghers and other land owners about identifying an acceptable route for the service. It also states that Hanson and Wixams have been informed of all the discussions on the section 106 agreement terms and sent copies of each version of the draft agreement. It is stated that Hanson have not yet commented on the latest version and that their agents latest position is that they are considering what additional information or clarification they may need to consider their advice to clients as to whether Hanson should sign the section 106 agreement.

On the day of the committee meeting Mr Szymanski emailed Mr Williams informing him of his meeting with Mr Murning. He states that they need “to decide how we take this forward in terms of strategy and what is our end game. What do we have a chance of realistically achieving, and what is a complete “punt”. Mr Szymanski said the reference to “end game” was coming to some sort of resolution, hopefully signing the section 106 agreement. He said they had considered taking advantage of NIRAH’s position to Hanson’s advantage but quickly came to the conclusion that they would stick to the option agreement.

On 27 May Mr Murning wrote another letter to Mr Szymanski advising him that the Council’s Development Control Committee had approved the draft section 106 agreement and conditions and agreed that any further refinement could be undertaken as a delegated matter. The letter also deals with the effect of the proposed new unitary authorities and other matters. On 2 June Addleshaw Goddard wrote to Gosschalks. They enclosed version 7 of the draft section 106 agreement showing the changes from version 6 and a three page note by Mr Dyer of ARUP setting out the options for an alternative route for the park and shuttle service under consideration, highway modelling, highway mitigation measures and travel plans. This largely repeats information Mr Murning had given Mr Gardner previously and, with regard to modelling, it states the trip generation and distribution and information was taken from the original transport assessment.

By this time the relationship between Mr Murning and Mr Williams was strained. Mr Murning sought to meet Mr Szymanski directly without Mr Williams, giving as his reason that he assumed Mr Williams would not be in a position to make a decision for Hanson.

On 9 June Mr Hewitt of SMA wrote to Mr Williams informing him of SMA’s review of the most recent information provided by NIRAH in response to Gosschalks letter of 21 May. The letter states that “the section 106 agreement and information provided to date by NIRAH and their consultants do not provide details of the park and ride proposals and leave a number of key issues to be restored”. Mr Hewitt states that SMA cannot comment on the assumptions methodology and recommendations of the feasibility study because they have not been provided with it and have no correspondence to confirm that the Borough or County Council have approved the study and its recommendations as stated by NIRAH. The letter refers to anticipation of serious congestion at the junction of Manor Road and B530 and that, if the proposed link via the Wixams is not provided, the impact would be significantly greater and the scope of highway mitigation measures would need to be extended. The letter states that SMA cannot recommend that Hanson should approve the NIRAH proposals on the basis of the information provided. At the very least, full details of the bus link through the Wixams must be provided together with confirmation of traffic flows, land ownership, transfer arrangements and highway authority approval.

On 16 June Hanson submitted its planning application or the redevelopment of the Stewartby brickworks. When preparing the application Hanson had asked NIRAH if it could use the transport models used by NIRAH for its application.

On the same day as Hanson’s application for the brickworks was submitted Mr Murning met Mr Williams, Ms Hassall and Mr Docherty of Hives. He wrote to Mr Szymanski the next day to confirm and clarify points raised at the meeting stating that NIRAH has succeeded in negotiating with Gallaghers Estates to use the Wixams as linking routes from the A6 to the B530 and are presently negotiating details. In cross examination Mr Murning said that by the term “the Wixams” he was referring to the northern expansion area and had used the term loosely. His explanation is consistent with an email from Mr Williams to Mr Szymanski about the meeting which talks about routing the buses through the Gallaghers and O & H land.

At the meeting on 16 June Mr Murning tabled three plans indicating different routes. In an email after the meeting on 16 June Mr Williams stated this was the first time they had seen the drawings and that he said that they needed time to confer with their advisors about the suitability of these proposals. Mr Murning had shown Mr Szymanski a plan or a map a month earlier but it was not clear whether that was something different. Mr Murning said the plans tabled at the meeting on 16 June were detailed and to scale. The emphasis was on the Hardwick Bridge option because it, unlike the Hostel Site and the Western Gateway options, did not have outline planning permission. He said that NIRAH did not do the modelling on the two new routes because Hanson had given no indication as to its position. Mr Williams states that it was agreed that Mr Murning would let Hanson have the three drawings he tabled and that they would try to convene a meeting quickly with their respective highway consultants.

On 24 June Mr Murning wrote to Mr Hewitt of SMA telling him what information he had given at his meetings with Mr Szymanski on 16 May and with Mr Williams and others on 16 June. He written to Mr Szymanski the day before in broadly similar terms. The letter to Mr Hewitt states that the Hardwick bridge route was the preferential route, with the next one being that through the O & H land on the Hostel Site. It states that WSP’s feasibility study used the frequency of bus movements estimated by Arup in the transport assessment submitted with the application for outline planning permission. The letter also states that Gallaghers and O & H had presented WSP’s study to the planning authorities at a meeting on 22 March. The planning authorities confirmed they had no objection in principle to any of the solutions and that a planning application for a private access road should be made to Bedfordshire County Council. This letter states that Gallaghers and O & H had confirmed to NIRAH that they have instructed WSP to prepare a planning application for the access road using the Hardwick bridge route. Mr Murning offered to meet SMA if Mr Hewitt felt there were any gaps in the detailed information.

On 27 June there was a meeting between NIRAH and ARUP and SMA to clarify the park and access proposals and implications associated with each access option onto the B530. The note of the meeting states that it was understood at the meeting that there will soon be a land owners agreement in place between Gallaghers and NIRAH. The note refers to the three access routes and the anticipation that access through the hostel site would be the preferred route for Hanson since it involves joining the B530 south of the railway station and the Manor Road junction.

Mr Murning’s follow up letter dated 30 June stated that NIRAH had given Hanson and SMA all the information they had relating to highway analysis. It also stated that NIRAH had explained that there had been no changes to the assumptions and the analysis that was part of the transport assessment before the application, and that the new information did not alter or change the trip generation assumptions and modelling that had been approved at that time by Hanson. Mr Hewitt’s response to this letter did not agree with Mr Murning’s statement in it that at the meeting he (Mr Hewitt) indicated “that all of this was technically fine”.

Mr Murning’s letter also states that O & H and Gallaghers are discussing making an application for outline planning permission for the development of the land to the north of the Wixams development and considering whether the NIRAH access solution would be incorporated into that application or whether NIRAH should make a separate one for the shuttle bus access road.

SMA confirmed receipt of a number of ARUP reports, the local highway network report impact assessment addendum and the A421 A6 modelling report (see a later email 5 December 2008). It stated that it had seen but not received copies of the WSP drawings and reports and that it had:

“… explained at the meeting that any proposed scheme is of fundamental importance to our clients and that we have concerns regarding its design impact, certainty and deliverability. We cannot review and report on this key element of the NIRAH project until we are provided with all relevant information relating to the proposals.”

