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Estates Gazette Planning Law Reports/l99lNolume 1 /R v Royal Society for the Protection of Birds [199111 PLR 6
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Swale Borough Council and another, ex parte [199111 PLR6

R v Swale Borough Council and another, ex parte Royal Society for the Protection of

Birds
QUEENS BENCH DIVISION Simon Brown J

February 5 1990 Judicial review Planning permission Sites of conservation interest Whether applicants had a legitimate expectation of being consulted Whether environmental assessment required Whether development permitted by general development order --Application dismissed
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By a decision of the first respondents, Swale Borough Council, on August 16 1989, planning permission was granted to the second respondents, Medway Ports Authority, for land reclamation on 125 acres at Lappel Bank, in the River Medway. Lappel Bank is an area of intertidal mud-flats in the mouth of the river. In November 1989 it was proposed for addition to the two existing sites of special scientific interest. The whole area is also now already designated or, in so far as not, a candidate for designation both under the Ramsar Convention on wetlands of international importance and as a special protection area under the EC directive on the conservation of wild birds. The applicant society, the largest conservation society in the United Kingdom, challenged the grant of planning permission on two grounds: (1) that the applicants were not consulted on the planning application despite an express written assurance that they would be; and (2) that the local planning authority, in granting planning permission, breached the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (the 1988 regulations) in not first requiring an environmental statement. By a letter sent to the applicants shortly before the second respondents application for planning permission, and at a time when the second respondents had a proposal to reclaim 250 acres at Lappel Bank, the local planning authority stated that the applicants would be consulted on any planning application received. The applicants did not become aware of the planning application until after it had been granted. Although the applicants made their application for judicial review on November 14 1989, the first respondents were not aware of it until November 29 1989. On behalf of the respondents it was submitted, inter a/ia, that (1) the development permitted by the planning permission is permitted by the General Development Order 1988, article 3 and Schedule 1, class D, and therefore there is no point in quashing the planning permission in issue; and (2) the applicants had not made their application promptly and/or were guilty of undue delay such that the court should not exercise its discretion. Held The application was refused. 1. The applicants had had a legitimate expectation that they would be consulted about the application for the planning permission in issue. There had been a misunderstanding about consultation, but fairness dictates that only if the reasonable bystander would regard the promise to consult in the sense contended for by the applicants will the consultees expectation be regarded as not merely reasonable but legitimate also: see p 14H. The applicants contended that they genuinely believed that they were entitled to be consulted: that made it a legitimate expectation: see p 15B. 2. The decision whether any particular development is or is not within the scheduled description of development, in respect of which a local planning authority are required to consider environmental information as provided by the 1988 regulations, is exclusively for the local planning authority in question, subject only to Wednesbury challenge: see p 16B. The question falls strictly to be asked in relation to the planning application rather than the [1991] 1 PLR6at7 planning permission, assuming the latter to be materially different: see p 16D. In respect of development which may fall within Schedule 2 to the 1988 regulations, it should not be considered in isolation but regarded

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as an integral part of an inevitably more substantial development: see p 16F. On the information before them the council were well entitled to regard the development in issue as falling outside either schedule to the 1988 Regulations: see p 17D-F. 3. It is for the local planning authority to decide whether development is permitted by the General Development Order. On the face of the order the project appears to fall within it: see p 19B-D. 4. Notwithstanding that the applicants commended their proceedings within the three-month limit prescribed by RSC Ord 53, r4, they were required by this rule to act promptly. A finding at the leave stage that the present application had been made promptly does not give rise to issue estoppel binding the court at the substantive hearing of the application. The court has a discretion under section 31(6)(b) of the Supreme Court Act 1981 at the hearing: see pp 21F-22C. There had been undue delay in making the present application and the question of undue delay must have regard to the nature of the decision being challenged. In respect of a planning permission there may be third parties who may be substantially prejudiced: see pp 23-25. Cases referred to in the judgment Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; [1984] 1 WLR 1174; [1984] 3 All ER 935, HL Northavon District Council v Secretary of State for the Environment (1980) 40 P&CR 332; [1981] JPL 114, DC Parkes v Secretary of State for the Environment [1978] 1 WLR 1308; [1979] 1 All ER 211; (1978) 77 LGR 39; 36 P&CR 387; [1978] EGD 973; 248 EG 595, [1978] 2 EGLR 143; [1979] JPL 33, CA R v Dairy Produce Quota Tribunal for England and Wales, ex pafle Caswell [1989] 1 WLR 1089; [1989] 3 All ER 205, CA R v Exeter City Council, ex pade J L Thomas & Co Ltd [1990] 3 WLR 100; [199011 All ER 413; [1989] 3 PLR 61; (1989) 88 LGR 273; 29 RVR 134 F? v Great Yarmouth Borough Council, ex pafle Botton Brothers Arcades Ltd (1988) 56 P&CR 99; [1988] JPL 18 F? v Stratford-on-Avon District Council, ex pafle Jackson [1985] 1 WLR 1319; [1985] 3 All ER 769; (1985) 84 LGR 287, CA WalkervLeeds City Council [1 978] AC 403; [1976]3WLR 736; [1976]3 All ER 709; (1976) 75 LGR 265, HL West Bowers Farm Products v Essex County Council(1 985) 50 P&CR 368; [1985] 1 EGLR 271; [1985] RVR 176; [1985] JPL 857, CA Application for judicial review This was an application for the judicial review of a decision of the first respondents, Swale Borough Council, to grant planning permission upon an application made by the second respondents, the Medway Ports Authority. Mark Cran OC and Miss Alice Robinson (instructed by Mills & Reeve, of Cambridge) appeared for the applicants, the Royal Society for the Protection of Birds. Anthony Clover (instructed by the solicitor to Swale Borough Council) appeared for the first respondents. Michael Douglas (instructed by Brachers, of Maidstone) appeared for the second respondents, the Medway Ports Authority. Christopher Katkowski (instructed by Gouldens) appeared for Maritime Transport Services Ltd, an interested

party.
The following judgment was delivered. SIMON BROWN ..J: Lappel Bank is an area of intertidal mud-flats near the mouth of the River Medway. It lies

hUn

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