Australia: English High Court narrows the scope for legal challenges of Environmental Impact Assessments

Last Updated: 19 May 2014
Article by Ian Wright and Monica Wilkie

In brief

Attendance by non-planning committee member at planning committee meeting and a technical breach of planning requirements did not prejudice or invalidate the council's approval decision

The case of Bishop's Stortford Civic Federation v East Hertfordshire District Council & Ors [2014] EWHC 348 involved an appeal to the Queen's Bench Division Administrative Court of the English High Court. The appeal was sought by the Bishop's Stortford Civic Federation against East Hertford District Council and Anley Trustees Limited and Maison Anley Property Nominee Limited, who together represented Henderson Global Investors Limited.

The Federation, via an application for judicial review, appealed the council's decision to grant planning permission to Henderson Global Investors. His Honour Judge Cranston heard the appeal, which was sought on the following grounds:

  • there was a prejudicial outcome as a result of a non-planning committee member attending and addressing a committee meeting which made a significant planning decision;
  • unfairness was caused by an alleged technical breach of a regulation by failing to provide the opportunity to comment.

His Honour rejected both grounds, and consequently dismissed the appeal.

High Court considered whether participation of non-planning committee members in committee meeting was prejudicial

The first ground of appeal was whether the council's decision to allow non-planning committee members, in particular Councillor Tindale, to attend and make an address at the committee meeting was prejudicial to the Federation, since the meeting granted Henderson Global Investors planning permission.

"Polluting the well": claim that non-planning councillor's intervention was motivated by a wish to gain advantage for planning applicant

The Federation submitted that Councillor Tindale's attendance and speech at the council executive's planning committee meeting "polluted the well". It was also argued that Councillor Tindale's intervention significantly influenced the planning committee's decision, that his motivation for his address was to influence the committee, and that he spoke at a time that was strategic and advantageous to Henderson Global Investors' plans. The Federation concluded this point by arguing that it could not be said with certainty that the committee's decision to approve the plans would have been the same regardless of Councillor Tindale's speech, since the plans were approved "by the narrowest of margins".

His Honour found that Councillor Tindale did not "pollute the well" with his address and he did not mislead the committee or suggest that the principle of the mixed-use development had already been approved at a previous full council meeting. His Honour noted the irrelevance of Councillor Tindale's motivations for addressing the committee, given that the point of contention was the impact of his words, not his motivations.

No express prohibition on attendance by non-planning councillor

His Honour was not convinced Councillor Tindale's address affected the committee members' ability to reach a proper decision. Councillor Tindale had a right to attend and address the committee meeting. While the council's constitution did not expressly allow attendance of non-planning committee members, His Honour noted that unless there is an express provision preventing attendance, "the law is that ... any councillor can, with the committee's permission ... attend and address it" with the exception of any apparent prejudicial or personal interest, which was not the case here.

Court upheld integrity of committee members and rejected notion that councillors ought to "explain their voting"

In his speech, Councillor Tindale referred to a prior decision made between Henderson Global Investors and the council which concerned the redevelopment of the site as a mixed-use development. His Honour rejected the notion that mention of this, among other things, influenced a decision that would have otherwise been different. He noted that the councillors, having integrity in their positions, would only give consideration to planning matters and this decision did not constitute a planning matter. To suggest that the planning committee would have voted differently but for Councillor Tindale's speech would undermine the committee's ability to make informed and independent decisions based on all the information provided. Further, to ask that councillors "explain their voting is especially to be deplored. Prudence is the sensible judicial approach in this context."

Claim that the council failed to provide the opportunity to comment on environmental impact assessment, which amounted to unfairness and a breach of a regulation

The second ground of appeal was whether the council was in breach of what was then regulation 19 of the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulation 1999 by failing to provide the Federation and others the opportunity to comment on additional documents submitted by Henderson Global Investors after outline permission had been granted. It was challenged that the council's actions, in this respect, were "unfair".

The Federation submitted that the council acted unfairly by granting planning permission and not providing the Federation and others the opportunity to comment on the additional documents submitted by Henderson Global Investors. These documents were the Environmental Statement Addendum and a Supplementary Planning Statement, which were provided after the creation of the Government's National Planning Policy Framework (NPPF), which replaced the planning policies considered in the development application.

Documents available via planning file but not conventionally publicised - a fair opportunity to be informed?

The Federation argued that the council failed to follow the requirements under the then regulation 19 of the Regulation (now regulation 22 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 SI 2011). This included providing a fair opportunity to be informed of the further information relating to the development application which had not been published in the required manner. The documents were available via the planning file but there was no public consultation process. The Federation further argued that the Addendum contained substantive information that was captured by regulation 19(1) and (2) of the Regulation as both "further information" and "any other information" respectively. The information should have been publicised to allow parties like the Federation to "make representations, which it would have done".

No unfairness despite lack of adequate publishing practice

His Honour found there was no unfairness, although he conceded that a better publishing practice could have been adopted. Nevertheless, the documents were placed on the planning file, and the Federation had the opportunity to comment. The introduction of the NPPF did not affect the substance and effect of Henderson Global Investors' application. Further, it was concluded that the additional information provided by Henderson Global Investors was only an update and did not contain information relevant for planning considerations at the meeting; it was not substantive information and therefore was not captured under regulation 19 of the Regulation. If it was captured under the Regulation, this breach and unfairness would be entirely technical. In this case, however, His Honour found that the breach would not have resulted in a different outcome. Further, he would have "withheld a remedy because there was no substantial prejudice to the Federation".

Court rejected appeal finding no prejudice or unfairness from attendance of non-planning committee member and technical breach

His Honour rejected both claims on the grounds that the decision of the committee was not prejudiced by Councillor Tindale's presence as they were able to exercise proper and independent discretion. There was also no unfairness to the Federation as a result of what His Honour concluded was a technical breach of the regulation. The granting of planning permission to Henderson Global Investors was upheld.

Ian Wright Monica Wilkie
Planning and environment
CBP Lawyers

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Ian Wright
Monica Wilkie
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