Key words: standing; locus standi in leave applications; meaning of "sufficient interest"
R v Somerset County Council and
ARC Southern Limited ex p Dixon
Queen`s Bench Division (Crown Office List)
75 P & CR 175,  JPL 1030
18 April 1997
Richard Gordon, QC and William Birtles for the applicant; Duncan Ouseley, QC for the first respondents; Richard Drabble, QC for the second respondents.
Panel: Sedley J
Judgment by: Sedley J
SEDLEY J: Mr Richard Gordon, QC, applies on Mr Dixon`s behalf for leave to challenge a grant of conditional planning permission made by Somerset County Council (the intended first respondent) on July 5, 1996 to ARC Southern Limited (the intended second respondent). The effect of the grant, if valid, is to permit ARC to extend their limestone extraction operation at Whatley Quarry in Somerset.
The extraction of limestone from this site has been permitted since 1939. Since the introduction of a new planning regime by the Planning and Compensation Act 1991, operations have continued under an interim development order. As long ago as 1990 ARC sought permission to extend their operation at Whatley. The decision was called in by the Secretary of State who by a decision letter of May 9, 1994 refused the application. Later that year his decision was quashed by consent because of the two admitted errors, neither of them material to the present case. In the letter the Secretary of State noted ARC`s entry into a number of obligations which it was submitted were planning obligations within section 106 of the town and Country Planning Act 1990 as a quid pro quo for the extended quarrying rights it was seeking at Whatley. The Secretary of State, however, considered that they were not planning obligations within the section and that in any event they did not conform to his guidance set out in Circular 16/91, since they were not necessary for the grant of material permission, nor did they resolve the planning objections to it. He concluded, however, by inviting ARC to submit revised proposals for Whatley quarry in the light of the Inspector`s and Assessors` conclusions, with which he was in broad agreement.
In February 1995 a revised application was submitted. On October 4, 1995 the Somerset County Council Environment Committee, at an adjourned meeting which had considered a detailed officers` report, resolved to grant planning permission "subject to the satisfactory prior completion of section 106 agreements" on nine specific topics. The Secretary of State in due course gave notice that he was not calling in this application. On July 5, 1996 the county council`s officers expressed themselves satisfied with the nine agreements which had been executed by the deed, and conditional planning permission was granted for continuation and extension of limestone quarrying at Whatley.
Section 106 of the Town and Country Planning Act 1990 provides inter alia:
Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section . . . as "a planning obligation"), enforceable to the extent mentioned in sub-section (3) --
(a) restricting the development or use of the land in any specified way;
(b) requiring specified operations or activities to be carried out in, on, under or over the land;
(c) requiring the land to be used in any specified way; or
(d) requiring a sum or sums to be paid to the authority on a specified date or dates or periodically.
. . .
(3) Subject to sub-section (4) a planning obligation is enforceable by the authority . . .
(a) against the person entering into the obligation and
(b) against any person deriving title from that person.
(5) A restriction or requirement imposed under a planning obligation is enforceable by injunction.
Mr Gordon no longer relies upon the grounds set out in detail in his form 86A, which was lodged on October 3, 1996.
He has instead sought leave to amend the originating application by adding
(a) an allegation that in deciding to grant conditional planning permission the Council failed to take into account the issues raised in the earlier decision letter of 9 May 1994 and the policy guidance contained in the Secretary of State`s Circular 16/91, especially Annex B;
(b) a contention that the agreements entered into relate in part to matters wholly outwith section 106 and so fail to fulfil a condition set by the council itself for the grant of planning permission.
For the council Mr Duncan Ouseley, QC, supported by Mr Richard Drabble, QC, for ARC, submits not only that both grounds are misconceived but that
(c) the originating application is out of time and the application to amend even further out of time;
(d) Mr Dixon in any event lacks a sufficient interest to move for judicial review of the grant of planning permission.
Although there was a period of inactivity on Mr Dixon`s part between the final grant of planning permission and the instruction of a solicitor, the application was issued within three months of the date of the grant. On the material before me this is not a case in which the demands of promptness are such as to make it unfair or unreasonable to proceed with the claim even though it has been issued within three months. But the intended respondents submit that it has not been issued within three months "from the date when grounds for the application first arose" (Ord 53, r 4). They submit that grounds first arose at latest when, in October 1995, it was resolved to grant planning permission subject to the execution of the nine section 106 agreements.