On 14 July 2008 Mr Murning wrote to Mr Szymanski expressing his disappointment that there was not to be a meeting in the near future on the section 106 agreement which had been approved by the Development Control Committee on 22 May and was ready for signing. Mr Szymanski referred this to Mr Williams and after obtaining his advice replied stating that when Hanson has comfort that the NIRAH development has no adverse impact on their proposed developments they will be happy to sign. Mr Szymanski said that by this time he was aware that if the position the shuttle buses were to join the B530 was known it was possible to do some modelling but that, although it might have been easy to commission the modelling it would be costly. He also said that he would have been happy for his consultants to arrange modelling if they were presented with a precise route.

On 16 July 2008 Mr Murning wrote to Mr Szymanski stating that NIRAH had agreed to provide further information requested by Gosschalks, and that the outstanding matter was a land owners agreement which would be forwarded when completed by the solicitors. The letter records NIRAH’s concern that when it answers points raised by Hanson this only promotes another exchange and the raising of further points. Mr Murning stated he would be responding to the SMA letter in the next few days and asks for a comprehensive set of questions to be in one letter or for confirmation that all points that are of concern by Hanson have been raised.

In a letter dated 17 July to Mr Hewitt Mr Murning responded to the points raised in SMA’s letter dated 4 July. With regard to WSP’s feasibility study he stated “I see no purpose in issuing this report, not only due to the terms under which it was produced, (i.e. confidentiality) but also because it has no conclusion and therefore would not be helpful”. He referred to the explanations that he has previously given including that the shuttle bus frequency utilised by WSP in its study was the one in the planning application documentation. The letter invites Mr Hewitt to indicate the problems with the preferred option since he is aware of the proposals and junction locations so that they can address and discuss these concerns. This letter, however, also states: “I accept that you do not have sufficient information to report to your client in detail but we have given a commitment to forward the landowners agreement relating to the access issue between Gallaghers Estates and NIRAH to Gosschalks. We will have any relevant drawings attached to this agreement”. The letter also states that, since SMA is “aware of the proposals and junction locations, that [it] proceed with a report which indicates problems with this preferred option and we can address and discuss these concerns”. In his evidence Mr Murning said that while SMA did not have sufficient information to report in detail, he had also said that they had enough information to carry out a study and there was nothing to stop them doing this.

On 29 July Mr Murning emailed Mr Szymanski copied to Mr Williams saying that progress on the land owner agreement with Gallaghers was slower than he predicted primarily due to the solicitors being on vacation.

On 31 July Gosschalks wrote to Addleshaws stating that its clients had not received the drawings that were promised showing the alternative proposals for the park and shuttle service. Mr Murning said that by this time Hanson knew that NIRAH was not free to provide the drawings. On 21 August 2008 Addleshaws replied to Gosschalks stating NIRAH had not promised to send the drawings to Hanson and the issue was addressed in NIRAH’s letter to SMA dated 17 July. Addleshaws stated they were waiting for a first draft of the land owners agreement from Gallaghers lawyers and encloses version 9 of the draft section 106 agreement. Gosschalks replied on 29 August stating that Hanson was clearly of the view after the meeting that the drawings were going to be issued to them but in any event that they would not be able to give approval to the draft section 106 agreement until they had seen all drawings and other material which they consider relevant to this matter in any way.

On 18 August 2008 Gallaghers planning agents, Roger Tym & Partners, had written to Bedford Borough Council about Gallaghers proposals for the Wixams northern expansion area outlining a development proposal and stating that in addition to that proposal the NIRAH park and shuttle bus link could be accommodated through the Wixams north expansion area. This was reiterated in the supporting statement submitted with the letter.

At the end of September 2008 because of what he described as a protracted debate between NIRAH and Hanson about whether the NIRAH development may have a negative effect of Hanson’s Stewartby Brickworks development Mr Murning wrote to Liz Wade, the Deputy Director Environment at Bedfordshire County Council, asking for a copy of the Council’s response to the Borough’s consultation about the highways and transport issues relating to the Stewartby development. He later spoke to the planning officer dealing with the Stewartby applications and Mr Barcham, a highways officer from the County Council. Ms Wade told him that it was clear that there is no concern raised that traffic constraints should be placed on Stewartby by the implementation of NIRAH in accordance with the draft planning obligations for that development. Mr Barcham said that the County Council considered “that with further clarification and supporting detailed information that the effect of traffic on the surrounding road network will be acceptable in relation to the Stewartby proposal and with NIRAH in place”. Mr Murning informed Mr Szymanski of this in a letter dated 26 November and on 4 December sent him emails copied from the planning file at Bedford Borough Council confirming what he had said.

On 22 October 2008 Hives, on behalf of Hanson and AWE, made a submission to the East of England Regional Authority about six sites including residential and employment development on Quest Pit. The submission did not refer to the option agreement or NIRAH’s application for outline planning permission but stated that apart from the application in relation to the Stewartby site “no proposals for the other [Hanson] sites have been submitted”. After Mr Murning informed the Regional Authority of the position, copying his letter to Mr Szymanski and Mr Williams, Mr Williams sent an email to Messrs Szymanski, Gardner and Llewellyn stating that the submission included Quest Pit “on the basis that there is no certainty that NIRAH will be able to exercise their option within the recognised timeframe” and “it is not at all unreasonable for a site owner to protect his retained interest in such circumstances”. In their evidence Mr Dyer and Mr Edelman accepted that Hanson’s action was a reasonable fallback position should NIRAH fail, but Mr Edelman thought that the fact that Hanson did not inform NIRAH about the submission showed NIRAH was being given the runabout.

On 2 December 2008 Mr Murning wrote to Mr Cardon of Gallaghers Estates seeking a meeting to discuss the access (land owner) agreement which had ground to a halt after the person dealing with it at Gallaghers left and Pinsent Masons had informed Addleshaw Goddard that they were waiting for further instructions.

In a letter dated 5 December to Mr Williams Mr Hewitt of SMA referred to SMA’s meeting with Arup on 27 June when the drawings identifying three access options through the Wixams site with a preferred route over the existing Hardwick Bridge were shown to them. He said they requested copies of these drawings after the meeting at which they had explained that it was of fundamental importance that they were able to assess the design, traffic impact and deliverability of the preferred route. This was also said in a letter dated 4 July but SMA had not received any plans and “therefore have been unable to carry out a full impact assessment” on the proposed park and ride shuttle route. (They did however receive two other reports following the meeting on 27 June.)

This letter also states that the highway and junction capacity assessments SMA undertook in relation to the proposed redevelopment of the Stewartby site included trip generations related to the NIRAH site. It states that “based on our conclusions, using the Hyder Saturn model produced for the Highways Agency’s A421 dualling scheme, we can confirm that there would be adequate capacity to allow for movements associated with the NIRAH site”. The letter states that despite this SMA remain concerned that the NIRAH scheme relies upon a park and ride proposal to mitigate and manage development traffic which is remote from Quest Pit and the proposed bus link crosses third party land. It states that Hanson needs to be satisfied that this key piece of infrastructure can be delivered. SMA’s difficulty at this stage concerned deliverability, not its ability to assess the impact of the shuttle bus routes.

