High Court orders a new hearing before a new judge in new year
Below are key extracts from barrister submissions ending with an order given yesterday for a new hearing before a new judge.
Extract from John Hunter Skeleton Argument on behalf of the
Stop the Tesco Toxic Towers Community Group dated 12th December 2022
Ground 2: The Council failed properly to apply policy SI1
and failed to take into
account mandatory relevant considerations, which was a
material error
9. This Ground is still pursued on the basis that, even if
the PO did not
misunderstand or misled the Committee in relation to policy
SI.1, D
nevertheless still erred by failing to take into account
considerations which it
was explicitly or implicitly required to take into account
by the policy, or which
were so obviously material that it was irrational for it not
to take into account
(cf. R (Samuel Smith Old Brewery (Tadcaster)) v North Yorks
CC [2020] PTSR
221 per Lord Carnwath JSC at [29-32]). In particular:
(a) As noted above, it is clear on the basis of the IP’s own
AQA that the levels
of PM in the vicinity of the site already substantially
exceed the WHO
targets (and will continue to exceed them in the modelled
future assessment
years) and hence meet the definition of “existing poor air
quality” given in
the London Plan;
(b) Policy SI.1 B2(b) required D to consider how “increased
exposure” to the
“existing poor air quality” would be prevented or minimised;
1 The current WHO targets (2021) are 15 µg/m3 (annual) and 5
µg/m3 (24 hour) for
PM10 and 5 µg/m3 (annual) and 15 µg/m3 (24 hour) for PM 2.5
[SB1/B376], cf. the
existing background levels and modelled future levels set
out in the ES [SB1/B184-
185, B217-223].
4
(c) Furthermore, given that the development is intended to
be used by large
numbers of people particularly vulnerable to poor air
quality, including
children attending the proposed three form entry primary
school, SI.1 B2(d)
specifically required the IP to demonstrate that all
reasonable measures had
been employed to minimise their exposure;
(d) However, neither D or the IP’s ES/AQA recognised that
this would be the
effect of the development. Nor did either give any (or any
adequate)
consideration to whether adequate design measures had been
secured to
minimise the exposure of children attending the school. In
particular, whilst
a condition (condition 61) was imposed requiring the use of
mechanical
ventilation/filtration in parts of the residential
development which would
be most exposed to airborne pollutants, no equivalent measures
were
required or even considered in the case of the school. ENDs
This is an extract below from the skeleton argument from Ms COLQUHOUN on behalf of Weston Homes on the 13th
December 2022
1. These updated submissions on behalf of
Weston Homes (‘IP’) follow the provision by the Claimant (‘C’) of a
Supplementary Skeleton dated 12 December 2022 (‘Supp Skel C’) and purport to “clarify which
grounds/arguments are still pursued and to provide a brief response to the skeleton
arguments submitted on behalf of D and the IP”.(Supp Skel [1].
Grounds 1 and 2
6.
The IP notes that the C appears now to
accept that the scheme is Air Quality Neutral but that the other limbs of SI 1
have in effect been ignored by the D in reaching its conclusions about the
scheme.
7.
As set out above there is clearly nothing
to these submissions when the evidence is properly understood and a fair
reading given to the D’s Officer’s Reports and the to the MOL Stage 2 referral
and approval of the scheme.
8.
It is noted that the C at Supp Skel [10]
asserts that the “other arguments set out in §§60-62 of the original
skeleton argument are not pursued” in light it appears of the submissions
at Supp Skel [9] it is however not entirely clear what this means in light of
the C’s maintenance of both Grounds 1 and 2."
Following the hearing of the 16th December. The
judge invited the barristers to suggest a way forward. John Hunter on 19th
December suggested a new hearing with a new judge per the below in 5 paragraphs:
(1)
Do nothing.
(2)
The error is
corrected in a written judgment.
(3)
A rehearing
before the Judge.
(4)
A rehearing
before a different judge.
4.
C’s preferred
option is option 4. Options 1 and 2 would be clearly inappropriate. The Judge’s
mistaken belief formed a material part of his reasons for refusing permission
and it is not clear that the same decision would have been reached,
particularly in relation to Ground 2, if he had appreciated the true position.
