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R V Restormel Borough Council ex parte Parkyn v. R V Restormel Borough council ex parte Corbett [2000] EWHC Admin 344 (19th May, 2000)
Case no: CO/1406/2000 & CO/1425/2000
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
CROWN OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Wednesday 13th September 2000
BEFORE:
MR GEORGE BARTLETT QC
(Sitting as a Deputy Judge of the Queen's Bench Division)
-------------------
Regina
V
Restormel Borough Council ex parte Parkyn
-and-
Regina
V
Restormel Borough council ex parte Corbett
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________
MR C KATKOWSKI QC and MR J MAURICI (Instructed by Sharpe
Pritchard, London, WC1V 6HG) appeared on behalf of the Applicant Parkyn
MR J LITTON (Instructed by Russel Jones & Walker Solicitors London,
WC1X 8NH) appeared on behalf of the Applicant Corbett
MR G ROOTS QC and MR R TAYLOR (Instructed by Stephens & Scown
St Austell, Cornwall, PL25 5DR) appeared on behalf of Land and Property
Limited, an interested party
____________________
Judgment
(As Approval by the Court)
Crown Copyright
MR GEORGE BARTLETT QC:
1. The claimants in this case, both councillors of Restormel Borough Council,
seek by judicial review to challenge four decisions of the council as local
planning authority. Councillor Parkyn does so on behalf of the council itself,
Councillor Corbett in a private capacity. Three of the decisions are grants of
planning permission, and the fourth relates to an agreement under section 106
of the Town and Country Planning Act 1990, on parts of the Victoria Business
Park at Roche in Cornwall. The purpose of the challenge is to relieve the
council of the obligation to pay compensation to the landowners in consequence
of an order made by the Secretary of the State for the Environment Transport
and the Regions modifying one of the permissions. Permission to apply for
judicial review was granted to Councillor Parkyn by Sullivan J on 19 May 2000
and to Councillor Corbett by Forbes J on 30 June 2000 after Collins J had
refused permission on paper.
Victoria Business Park
2. Victoria Business Park comprises about 20 hectares of land lying in
otherwise generally open country on the south side of the A30 trunk road 3
kilometres west of the Bodmin bypass and 7 kilometres to the east of the Indian
Queens bypass on a single carriageway section of the road. The village of
Roche lies about 1.5 kilometres to the south. The nearest town are Bodmin, St
Austell, Newquay and Truro. The Business Park has been developed on land
formerly known as Penstraze Farm, which was bought by a company called ML Real
Estate Ltd in, I think, the 1970s. It has been developed in a piecemeal manner
from then onwards. Initially a number of planning permissions were granted for
the erection of factory/workshop units. Then in October 1986 permissions were
granted for retail (non-food bulky items) and warehouse development on part of
the site. It appears that the retail element (50,000 sq ft) was included to
give a high value use to make the site more attractive to developers. Overall
there have been numerous applications and permissions covering B1 (business),
B2 (general industrial) and B8 (storage/distribution) as well as retail and
other uses. Four of these permissions (including the three which are the
subject of these proceedings) are of particular relevance.
The planning permissions
3. On 12 November 1990 permission ("the 1990 permission") was granted to ML
Real Estates Ltd for the "Erection of non-food retail units with associated car
parking, etc.". The amount of retail floor space was 195,000 square feet. The
site was a roughly square area which formed the central area of the business
park and was bounded on three of its sides by what the plan showed as the
internal estate road. The permission was a full permission with the standard
5-year time limit on commencement. Among the conditions imposed was the
following:
"11. The total floorspace to be used for non food retail shall not exceed
125,000 sq ft comprising a maximum number of five units which shall not be
sub-divided but shall be occupied by a single non food retail operator."
4. An agreement made under section 52 of the Town and Country Planning Act 1971
between the council, ML Real Estate Ltd as owners, the mortgagees, and the
contracting purchaser of the land, contained a similar provision. The
application had been referred to the Secretary of State for the Environment as
a departure from the development plan, but it was not called in despite the
fact that there was an objection to it by Cornwall County Council.