In a letter dated 30 December to Mr Szymanski Mr Murning stated that he believed they had reached a point at which they should review the progress made to date and clarify the way forward. The letter states that NIRAH believe that they have addressed all the issues raised by Mr Williams either directly or through advisers with the exception of the landowner’s agreement with Gallaghers Estates and that NIRAH will confirm its view in this matter. In cross-examination Mr Murning said he confirmed NIRAH’s view that Hanson had sufficient information. They did not have the landowner’s agreement but he did not believe that was necessary under the option agreement.

On 8 January 2009 Mr Murning met Mr Stubbs who had been brought into the matter by Mr Szymanski at a relatively late stage. Mr Stubbs said he would be present at future meetings. The introduction of Mr Stubbs may have been because of the state of relations between Mr Williams and Mr Murning. Mr Murning tabled Hanson’s letter permitting NIRAH to submit the outline planning application, and other documents including extracts from WSP’s feasibility study and a plan of the proposed northern expansion area. In a letter written after this meeing Mr Murning said that those acting on behalf of Hanson had not to date responded in any meaningful way to the draft section 106 agreement. This letter states what information had been provided to Hanson in the past and briefs Mr Stubbs. It refers to the fact that SMA and Mr Williams had been shown the drawings at meetings and to the reason the information could not be given to Hanson without Gallaghers permission. It states that the NIRAH link is part of Gallaghers submission to the planning authority for inclusion in the merging local development plan and that they are negotiating the landowners agreement with Gallaghers and O & H.

In a letter dated 13 January Mr Murning wrote to Mr Mitchell of Gallaghers Estates thanking him for his agreement to proceed with the drafting of the land owners agreement. The letter asks for the inclusion of a second route, that through the hostel site. It does so because the hostel route has planning consent and is a more secure route than the Hardwick Bridge route which might not get such consent, and in case of “a technical objection” from Railtrack on using the Hardwick Bridge. An extract from the feasibility study before the court states that the owner of the bridge was Network Rail.

In a letter dated 19 January 2009 to Mr Williams Mr Murning stated that NIRAH was progressing a landowners agreement relating to the route that will include properties belonging to Gallaghers and O & H. Mr Murning later asked WSP to set out alternative routes from the car park to each of the three access point for the shuttle bus to the B530 considered in the feasibility study. Mr Murning said he did this because of a possible problem with an adjoining land owner but the alternatives did not affect the three possible access points on the B530 and thus did not change anything fundamental.

In a letter to Mr Stubbs dated 10 February Mr Murning updated Mr Stubbs and stating that the acting head of planning for Bedford Borough Council has confirmed that with NIRAH in place the highways issues surrounding Hanson’s Stewartby application would be acceptable to the planning authority in the contexts of the response from the highway agency and Bedfordshire County Council. On 17 February 2009 there was a meeting between NIRAH and Hanson, each side accompanied by its solicitors. At this meeting Hanson said the issue on access from NIRAH to the park and ride site is the detail, the certainty and the agreement of the land owner to a specific route. These matters could not be left to be agreed after signing the section 106 agreement at that Hanson needed to know in advance. Mr Murning said that there were three alternative routes which have all been discussed before and it was agreed that all three (ie including the route through the Wixams joining the B530 at the Western Gateway) have uncertainty. As far as the land owners agreement was concerned, Mr Murning said that Gallaghers was being slow on this and Addleshaws said that they had recently been instructed by NIRAH to prepare heads of agreement for the landowners agreement.

In a letter dated 18 February 2009 to Mr Szymanski Mr Murning reiterated that the three options for the access route remained as stated at the meeting with SMA in June 2008 and discussed at the meeting the previous day and stated that there had been no change in the frequency of bus trips from the park and ride since the submission of the planning application in November 2006. Although, by February 2009 there were only 10 months left until the option expired, no pressure was put on Gallaghers and O & H to come up with a landowners agreement. The reason for this was that, NIRAH had been unable to get a response or any movement on the options from Hanson, and considered without this an agreement with Gallaghers and O & H was meaningless because Hanson could then say the agreement was unacceptable.

There was a further meeting between Hanson and NIRAH on 16 March 2009. Messrs Edelman and Murning attended on behalf of NIRAH and Messrs Szymanski, Stubbs and Williams on behalf of Hanson. Mr Williams’ note of the meeting was before the court. The note states that Mr Edelman indicated he could see no reason why the section 106 agreement could not be signed. He stated that it was not possible for a definitive route to be agreed because O&H and Gallaghers were not proceeding with their application for outline planning permission for their respective land holdings across which the buses would need to pass. Mr Szymanski asked how Hanson would be reassured that any of the proposed routes would be available especially since Gallaghers had made it quite clear to the planning committee at the time the application was originally dealt with that Gallaghers would not allow access across its land. Although Gallaghers had changed their position, Mr Williams’ note states he said he had discussed the matter with Gallaghers and they indicated it was most unlikely that their fundamental position would be anything other than not allowing buses to pass through the Wixams development. His note records that he could not foresee them changing their minds although they might be slightly more ambivalent in public and that he questioned the NIRAH view that the roads would be adopted.

Mr Edelman, in his oral evidence, said that at the meeting Mr Stubbs said the problem with Hanson signing the section 106 agreement was that once the option was exercised and NIRAH had the land NIRAH could do what it wanted with it and Hanson would not have control over it. Mr Edelman said this had irritated him and was an indication that Hanson were dragging their feet because they had not done a good deal. Mr Williams’ note records Mr Edelman saying in response to a point made that it mattered little what NIRAH intended to do with the site once their option had been exercised and that his mandate was to seek to provide the opportunity to recover the £4 million or so of public money which had gone into the project so far. Mr Edelman said he was upset by Mr Stubbs’ remarks and his response was that control by Hanson at that stage was not part of the option agreement and that Hanson had not put in any provision to protect itself. Mr Williams records that the NIRAH representatives gave no indication that they were still committed to building the NIRAH scheme and he states that it became apparent that their only concern was securing the Quest Site to underwrite the loans put into the project by the County Council and the Development Agency.

The note records Mr Edelman asking whether Hanson was prepared to test the three alternative routes from the park and ride to Quest Pit but Mr Williams and Mr Szymanski indicated there was no guarantee any of these routes could or would be implemented and that any testing should follow the receipt of the further information and agreement (I assume the land owners agreement) which had been promised by NIRAH.

