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Appeal judge hits out at "all-too-prevalent attitude" that in judicial review applications it is always possible to "have another go"

A Court of Appeal judge has criticised the way a case was brought that sought to challenge a ruling over a development in Wakefield.

Resident James Kenyon brought the case against the Secretary of State for Housing, Communities & Local Government, Wakefield Council and Hemsworth Town Council.

It concerned a site where the Secretary of State directed that a proposed development did not need an environmental impact assessment within the meaning of  the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.

In Kenyon v The Secretary of State for Housing Communities & Local Government [2020] EWCA Civ 302 Lord Justice Coulson said: “The arguments on appeal ranged far and wide and included, somewhat surprisingly, a close review of the evidence before the [Secretary of State] and, subsequently, the judge.

“It was difficult to discern any substantial points of principle from any of this: speaking for myself, I wondered if the most important point to arise from the appeal hearing was the need to ensure that appeals in cases of this kind do not become another weary trot around a well-worn course.”

The site was a brickworks later infilled with waste of unknown composition and was subsequently a recreation ground with a small sports stadium. Outline planning permission was sought for 150 homes.

Coulson LJ noted: “Both before the [original] judge, and again on appeal, there were references to other documents which were not available to (and therefore did not inform) the [Secretary of State’s] screening direction of [the EIA].

“In judicial review proceedings it is generally inappropriate for parties to seek to rely on documents (and to advance arguments based on those documents) which were not available to the decision-maker. Taken at its highest, such an approach undermines the entire process of judicial review.

“It runs the risk that the court will be asked to conduct a kind of rolling review, in which nothing is ever finalised or settled, and it does not matter what information was available at the time the decision was taken.”

Coulson LJ said such an approach would “only to encourage the all-too-prevalent attitude that, in judicial review applications, it is always possible to 'have another go’”.

He said the principal ground argued in the lower court was the cumulative impact on the locality of this and five other sites.

But then a new argument was introduced that the effect of increased traffic from the recreation ground site alone on air quality would have a significant effect on the environment.

“This argument was not about cumulative effect at all: it was solely about the proximity of [the] site to an air quality management area,” Coulson LJ said.

“This 'challenge-creep' continued on appeal. The appellant's grounds of appeal raise no less than five separate arguments, only one of which can be linked back to the sole ground for which permission was originally granted.”

He dismissed all the grounds of appeal, noting: “On an appeal, it is incumbent upon an appellant to demonstrate that the judge erred in law in reaching such a conclusion.

“That requires considerably more than an attempt to reargue the case from the documents all over again.”

Mark Smulian

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