Therefore, it is necessary for the parties to have the opportunity to make
further submissions and for the matter be considered afresh on the correct
factual basis. In C’s view, it would be preferable for this to be before
another judge in order to avoid any perception of possible predetermination.
KINGS BENCH DIVISION
PLANNING COURT
IN THE MATTER OF an application for
permission for judicial review
B E T W E E N:-
R
(On the application of MR ANDREW WALKER)
Claimant
-
and
LONDON
BOROUGH OF REDBRIDGE
Defendant
-
and
(1)
WESTON HOMES PLC
(2)
MAYOR OF LONDON
Interested
Parties
__________________________________________________________________
RENEWAL
APPLICATION : SUBMISSIONS ON BEHALF OF
THE
FIRST INTERESTED PARTY FOLLOWING JUDGMENT AND PRIOR TO ORDER
___________________________________________________________________
1.
These submissions relate to the issue
which has arisen as a consequence of the learned Judge’s understanding that the
Mayor of London’s Stage 2 Referral (which is dated 7 March 2022) (‘the MOL Stage 2’ )(CB/A516)
had in fact been made prior to the Council’s officer’s report (‘the OR’) and
the Planning Committee’s resolution to grant (on 27 May 2021) and therefore would have been
available for both the officer and the committee to consider at that point. In
his ex tempore judgment on 16 December 2022, the learned Judge is understood
to have used this understanding for his view that the MOL Stage 2 would
have been relevant to what was set out in the OR and to the committee’s
resolution.
2.
In its duty to the Court, the IP
identified this as being factually incorrect.
3.
The Judge has asked the parties to consider
and agree upon the best way forward to recommend to the Court. The options
identified by the learned Judge are:
(i) The
Claimant (‘C’) accepts the decision of the Court to dismiss the claim as
unarguable as originally given because some of the reasons which the judge
found were unarguable are not affected by this point. Moreover, the C may take
the view that it is not relevant in any event to any of the grounds and does
not wish to take issue with the point;
(ii) The
Order is perfected/issued without this point addressed and the decision rests.
This would still permit C to pursue the case in the Court of Appeal, should he
wish, to argue a procedural issue (although the judge noted that this would be
highly unsatisfactory given the point has been raised before the formal Order
has been perfected and handed down);
(iii)
The learned Judge be invited to consider the
position further in light of this matter and hand down his decision at a later
date; or
(iv) The learned Judge be asked to order that the
matter is re-heard again in front of a different judge.
4.
The IP sets out below its submissions on
the implication of the above in respect of the learned Judge’s ex tempore
conclusions that all of the C’s 4 grounds were unarguable and why it considers,
in light of all the circumstances of the case and to meet the overriding
objective, that option (iii) is the appropriate way forward.
C’s case
5.
The C’s claim has changed or been refined
from that originally set out in his SFG in respect of Grounds 1 and 2 (which
argued in particular that the IP needed to show an improvement in air quality
would arise).
6.
C’s case is now that the OR misinterpreted
London Plan policy SI1 (CB/A141) by suggesting that in order to comply with it
and address the criteria or requirements of B(1)[1] the IP need ‘only’ show
that it meets one of the minimum criteria or requirement of B(2), namely
B(2)(a)” development proposals must be at least Air Quality Neutral” whereas
(in particular) B(2) (b) requires “development proposals should use design
solutions to prevent or minimise increased exposure to existing air pollution
and make provision to address local problems of air quality in preference to
post-design or retro-fitted mitigation measures” and B(2)(d) requires “
development proposals…that are likely to be used by large numbers of people
particularly vulnerable to poor air quality, such as children or older people
should demonstrate that design measures have been used to minimise exposure”.
7.
The C argues in short that the way the OR should
be read is that the officer wrongly advised the committee that SI1 was complied
with without any consideration of any of the other parts of the SI1 policy than
the AQN criterion at B(2)(a).
8.