In his evidence Mr Edelman said that on the basis of conversations with Tony Gallagher, Gallaghers main complaint about NIRAH was that it proposed to use the roads on the Wixams estate, for which Gallaghers had contributed £60 to 70 million without making a contribution and to get what could be described as a free ride. Mr Edelman considered there was a deal to be done with Gallaghers either by NIRAH having to pay to get the right to travel through the Wixams over Gallaghers’ land or by a route that enhances Gallaghers planning prospects for other land for which they do not currently have planning permission. He also said that, as in his view the roads on the Wixams will be adopted (because of the railway station and an industrial park) so that NIRAH’s buses would be able to travel freely on them, the negotiating position is evenly balanced. Mr Edelman said that NIRAH did not want to pressurise Gallaghers at that time because commercially it was better to wait because they would get a better deal or unless an opportunity arose, as it had when Gallaghers saw that if the access went through the northern expansion area it would assist them in getting planning

Mr Milner placed significant weight on a letter dated 27 March 2009 Mr Edelman wrote in which he accepted that Mr Murning had been discussing alternative routes from the car park to the NIRAH site but this was in the spirit of cooperation and, as they advised Hanson, NIRAH would not be in a position to share the alternatives with Hanson in the near future and (the passage relied on by Mr Milner) “this is why I have no complaint at this juncture that you have not signed the section 106 agreement”. Mr Milner submitted that, as Mr Edelman said he had no complaints about not signing the section 106 agreement at that stage and no additional information had been provided since and Mr Edelman said on 1 May in a letter that he would not furnish further information, it is clear that Hanson is not in breach of its obligations under clause 5.1 of the agreement. A proper reading of the section of the letter in which this phrase is found shows that this is not so. The letter went on to state that at a meeting on 16 March NIRAH requested a response by 23 March, that none was received, that he was struggling to understand grounds Hanson had for not approving the section 106 agreement, and that in the absence of a satisfactory response NIRAH would begin legal proceedings.

Mr Stubbs responded to Mr Edelman in a letter dated 24 April reiterating Hanson’s view that in the light of the information received Hanson was not able to determine whether the development may directly or indirectly impact on the achievement of its aims for the development of its land in the Marston Vale area. The letter states that Gosschalks had not had a response from Addleshaw to a previous letter sent prior to the meeting on 16 March requesting information. Mr Edelman responded to this in a letter dated 1 May stating that NIRAH did not intend to furnish Hanson with further information and that he believed that under the option agreement Hanson was obliged to advise NIRAH as to why the signing of the section 106 agreement impacts the Hanson interests in Marston Vale. It is common ground that no further information was provided by NIRAH to Hanson or its consultants after Mr Edelman’s letter dated 17 March and there was no response to Mr Edelman’s request for Hanson to explain why the signing of the section 106 agreement impacted on its interests in Marston Vale.

In a letter dated 4 June 2009 Addleshaws informed Gosschalks that legal proceedings would be instituted and asking whether Hanson would be prepared to extend the termination date and therefore the option period failing which they would be applying for the trial to be expedited.

Hanson’s behaviour, at least from the period when it was putting together and finalising the planning application for the Stewartby brickworks site, involved procrastination and taking a wide view of what they were entitled to under the option agreement. The question is whether in doing so they breached their obligations under the agreement. It is convenient to separate the issues that fall for decision although some of them overlap to an extent. Mr Matovu’s skeleton argument helpfully set out the majority of them. Those below are based on that, on the oral submissions, and on Mr Milner’s written closing submissions.

The option agreement was negotiated carefully and with the assistance of lawyers. Mr Milner described it as carefully striking a balance between the aims of the two parties. As far as Hanson was concerned the balance related to its business activities and its aims as stated in clause 2.1. This case only concerns those stated aims.

NIRAH’s aim is stated to be to “maximise the value” of its project whereas Hanson’s aim in relation to its remaining land in Marston Vale is stated to be its “ability … to enhance [its] value and promote and subsequently undertake [its] development or redevelopment”. Clause 5.1 enables Hanson not to enter into a section 106 agreement which would “directly or indirectly impact upon”, “adversely interfere with” or “in any way prevent” the aims contained in clause 2.1.

The witness statements of Mr Williams and Mr Gardner contain passages which suggest that they considered and were proceeding on the basis that the agreement permitted Hanson to maximise the value of its remaining land in Marston Vale. Mr Bowhill’s report proceeds on the basis that clause 5.1 is intended to enable Hanson to prevent a section 106 agreement from prejudicing its right to maximise the longer term development of its holdings. In paragraph 5.15 of his report he states: “the longer term development potential of the landowners’ holdings can be maximised” and that NIRAH’s project should not conflict with that longer term objective.

Mr Milner, however, correctly accepted that in the light of the contrast between Hanson and NIRAH’s stated aims in clause 2.1 this was not so. He relied on the width of the language of clause 5.1 in terms of the causal link. While the language of clause 5.1 is very wide in terms of the causal link, the direct or indirect impact, interference or prevention it is concerned with is with Hanson’s ability to enhance (rather than maximise) the value and promote and undertake the development of its remaining land.

At the time Hanson and NIRAH entered into the option agreement, Hanson, unlike NIRAH, had no definite plans for redeveloping its land although it was considering the possibility of redeveloping its brickworks at Stewartby. The contrast between enhancing value in respect of Hanson’s land and maximising value in respect of NIRAH’s project means that the agreement requires Hanson to accommodate and make allowances for NIRAH’s project in any future plans for its own land. I accept Mr Matovu’s submission that construing the agreement to enable Hanson to block any aspect of NIRAH’s project that would in any of the ways specified in clause 5.1 prevent Hanson from maximising the value of the future development of its land is inconsistent with the balance of aims set out in clause 2.1. It is also inconsistent with clause 2.3 in which the parties “acknowledge each others stated aims and intend to pursue their respective obligations under this agreement in accordance with such stated aims.”

Accordingly a consequence of the structure of the parties’ aims set out in clause 2.1 is that Hanson is not entitled to take the view that it need not consent to any proposal by NIRAH (whether in the application for planning permission or in relation to a section 106 agreement) which either prevented it from maximising the value of its remaining land in Marston Vale or about which there was some uncertainty.

I turn to the question whether the application for planning permission satisfied the requirements of the option agreement and the terms upon which Hanson consented to it being submitted. I consider that it did.

I have found that before the submission of the application Hanson or its advisers attended or were given the opportunity to attend all meetings of the Planning Liaison Officers’ Committee and virtually all other relevant pre-application agreements with the planning authorities. In respect of those which they were not given an opportunity, for example the meeting with the Council on 24 February 2006 to negotiate the lease of the North Elstow site, notification of meetings with bodies involved in the planning process was not a condition of the submission of the planning application.

Hanson was sent a copy of the application at the time it was submitted to the Council. It did not raise the compatibility of the application with NIRAH at any point in the ten months before October 2007 the Council resolved that it was minded to grant outline planning permission.

With the exception of the park and shuttle link road, the experts agree that the planning application broadly complies with the option agreement. Mr Bowhill considered that the park and shuttle link road should have been part of the planning application but Mr Tant and Mr Knowles considered the Grampian condition was suitable to meet Hanson’s concerns and to secure delivery of a direct shuttle bus link from the car park to NIRAH.