5. On 5 January 1994 a permission was granted on an application made in 1993
for "Extension of time limit of Decision ... dated 12/11/90 for erection of
non-food retail units with associated car parking etc." The applicants were
Ernst & Young, receivers for ML Real Estate Ltd, which was then in
receivership. Although the permission (known, in order to distinguish it from
a later permission, as "the 1993 permission") was described as one that
extended the time limit of the 1990 permission, it did in fact differ from it
in respects other than this. The land to which it related excluded the
north-east corner of the 1990 site, and, whereas the 1990 permission had been a
full permission, the 1993 permission included the standard outline condition,
requiring the approval of details relating to the siting, design and external
appearance of the proposed buildings. Condition 11 of the 1990 permission was
included as condition 14. The council did not notify the Secretary of State of
the application.
6. On 8 August 1994 planning permission ("the 1994 planning permission") was
granted to Ernst & Young, as receivers for ML Real Estate Ltd, for
"Erection of buildings for uses within classes B1, B2, and B8 of the Town and
Country Planning (Use Classes) Order 1987 and for non-food retail use together
with associated car parking, services and roads." It related not only to the
1993 permission land but to substantial other areas of the business park as
well, including the area fronting the A30. The intention, it appears, was to
embrace all the undeveloped areas of the business park in a single
consolidating permission. It was an outline permission, and under condition 3
the reserved matters had to be submitted to the council within 3 years, that
is, before 8 August 1997. The conditions were the same as in the 1993
permission, except that there were 18 of them as conditions 1 to 4 were in
error duplicated as conditions 5 to 8, and there was a small but highly
significant alteration to the last condition (condition 18, formerly condition
14 of the 1993 permission). It provided:
"18. The total floor space to be used for non-food retail shall not exceed
125,000 square feet in area comprising a maximum number of five units four of
which shall not be subdivided and shall each be occupied by a single non-food
retailer."
As with the 1993 permission, the council had not notified the Secretary of
State of the 1994 application.
7. On 13 May 1997 planning permission ("the 1997 permission") was granted for
"Extension of time of [the permission] dated 8.8.94 for erection of buildings
for use within classes B1, B2 and B8 of Town and Country Planning (Use Classes)
Order 1978 [sc 1987] and for non-food retail use together with associated car
parking, services and roads." It said: "This is a further grant of permission
for the development granted by the original permission ... dated 8/8/94." The
conditions were identical to those in the 1994 permission except that the error
in duplicating conditions 1 to 4 was not repeated. The site, however, was not
co-terminous with that of the 1994 permission. The application for the 1997
permission was made by Land and Property Ltd through its agent Alan Leather
Associates. Since the 1994 permission Land and Property Ltd had become the
owners of Victoria Business Park, and its managing director was (and is)
Michael Thomas Lott, who had been the principal shareholder in ML Real Estate
Ltd. Again the council had not notified the Secretary of State of the
application.
8. Shortly after the submission of the 1997 application, David Stewart
Associates, acting for Land and Property Ltd, asked the council to agree to
modify the section 52 agreement so as to bring it into line with the revised
wording contained in the final condition, condition 18 in the 1994 permission.
The council accepted that this was appropriate, and a new agreement, under
section 106 of the 1990 Act, was made incorporating the revised wording.
Reserved matters applications
9. In July 1997 a reserved matters application pursuant to the 1997 permission
was made by Castle Court Retail Ltd and Land and Property Ltd. It referred to
what was proposed as "Victoria Shopping Village - the South West Outlet
Centre". The details submitted showed one large unit subdivided into 60
smaller units. The application was greeted with consternation by members of
the council, by Cornwall County Council and by others, who thought that such a
development would do severe damage to the shopping centres of nearby towns. It
was drawn to the attention of the Government Office for the South West. The
council did not determine the application, and the applicants appealed to the
Secretary of State.
10. A second reserved matters application was made in December 1997 for a large
unit of 105,000 square feet and four smaller units of 5,000 square feet. It
was not expressed to be for a shopping village and it showed no sub-division.
It was called in by the Secretary of State.
The modification order
11. On 29 January 1998 the Head of Development in the Government Office for the
South West wrote to the council's Chief Executive with reference to discussions
that the office had had with the council about the applications for approval of
reserved matters. He said that it was the Department's opinion that both the
1993 and the 1997 applications should have been referred to the Secretary of
State as departures from the development plan pursuant to the Town and Country
Planning (Development Plan and Consultation) Directions 1992. He referred to
certain provisions of the development plan and PPG6 (the Planning Policy
Guidance Note on town centres and retail development) and to section 54A of the
1990 Act. He said that the outline planning permission in respect of the
non-food retail use would appear to be contrary to PPG6 and might have an
adverse effect on the vitality and viability of nearby town centres. The
decision to grant planning permission could be said to be "grossly wrong", and
the Secretary of State was therefore considering whether it would be expedient
to make modification and revocation orders under section 97(1) of the Act. He
asked whether the council would be prepared to make the orders themselves.