The C also argues under Grounds 1 and
2 that the officer had a duty which he
failed to discharge applying R (Lowther) v Durham CC [2001] EWCA Civ 781
“to provide sufficient information and guidance to enable the members to
reach a decision applying the relevant statutory criteria”. This is said to
arise because the OR does not “explain how the development accorded with the
requirements in SI1 B2(b) and (d) to prevent/minimise "increased exposure
to existing air pollution", especially in the case of "large numbers
of people particularly vulnerable to poor air quality, such as children or
older people" (see C’s Supplementary Skeleton [8])
9.
The above appears to be the nub of the C’s
claim under these grounds together with the suggestion that there was no evidence
of any or any ‘adequate’ design solutions as part of the school’s design to
address the increased exposure of the children to existing poor air quality. The ‘existing poor
air quality’ , by reference to the definition in LP 2021 para 9.14 (CB/A143), is
said to arise as a result of evidence of existing breaches of the WHO guideline
for PM2.5 (5 micrograms/m3) and not by reference to the ‘legal’ objective
limits in the AQSR which it is accepted are not breached.
10.
The C points to the fact that a
condition (61) (CB/A089) was imposed upon the final planning permission which required
the use of mechanical ventilation/filtration in parts of the residential
development (below the 7th floor) which will face the roads around
the development to the south, north and east “to ensure the development
meets local, regional and national air quality objectives, and in
accordance with Policy LP24..and Policy SI1…”. There is no specific equivalent
condition[2] imposed in respect of the
school and the C suggests that this means the D failed to recognise that the
school would be in an existing area of poor air quality and that the IP needed
to show the design of the school included measures which would prevent/minimise
"increased exposure to existing air pollution".
11.
The C’s Ground 3 relates to the way
the cumulative impact assessment was carried out but which, it is submitted, is
not affected by the issues raised in Grounds 1 and 2.
12.
C’s Ground 4 relates to compliance with
the PSED and is to some extent parasitic on Grounds 1 and 2 because it relates
to taking the needs of children and those with asthma who will be affected by
air quality issues into account.
Relevance
of MOL Stage 2 report
13.
The resolution to grant of 27 May 2021 makes
it clear that it was subject to a number of matters including the necessary
legal stage[3]
of an MoL Stage 2 referral : ( CB/ A 456)
“(i)..amendments
which appropriate [sic] in the addendum report; and
(ii)
The Head of Planning and Building Control be authorised to GRANT PLANNING
PERMISSION subject to
(a) a direction from the
Mayor of London or the Secretary of State for Communities and Local Government
(b) conditions set out
below
(c) The satisfactory completion
of a legal agreement under Section 106….”
14.
The IP drew attention to the way that the Mayor
in the MoL Stage 2 report addressed policy SI1 in its SGR [fn1][10] and[96.] and
in its Skeleton at [fn1] and [29] and in Updated Skel at [3][4] and [7].
15.
The MOL Stage 2 report is part of the
legal requirements for the form of proposal that was before the Council and
must be taken into account by the Council in reaching its final decision.
16.
The IP submitted that the interpretation
of London Plan SI1 and the evidence before the Council was relevant to the issues raised in C’s
Ground 1 and 2 .
17.
This is because the MoL would have had the
same evidence before it as the Council’s committee did at the time of
resolution (including the committee resolution, the OR and updated report) and
carries out the same exercise as the Council but in particular by reference to
SI1.
18.
The Council’s decision which was delegated
to the relevant officer was made on 30 May 2022, almost a year after the
resolution to grant. That is the decision which is the subject of challenge not
the resolution to grant and was based upon all the relevant considerations at
that point including the MOL Stage 2 report.
19.
The IP drew specific attention to certain
passages in the MoL Stage 2 report namely
[40-44] (CB/A523) and [80-86](CB/A529 -530).
20.