For the reasons given earlier in this judgment, in the light of the correspondence between the parties before AWE’s letter consenting to the submission of the application, in particular Mr Perkin’s letter dated 27 November 2006 to Jones Day which is expressly referred to in AWE’s letter, I have concluded that AWE, on behalf of Hanson, indicated approval of a planning application in which NIRAH accepted a condition that the shuttle bus route would have to be operational prior to the opening of NIRAH to visitors. That is what NIRAH had proposed since a meeting on 6 May 2006 attended by Mr Williams, and what Mr Perkin’s letter responding to questions raised by Hanson about the draft application expressly stated. AWE’s letter dated 29 November, states that “we have noted” that there will be Grampian conditions in respect of “the commencement of work for the construction of the A421 dual carriageway improvements” and “in respect of the provision of the third party road at the Wixams”. The writer of that letter can only have noted this from the letters referred to in it, including Mr Perkin’s letter. The assumption made by Mr Williams and others that because the Grampian condition concerning the improvements to the A421 dual carriageway was to require construction of NIRAH not to commence until those work on those improvements had commenced so too did that concerning the third party road for the shuttle bus does not reflect the correspondence or indeed what NIRAH had said it would be proposing since the meeting on 6 May without any contrary indication from Hanson.

As far as the concern about the certainty of the treatment of the park and shuttle link in the application is concerned, at the time that Hanson’s consent to the submission of the application was sought the documentation did not state that it had been confirmed that the shuttle bus route indicated in drawings was “deliverable”, let alone that it could “be delivered with certainty”. Hanson may have assumed that an agreement had been reached with Gallaghers but it did not ask NIRAH whether this was the case or ask about the negotiations with Gallaghers. Hanson and its consultants examined the application, including NIRAH’s Traffic Assessment and Travel Plan statement, and considered its implications for Hanson. The information and the assistance of its consultants enabled Hanson to form a view about the impact of the draft application on its ability to enhance the value and promote the redevelopment of its remaining land. After Hanson found out in 2007 that Gallaghers had not agreed that the shuttle bus route should be through the Wixams it did not claim that the uncertainty meant the requirements of the option agreement and those in its letter consenting to the submission of the application had not been met, or that this affected the views expressed by its traffic consultants as to the impact of the NIRAH project on the highway and local road network.

I have concluded that NIRAH has not wrongfully varied the terms of the application for planning permission it submitted in December 2006. First, there is agreement between the experts that the shuttle bus route was not part of the application. Secondly, even if the shuttle bus route is part of the application that was then made, to date NIRAH has not taken any steps to amend or vary it. The experts agree that any alternative route will require an application under section 73 of the Town and Country Planning Act to vary condition 5 of the proposed planning consent which the Council’s Development Control Committee’s “minded to grant” resolution requires. Indeed, the shuttle bus route indicated in condition 5 will itself require a further planning application. But no applications have been made to date.

I first deal with the more straightforward parts of this issue; the travel plans and highway mitigation measures. In relation to travel plans, there was agreement between the experts that it would be difficult to produce more detailed information at this stage of the planning process. In the light of this Hanson were given all the information they could reasonably expect at this stage and were not entitled to require more detailed travel plans before deciding whether to approve the draft section 106 agreement. As to Mr Bowhill’s view that the lack of detail meant that Hanson would want a continuing involvement as the travel plans were refined which is not provided for in the draft section 106 agreement obligations, it does not appear that Hanson have requested that such provision be made.

In relation to highway mitigation, Mr Dyer’s evidence was that the lack of detail reflected the size of the project and the need to deal with a large number of contingencies. Mr Bowhill agrees with Messers Tant and Knowles that it would be difficult to provide more detail at this stage but considers that the lack of detail is to Hanson’s disadvantage. This, however, is an example of Mr Bowhill’s failure to address the proper test under clauses 5.1 and 2.1 of the option agreement. It is, moreover, difficult to reconcile with his conclusion (see paragraph 8.46 of his report) that the travel plans and highway mitigation measures are “likely overall to be marginally more beneficial than detrimental”. On this issue I prefer the evidence of Messers Knowles and Tant who considered that in view of the lack of data on the traffic effects of large tourist facilities such as NIRAH, and other development projects in the area it made sense to provide for unforeseen contingencies to be addressed at a later stage and that the draft section 106 obligations about highway mitigation are entirely appropriate. Accordingly I do not consider Hanson were entitled to require more detailed information about the highway mitigation measures before deciding whether to approve the draft section 106 agreement or to be contained in the agreement.

Turning to the shuttle bus route, I first consider whether Hanson is entitled to reject any route other than one “through” the Wixams. Secondly, I consider whether the information provided sufficed to enable Hanson to decide whether the terms of the draft agreement submitted for their consent were detrimental to their ability to enhance the value of and promote and undertake the redevelopment of their land in Marston Vale. Thirdly, I consider whether it has to be shown that any potential route is practicable, feasible and can be delivered with certainty. I also consider whether the fact that the provisions of the draft section 10 agreement do not limit the shuttle bus route to one of the three options which are the subject of the negotiations between NIRAH, Gallaghers and O & H entitles Hanson to refuse to enter the agreement later in this judgment (issue 6).

I do not consider that Hanson is entitled to reject any route other than one “through” the Wixams. On both the documentary and the oral evidence (including that of Hanson’s witnesses), the significant issue with respect to the impact of traffic from NIRAH’s project on Hanson’s land is the point at which the shuttle bus route joins the B530, rather than the route over third party land between the car park and that point. There was no evidence before me that it is vital that the route be “through” the Wixams. Indeed the evidence of Messers Szymanski and Williams was that Hanson would consider other routes if given enough information to assess them.

The next question is whether the information provided sufficed to enable Hanson to decide whether the terms of the draft agreement submitted for their consent directly or indirectly adversely impact on, interfere or prevent its stated aims in clause 2.1? The information concerned three options, one of which was that referred to in the documents accompanying NIRAH’s planning application in 2006. I do not consider that the fact there are three options for the route itself precludes Hanson from making the decision contemplated in clause 5.1 They were able to make a decision when they were asked to consent to the draft planning application although there was no certainty as to the route through the Wixams and SMA’s concern in its letter of 4 December 2008 to Mr Williams was about the deliverability of the route, not its ability to assess the impact with the information it had. The significant issue with respect to the impact of traffic from NIRAH’s project on Hanson’s land is the point at which the shuttle bus route joins the B530 rather than the route over third party land. Hanson have been told where the two additional points under consideration are. Additionally, the absence of such certainty did not prevent Hanson approaching the Council about the redevelopment of the Stewartby brickworks in November 2006 and January 2007, referring to NIRAH’s application, and submitting a planning application for the brickworks in June 2008, having sought NIRAH’s permission to use NIRAH’s transport models when preparing that application. It also did not impede Roger Evans Associates’ preparation of the, admittedly high-level, Vision for the Marston Vale report for Hanson.

Hanson does not suggest that it is not able to make a decision about the route joining the B530 at the Western Gateway referred to in the documents accompanying NIRAH’s planning application in 2006. It does not suggest that route would justify it refusing to enter into the section 106 agreement. Mr Bowhill stated that Hanson’s concerns would be satisfied if it was confirmed that the access onto the B530 would be at that point. As to the other two options, between 2 April 2008 when Hanson was told that consideration was being given to two alternative routes over private land and 17 July 2008 when Mr Murning suggested to Mr Hewitt that since SAM was aware of the proposals and junction locations it should prepare a report, NIRAH gave Hanson the following information.

