Case No. CO-9102-2010

1.On 30 September 2010, HHJ McKenna sitting as a Judge of the High Court ordered the Claimant’s application for permission to apply for Judicial Review to be heard in Court, on an expedited basis, during the week of 18 October 2010. By his application the Claimant seeks to quash the grant of planning permission by the Defendant Council on 24 June 2010 for the construction of 28 detached houses at the National Football Centre, St George’s Park, Burton on Trent, Staffordshire (“the NFC”). At the end of the hearing on 21 October 2010, I indicated that the application for permission was refused, but that I would give reasons for that decision in a judgment to be handed down at a later date. This is that judgment.2.The background facts to the application are as follows. The planning application was made by the Interested Party, National Football Centre Limited (“NFC Ltd”) a wholly owned subsidiary of the Football Association (“the FA”). The application was made under cover of a letter from planning consultants Nathaniel Lichfield & Partners to Mr Tim Furnell Chief Planning Officer with the Council, dated 24 February 2010, which stated that the housing development was required to “enable” the implementation of the NFC, for which planning permission was also being sought. The planning permission in respect of the NFC was a revised application from that made when planning permission was originally granted in 2001. Construction at the site had been suspended in about 2004, due to financial constraints. The revised application was not only to provide a national football centre of excellence for football training and development, which England distinctly lacks compared with other European countries, but a 228 bedroom hotel to provide appropriate accommodation for those attending courses. 3.It appears from a recent witness statement of Mr Alexander Horne, General Secretary of the FA, that the FA was intending originally to invest directly itself in the construction work now proposed, in addition to its original investment in the site, but that, in 2009, following the collapse of one of its domestic broadcast partners, Setanta, the FA suffered a drop in revenues. Accordingly, the FA asked the board of NFC Ltd to find funding for the NFC scheme without the need for recourse to central FA budgets.4.It was in that context that the letter from the planning consultants explained that the development of the NFC “will be funded principally by the FA, Umbro, ‘the football family’, sponsorship, development of the hotel and public sector grant. However, even with these revenue streams, there is a gap in funding.” It was to meet some of that gap that the residential development was required. The letter described the two developments as “inextricably linked” and explained how the residential development was required to “enable” the implementation of the NFC. 5.With the planning application, NFC Ltd submitted a financial report which, according to the letter, explained: “how 28 detached houses (open market) will ‘fill’ about 50% of the funding gap. Whilst less than the ‘minimum’ that is required to secure the delivery of St George’s Park, the funding that has already been secured from other sources will enable the development of the revised proposals for the NFC to commence. It is expected that additional funding will be secured should planning permission be granted. A planning permission indicates a scheme is certain and deliverable which results in greater interest from developers/lenders/sponsors and investors. … Residential development is required to enable the delivery of the revised proposals and, for the reasons given in the application documents is acceptable.”6.The financial report evidently contained financial information which could have damaged the FA’s and NFC Ltd’s commercial interests, in particular in relation to negotiations with third parties such as potential operators of the hotel. It also contained actual costings from a contractor which were highly market sensitive in terms of the tendering for the construction contract. Accordingly the report was provided to the Council’s planning department on the basis that it was highly confidential and should not be disclosed to any third party without prior written consent. NFC Ltd also indicated to the Council that in its view, the report was exempt from disclosure under the Freedom of Information regimes. 7.The Council’s planning department accepted the basis upon which this financial report was submitted and did not disclose it either to the public or to the members of the Planning Committee. However, the Council did not simply accept the financial information provided at face value, but commissioned an independent review from DVS Property Specialists (a commercial arm of the Valuation Office Agency) to check the figures to ensure that the alleged funding gap existed and that the residential development would plug some of that gap. DVS received the financial report and information on the same strictly confidential basis as had the Council. DVS’s review verified NFC Ltd’s figures confirming that the funding gap did exist. DVS considered that the development might plug as much as 85% of the funding gap. Again the Council did not disclose the DVS review to the public or the members of the Planning Committee.8.On 10 May 2010, the Claimant’s planning agent, Janet Hodson, submitted a consultation response to the planning application. It identified planning policy objections to the development of 28 houses in the open countryside. As to the ‘enabling development’ case being advanced, the objection was as follows:“The financial viability exercise that seeks to demonstrate this, is not in the public domain and cannot be scrutinised by objectors, so no one has had the opportunity establish how robust such an analysis actually is. There is no parallel between enabling development to support Listed Buildings upon which the applicants seek to rely and this scheme. In any event those financial appraisals relating to listed buildings are always in the public domain and are open to scrutiny by the public, that is not the case here.There is no justification that the funding gap should be made up from a housing development in the open countryside and objectors may well ask where does this reasoning end. Does this mean that any one who has a funding gap on a significant project should adopt this approach, seek development in the open countryside and then not make the viability assessment open to scrutiny. ….”9.The Chief Planning Officer Mr Furnell prepared written reports to the Planning Committee on both the proposed developments. The report on the residential development advised, inter alia: “A confidential Financial appraisal has been submitted in relation to the applicant’s submission that the proposed housing development is required to help close a funding gap, and hence ‘enable’ the NFC sport/hotel scheme at St Georges Park. ….Barton Parish Council and CPRE also raised issues over the ‘funding gap’Burton Civic Society objected asking: “Has the FA exhausted all other possible sources of funding before seeking to contravene the Local Plan?”10.Enabling Development was identified by that report as being a main issue. The report then described the financial position as follows: “Financial information submitted seeks to demonstrate that the development of the NFC will be funded principally by the FA, Umbro, ‘the football family’, sponsorship, development of the hotel and public sector grants. The issue for the FA is that even with these funding streams, there is what they describe as a ‘funding gap’. They cite this as the reason for submitting this associated planning application for 28 dwellings, and refer to how this is ‘inextricably linked’ to the NFC proposals. On balance therefore the benefits of the NFC outweigh any residual harm caused by the housing development proposed, and the principle of housing here (linked through an appropriate Section 106 Obligation to the substantial completion of the NFC) is acceptable.” 