England and Wales High Court (Administrative Court) Decisions

1. THE DEPUTY JUDGE: This is an application for leave for judicial review made by the Thamesdown Borough Council. The matter first came before Kay J on 19th February when he ordered there be a stay of the proceedings of the examination in public by the Wiltshire County Council of their Structure Plan with certain provisos, and that the matter should come before a deputy judge on the 21st February, which is what is occurring here today.

2. The Structure Plan, or the Replacement Structure Plan I think that it probably is, for Wiltshire has been prepared by the now County Council of Wiltshire under the provisions of existing legislation. As a result of a statutory instrument that is within the bundle of documents I have before me, statutory instrument 1995 no. 1774 entitled "The Wiltshire (Borough of Thamesdown) (Structural Change) Order 1995" the Thamesdown Borough Council are an authority that will be in effect separate from the county. It is not going to be required to produce its own UDP and the overall effect of the legislation and the statutory instrument is that it will be deemed, if the present review of the Structure Plan is approved, as having been party to that Structure Plan. Post 1st April, at a time when, as matters stand the Panel conducting the examination in public, will not in fact have considered or determined what to say in their report, will certainly not have delivered it even if this examination is allowed to go ahead. Looking at section 50, page 24, as from 1st April the position is that it will be deemed that the Plan is in fact a plan jointly produced and being brought forward by the new County Council, and the Thamesdown. By virtue of regulation 7 of the statutory instrument, and the provisions of section 50 of the Town and Country Planning Act, either of those authorities will have the right to withdraw the Plan at any stage after 1st April 1997. The County of course may have that right already but the right of Thamesdown and the joint rights appear when the statutory instrument takes effect as from the April date.

3. The EIP was set to commence in the middle of February. Shortly before its commencement Thamesdown indicated to the panel that it wished that there should be an adjournment or deferment of the hearing so far as it related to the housing matters and that they would be making an application to the Panel to that effect. That application they made and the basis of it, not necessarily every word that was said, is set out in pages 88 and 89 in the bundle. The essential points they took appear on page 89. They are really two-fold. The first, and I suspect the more important point in their eyes, certainly the one that I think Mr George places the greatest weight on, is that it was wrong to allow an EIP to go ahead, albeit that it was properly set up under the existing legislation, when the reality was that the Government, as indicated in circular 4 of 96, wanted both Thamesdown and Wiltshire to be parties to the Plan, and that there should be in accordance with Government guidance, joint meetings between those parties in terms of the consideration of the Plan. That consideration by virtue of the statutory instrument was not something to which Thamesdown were entitled until the 1st April, although Mr George has drawn my attention to a letter from the Department which made it plain that they hoped in the spirit of their guidance that there would be discussions at an earlier stage.

4. The second point was perhaps something that might be described as administrative, in that it was urged upon the Panel that because they, Thamesdown, were not yet a Structure Plan authority and would not be until 1st April, they did not have the staff to deal with strategic matters, although of course they had staff who could, as I understand it, properly advance an objection at the EIP.

5. The Panel considered that request, and rejected it. The chairman of the Panel, Mr Booth gave the reasons in writing. They are set out at page 90 of the bundle and there are some six of them. Mr George makes two complaints about the consideration of the application and of the Panel's determination. The first is that they were arguably wholly wrong or unreasonable. Mr George says that it is not necessary for Wensbury unreasonable to be shown, it is enough if something very close to it is demonstrated. The words "wholly wrong" are taken from the judgment of Forbes J in Mistral Investments (QB Division, 5th March 1994). Dealing with that submission it seems to me that there is much sense bearing in mind the provisions of the regulation and the Act which will actually bite after 1st April if the parties get together and give further consideration to this matter.

6. But that is not the issue that is before me. The issue before me is whether it was wholly unreasonable or whether it is arguably wholly unreasonable for the Panel to make the decision it did. I think that it is right to bear in mind that there is nothing unlawful nor indeed suggested to be unlawful in the actions that the county are taking in promoting the EIP at this stage and arranging a hearing at this stage, whatever may be the good sense or wisdom of it. Whilst I have indicated there might be some merit in considering the possibility of a deferment and there may indeed have been merit in not promoting the EIP at all at this stage. However, that is water under the bridge and I do not take the view that the Panel (a) were not entitled to reach the view that they did, or more particularly that it can be said that they were wrong in making that decision. I think this was a decision open to them, a decision properly made. Whether this court would reach the some view is neither here nor there. I do not believe that there is an arguable case that they were wholly wrong in reaching that decision.

