R (on the application of Richardson and another) v North Yorkshire County Council and others

Application for planning permission for quarry — First defendant council discussing environmental impact assessment during planning meeting — Council failing to refer to such discussion in decision notice — Council failing to include statement of reasons as part of decision notice — Whether council in breach of regulations 3(2) and 21(1) of Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 — Claim dismissed The third party applied for planning permission to carry out quarrying operations. The first and second claimants, who lived close to the proposed site, objected to the scheme. The first claimant was a member of the defendant council, although he was not a member of the planning committee. In June 2002, the planning committee met to consider the application. The first claimant maintained that he was barred from attending the meeting on the ground that he had a “prejudicial interest” under para 12(1) of the council’s code of conduct. After considering a report on the proposal by the council’s director of environmental services, the planning committee resolved to grant planning permission subject to conditions. The minutes of that meeting did not mention the environmental report. In August 2002, a notice of decision was issued and placed on the register. This referred to article 22(2) of the Town and Country Planning (General Development Procedure) Order 1995, and stated that, in considering the application, the council had taken into account the “accompanying environmental information”. It did not include a statement of reasons for the decision, which the council had allegedly intended to issue at a later date. The first claimant challenged the validity of the grant of planning permission on the grounds, inter alia, that: (i) the council’s code of conduct, by which he was excluded from the planning meeting, was unlawful; and (ii) the council’s failure to include the statement at the time the decision was entered on the register breached their duty under regulation 21(1) of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999. Held: The claim was dismissed. Although there was a factual dispute as to whether the claimant was barred from the meeting, the real issue was whether the proper interpretation of the code of conduct had required him to withdraw. A true construction of para 12 of the code meant that it applied to any council member, regardless of whether he or she was a member of the relevant committee. It was entirely rational that a councillor with a prejudicial interest in a matter should be required to withdraw from a committee meeting that was discussing that matter, even if that councillor was not a member of the committee. The code did not in principle preclude a councillor from attending in his or her private capacity so long as it was made clear that this was the case. As required by statute, the council’s code adopted the model code proposed by the Secretary of State, and neither form of the code could be held to be unlawful. Under the 1999 Regulations, it was necessary to conduct an assessment if a development was likely to have a significant effect upon the environment. Regulation 3(2) provided that a decision on such a matter had to state that an assessment had been carried out, and regulation 21(1) provided that the main reasons for reaching the decision must be stated and made available for public inspection on an appropriate register. The decision notice referred to article 22(2) of the 1995 Order, which, taken in its statutory and factual context, cross-referenced the 1999 Regulations sufficiently so as to amount to a statement for the purposes of regulation 3(2). Although it could have been expressed in a more detailed manner, the actual wording was sufficient for the purpose. The council’s failure to comply with the requirement in regulation 21(1) could be remedied by the granting of a mandatory order, and did not necessitate the quashing of the planning permission. The environmental concerns had clearly been addressed at the meeting and the decision made accordingly. There was no suggestion that the reasons given in the statement proposed to be placed on the register had been drafted as an afterthought, that the decision-making process had been flawed, or that, as in R (on the application of Carlton-Conway) v Harrow London Borough Council [2002] EWCA Civ 927; [2002] JPL 1216 or in R (on the application of Goodman) v Lewisham London Borough Council [2003] EWCA Civ 140; [2003] NPC 22, a late decision-making process was being undertaken in order to vitiate an earlier invalid decision. Save as to the limited extent of the grant of a mandatory order, the claim was dismissed. Robert McCracken and Gregory Jones (instructed by Richard Buxton, of Cambridge) appeared for the claimants; Timothy Straker QC and Paul Greatorex (instructed by the solicitor to North Yorkshire County Council) appeared for the first defendants; Philip Sales and James Maurici (instructed by the Treasury Solicitor) appeared for the second defendant; Thomas Hill (instructed by Walker Morris, of Leeds) appeared for the interested party. Vivienne Lane, barrister