12. The words "grossly wrong" reflected the wording of the Minister of Planning
in a Parliamentary answer on 20 December 1989, when he had said that the view
of the Secretary of State was that he should use his power to revoke or modify
a planning permission only if the original was judged to be grossly wrong.
13. A letter in similar terms to the one I have just referred to was sent to
the council on 10 March 1998 in relation to the 1994 permission. It was not
until 25 June 1998 that the Chief Executive gave the council's substantive
reply. She said, in summary, that the 1993, 1994 and 1997 permissions were
seen as continuations of the permission granted in 1990 and, whilst the council
accepted that in each case this could be said to be a failure to conform, the
planning history of the business park and the 1990 permission were regarded as
material considerations that should prevail. Accordingly, she said, any
failure to conform, if wrong, was not grossly wrong. It would only be grossly
wrong if it was established that retail development would have an unacceptable
impact on other centres; but the development proposed would not have that
effect. Other material considerations could be shown to weigh the balance in
favour of making no modification; but the council was not in a position to
consider whether they should make such an order without knowing the views of
the Secretary of State on the merits.
14. In the light of this letter the Secretary of State directed that a local
public inquiry should be held to consider all aspects of the factors material
to his decision on whether he should make an order or orders revoking and/or
modifying the permissions. The inquiry was held between 11 and 27 May 1999 by
an inspector, who sat with a legal assessor. In her report the inspector
expressed her overall conclusions in this way:
"3.338 I conclude that the grant of planning permissions 93/1385, 94/579 and
97/326 were grossly wrong for the following reasons:
i. in all 3 cases the development was in conflict with the relevant policies
and proposals in the development plan and with national planning policy
applicable at the time the permissions were granted;
ii. there is no evidence to show that there were material considerations which
were taken into account at the time the permissions were granted which would
outweigh the conflict with the development plan policies;
iii. the applications were not referred to the SoS as a departure.
3.339 The implementation of any of the permissions would cause damage to the
wider public interest for the following reasons:
i. the development of 5 retail warehouses or a `non-food shopping village' of
many units would cause harm to the vitality and viability of the centres of
Truro, St Austell, Newquay and Bodmin, in particular, and undermine the efforts
of these and other town centres in Cornwall to attract investment;
ii. the development of 5 retail warehouses or a `non-food shopping village' of
many units would significantly worsen traffic congestion at the A30/B3274
junction to the detriment of the free flow of traffic on the trunk road and
safety on the A30 and B3274;
iii. the development of 11,613 sq.m of out-of-centre retail floorspace would
undermine the aims of development plan and national planning policies to focus
development on town centres.
3.340 I conclude on the issues raised that it is expedient for the SoS to:
i. Revoke planning permission 93/1385.
ii. Modify planning permission 94/579 by removing non-food retail use.
ii. Modify planning permission 97/326 by removing non-food retail use."
15. The Inspector also recommended that the two appeals in respect of the
reserved matters applications should be dismissed. In a separate report she
recommended that the council should be ordered to pay part of the costs of
Cornwall County Council and the Highway Agency, who had appeared at the inquiry
in support of the proposed orders. The Secretary of State accepted the
inspector's recommendations except that he decided not to modify or revoke the
1993 and 1994 permissions since these had both expired by the time of his
decision. An order modifying the 1997 permission was made on 8 March 2000.
Costs were awarded against the council.
The claimants
16. Anthony Isaac Parkyn has been a Councillor since 1976 and is currently
deputy leader and chairman of the council's Planning and Building Control
Committee. He was authorised by resolution of the council on 10 April 2000 to
act as the applicant in judicial review proceedings, and the council is paying
his costs. Such a course of action, which overcomes the problem that the
council cannot be both claimant and defendant, was commended as "a convenient
and appropriate course to adopt" in R v Bassetlaw District Council, ex p
Oxby [1998] PLCR 283 by Hobhouse LJ (at 293A), who added, "...provided, of
course, that it is not abused." There is a witness statement from Councillor
Parkyn, to which I will refer.
17. The second applicant, William Harvey John Corbett, has been a Councillor
since May 1999. He is an elector and council tax payer of the Borough of
Restormel and he says that he makes his application in this capacity. In his
witness statement he says that he does so because of his concern that a large
payment of compensation would have a significant effect on the people of
Restormel; and because, as an individual tax payer, he does not have the
particular difficulty of the council, who are seeking judicial review after
twice having resolved not to do so and having argued that the decision to grant
planning permission was not so grossly wrong as to warrant revocation.