The MOL clearly concludes in short that
the IP’s “Air Quality Assessment…and Air Quality Neutral Assessment have
been independently assessed and it is agreed that this demonstrates that the
proposals are air quality neutral” MOL Stage 2 [84]. The referral then
considers the IP’s air quality evidence against London Plan Policy SI1. With
regard to B (2)(b) and (d) it states (albeit without specific reference to
those criteria) “London Plan Policy SI1 states that development proposals in
Air Quality Focus Areas (AQFA) or that are likely to be used by large numbers
of people particularly vulnerable to poor air quality, such as children, should demonstrate that design
measures have been used to minimise exposure. The site is not within or
adjoining an AQFA; however, the school has been designed to minimise exposure,
with the main entrance and all external play space to the rear of the building,
away from the High Road. Furthermore, the Air Quality Assessment finds no
predicted exceedances of national air quality objectives in all modelled
scenarios at all on-site receptors, including the proposed primary school.”
21.
The learned Judge concluded that in light
of the above and on the understanding that MOL Stage 2 was available at the
point of resolution to grant that it would in effect be understandable why it
might not be necessary for the OR to address SI1 in the same way, even if the C
was correct to suggest that there was any gap in the OR’s treatment of SI1.
22.
It is this finding which gives rise to the
issue to be addressed.
IP’s Submissions on
implications
23.
The IP submits :
(i)
that read fairly there is no gap in
the OR or in the officer’s advice to the committee at resolution to grant stage
in respect of SI1 and in particular that the OR did not advise that the
development is AQN is the only SI1 criteria to meet;
(ii)
that there was sufficient evidence
available to the Council and committee at the time that addressed the design
measures attributable to the school and air quality in particular including
achieving air quality positivity;
(iii)
that the delegated officer, in
reaching the final decision whether to
grant permission, would have had to have regard to the MOL Stage 2 in any event
and would have been left in no doubt about compliance with SI1 which was, importantly,
from the point of view of the authority which is responsible for the adoption
and ensuring the implementation/application of policy SI1 to development in
London;
(iv)
the MOL Stage 2 report was in line
with the resolution to grant.
24.
To that end, whilst the MOL Stage 2 would
not have been relevant to the OR and the planning committee’s resolution, it
would have been materially relevant to the Council’s final decision.
25.
Taking the C’s claim at its highest
therefore, if there was any ‘gap’ or absence of clarity as to the extent of what
compliance with SI1 and in particular B(2)(b) and (d) needed in this case, the
Council’s decision would have had to have taken into account the way that the MOL Stage 2 addressed the policy and the design features of the school which in
the MOL’s view achieved compliance as well.
26.
For the avoidance of doubt, the C has not
submitted to date that the MOL Stage 2 is either wrong or misinterprets SI1 and misapplies it
against the evidence. The focus of the C’s claim is therefore only upon the OR
and the resolution to grant, it is nevertheless the Council’s final
decision which is the subject of the challenge and that was taken, inter alia,
in light of the MOL Stage 2 . To that end the decision is clearly
unimpeachable.
27.
Overall, the IP submits that the issue of
when the MOL Stage 2 was available to the Council as part of its decision
making does not affect the lawfulness of the decision or the (un)arguability of
C’s grounds 1 and 2 as well as ground 4.
28.
It is not relevant to Ground 3 in any
event.
The Options
29.
At the time of writing the IP does not know
what C’s confirmed stance is .
30.
The IP considers that option (ii) i.e
allowing the decision to rest and the order made without addressing the point
would be not be appropriate, in light of the overriding objective, even if the
C were for some reason to agree to it. It would leave the matter unclear and
undetermined and potentially prejudice all parties.
31.
The IP considers that option (iv) is not
justified, most especially as the learned Judge has had to prepare for and has
heard full argument.
32.
The IP does however consider that option
(iii) provides the most appropriate solution i.e. to invite the learned Judge
to reconsider the position and issue his judgment in writing at a later date,
or to clarify his judgment by an addendum judgment in open court.
33.
The IP suggests that in the event that
option (iii) is decided upon that the learned Judge direct that the parties
provide any written submissions which address the implications of the issue on
the claim and the defence but that this be limited to grounds (1) (2) and (4).
34.