It told Hanson or its advisers that the alternative routes join the B530 at Hardwick Bridge and the Hostel Site, and on more than one occasion at meetings showed or tabled drawings from the WSP feasibility study for Gallaghers which it was not free to hand over to Hanson. It also informed them that there had been no changes to the assumptions and the analysis in the pre-application Transport Assessment and Travel Plan Statement, including those concerning the frequency of bus movements, and that the new information did not alter or change the trip generation assumptions and modelling that Hanson had approved. Hanson has had this information for over a year but has not instructed its consultants to carry out a study. During this period they have pressed for provision of more a detailed travel plan and information about highway mitigation measures, the WSP feasibility study, the landowner’s agreement, and all technical information on possible alternative routes and mitigation measures. Mr Milner’s schedule lists 15 requests for such information between 21 May 2008 and 30 April 2009. Mr Murning had told Mr Gardner, Mr Williams and Mr Szymanski at meetings or in emails before 21 May (including one to Mr Gardner on 2 April) that the WSP study was confidential.

An additional piece of information, the County Council’s response to the Borough Council about the highway and transport issues relating to Hanson’s application to redevelop the Stewartby brickworks, became available to Hanson in the last three months of 2008. The County Council considered that the traffic that would be generated by the NIRAH project would not place traffic constraints on the Stewartby application.

Mr Matovu relied on NIRAH’s offers, made since the commencement of these proceedings, to provide Hanson with the WSP feasibility study on terms of confidentiality. If the provision of that study was necessary to enable Hanson to form a view as to whether it should approve the form and enter into the final draft section 106 agreement those offers were too late. The first was in the list of documents disclosed, and the second at the experts’ meeting in the week before the trial. I do not, however, consider that it was necessary for that study to be produced. I have concluded that Hanson had sufficient information to enable them to form a view as to whether they should approve and enter into the final draft section 106 agreement.

As to the difference between the experts, I prefer the evidence of Messers Tant and Knowles to that of Mr Bowhill. Mr Tant’s evidence is that the information provided to Hanson and its advisers about the shuttle bus route “is sufficient for Hanson to make a rational assessment of its potential impact on their proposed developments”. The unchallenged evidence of Mr Knowles is that the information that has been available to Hanson and its advisers since last July enabled it to undertake the necessary modelling on the effect of shuttle bus flows on the options based on Hardwick Bridge and the Hostel site at a cost of approximately £5,000. What have they done? They have requested the landowners agreement and I will deal with this when considering whether NIRAH is required to demonstrate that any potential route can be delivered with certainty. Apart from that, what Hanson and its advisers have repeatedly done is to ask for a report which they have been told NIRAH is not free to provide and for more detailed information about the travel plan and highway mitigation measures, information which all the experts agree would be difficult to produce at this stage of the planning process. Was the failure of Hanson to undertake the modelling unreasonable and a breach of clause 5.1.1 of the option agreement which provides that Hanson is not to withhold or delay its approval of the form of the ancillary agreements unreasonably?

Mr Matovu suggested that the reason Hanson did not ask its consultants to undertake the modelling can be discerned from Mr Williams June 2006 document, that after the Council had resolved that it was minded to approve outline planning permission, Hanson had no desire to keep the NIRAH project alive. I found that this was not Hanson’s strategy but consider that what is stated in that document is an indication of the approach in particular of Mr Williams to the relationship of the NIRAH project and Hanson and the impact of the “minded to” approve resolution on that relationship. As such it provides some explanation of the approach Hanson took from the spring of 2008 when the planning application for the Stewartby brickworks was being prepared, particularly if, as appears from Mr Bowhill’s report and from indications in Mr Williams’s witness statement, the view within Hanson was that it was entitled to maximise the development prospects of its holdings in Marston Vale.

Mr Williams note of the meeting with NIRAH on 16 March 2009 records himself and Mr Szymanski declining to test the alternative routes because there was no guarantee the routes could or would be implemented and until the further information requested and the landowners agreement was received. If the information requested was further details about travel plans and highway mitigation measures, and the WSP study the refusal to test until that information was received was not reasonable. No further details could be provided about travel plans and the highway mitigation measures at that stage. Since it was by then clear that the WSP study was confidential, the continued requirement that NIRAH produce something which it was not in its power to produce was also not reasonable.

It may also be that Hanson was not prepared to incur the cost although this does not appear to have been said at the time. Mr Williams’ evidence indicated that he considered that modelling would be very expensive. Mr Szymanski said that, had Hanson paid its consultants to do the modelling, the cost would not have been recoverable from NIRAH under clause 16 of the agreement because it did not fall within the term “legal and planning costs”. This may well be so because the cost would have been incurred in order to enable Hanson to decide whether the alternative options adversely impacted on its stated aims as set out in clause 2.1 rather than for legal or planning purposes.

The next question is whether, although Hanson in fact had sufficient information to enable them to form a view as to whether they should approve and enter into the final draft section 106 agreement, the option agreement required NIRAH to undertake the modelling itself and to furnish Hanson with the results. Mr Milner did not refer the court to a provision in the agreement requiring NIRAH to bear the costs Hanson incurred in deciding whether the alternative options adversely impacted on its stated aims as set out in clause 2.1., by for example undertaking the modelling and providing Hanson with the results. I have not identified such a provision. Moreover, if, which is not clear, any indication can be drawn about this from the terms of clause 16, it is that is to be that such costs are not to be borne by NIRAH.

The next questions are whether Gallaghers have maintained a consistent refusal to permit access for the park and ride shuttle through the Wixams and whether there is a reasonable prospect of delivery of a shuttle bus route. Gallaghers have not agreed to permit access for the park and ride shuttle “through” the Wixams. Despite Mr Edelman’s optimism as to the commercial realities, and his and Mr Murning’s view that the roads in the Wixams will be adopted, there is almost nothing in the material before me to indicate that Gallaghers have changed their position on this. To date the only contrary indication which shows that Gallaghers stance has not remained completely unchanged is that one of the three routes in the WSP study they and O&H commissioned is the one linking with the B530 at the Western Gateway, as in the drawings submitted with NIRAH’s original application.

I am not able to conclude that there is a reasonable prospect of the route through the Wixams that was indicated at the time of the planning application. However, the inclusion of that route as one of the options in WSP’s feasibility study funded by Gallagher and O&H and the evidence as to the continuing negotiations (albeit with a discount applied to Mr Edelman’s optimism about the outcome) means that I reject Mr Bowhill’s view that there is “no prospect” of the route being via the Wixams.

The position is clearly different in relation to the other routes. Mr Bowhill’s view that there is “little likelihood” of another direct route was based on outdated information as to Gallagher’s position at the time of the Development Control Committee’s October 2007 “minded to” approve resolution. His report states that he had “seen nothing to suggest that their attitude has changed” since then and that as far as he can tell Gallaghers attitude remains one of hostility to any possibility of a shuttle bus route across its land. But, in February 2008 Gallaghers solicitors told the County Council that there would appear to be a credible alternative route emerging through the WSP study, and in March they stated that the study had identified two alternative routes. In May 2008 the Council’s Deputy Director of Development described the discussions between NIRAH and Gallaghers and other landowners about identifying a route for the service that is acceptable to all as “positive”. In August that year Gallagher’s planning agents informed Bedford Borough Council that the NIRAH park and shuttle bus link could be accommodated through the Wixams north expansion area. In their evidence Mr Edelman and Mr Murning described the discussions as constructive. In view of this continuing dialogue, O&H’s involvement in the NIRAH project, and Gallaghers willingness to accommodate the shuttle bus route in its plans for the northern expansion area, I have concluded that there is a reasonable prospect of delivering a shuttle bus route.