The grounds advanced
18. On behalf of the first claimant, Mr Christopher Katkowski QC submits that
each of the decisions of the council that are in issue were unlawful for each
of three reasons:
(i) The council failed to apply section 54A of the Town and Country Planning
Act 1990, and left out of account material considerations;
(ii) The council failed to refer the application to the Secretary of State in
accordance with paragraph 2(1) of the Town and Country Planning (Development
Plans and Consultation) Directions 1992; and
(iii) Condition 18 in the 1994 permission and condition 14 in the 1997
permission were imposed without the council having regard to material
considerations.
On behalf of Councillor Corbett, Mr John Litton adopts these submissions.
19. The case for Land and Property Ltd ("L & P"), who appear as an
interested party, is that, on the evidence none of these grounds are made out;
that the council are estopped from now contending that their decisions are
unlawful and that Councillor Corbett's position is no different from the
council's; and that the delay in applying for relief requires in all the
circumstances that relief should be refused. I will consider Mr Katkowski's
three grounds.
Ground 1: failure to have regard to material considerations
20. Under section 70(2) of the 1990 Act, in dealing with an application for
planning permission, the local planning authority is required to "have regard
to the provisions of the development plan, so far as material to the
application, and to any other material considerations." Section 54A provides :
"Where, in making any determination under the Planning Acts, regard is to be
had to the development plan, the determination shall be made in accordance with
the plan unless material considerations indicate otherwise." Mr Katkowski
submits that each of the decisions to grant planning permission was unlawful
because in no instance did the planning committee have regard to the provisions
of local and national planning policy or consider whether the development was
contrary to the provisions of the development plan and, if so, whether there
were nonetheless material considerations that made it appropriate to grant
planning permission.
21. Mr Katkowski placed great emphasis on the conclusions of the inspector
following the inquiry in 1999. She thought that each application was plainly
contrary to policy; that the officers' reports to committee had failed to draw
attention to the relevant policies and other material considerations; and that
each decision was "grossly wrong." While these conclusions are relevant to
ground 1, they do not establish it. What the committee did or did not take
into account is a matter that requires to be made out on better evidence than
this. Councillor Parkyn in his witness statement made the standard
confirmation about the truth of the facts and matters deposed to in Form 86A;
and that included the following:
"86. The Committee reports in relation to these three permissions are extremely
brief and gave no information at all about the relationship between the
proposed development and national or development plan policies nor as to the
implications of section 54A of the 1990 Act.
87. Further there is no record that the Committee gave consideration to what
material considerations existed which might indicate a decision otherwise than
in accordance with the development plan, as required by section 54A of the 1990
Act.
88. It is submitted that these are the clearest breaches of section 54A and
section 70 of the 1990 Act.
89. These considerations which were not put before the Committee were plainly
and highly material. Indeed they were essential to the making of a lawful
determination of the applications."
22. Councillor Parkyn is recorded by the minutes as having been present at each
of the meetings. It is perhaps surprising, if he is able to remember at this
distance in time what matters were considered by the committee and what matters
were not considered by the committee, that he does not himself say what those
matters were in a more specific way than this. I attach no greater importance
to his evidence on this issue than as the vehicle for the production of
documents to which regard is to be had.
23. The reports to committee were undoubtedly inadequate. That on the 1993
application simply described the development as "Extension of time limit" on
the 1990 permission; identified "Employment" under "Constraints"; noted that
replies were awaited from the standard consultees; and set out the proposed
conditions. The report on the 1994 application followed a similar form, except
that the suggested conditions were not listed (a matter I refer to later in
connection with ground (3)), and there was a short commentary explaining the
purpose of the application as the rationalisation of earlier permissions and
saying: "I will report further and display a plan at your meeting showing the
land which has been developed, the current application site and valid
approvals."
24. The report on the 1997 application, again in similar form, gave a short
site history; drew attention to condition 18 in the 1994 permission; noted that
concerns were expressed on parking by one of the businesses on the business
park and on the lack of industrial land by the council's Economic Development
Officer; noted also that the County Surveyor recommended refusal "because since
this site was granted planning permission in 1994 recent Government guidance
advises against the creation of out-of town retail parks"; and said that the
officer would display a plan and report further. The minutes for this meeting,
and for those at which the 1993 and 1994 permissions were granted, do not
appear to have gone beyond recording the decisions that were taken.