The IP does not consider that further oral
submissions need to be made nevertheless if the learned Judge disagrees that
the matter can be dealt with in writing, the IP would suggest that a further
hearing before the judge would be appropriate (as opposed to a new judge). In
that event the IP submits that this again be on a limited basis (ie on grounds
1 ,2 and 4) reflecting the suggested written submissions (‘option (iii) B’).
PETER VILLAGE KC
CELINA COLQUHOUN
39 ESSEX CHAMBERS
18 DECEMBER 2022
The below is the order from the Judge of 21st
December ordering a new hearing before a new judge:
In the High Court of Justice CO/2471/2022
Planning Court
In the matter of an
application for judicial review
THE KING
on the application of
Claimant
-and-
REDBRIDGE LONDON BOROUGH COUNCIL
Defendant
and
WESTON HOMES LIMITED
Interested Party
On an application by the Claimant for permission to adduce
additional evidence and for disclosure
Following consideration of
the documents lodged by the Claimant, the Defendant and Interested Party
ORDER by the Honourable Mr Justice Holgate
(1)
The renewed
application to apply for judicial review in respect of grounds 1 and 3 is refused.
(2)
The renewed
application for permission to apply for judicial review in respect of grounds 2
and 4 is adjourned to be heard by a different judge at an oral hearing with a
time estimate of no more than 2 hours to include time for judgment.
(3)
If the
claimant wishes to argue a point which is not already pleaded, an amended
statement of facts and grounds must be filed and served by no later than 6
January 2023. Otherwise a point which has not been pleaded may not be argued at
the adjourned hearing.
(4)
By no later
than 10 January 2023 the Clamant must file and serve agreed paper and
electronic hearing bundles containing only essential pages which are to be
referred to in any party’s skeleton or oral submissions.
(5)
The
claimant must file and serve a single, updated skeleton, replacing earlier
skeletons, by no later than 12 January 2023.
(6)
The
defendant and interested party must each file a single, updated skeleton,
replacing earlier skeletons, by no later than 16 January 2023.
(7)
An
agreed bundle of authorities must be filed by no later than 18 January 2023.
(8)
The
adjourned hearing will be listed as soon as practicable after 18 January 2023 giving
priority to judicial availability.
Reasons
1.
At the
conclusion of the hearing counsel for the IP rightly pointed out that in
refusing permission to apply for JR I had relied upon a document which post-dated
the consideration of the application by the committee and should not have been
used to support the analysis in the officer’s report or the committee’s
resolution. It was unfortunate that this document had been relied upon
significantly in a skeleton for the hearing. It was also unfortunate that the
error was not pointed out by any party during oral submissions despite the
questions posed by the court to the effect that this material could, for
example, have been taken int account in the preparation of the officer’s
report.
2.
The
claimant accepts that this error did not affect the decision to refuse
permission on grounds 1 and 3 and that permission should be refused
accordingly. I so order. However, I agree with the claimant that in the
interests of justice it is appropriate for the issue of permission on grounds 2
and 4 to be redetermined by another judge, notwithstanding the objections to that
course of the other parties.
Signed Sir David Holgate Dated 21 December 2022
The date of service of this order is calculated from
the date in the section below
For completion by the Administrative
Court Office
Sent / Handed to
either the Claimant, and the Defendant [and the Interested
Party]
or the Claimant's, and the Defendant’s [and the
Interested Party’s] solicitors
Date:
[1] “1) Development proposals should
not:
a)
lead to further deterioration of existing poor air quality
b)
create any new areas that exceed air quality limits, or delay the date at which
compliance will be achieved in areas that are currently in exceedance of legal
limits
c)
create unacceptable risk of high levels of exposure to poor air quality”
[2] But see condition 57 (A088)(which
requires details of ventilation/filtration/extraction details in respect of the
school to be submitted and approved prior to occupation for amenity reasons and
comply in part with LP24) and condition 82 which requires an Air Quality
Positive Statement prior to commencement of each phase with measures to improve
local air quality to comply with LP24 and SI1 (A094).
[3] in accordance with the Town and
Country Planning (Mayor of London) Order 2008/580
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