Mr Gordon responds -- and experience in this Court suggests that it is not a wholly fanciful response -- that an application for leave issued before the nine agreements had been signed and accepted by the council would have been met with the objection that it was premature. I do not think that the application can be criticised for waiting until the grant of planning permission became effective and moving within three months of that date. Were I to grant leave, the question of detriment through delay would not be foreclosed; but at present I have no sufficient evidence of such detriment.
On principle, the question of locus is to be considered in the context of the issues raised. As now presented, these are issues which go to the root of the legality of the extended quarrying activity which ARC wishes to undertake. That the quarrying is bound to have a significant environmental impact is not disputed; nor is it diminished by the fact that to quash the present permission will be to release nine other areas from the restrictions entered into as a quid pro quo. If there is an arguable case, what it concerns is the legality of possibly irreversible interference with part of the landscape. Mr Dixon is a local resident, a parish councillor in the Whatley area, a member of the executive committee of the Somerset Association of Local Councils, a member of more than one body concerned with the environment and a candidate for election to the district council covering Whatley Quarry. Mr Ouseley contends that Mr Dixon, having no interest as a landowner or as the possessor of a personal right or interest threatened by the proposed quarrying, has no "sufficient interest" within the Supreme Court Act 1981, s 31(3), and RSC Ord 53, r 3(7).
Mr Gordon submits that Mr Dixon`s characteristics give him an interest greater than that of the general public. I doubt whether this is so, but I reject the intended respondents` submission that for this reason he lacks standing.
The question of locus standi has gone through a number of cycles in recent years. These are in large part reviewed by Popplewell J in his recent judgment in ex parte Garnett. I will not quote verbatim from it, since only the unrevised transcript is before me; but Popplewell J`s conclusion that the applicants in that case could show no locus standi at the leave stage is relied upon by the proposed respondents to the present application, which bears strong similarities to ex parte Garnett in its subject matter (opposition to the extension of planning permission for quarrying in the West Country) and in the identity of the applicants (local residents concerned and active on environmental issues).
Following the decision of the House of Lords in R v Inland Revenue Commissioners, ex parte National Federation of Self Employed, Lord Donaldson MR in R v Monopolies and Mergers Commission, ex parte Argyll Group plc, set out what has been consistently adopted as the proper practical test to apply:
The first stage test which is applied on the application for leave, will lead to a refusal if the applicant has no interest whatsoever and is, in truth, no more than a meddlesome busybody. If, however, the application appears to be otherwise arguable and there is no other discretionary bar, such as dilatoriness on the part of the applicant, the applicant may expect to get leave to apply, leaving the test of interest or standing to be reapplied as a matter of discretion on the hearing of the substantive application. At this second stage, the strength of the applicant`s interest is one of the factors to be weighed in the balance.
Within this carefully elaborated proposition, it has become clear that the following elements need to be highlighted:
(a) The threshold at the point of the application for leave is set only at the height necessary to prevent abuse.
(b) To have "no interest whatsoever" is not the same as having no pecuniary or special personal interest. It is to interfere in something with which one has no legitimate concern at all; to be, in other words, a busybody.
(c) Beyond this point, the question of standing has no materiality at the leave stage.
(d) At the substantive hearing "the strength of the applicant`s interest is one of the factors to be weighed in the balance"; that is to say that there may well be other factors which properly affect the evaluation of whether the application in the end has a "sufficient interest" to maintain the challenge and -- what may be a distinct question -- to secure relief in one form rather than another.
Nothing in the decided cases, in my judgment, compels this court to refuse leave, any more than (pace the obiter dictum of Purchas LJ cited by Otton J in the Greenpeace case, below, at 349), it requires it to refuse relief, where the interest of the applicant is shared with the generality of the public. Like Otton J in R v Inspectorate of Pollution, ex parte Greenpeace Ltd (No 2), I would decline to follow the decision of Schiemann J in R v Secretary of State for the Environment, ex parte Rose Theatre Trust.