The next question is whether a reasonable prospect of delivery of a shuttle bus route suffice or does NIRAH have to show that a route or any potential route can be “delivered with certainty”? This would require it to have concluded a landowners agreement, or possibly several landowners agreements. Such certainty was not required by Hanson when it gave its consent to the submission of the planning application. Hanson made no complaint when it found out about Gallagher’s position in 2007. There is no material change in relation to certainty now, indeed there is significantly more ground for concluding that a route will be delivered in the light of the negotiations with Gallaghers.

It is submitted on behalf of Hanson that its protection in relation to section 106 agreements is provided by clause 5 of the agreement and that the provisions of the draft agreement it has been asked to agree leave open the possibility of a route other than the three options under consideration. Mr Milner submitted that if planning permission was granted with terms in the draft section 106 agreement that it has been asked to enter, an application could subsequently be made to vary the route and the access point to ones which Hanson would not have had an opportunity to consider and evaluate. After the option is exercised Hanson’s only remedy would be to object to the planning application, and this would not enable it to be able sufficiently to influence the new application even if the new route adversely affects its ability to promote and redevelop its land. Mr Milner submitted this was contrary to the agreed position in the letter dated 29 November. I observe that Hanson has not specifically sought the inclusion of a provision in the agreement restricting the shuttle bus route to these options although it has requested that Gallaghers be a party to the section 106 agreement.

In view of what I have said about the consequence of the structure of the parties’ aims set out in clause 2.1, I do not consider that at this stage of the process the option agreement obliges NIRAH to show that a route or any potential route can be delivered with certainty. The nature of the planning process, particularly at the outline planning permission stage, and the acceptance of a Grampian condition to secure a direct shuttle bus link to NIRAH as the means of protecting Hansons aims as stated in the option agreement also suggests that such certainty is not required. Even if NIRAH had entered a landowners agreement Hanson would not have the certainty it says it requires. Notwithstanding such an agreement the possibility that a route other than those under consideration would ultimately be chosen would remain. It is possible for the parties to a landowners agreement to vary it by substituting an alternative route after the exercise of the option. Subject to the controls of the planning system, and the acceptance of any objections it made, Hanson could not prevent such variation. It did not make provision for this in the option agreement.

This would be a risk even with a shuttle bus link “through” the Wixams joining the B530 at the Western Gateway, which Hanson says it would accept. Had Gallaghers entered into a landowners agreement with NIRAH providing for that route it would have been open to them later to agree to replace it with the routes via the Hardwick Bridge, the Hostel Site or another point on the B530. It would also be a risk with either of the alternative options now under consideration. Gallaghers and O&H have large land holdings in the area and, although in view of WSP’s study this may not be likely, the options under consideration now are not necessarily the only feasible ones.

There is no provision in the option agreement for Hanson to be able to prevent such variation after the exercise of the option. The indication in the agreement (in particular in clause 5.1.1) is that Hanson is to act reasonably at the stage it is considering whether to approve the form of the ancillary agreements. I do not consider that it is reasonable for Hanson to seek to use the process set out in clause 5 to require a certainty which is not provided by the agreement.

Mr Milner submitted it was reasonable for Hanson to require a landowners agreement and that Gallaghers be party to the section 106 agreement and the failure of NIRAH to do so has put it in breach of clause 4.9 of the option agreement. This, he argued justified its refusal to approve the form of the section 106 agreement. However, clause 4.9 obliges NIRAH to comply with representations made by Hanson in respect of matters arising during the planning application which “impact upon the aims stated in clause 2.1”. The only impact on Hanson arises from the uncertainty but, for the reasons I have given uncertainty per se does not suffice to adversely affect the clause 2.1 aims. Mr Bowhill’s report does not assist because proceeded on the basis that Hanson was entitled to maximise the longer term development potential of its land can be maximised”. Although underlying the evidence given by Mr Szymanski and Mr Williams was their concern that Hanson needed certainty as to the route neither their evidence nor the evidence of others showed how any uncertainty by reason of the absence of a landowners agreement or because Gallaghers was not to be a party to the section 106 agreement adversely impacted on the clause 2.1 aims.

The reasons I have given for concluding that it is not necessary for NIRAH to show that any route can be delivered with certainty apply here. I do not consider that the fact that the routes under consideration include routes that, if outline planning permission is granted, would require an application to amend condition 5 of the permission entitle Hanson not to approve the draft agreement.

The experts agree that condition 10 is a valid condition and Mr Milner accepted that the defendants have not for the purpose of these proceedings submitted that it is not, although, as will be seen, in a very qualified way. But Mr Milner submitted that, as the draft section 106 agreement does not deal appropriately with the permission to be granted which includes condition 5(g), Hanson is entitled not to enter into it. The agreement does not deal appropriately with the permission, because it agreement contains no obligations specifically relating to the route through the Wixams and thus leaves open the possibility of a route contrary to condition 5(g).

Mr Milner submitted that, since the provisions of a section 106 agreement are subservient to the grant of the planning permission as defined, the approval of an alternative route would be contrary to condition 5(g). In paragraph 13 of his closing submissions, Mr Milner submits that a request to approve the section 106 agreement based on the alternative routes under consideration “would not be lawful”.

Although Mr Milner did not argue that condition 10 is in itself unlawful, he submitted that the alternative routes have no role in any approval of the section 106 agreement on the basis of the existing planning permission including condition 5(g). This is because the inclusion of condition 5(g) means that the planning permission concerns the route and, as is common ground, the alternative routes would require an application and permission under section 73 of the TCPA to amend that condition. Mr Milner submitted this shows the alternative routes are material departures from condition 5(g), and (relying on Tesco Stores Ltd. v Secretary of State [1995] 1 WLR 759 and Circular 05/2005) that the consequence of this is that that they are not material considerations which the planning authority is entitled to take into account when deciding to grant planning permission.

In Tesco Stores Ltd. v Secretary of State Lord Keith stated ( at 769-770) that an offered planning obligation which “has nothing to do with the proposed development” is not a material consideration and a condition which is “completely unrelated to the development for which planning permission is sought” will not be lawful. Mr Milner submitted that the material part of the proposed development is a route “through” the Wixams and the alternative routes have nothing to do with that, and therefore cannot be taken into account. His submission is that since, in reality, it is the alternative routes which are being considered, Hanson is entitled not to enter the draft section 106 agreement.