11.The Planning Committee meeting took place on 17 May 2010. It was attended by a number of objectors including Janet Hodson on behalf of the Claimant. There is a transcript available of the proceedings, which were recorded by the Council. Members of the Committee were told by Mr Furnell in his presentation that the financial information was confidential but that: “We have sought verification of that analysis through a third party, a reputable national body who have verified that the figures provided are accurate and up to date. They offer no commentary on the issues that prompts but I can assure you that those figures have been verified.”12.Later in his presentation, Mr Furnell said this: “Let’s be clear that housing in this location is fundamentally contrary to your planning policy and principles that I referred to earlier, there’s no doubt about that. There are however significant economic benefits from the NFC itself. But the question is could they be delivered by other means. Most importantly I think for this afternoon the discussion on housing is whether housing is perhaps the least harmful form of enabling development if you subscribe to the view that enabling development is important and necessary.”13.Janet Hodson repeated her objection about the non-disclosure of the financial information and invited members to defer making a decision until the information was made available to the objectors for analysis. Her concern as expressed was that since neither the objectors nor the Members of the Committee had seen the financial viability report, they could not know whether, if the proposed residential development only filled 50% of the funding gap, the whole project was viable. As she put it; “if it’s half of it are they going to come back for another 28 houses in the next round of getting the money in order, and how are you going to be able to say no?”. She said that this financial viability report should be in the public domain, as were other such reports obtained by other councils. 14.Mr Furnell said towards the end of the meeting, evidently addressing Mrs Hodson’s concern about whether the whole project would be viable if only 50% of the funding gap was plugged by the residential development:“the commentary that Janet Hodson referred to…in terms of this closing only 50% of the funding gap, just to correct the latest analysis verified by our advisors is that it would fill something approaching 85%”.15.After lengthy deliberation, the Planning Committee voted unanimously to grant the National Football Centre application and 8: 4 in favour of granting the residential application with one abstention. On 25 May 2010, a week after the Planning Committee decision, the Claimant sent the Council a pre-action protocol letter which alleged amongst other things that the Council had erred in law when granting the Residential application because the confidential financial appraisal had not been disclosed to the public. The Claimant also, for the first time, made a formal application for the NFC Ltd financial appraisal and DVS review pursuant to the Environmental Information Regulations (“EIR”).16.On 21 June 2010, the Council replied to the pre-action protocol letter denying the Claimant’s allegations of illegality and procedural unfairness. Then, on 22 June 2010, the Council refused to disclose the financial appraisal and the DVS review on the grounds that they were exempt from the duty to disclose because the information fell within two of the disclosure exemptions in the EIR (Regulation 12 (5) (e) and (f)) and that the public interest in maintaining the exemption outweighed the public interest in disclosing the information.17.On 24 June 2010, the Council issued planning permissions for the Interested Party’s two applications following signature of the section 106 agreements. The summary reasons for granting permission given pursuant to Article 22 of the Town and Country Planning (General Development Procedure) Order 1995 recognised that the development was flatly contrary to established policy at all levels and therefore required special justification. The summary reasons then stated that: “The applicant accepted that the development would be contrary to policy, but put it forward as necessary to enable the development of the NFC, by generating a profit which would be applied to partially close a gap in the funding available for the NFC scheme. The Applicant provided, in confidence, financial information to justify this contention, which was subject to independent scrutiny on behalf of the Council by DVS Property Specialists (the commercial arm of the Valuation Office Agency).”18.The reasons continued that the Committee (by a majority) had proceeded on the basis that:“There is a genuine funding gapThe housing development would fill more than half of the gap (50% on the Applicant’s initial calculation but 85% on valuation by DVS)The contribution from the housing development would generate sufficient confidence to enable the remaining gap to be bridgedWithout the enabling housing development there was a severe risk that the Applicant would be unable or unwilling to proceed with the NFC development, andThe grant of permission for the housing development would make it very likely that the NFC development would proceed.”19.On 22 July 2010, four weeks after the grant of planning permission, the Claimant wrote to the Council informing them “as a matter of courtesy that proceedings are about to be issued herein seeking a judicial review”. However, the current application for Judicial Review was not issued until 26 August 2010, some five weeks later. I shall have to consider in more detail later in this judgment the reasons for what is admitted to have been delay in issuing the application, in order to determine whether, in all the circumstances, the claim has been made promptly as required by CPR 54.5. However, I propose to consider the substantive merits of the grounds for Judicial Review before considering whether the Claimant’s application should be dismissed on the ground that it was not made promptly.20.The application for Judicial Review advances three grounds, only one of which, the first, is set out in the pre-action protocol letter. Mr Hugh Richards for the Claimant summarised these grounds, which I will consider in turn, in his Skeleton Argument as follows: