Richardson & Anor, R (on the application of) v North Yorkshire County Council & Ors

For an environmental impact assessment application, the relevant decision under regulations 3(2) and 21(1) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 is the written notice granting planning permission, not the committee’s prior resolution. A notice may satisfy regulation 3(2) if, read in context, it states that the environmental information has been taken into consideration. The duty under regulation 21(1) to make the main reasons publicly available concerns post-decision disclosure. Breach does not necessarily invalidate the permission and may be remedied by mandatory order. A councillor with a prejudicial personal interest must withdraw from a meeting even where he is not a member of the deciding committee. That requirement was rational and proportionate. Attendance solely as a private citizen would raise a different question.

The claimants sought judicial review of North Yorkshire County Council’s grant of planning permission to Brown and Potter Ltd for an extension of sand and gravel quarrying at Ripon City Quarry. They challenged the decision on two principal grounds: alleged non-compliance with the environmental impact assessment requirements, and the exclusion of the first claimant, a county councillor living approximately 250 metres from the site, under the Council’s Code of Conduct.

The committee resolved to grant permission on 11 June 2002, subject to a section 106 agreement. The written notice granting permission was issued on 6 August 2002. The issues were whether the notice complied with regulations 3(2) and 21(1), whether any breach required the permission to be quashed, and whether the Code lawfully required the councillor to withdraw.

1. Environmental information. The written notice of 6 August 2002 constituted the grant of planning permission. A committee resolution had no immediate legal effect. The notice therefore was the relevant decision for regulation 3(2), consistently with the planning procedure under the Town and Country Planning (General Development Procedure) Order 1995 and the reasoning in R v Yeovil Borough Council, ex parte Trustees of Elim Pentecostal Church, Yeovil (1971) 23 P&CR 39 and R v LB Hammersmith and Fulham, ex parte Burkett [2002] UKHL 23.
2. The notice stated that the Council had taken the accompanying environmental information into consideration. Read with article 22(2) of the 1995 Order and the statutory context, that was sufficient compliance with regulation 3(2), although clearer wording would have been preferable. The Council had in any event considered the environmental information and reached a rational conclusion. The primary obligation to consider the information was fundamental; the obligation to state that it had been considered was secondary and procedural. The approach in Berkeley v Secretary of State for the Environment [2001] 2 AC 603 was applied.
3. There was a clear continuing breach of regulation 21(1)(c)(ii). The decision notice did not contain, and the register did not otherwise make available, a sufficiently specific statement of the main reasons for the decision. Regulation 21(1) addressed public information after the decision, rather than the decision-making process itself. The breach could therefore be remedied by mandatory order rather than by quashing the planning permission. The Council was ordered to make the main reasons available for public inspection.
4. The later evidence of the individual committee members was sufficiently reliable to establish the reasons that had motivated the decision. Read together with the Director’s report, it supplied a reasoned basis for the departure from the development plan. The situation differed materially from the later reconsideration processes criticised in R (Carlton-Conway) v Harrow LBC [2002] EWCA Civ 927 and R (Goodman) v LB Lewisham [2003] EWCA Civ 140.
5. Code of Conduct. The first claimant had a personal interest because the development affected his home and well-being to a greater extent than those of the general public. That interest was prejudicial under paragraph 10(1): a knowledgeable member of the public would reasonably regard it as sufficiently significant to be likely to prejudice his judgment of the public interest.
6. Paragraph 12(1) applied to every Council member attending a Council or committee meeting, not merely to members of the deciding committee. Attendance as an elected councillor was conduct of the business of the office to which he had been elected under paragraph 1(1)(b). The Code therefore required withdrawal. The Secretary of State had rationally balanced member participation against public confidence and had lawfully adopted a general rule requiring withdrawal.
7. The Court declined to decide conclusively whether the Code applied to a councillor attending solely as a private citizen, because that was not the factual basis of the claimant’s attendance. The judge indicated that paragraph 1(2) would probably mean that paragraph 12 did not, by itself, prevent such attendance, provided its limited private basis was made clear.
8. The Convention arguments failed. The restrictions were directed to fairness and impartiality, pursued the legitimate aim of maintaining public confidence, and were proportionate. There was no need to determine whether article 6 was engaged, and any interference with article 8 rights was justified. The claim succeeded only to the limited extent of the mandatory order concerning reasons; otherwise it was dismissed.

First-instance judicial review. Permission to appeal was granted because the case raised issues of sufficient importance to provide a compelling reason for consideration by the Court of Appeal.