I do not dissent from any of the eight numbered propositions set out by Schiemann J at 520, including the proposition that "not every member of the public can complain of every breach of statutory duty by a person empowered to come to a decision . . .". This, however, is by no means the same as asserting that no member of the public can complain of any breach of statutory duty unless he or she objectively has an interest greater than that of the rest of the public.
In the majority of cases, no doubt, such a distinction will be necessary in order to demonstrate that the applicant is not a mere busybody. But there will be, in public life, a certain number of cases of apparent abuse of power in which any individual, simply as a citizen, has a sufficient interest to bring the matter before the court. Indeed, Schiemann J appears to have had precisely this in mind when he applied the test which determined the outcome in the Rose Theatre case:
Applying the approach indicated in the propositions enumerated earlier on in this judgment it seems to me that the decision not to schedule is one of those governmental decisions in respect of which the ordinary citizen does not have a sufficient interest to entitle him to obtain leave to move for judicial review.
Implicit in this is the possible existence of the opposite situation which I have described. From this point, it is perhaps unhelpful to debate whether it might not have been held that the individuals who had (perhaps unwisely) formed a limited company to litigate either included persons with a special and sufficient interest or whether the excavation and preservation of the remains of Shakespeare`s own theatre was something in which every citizen had a sufficient interest. The only formulation of law with which I would respectfully part company is Schiemann J`s proposition, late in his judgment, that
The court will look at the matter to which the application relates . . . and the statute under which the decision was taken . . . and decide whether that statute gives that individual expressly or impliedly a greater right or expectation than any other citizen of this country to have that decision taken lawfully.
For reasons which I have given I do not accept, with respect, that this is universally true; nor, up to this point, does the reasoning of Schiemann J suggest that it is.
Accordingly I respectfully disagree with the decision of Mr David Keene, QC, as he then was, in R v Canterbury Council, ex parte Springimage Ltd, accepting the concession of counsel for the applicant, that the distinction is a simple one between
on the one hand the generality of the public, every member of which has a general interest in seeing the law obeyed and public duties properly performed, and on the other hand the person who has a particular interest in the matter above the generality.
Such a limited approach, especially if extended by the proposition that an aggregation of such individuals cannot enhance the individual interest, is in my view incompatible with the series of landmark judgments preceding and succeeding the Rose Theatre case in which responsible specialist organisations have been held to possess a sufficient interest to challenge the particular decision or omission in question. These well-known cases have accorded standing to the Child Poverty Action Group, the Covent Garden Community Association, Greenpeace and the World Development Movement.
The last of these cases, R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd, was not apparently cited to Popplewell J and has not been cited to me, but I take the liberty of referring to it because it appears to me to reassert a very strong and old line of authority of which the courts have lost sight. The decision of the Divisional Court in the World Development Movement case is summarised for this purpose in the first holding in the headnote:
that since standing went to jurisdiction it was not to be treated as a preliminary issue but was to be taken in the legal and factual context of the whole case; that the merits of the challenge were an important, if not dominant, factor when considering standing and that significant factors pointing to the conclusion that the applicants had sufficient interest . . . were the importance of vindicating the rule of law, the importance of the issue raised, the likely absence of any other responsible challenger, the nature of the breach of duty against which relief was sought and the prominent role of the applicants in giving advice, guidance and assistance regarding aid.
For each of these elements, at 395-396, Rose LJ cites authority. He cites, too, a sentence in Wade & Forsyth:
The real question is whether the applicant can show some substantial default or abuse, and not whether his personal rights or interests are involved.
In this respect, as in so many others (the so-called Wednesbury doctrine included), there turns out to be little which was not considered and decided in the great flowering of English public law between the 1860s and the First World War. In 1915 one Sir George Makgill obtained rules nisi calling upon Sir Edgar Speyer and Sir Ernest Cassel, both of whom were naturalised British subjects, to show by what authority they were entitled to be members of the Privy Council. The proceedings were in the form of an application for the issue of an information quo warranto; today they would be for an injunction under section 30 of the Supreme Court Act 1981 and Order 53, Rule 1(1)(b). If anybody risked being branded a busybody it was Sir George Makgill, especially as one of the two respondents had already tendered his resignation from the Privy Council and had it refused. Sir FE Smith, A-G, submitted that in the absence of an invasion of any of his rights the applicant had no locus. A strong Divisional Court, (Lord Reading CJ, Avory and Lush JJ) rejected the argument.
