Environmental statement – Wind farm – Supplementary information – Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 – Environmental Information Regulations 2004 – Whether respondents obliged to send supplementary wind speed data to appellant pursuant to 1999 Regulations – Whether data “available on request” within regulation 5 of 2004 Regulations – Whether appellant failing to bring judicial review claim promptly – Appeal dismissed
The appellant was a member of an organisation that objected to an application submitted to the respondent council by the interested party for planning permission for a wind farm. The application was accompanied by an environmental statement that included wind speed calculations for the site. The respondents made formal requests for further information from the interested party, pursuant to regulation 19 of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 and also asked for other items on a non-regulatory basis. In response to those requests, the interested party submitted supplementary environmental information, which included, in connection with one of the respondents’ non-regulatory request, the raw data from which the report on wind speeds had been compiled; this comprised a huge amount of data and was provided in the form of CDs. A hard copy of the supplementary information was sent to the appellant’s organisation, but without the information on the CDs.
The respondents granted planning permission in January 2008. In April 2008, shortly before the three-month time limit in CPR 54.5(1)(b) expired, the appellant applied for permission to proceed with a judicial review claim challenging the grant of permission on the ground, inter alia, that it should have been provided with the wind speed data on the CDs. Permission was refused on the grounds that the claim had not been brought promptly, as required by CPR 54.5(1)(a), and lacked any substantive merit. The appellant appealed. On the substantive issues, it contended that the respondents had: (i) been obliged to provide them with the wind speed data pursuant to the amendments to the 1999 Regulations effected by the Town and Country Planning (Environmental Impact Assessment (Amendment) Regulations 2006; and (ii) failed to make that data “available on request”, as required by regulation 5 of the Environmental Information Regulations 2004.
Held: The appeal was dismissed.
(1) The two requirements in paras (a) and (b) of CPR 54.5(1) were separate and independent of each other, such that filing within three months did not necessarily amount to filing promptly. The need for a claimant seeking judicial review to act promptly arose in part from the fact that a public law decision by a public body normally affected the rights of parties other than the claimant and the decision-maker: Hardy v Pembrokeshire County Council [2006] EWCA Civ 240; [2007] JPL 284 applied. The importance of acting promptly applied with particular force where it was sought to challenge a grant of planning permission, since a developer with planning permission was entitled to proceed with the development and, due to time limits on the validity of the permission, would usually wish to implement it without delay: R v Exeter City Council, ex parte JL Thomas & Co Ltd [1991] 1 QB 471 applied. Although a statutory challenge to a ministerial decision on a called-in application had to be made within six weeks of the decision, the courts should not adopt a policy that a time limit of six weeks would in practice apply to judicial review applications also, what satisfied the requirement of promptness would vary from case to case. However, in the instant case, there was no explanation for the delay. Moreover, particular considerations applied to the case given the nature of the proposed development and the importance of renewable energy projects in meeting targets set by the government to comply with its international obligations: R (on the application of Redcar and Cleveland Borough Council) v Secretary of State for Business, Enterprise and Regulatory Reform [2008] EWHC 1847 (Admin) applied. The appellant’s organisation had been fully aware of the policy context and, in the circumstances, its application had not been made promptly.
(2) Nor could the appellant establish a clear-cut case on the substantive merits such as to persuade the court to override the breach of CPR 54.5(a). The relevant amendments to the 1999 Regulations had not been in force at the date of the interested party’s application and, therefore, did not apply to it, in the light of the express provision to that effect in regulation 1(3). Under the unamended 1999 Regulations, the respondents had not been obliged to provide the wind speed data to the appellant’s organisation since it was not “further information” provided in response to a formal regulation 19(1) request. Moreover, the respondents had complied with the obligation to make environmental information available pursuant to regulation 5 of the 2004 Regulations. The manner in which technical information was “made available” was likely to vary and would, nowadays, often consist of some electronic format. Since the traditional planning file was more suited to hard copy paper documents, than electronic material, there could be no objection to such items being kept separately so long as the file itself indicated their existence and availability. The supplementary information in the instant case sufficiently indicated to any interested reader that raw wind speed data was available and could be obtained on request.
Paul Stinchcombe (instructed by Richard Buxton, of Cambridge) appeared for the appellant; David Elvin QC and Richard Turney (instructed by the legal department of Milton Keynes Council) appeared for the respondents; John Litton (instructed Burges Salmon, of Bristol) appeared for the interested party.
Sally Dobson, barrister