7. I turn then to the second point raised by Mr George. Was there an error of law? He puts that essentially in two ways. He makes the point that it is clear law that the decision was for the Panel and not the Secretary of State. That is unchallenged and is patently right. Then he has to go on, and does go on to say, in fact it appears that the Panel have simply followed the Secretary of State. I think he has to put it that high but if I for the moment accept, although it is not my view, that would be enough, that they were merely influenced by the Secretary of State it is necessary to look at paragraph 3 of what the Panel said. Looking at that paragraph it does not seems to me that the Panel were following the Secretary of State or that they were allowing the Secretary of State's decision to be their decision. They noted, as was the fact, that the Secretary of State had written a letter. That matter had been put before them in argument, and there can be no criticism that they mentioned that matter as part of the argument but I do not read their item 3 as indicating in any way that they felt themselves bound or materially influenced by the Secretary of State's earlier view.

8. Mr George's second point, and this takes me back to the first point set out in page 89 in the bundle and his principal submissions of the problems which have emerged in this case, is that the Panel failed to take account of the position of the authority in terms of joint arrangements with the county after 1st April and also of the fact that the Secretary of State envisaged those arrangements to would be operated before 1st April although there was no statutory duty for that to happen. I think he referred to them as "voluntary discussions" that he hoped might take place. The question is: "Did the Panel ignore or fail to take account of those submissions?" I have to bear in mind that the reasons are necessarily short. They do not properly set out everything that was said. I have to bear in mind that the arguments have been advanced, both in writing and orally, and I do not think it proper for me to read into this letter any indication that the Panel failed to take proper account of those parts of the argument that I have just referred to. Nor indeed do I believe it to be the case. It follows that they did not in my judgment make an error of law in terms of not taking into account all matters that they ought properly to have taken into account. In those circumstances it is unnecessary for me to deal with the question of delay and I have not invited either Mr Aylesbury or Mr Jay to address me on that issue. I should say however, just in passing, that I was not wholly impressed by Mr George's submission upon that matter. For the reasons given leave is refused.

9. MR AYLESBURY: As I understand the position this matter was adjourned to today by Mr Justice Kay in order that the potential respondents could be represented. In those circumstances on behalf of the Panel members who are plainly and correctly the first respondents --

10. THE DEPUTY JUDGE: Yes, I was surprised to see that the Secretary of State decided it in the first instance. That was obviously recognised and put right.

11. MR AYLESBURY: Yes. Therefore on behalf of those respondents, my clients, I do ask that the applicant pay their costs.

12. MR JAY: The County Council were also served with these proceedings. It is obviously a matter of great importance to the county council and that is why we are here.

13. THE DEPUTY JUDGE: Do you resist those applications, Mr George?.

14. THE DEPUTY JUDGE: Before you do, may I say I did not of course deal with the question of the interim judgment since it did not appear to arise in the circumstances.

15. MR GEORGE: I have three submissions. First of all that there is some doubt as to whether you should ever be awarding costs at this stage. Proceedings have not begun. Leave has not been granted. There are not any proceedings, as far as I am aware. Mr Jay is the expert on this, but moving on from that, the situation is here that these defendants have come of their choice. The judge did not order them to come. They have come because Wiltshire requested they come. When the judge gave leave he specifically included the words "if they wished to appear." They have chosen to appear and found this an expeditious way of getting rid of these proceedings, but if any potential respondents intervene at this stage of the proceedings they do it in the knowledge that the court has a discretion which it often exercises not to award their costs.

16. THE DEPUTY JUDGE: Mr George, is it right to say that had they not come along it would have been too late, because if you have got your leave without objection. I indicated I was unaware of where I was eventually going to go and you and others agreed that the reality -- I think perhaps Mr Jay was not wholly in agreement -- is that if you got your leave you would also get your injunction. So the result would have been if they had not come today to oppose, that you would have been likely to get your leave unopposed.

17. MR GEORGE: It does not follow. You Lord appears to have reached a view on the merits without needing terribly much assistance.