Lord Reading considered the history of the quo warranto procedure as a means of testing entitlement to hold office and its extension over time to "a remedy available to private persons . . . subject always to the discretion of the court to refuse or grant it". To the argument that only the Attorney-General could move the court to vindicate the public interest, Lord Reading CJ counterposed the proposition that "A stranger to the suit can obtain prohibition", citing Broad v Perkins. He went on:
Sir George Makgill appears to have brought this matter before the court on purely public grounds without any private interest to serve, and it is to the public advantage that the law should be declared by judicial authority. I think the court ought to incline to the assistance, and not to the hindrance, of the applicant in such a case if the court has the power which I think it has.
He cited also the words of Lord Kenyon CJ in R v Kemp:
I do not mean to say that a stranger may not in any case prefer this sort of application; but he ought to come to the court with a very fair case in his hands,
adding for himself:
just as the court thought it right to inquire into the motives of the applicant to see that the application was not made merely to disturb the local peace of corporations: R v Brown 3 TR 574n, per Ashurst J.
From this source alone one can derive most of the elements of locus standi in public law which are re-articulated (without reference to R v Speyer) in the World Development Movement case: a "very fair case" on the merits; "the public advantage that the law should be declared" in order to vindicate the rule of law; "purely public grounds" making it unlikely that any peculiarly interested challenger will emerge; a "stranger to the suit . . . without any private interest to serve" being properly placed to advance the challenge; and so forth.
The judgments of Avory J and Lush J also merit attention. Both considered that the historic principles giving generous locus standi in applications for writs of prohibition` ought to be extended to quo warranto proceedings. Avory J, citing Brett J in Worthington v Jefferies, remarked:
If information is given by a stranger "order is no less broken, prerogative is no less invaded".
Lush J said:
The process [of challenge by quo warranto] is enforced for the benefit of the community, and is the only available remedy if the office is either abused or usurped. That any subject can call the attention of the court to excess of authority on the part of an inferior court and apply for prohibition is clear, and in my opinion the same principle applies in the case of an information in the nature of a quo warranto. Every subject has an interest in securing that public duties shall be exercised only by those competent to exercise them . . .
The time is past when doctrinal niceties, as opposed to substantive merits, could distinguish locus for prohibition from locus for mandamus or certiorari; and the reference to "an inferior court" has of course long been restored — see the Northumberland case — to its earlier ambit of all inferior public bodies.
On Sir George Makgill`s renewal of his case before the Court of Appeal, the Solicitor- General did not re-run the argument on locus.
I have taken some time on this issue because I am concerned to see that even the clear decision in the World Development Movement case, affirming as it does a strong line of modern authority and restoring, as it turns out, a powerful line of older authority, does not appear to have stopped attempts, some of them successful, to elevate the question of standing at the leave stage above the elementary level of excluding busybodies and trouble- makers and to demand something akin to a special private interest in the subject matter. Such an argument may — depending on the issue — be insufficient even at the substantive hearing to exclude an applicant. At the leave stage it is, in my respectful view, entirely misconceived.
Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs -- that is to say misuses of public power; and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well placed to call the attention of the court to an apparent misuse of public power. If an arguable case of such misuse can be made out on an application for leave, the court`s only concern is to ensure that it is not being done for an ill motive. It is if, on a substantive hearing, the abuse of power is made out that everything relevant to the applicant`s standing will be weighed up, whether with regard to the grant or simply to the form of relief.
Mr Dixon is plainly neither a busybody nor a mere troublemaker, even if the implications of his application are troublesome for the intended respondents. He is, on the evidence before me, perfectly entitled as a citizen to be concerned about, and to draw the attention of the court to, what he contends is an illegality in the grant of a planning consent which is bound to have an impact on our natural environment. That his application, were it to succeed, would also unravel a series of environmentally beneficial steps represented by the nine ancillary agreements cannot reduce or qualify any illegality he can show in the grant which he seeks to challenge.
The two grounds on which Mr Gordon now wishes to advance his challenge, if I will give him leave to make the necessary amendments, are
(1) that the nine agreements fall outside the terms of section 106 and therefore do not contain what the statute recognises as planning obligations capable of satisfying the conditions contained in the resolution to grant planning permission.