25. The inadequacies of the reports to committee and the reliance on oral
reports were the subject of adverse comment in a report prepared for the
council in 1998 by Mr Alan Smith, a former Chief Executive, who was asked to
examine the council's procedures and practices for dealing with planning
applications. They do not make it easy to identify what matters were and were
not taken into account, but the minimalist nature of the written reports
certainly suggests that the full policy implications of the proposals may not
have been taken into account by the committee. Confirmation of this, however,
has to be sought elsewhere. It is, I believe, to be found in the letter of the
Chief Executive of 25 June 1998 to the Government Office for the South West, to
which I have referred earlier. In this she said:
"Conformity. It appears that after 1990 the Council and the Officers
assumed that the principle of a mixed business and retail park development
(food and non-food) had been established. They did not therefore attempt to
reconsider the merits of the retail development at the time of the applications
in 1994 and 1997. In these circumstances, the first substantial question
appears to be whether the failure to conform can be regarded as "grossly
wrong."
26. At a number of places in the reports of the inspector and the assessor it
appears that the council were seeking to explain on this basis what they had
done. The reality is that in considering the 1994 and 1997 applications the
committee treated them as applications to renew earlier permissions and did not
address the provisions of the development plan or other considerations bearing
on the planning merits. Inferentially the same goes for the 1993 permission.
I am satisfied, therefore, on the totality of the material before me that none
of the decisions were taken in the light of a consideration of the applicable
local and national planning policies. Ground 1 is made out.
Ground 2: failure to refer the applications to the Secretary of State
27. Under paragraph 2(1) of the Town and Country Planning (Development Plans
and Consultation) Directions 1992, "a local planning authority shall not grant
planning permission on a departure application unless they have complied with
any requirement imposed in relation to that application by paragraph 3 of these
directions." Paragraph 1(2) identifies a "departure application" to mean an
application for planning permission for development which does not accord with
the provision of the development plan in force for the area. Paragraph 3
provides:
"Where a departure application which a local planning authority do not propose
to refuse is for -
(a) development which consists of or includes the provision of -
... (ii) more than 10,000 square metres of retail floor space...
the authority shall send to the Secretary of State -
(i) a copy of the application...
(ii) a copy of the requisite notice
(iii) a copy of any representations made to the authority in respect of the
application;
(iv) a statement of the issues involved in the decision and of any views
expressed on the application by a government department or another local
planning authority."
Notification of an application under the Directions enables the Secretary of
State to consider whether he should exercise his power under Section 77 of the
1990 Act and direct that the application be referred to him for decision.
28. The 1992 Directions were made under the Town and Country Planning General
Development Order 1988 (now repealed). The relevant statutory provision is
section 74(1)(b) of the 1990 Act which provides:
"74(1) Provision may be made by a development order for regulating the manner
in which applications for planning permission to develop land are to be dealt
with by local planning authorities, and in particular -
.... (b) for authorising the local planning authority, in such cases and
subject to such conditions as may be prescribed by the order, or directions
given by the Secretary of State under it, to grant planning permission for
development which does not accord with the provisions of the development
plan."
The predecessor provision (section 31 of the Town and Country Planning Act
1971) was in the same terms.
29. Since each of the applications included the provision of 125,000 square
feet (11,613 square metres) of retail floor space the prohibition in paragraph
2 of the 1992 Directions applied. Mr Roots accepts that there was a breach of
the requirement, but he argues that the breach was procedural only and did not
render the decision to grant planning permission unlawful. He relies on
Co-operative Retail Services Ltd v Taff-Ely Borough Council (1979) 39 P
& CR 223. In conclusions that were expressly stated to be obiter (see pp
240, 244, 251) the Court of Appeal expressed the view that a failure to comply
with the predecessor directions of the 1992 Directions which were made pursuant
to the 1973 General Development Order and section 31 of the 1971 Act did not
render a planning permission unlawful. At 245-6 Ormrod LJ said:
"[Counsel's] argument depends on section 31(1(b) of the Town and Country
Planning Act 1971, which is a difficult section to construe. On the fact of
it, it appears to restrict the power of any local planning authority to grant
planning permission for development that does not accord with the development
plan without previously referring the application to the Secretary of State in
accordance with the directions made by him under the section. The directions
themselves are expressed in language that also appears to restrict the powers
of the local planning authority. Mr Woolf, however, drew attention to the
oddly composite character of section 31(1), in which paragraph (a) is
unquestionably mandatory in character - that is, it clearly limits the power of
the local authority - whereas paragraphs (c), (d) and (e) are equally clearly
administrative in character and could not be regarded as restricting its powers
but [are] merely directing how it is required to proceed. This leaves
paragraph (b). This certainly appears to restrict the power of the local
planning authority, but, in practice, if read in this way, would go much too
far in limiting its powers. In the result, Mr Woolf has persuaded me that this
paragraph should not be construed as depriving the county council (in this
case) of power to grant planning permission without referring the application
to the Secretary of State."