Tesco Stores Ltd. v Secretary of State and Circular 05/2005 are concerned with whether a proposed obligation could relate to “the development” and do not refer to “a part of the development”. Section B8 of the circular refers to a “functional or geographical link between the development and the item being provided” and the policy factors in paragraph B5 concern “the development”. In Tesco Stores Ltd. v Secretary of State Lord Keith said that regard must be had to an offered planning obligation which “has some connection with the proposed development which is not de minimis”. The proposed condition about the shuttle bus route clearly has more than a de minimis connection with “the development” for which NIRAH has applied.

I am sceptical about the prospects of a successful challenge to planning permission granted on the basis of the proposed section 106 agreement because account has been taken of the alternative routes. However, in the context of these proceedings it is not necessary for me to reach a concluded decision on this matter. I am satisfied that it is not obvious that any planning permission granted in the future will be unlawful or susceptible to successful challenge. In the context of these proceedings what is important is whether Hanson is entitled to conclude that proposed section 106 agreement would “directly or indirectly adversely impact upon or adversely interfere with or in any way prevent” the stated aims at clause 2.1 of the option agreement. For these reasons I reject Mr Milner’s submissions. I observe that the definition of “satisfactory planning permission” in the option agreement concerns the exclusion of permission with any conditions which might adversely impact upon Hanson’s achievement of the stated aims in clause 2.1. The susceptibility of any planning permission granted and the proposed section 106 agreement to judicial review would only be capable of having such an effect if its provisions were otherwise in Hanson’s favour.

Hanson has sufficient information to enable it, after doing the necessary modelling at a cost of about £5,000 to decide whether to approve the form of the final draft section 106 agreement and to enter into it. The reasons it has given for not doing so are unreasonable and (in respect of approving the form of the agreement) put it in breach of clause 5.1.1. In the light of this, it follows that NIRAH is entitled to a declaration that it has provided Hanson with sufficient information for it to make the decision and an order of specific performance to compel Hanson to make the decision.

Is NIRAH also entitled to a declaration that Hanson is not entitled to refuse to approve the form of the agreement or to enter into it and to specific performance of the contractual obligation to compel it to approve the form or and enter into the final draft section 106 agreement? Hanson has not provided evidence that the shuttle bus routes under consideration adversely impact, adversely interfere with, or in any other way prevent its stated aims in clause 2.1. Over a year has passed since it has had the information needed to undertake the necessary modelling on the effect of shuttle bus flows on the option. It now relies on the uncertainties which I have dealt with.

The evidence before the court, however, shows that notwithstanding these uncertainties the NIRAH application has not prevented Hanson’s ability to promote the redevelopment of its lands in Marston Vale. This is seen by the production and contents of the “Vision for Marston Vale” document, the approaches to planning authorities about the Stewartby brickworks, a site close to Quest Pit, Kempston Hardwick, and Quest Pit itself, and the responses of the planning authorities to the first two approaches. Most significantly, the traffic that will be generated by the proposed NIRAH development neither prevented the submission of a planning application for the redevelopment of the brickworks, nor led the County Council to consider that traffic would constrain the redevelopment of the brickworks in the way Hanson proposes in its planning application.

Hanson’s delay, on grounds which I have held to be unjustified, means that matters are now urgent. If planning permission is not granted before 29 September it will be impossible for NIRAH to exercise the option before the option period expires at the end of December. In these circumstances, and in the light of the evidence before me that Hanson has promoted the redevelopment of its lands in Marston Vale and the absence of evidence that what is proposed in the Grampian condition will impede its ability to do so, I have concluded that NIRAH is entitled to the relief sought.

In its counterclaim Hanson alleges a large number of breaches of the option agreement by NIRAH. These include; failure to provide Hanson with information and documents, including information and documents about the progress of the application and the negotiations about the access route, failure to give notice of relevant meetings, failure to comply with Hanson’s representation, in particular about the need for a landowners agreement and that Gallaghers should be party to the section 106 agreement, and failure to comply with the position agreed and recorded in AWE’s letter dated 29 November 2006 and varying the terms of the planning application without Hanson’s consent.

Has NIRAH broken the option agreement in the ways I have summarised, and, if so, was Hanson entitled to terminate the agreement pursuant to clause 17 on the ground that NIRAH was in substantial material breach, or pursuant to clauses 3.2.2 or 17 on the ground that NIRAH had varied the terms of the planning application without Hanson’s consent by proposing a condition to planning permission that the project should not be opened until the park and shuttle bus route had been provided for and considering the alternative routes?

The counterclaim and the submissions made were unparticularised in many respects. I have considered a number of the matters that were relied on during the trial earlier in this already lengthy judgment. I can therefore give my reasons for concluding that Hanson is not entitled to the declarations it seeks by way of counterclaim relatively briefly.

It follows from what I have said that in relation to issues 2 and 3 that I do not consider that the fact the planning application proposed a condition that the project should not be opened until the park and shuttle bus route had been provided was a variation or breach of what had been agreed by the parties or that its consideration of the alternative shuttle bus routes was such a variation or breach.

Secondly, given the volume of documentation there were undoubtedly some which were not provided pursuant to clause 4.7. Apart from the WSP study, which I deal with below, there has been almost no particularisation of what was not provided or why the failure to provide it is a substantial material breach such as to justify termination of the agreement. Mr Bowhill, moreover, has stated (para 5.16 of his report) that there was a free flow of information from NIRAH to Hanson which does not suggest that the failure was substantial.

On some matters Hanson knew there were meetings, for example (see my findings of fact) Hanson has known there were negotiations with Gallaghers for a long time. In so far as no complaint was made about the absence of notice and no request was made to attend such meetings it cannot be said that any breach can be regarded as now, in some cases over two years later, entitles Hanson to terminate the agreement under clause 17.1.

There were undoubtedly also some meetings of which no notice was given and of which Hanson did not know. These were, however, a small proportion of those of which notice was given. In the case of some of these meetings, in the light of the topic of the meeting (for instance the meeting to discuss the terms of the lease of the North Elstow site), the failure to give notice cannot be regarded as a substantial or material breach with respect to Hanson’s stated aims as set out in clause 2.1. Mr Bowhill’s view that there was a free flow of information is also relevant here.

As to those matters about which complaint was made, in particular more detailed travel plans and proposals for highway mitigation measures and WSP’s feasibility study, which I dealt with earlier in this judgment, for the reasons I have given I do not consider NIRAH was in breach of contract. Mr Milner did not challenge the confidential status of the WSP study. I have said that in the light of that confidentiality, it was not reasonable for Hanson to require NIRAH to hand over a document which it was not in the power of NIRAH to give to Hanson. Putting this in another way, save where a contract makes provision in the clearest language, it cannot be a breach of contract not to provide information which the person who is asked to provide is not free to do without breaching his obligation of confidentiality to another. In this case Mr Murning told Mr Williams and others in the Hanson team as much as he could: since it was not clear from the evidence that Gallaghers had on each occasion consented to the provision of the information or the tabling of the documents, he may even have overstepped the mark.

I have considered the substance of the counterclaim. While not deciding the case on this ground, I also incline to the view that Mr Matovu’s submission that the notice given (by reference to Hanson’s pleaded case) was not valid because it was wholly unparticularised and did not give NIRAH notice of what to do by way of remedy was correct.