(2) that in resolving on the conditional grant of planning permission the Council failed to take into account the contents and significance of two documents of central importance: the Secretary of State`s earlier decision letter and his policy guidance set out in Circular 16/91.
It is convenient to take the second of these points first.
Mr Gordon does not suggest that by its physical omission from the annexures to the officers report to the Environment Committee in September 1995 the Circular was left out of account. Rather his submission is that one sees, when one looks in particular at an annexe B of it, that it cannot have been properly taken into account. The decision letter is annexed to the officers` report but its significance, it is submitted, is nowhere drawn to the attention of the members responsible for taking the decision.
Paragraph 2.3 of the officers` report says:
The decision letter, summarising the reasons for refusal, is attached as appendix 3. It should also be noted that the Addendum to that letter gave clear encouragement to ARC to submit a revised application addressing the findings of the Inquiry and other comments of the Secretary of State contained in the letter.
At paragraph 5.1 the officers refer to "three important documents" against which the new planning proposal should be tested, the Secretary of State`s decision letter being one of them. At paragraphs 5.11 to 5.14 attention is drawn to some of the salient points of the decision letter. The officers` advice, on balance, was that the trade-off of environmental advantage under the nine proposed section 106 agreements for permission to extend quarrying at Whatley would be an acceptable basis for the grant of planning permission in the context of the other relevant planning considerations.
Mr Gordon submits that the council has departed from the Secretary of State`s policy set out in Circular 16/91 in approving the section 106 agreements without, on the evidence, having given any consideration to the implications of the fact that they were departing from it. The latter fact was material in the public law sense that it might, had regard been had to it, have produced a different decision: see Bolton MBC v Secretary of State for the Environment.
In my judgment there is no evidential basis for the submission that either the Circular or the letter was left out of account by the Committee. Mr Gordon has submitted that it is particularly paragraphs B1 to B10 and B15 of annexe B of Circular 16/91 which have been left out of account. All but the last of these go under the head "General policy". They are introduced in this way:
The following paragraphs set out the circumstances in which certain types of benefit can reasonably be sought in connection with a grant of planning permission. They are the circumstances to which the Secretary of State and his inspectors will have regard in determining applications or appeals. They may be briefly stated as those circumstances where the benefit sought is related to the development and necessary to the grant of permission.
The Circular goes on to propose a test of necessity for seeking entry into planning obligations under section 106 as a condition of the grant of planning permission. It goes on (perhaps a little inconsistently) to set out a test of reasonableness, not necessity, which bears interesting resemblances to the doctrine of proportionality familiar in continental legal systems but not in ours. Paragraph B15 draws attention to special considerations applicable to mineral developments in this regard.
Because these are general considerations, this is not the class of case in which Mr Gordon is able to point to any specific element of the grant of planning permission or the officers` report upon which it was based to demonstrate that the Circular guidance has been overlooked. His case has to be that the reasoning offered to and adopted by the Committee does not overtly either follow or give reasons for departing from the guidance.
The Circular itself, it should be noted, is expressly referred to in paragraph 14 of the Secretary of State`s decision letter which was before the Committee, because at that stage the Secretary of State took the view that the undertakings did not conform to the guidance in the Circular "in that they are necessary to the granting of permission for the Whatley quarry extension, nor do they resolve the planning objection to the grant of such permission". But these are the very issues addressed by the whole of the officers` report and the consequent resolution of the Committee. I do not overlook the difficulty of proving a negative, but the material before me does not get this submission, in my judgment, through the starting gate. The content and process of decision-making in this case are entirely consistent with the Committee`s having had properly in mind, among other things, the reasons for the Secretary of State`s earlier refusal of planning permission and the material parts of Circular 16/91; and there is no separate evidence that they were overlooked.
Turning to the section 106 issue, Mr Gordon undoubtedly has a good arguable case that the agreements entered into by deed contain undertakings which by no stretch of language could be brought within the ambit of section 106. Counsel have agreed to take as a suitable example the agreement between ARC and North Somerset District Council, made on July 5, 1996 by deed in relation to Sandford quarry in the county of Avon, for which a planning permission was extant. The deed recites:
This Agreement is a planning obligation in favour of the LPA made by the applicant pursuant to section 106 of the 1990 Act . . .