30. Browne LJ's reasoning at 254-255 was similar, and he said (at 255):
"Mr Woolf [counsel for the Secretary of State] pointed out to us the strong
public policy objections to treating section 31(1)(b) of the Act of 1971,
article 12 of the Order of 1973 and the Direction of 1975 as going to
jurisdiction. If they did, the holder of an apparently valid planning
permission to be safe would have to satisfy himself that all the provisions of
the Direction had been complied with between the planning authority and the
Secretary of State, which would be very difficult, if not impossible. Having
regard to the opening words of section 31(1), to the consideration that
planning authorities do not need `authorising' to depart from the development
plan and to the public policy objection, I have come to the conclusion that
section 31(1)(b) is procedural only."
31. Mr Katkowski points out that the 1975 Direction differed from the 1992
Directions in what he says are two significant respects. Firstly, the
procedures applied where "in the opinion of the district planning authority"
there would be a conflict with the provisions of the development plan (in
contrast to the objective nature of the current criteria); and, secondly,
there was no prohibition on the grant of permission, but simply a requirement
to send certain material to the Secretary of State. Mr Roots submits that the
reasoning of Ormrod LJ and Browne LJ was based, not on the wording of the
Direction, but on the terms of section 31, which, so far as material, was the
same as that now to be found in section 74 of the 1990 Act. Accordingly, the
reasoning applies equally in the circumstances of the present case.
32. Mr Roots refers also to R v Lambeth London Borough Council, ex p
Sharp [1987] JPL 440, which concerned the Town and Country Planning General
Regulations 1976, which regulated the procedures under which local planning
authorities could themselves obtain planning permission. Woolf LJ, in a
passage which was consistent with the judgment of Stephen Brown LJ and with
which Donaldson MR agreed, is reported as follows (at 443):
"When the provisions of such regulations were contravened, almost invariably it
was unhelpful to consider what were the consequences of non-compliance with the
regulations by classifying them as containing mandatory or directory
provisions, or as containing a condition precedent, or as containing a
provision which rendered a decision void or voidable, or by considering whether
they contain a provision which goes to jurisdiction. What had to be considered
was: what was the particular provision designed to achieve? If, as here, it
was designed to give the public an opportunity to make objections to what was
proposed, then the court was bound to attach considerable importance to any
failure to comply with the requirements.
However, the breach of the requirements cannot be considered alone. It has to
be considered in the context of the particular circumstances in relation to
which the matter comes before the court."
33. The approach in the Lambeth case was followed by Schiemann J in R
v Doncaster Metropolitan Borough Council, ex p British Railways Board
[1987] JPL 444 in relation to the departure provisions contained in the Town
and Country Planning (Development Plans) (England) Direction 1981. The judge
held that the development manifestly conflicted with the allocation of land in
the development plan. Taff-Ely was not referred to in either the
Lambeth or the Doncaster cases.
34. Mr Roots submits that if Taff-Ely were to be followed, the failure
to notify the Secretary of State does not invalidate the 1997 planning
permission. If Lambeth and Doncaster are to be followed, the
questions are, firstly, what the requirement was designed to achieve; and,
secondly, whether the failure to comply with the direction justifies quashing
the planning permission in all the circumstances of the case. The purpose of
the requirement was, he says, to enable the Secretary of State to call in the
application if he wished to do so; and the failure to comply did not justify
quashing, for the same reasons as applied to the issue of discretion, which he
dealt with later.