18. THE DEPUTY JUDGE: After listening to you, Mr George, yes. That is not a very flattering thing to say, but I do not mean it that way.

19. MR GEORGE: That appears to be the reality of the situation.

20. THE DEPUTY JUDGE: I think that is right, Mr George. Having listened to your arguments I did not find myself persuaded. That may have happened if they were not here. I accept that. I have received very little help -- and I do not mean that offensively -- either from Mr Aylesbury or Mr Jay. But they were not to know that.

21. MR GEORGE: It is always the same in any application for judicial review; the matter must be discretionary.

22. THE DEPUTY JUDGE: I appreciate that, Mr George, and in many circumstances I would follow your line without hesitation because if leave is granted in most circumstances there are no immediate problems. There may be of course, but in this case there is a clear potential immediate problem.

23. MR GEORGE: The other matter, my Lord, is this. It is highly unusual to grant two sets of costs in judicial review. Simply here what earthly reason was there to have two counsel here. Here you have the situation where the inspector is being paid for by the authority. In no sense were they in any way acting improperly in respect of this hearing had they appeared through one counsel. If they decide there is no reason to have both here the inspector or the council could have simply sent in the letter knowing there was going to be one counsel. We felt it proper to serve both of them so that they could partake. In the circumstances in my submission it would be highly unusual -- nor is your Lordship dealing with four interested people in any way connected with the distribution of public funds --

24. THE DEPUTY JUDGE: I am minded to think that some order for costs ought to be made, but I do find some persuasive force in what you say about both parties appearing here, not necessarily to say that it was wholly unreasonable. For the moment I would be inclined to think that the matter could have been dealt with by either joint representation or one party. Mr Aylesbury, for what it is worth I would be minded, if I take the route that I mention, to award you your costs.

25. MR AYLESBURY: Perhaps I will not say very much, but in my respectful submission it is plainly appropriate that the deciding authority in this case --

26. THE DEPUTY JUDGE: That is why I am minded to grant you your costs because it is essentially the position of the Panel that is being challenged, and I think it right that, bearing in mind the consequences had leave been granted because the argument was not potentially developed, albeit Mr George is right I did not need to call upon you to any great extent.

27. MR AYLESBURY: I am grateful. I would make this point in relation to one suggestion that has arisen, and I would make this submission anyway, but I also do it on instructions from behind. The Panel would have found great difficulty with the proposition that they should be jointly represented with Wiltshire as the promoting authority. They are after all an independent Panel in adjudication.

28. THE DEPUTY JUDGE: If I indicated the contrary, when you stop and pause and think about that point that makes good sense. It would be arguably wrong for them to be jointly represented. It does not deal with the point of whether there should be two orders for costs.

29. MR JAY: We were faced not merely with an application for leave to apply for judicial review, but also an application for an injunction. It is that second application which in particular creates the arguments here. It was not until this morning that Wiltshire knew the Treasury Solicitor would be instructing my friend to make submissions to the court. It was thought it would be only me making submissions. It is for that reason primarily that I am here. This is an appropriate case given the importance of the matter to my clients, they instruct me to make submissions and perhaps exceptionally I am here.

30. THE DEPUTY JUDGE: Mr George I was minded to make just one order, but do see some force in the point that has just been made. It is clearly an acceptable situation.

31. MR GEORGE: Why did they not liaise yesterday?

32. THE DEPUTY JUDGE: That is not the point that persuades me. It is not the time factor. It is whether it would be appropriate for the Panel to join with the county council, which at the moment I am minded to think it is not, and whether the county council have any, as it were, separate interest that exceptionally justifies them being here.

33. MR GEORGE: What have they to say which could not be said by experienced counsel on behalf of the county?

34. THE DEPUTY JUDGE: I think that Mr Jay has touched upon the point. It would really only primarily relate to the question of the consequences of an interim injunction.

35. MR GEORGE: So far as consequences, they could have put in an affidavit and have done, and so far as objecting to an injunction Mr Booth objected to that, and indeed objected in the letter which he sent in pointing to the inconvenience. There is nothing in there and nothing special about the case.

36. THE DEPUTY JUDGE: No, I am sorry I think that on balance as you rightly said this is an exceptional circumstance. Whilst I believe it is wholly appropriate for the Panel to have their costs I think on balance I will not make an order for costs in favour of the county council.