Case No. CO-9102-2010

(2010, 24 May) to the effect that a report which was said to be confidential was disclosable in the public interest. However, that was not a case where the report had only been disclosed to the Council on a strictly confidential basis, as in the present case and thus was not a case where the exemption in regulation 12(5)(f) of the EIA Regulations was being relied upon. The Tribunal expressly stated in paragraph 23 of its Decision that it was not intending to deal with such a case. 41.In any event, in circumstances where this argument was not raised at the time of the Council’s decision, I do not see how it assists the Claimant in any argument that the decision was procedurally unfair. Accordingly, in my judgment, the challenge on the basis of procedural unfairness is unarguable.42.So far as the other aspect of the first ground for Judicial Review is concerned, namely the suggestion that the Council failed to have regard to a material consideration, however this point might have previously been put, by the time of the hearing of the application for permission, it was clear that the basis for this challenge was that the Planning Committee should not have proceeded to make its decision in circumstances where the confidential information was being withheld from them. If it is being contended that the Committee’s decision on the basis of the information it had was irrational or perverse, that adds nothing to the third ground of challenge, which is not arguable for the reasons set out in relation to that ground below. 43.To the extent that it is being contended that the decision makers should not have made their decision without access to the confidential information, in circumstances where the objectors did not have access to that confidential information, that approach is contrary to established authority, namely the earlier cases distinguished in Bedford. The argument that both the Council and the objectors should have had access to the confidential information before the Council made the decision is simply the same argument about procedural unfairness which I have held is unarguable.44.The second ground of challenge is that the planning application for the residential development was accompanied by an environmental statement and was thus an EIA development for the purpose of the EIA Regulations, which required the Planning Committee to consider all “environmental information”. The Claimant contends that such environmental information includes the financial report and the DVS review which the Committee did not see, so that the Committee had failed to consider all environmental information.45.I agree with NFC Ltd that the short answer to this point is that it is based upon a factual misconception. Whereas the main planning application for the NFC scheme was an EIA development which required an environmental statement, NFC Ltd’s position was that the planning application for the 28 houses was of insufficient size to require such a statement. Indeed, the pre-action protocol letter from the Claimant recognised that this was the position, since what was in fact the first ground for proposed judicial review in that letter was the contention that acceptance of the planning application without an environmental statement was flawed. That allegation, implicit in which was that the Council had dealt with the application on the basis that the residential development was not an EIA development, has not been pursued. 46.In any event, as Mr Village QC submitted in his Skeleton Argument, the planning application in the Bedford case was subject to the EIA Regulations, but there was no suggestion that in relying on the summary of the financial appraisal by the planning officer without seeing the confidential report, the Committee had acted without seeing all relevant “environmental information”. Even if the present case were one where the EIA Regulations applied, it follows that the Council was not in breach of the Regulations as alleged. This ground is unarguable. 47.So far as the third ground is concerned, this necessitates the Claimant establishing that the Committee’s decision to proceed to consider the planning application without seeing the confidential financial information was perverse. Mr Richards accepts that the hurdle to demonstrate perversity is a high one, but when one analyses how high it is, it becomes evident how difficult this ground would be to argue. 48.The relevant test was formulated by Lord Diplock in