35. Mr Katkowski's primary submission is that the 1992 Directions are in
terms that prohibit the grant of planning permission until the requirements of
paragraph 3 have been complied with, and therefore the purposive approach of
Lambeth in relation to the different provisions of the 1975 Direction
does not apply. I agree with this submission. The wording of paragraph 2(1)
is clear, and the prohibition is explicit. I can see nothing in the provisions
of section 74 to exclude the making of a direction that is prohibitory in
effect. The judgments in Taff-Ely were to the effect that section
31(1)(b) did not itself amount to a mandatory provision, not that directions
made under it could not, however they were worded, be mandatory (or
prohibitory) in effect. Thus neither that case nor Lambeth or
Doncaster operate so as to deprive para 2(1) of the 1992 Directions of
their explicit effect. And as far as the public policy objections, referred to
by Browne LJ in Taff-Ely, are concerned, the right conclusion, in my
judgment, is that these would have been taken into account by the Secretary of
State in altering the wording of the 1975 and 1981 Directions to that in the
1992 Directions. He evidently considered then, in contrast to the views
expressed on his behalf by counsel in 1979 in the Taff-Ely case, that
such considerations were outweighed by other policy considerations and he
decided to include in the Directions an express prohibition.
Ground 3: Condition 14 (Condition 18 of the 1994 permission)
36. The way in which condition 14 in the 1993 permission came to be amended has
not so far been established. In its 1990 and 1993 version the condition
provided that there should be a maximum of 5 non-food retail units and that
they should not be subdivided. In its 1994 and 1997 version it provided that
there should be a maximum of 5 units, four of which should not be subdivided.
In its amended form, the condition is somewhat obscure, but there appears to be
agreement, from which I do not dissent, that it means that a maximum of 5 units
may be constructed and that, provided there are 4 units which are not
subdivided, the fifth unit may be subdivided.
37. It is to be noted that the officer's report on the 1994 application, in
contrast to the reports on the other applications, did not set out suggested
conditions. It appears that the conditions were settled by an officer after
the committee meeting. An internal inquiry held to investigate the
circumstances in which the condition came to be amended failed to establish
what had occurred. The officer claimed that he had consulted three members
about it, but each of these members denied that he had been consulted. A
police investigation is being carried out, but no one has been charged with any
offence. It forms no part of the council's case that anything fraudulent
occurred, and they say expressly that there is no suggestion of any unlawful
conduct on the part of L & P. The same is said on behalf of Councillor
Corbett. Mr Lott in his witness statement says that neither he nor L & P
were in any way involved in making the 1993 and 1994 applications and that they
did not have any discussions or other contact with the Council, councillors and
council officers prior to their determination.
38. At the time the 1994 application was considered there was a scheme of
delegation providing for the settling of conditions by the responsible officer.
The amendment of condition 14 in the 1993 permission would have required the
officer to consult with members before settling it in its amended form. The
evidence does not establish that this procedure was not followed, and
accordingly it cannot be concluded that the condition was not lawfully
imposed.
39. Mr Katkowski submits additionally that the policy and other implications of
the condition should have been considered by the committee when they were
determining the 1997 application, but that they failed to do so and their
decision on the 1997 application was on this account unlawful. It seems to me,
however, that the committee did have the condition before them (it was set out
in the officer's report), and that it is only in the light of subsequent
events, in particular the factory outlet centre proposal, that the possible
implications have come to be appreciated. I do not think the failure to
anticipate that proposal was an omission that rendered the decision unlawful.
Ground 3, in my judgment, is not made out.
Estoppel
40. Mr Roots submits that the council are estopped from asserting in these
proceedings that any of the decisions to grant planning permission or enter
into the section 106 agreement are unlawful. He puts the case on the basis of
estoppel by representation, issue estoppel and estoppel by convention. He
relies on R v Caradon District Council ex parte Knott (16 December 1999,
unreported), in which Sullivan J held that a council that had made a revocation
order and a discontinuance order was estopped on all three bases from serving
an enforcement notice in respect of the development in relation to which the
orders had been made.
41. On estoppel by representation Mr Roots says that the council took a number
of actions which might be interpreted as representations that it accepted that
the 1997 permission was valid. It accepted as valid the application for
approval of reserved matters pursuant to the 1997 permission; it resolved on 9
June 1998 and again on 3 August 1998 and 20 May 1999 not to apply for judicial
review of the decision to grant the permission; and at the modification order
inquiry it did not contend that any of the decisions now challenged were
invalid (except that it was contended, in a point not raised in these
proceedings, that condition 14 was invalid and rendered invalid the whole of
the 1997 permission). In reliance on these representations, it is said, L
& P spent money in bringing the land forward for development and in
appearing at the public inquiry.