Having set out a series of pre-conditions for its entry into force it provides:
The applicant undertakes on behalf of itself and its successors in title to its interest in the property not to win or work minerals in on over or under the property pursuant to the existing permission.
5. NOT TO OBJECT TO REVOCATION
The Applicant undertakes on behalf of itself and its successors in title to its interest in the property that in relation to its interest in the property only it will:
(1) Not object to any order made by the LPA under section 97 of the 1990 Act modifying or revoking the existing permission so as to prohibit mineral extraction from the property;
(2) Not to submit a claim for compensation to the LPA under section 107 of the 1990 Act in respect of such an order made by the LPA under section 97 of the 1990 Act as aforesaid; and
(3) Within six months of implementation submit to the LPA for determination under the provisions of the Planning and Compensation Act 1991 a scheme of conditions for the existing permission incorporating only a scheme and timetable for the restoration of the property including completion of the restoration within 24 months of the LPA`s approval of the scheme of conditions.
Paragraph 4 plainly comes within section 106(1)(a) as a specified restriction of the use of the land. Equally, paragraph 5(3) appears to be a required activity coming within section 106(1)(b). Between them they provide a binding obligation, regardless of the hands into which the land comes, to stop mining Sandford quarry and restore the landscape. But Mr Gordon submits with cogency -- indeed, Mr Ouseley and Mr Drabble have not really been able to resist the submission -- that paragraph 5(1) and (2) contain obligations which cannot be brought within the language of section 106. Their purported effect is to waive ARC`s legal rights to seek to maintain their existing planning permissions to claim compensation if the permissions are interfered with.
But this does not necessarily afford the applicant a sufficient case for the grant of leave. First of all, as Mr Ouseley has submitted, the two provisions in question are nonetheless binding in law, albeit they do not fall within section 106. Secondly, and in my judgment critically, they are -- so far as any of the counsel in court have been able to suggest -- completely otiose. The elements of the agreement plainly falling within section 106, and so constituting true planning obligations, forbid the continuation of any mining on the site under the existing permission. There is nothing to stop a fresh application, but whether or not such an application is made and succeeds, the possible modification or revocation of the existing permission is a thing writ in water. There is no discernible reason why anybody should now want to modify or revoke the existing permission, since it is a dead letter; and if it were to be done, compensation would be zero since there is a binding undertaking not to make use of the existing permission in any case.
Accordingly, applying the legal test which is the most rigorous and therefore the most favourable to the applicant, of blue-pencilling only "so much as exceeds the law-maker`s power" if it "leaves in place a valid text which is capable of operating and was evidently intended to operate independently of the invalid text" (DPP v Hutchinson), and making therefore the assumption that only true section 106 planning obligations have a place in a deed of this kind, paragraph 5(1) and (2) can be exercised without any impact whatsoever either on the meaning of the text or on the manifest intention of the parties to it. And if, as seems to me more realistic, the deed does not fail because of the bare inclusion of non-section 106 obligations, then their inclusion is nothing to the point, so long as the deed also includes -- as it does -- true planning obligations capable of meeting the criteria set by the Environment Committee for approval as a condition of the grant of planning permission.
In my judgment, therefore, neither limb of the objection which Mr Gordon seeks to advance to the material grant of planning permission is sustainable. For this reason, and not because of delay or want of standing, I would refuse leave to amend the grounds in the form 86A and would refuse leave to move for judicial review.
The parties have agreed that in order to save costs this judgment will be communicated on the usual terms to the parties and handed down in public without the need of attendance. There will be liberty to apply in relation to any consequential matters as to which the parties have not, within 21 days of the handing down of the judgment, communicated an agreed Order to the Crown Office.
I conclude by expressing my obligation to Mr Gordon`s instructing solicitor, Mr Shiner, and his junior Mr Birtles, for the admirable presentation of the papers in this case, notwithstanding that the argument has shrunk to a relatively little measure; and to all three leaders for their brisk submissions.
Application for leave dismissed.
Tyndlewoods, Birkenhead; Somerset County Council Solicitors Department; Herbert Smith, London.