42. On issue estoppel Mr Roots argues that the modification order was made on
the basis that the 1997 permission was not unlawful. The public inquiry
proceeded on the basis that the planning permissions were valid (with the
exception, again, of the council's contentions on condition 14 of the 1997
permission). The validity of the modification order cannot now be questioned.
Therefore, he says, the council is issue estopped.
43. Estoppel by convention, Mr Roots says, arises where parties have acted on
the basis of a common assumption of fact, and it operates so as to prevent one
of those parties from going back on the assumption where it would be unjust or
unfair to do so. The common assumption of fact, he says, was that all the
planning permissions were in existence and were capable of implementation.
Since the council had conducted itself over the years on this basis it would
not be fair or just to allow it, at the point when a claim for compensation for
modification of the 1997 permission is to be made, to go back on that
assumption. On estoppel by convention, Mr Roots places additional reliance on
Hillingdon London Borough Council v Secretary of State for the Environment
Transport and the Regions (30 July 1999, unreported), in which Forbes J
held that a planning authority, having proceeded on the basis that development
was Crown development, while not subject to estoppel by representation or issue
estoppel, was estopped by convention from serving an enforcement notice in
respect of the development.
44. There can, in my judgment, be no doubt about the basic rule - that, apart
from certain specific exceptions, an estoppel cannot operate so as to inhibit a
public authority in the exercise of its powers. That is established by
Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1961] 2 All ER 46
and Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204. In the latter case, Megaw LJ identified two exceptions to the rule. The
first (which, as Megaw LJ said at 219j, may not be estoppel at all) is where a
planning authority, acting as such, delegates to its officers power to
determine particular questions: then, any decisions made by its officers on
those questions cannot be revoked. The second exception (see 221 b-c) is where
a planning authority waives a procedural requirement, although whether the
authority is estopped is likely to turn on the construction of the statutory
provisions setting out the procedure.
45. Megaw LJ's observations were directed specifically to the issue of
proprietary estoppel, but they apply in my judgment with equal force to all
three kinds of estoppel that Mr Roots seeks to rely upon. Estoppel is a
private law concept, affecting the dealings of persons between themselves. As
Dyson J put it, accepting the argument of counsel, in R v Leicester City
Council ex parte Powergen UK Ltd [2000] JPL 629 at 637:
"The starting point is that the law of town and country planning is public law.
It is an imposition in the public interest of restrictions on private rights of
ownership of land. The courts should not introduce principles or rules derived
from private law unless expressly authorised by Parliament to do so, or it is
necessary to give effect to the purpose of the legislation: see per Lord
Scarman in Pioneer Aggregates (UK) Ltd v Secretary of State for the
Environment [1985] 1 A.C. 132, [1984] 2 All E.R. 358, at 140H-141C of the
former report."
46. Under the Planning Acts a planning authority exercises its powers in the
public interest. There are interests beyond those of the planning authority
and the applicant that come into play when the exercise of development control
or enforcement powers arises. Planning decisions affect, in a variety of ways,
the public at large. Where, on the other hand, an authority is dealing with a
person on a commercial or contractual basis the private law principle of
estoppel may have application. Thus in Co-operative Wholesale Society Ltd v
Chester-le-Street District Council [1998] EGCS 76 and London Borough of
Hillingdon v ARC Ltd (16 June 2000, unreported) the Court of Appeal
accepted that an acquiring authority, having negotiated on compensation outside
the limitation period on the basis that limitation did not apply, might be
estopped from relying on a limitation defence.
47. In the present case, although the issue of compensation is one that lies
exclusively between the council and L & P, the actions, statements and
assumptions on the part of the council on which L & P now seek to rely took
place or were expressed in the context of the exercise by the council of its
public law functions. Its acceptance of the reserved matters applications, its
decisions not to apply for judicial review, and its resistance to the proposed
modification order were all actions carried out in the performance of its
public law functions, and the public at large had an interest in them. The
conduct on which Mr Roots seeks to place reliance did not form part of dealings
between the council and L & P on the question of compensation. While the
possibility of compensation was no doubt in the mind of the council when it
conducted itself as it did, the particular statutory powers that it was
exercising were ones which affected wider interests than those of L & P.
For this reason, in my judgment, no case on estoppel is made out.
48. Apart from this fundamental reason why estoppel has no application, there
are other reasons relating to the particular forms of estoppel on which Mr
Roots relies. In relation to estoppel by representation, neither a statement
of a person's understanding about a legal position nor a statement about what a
person intends to do or does not intend to do can found an estoppel: see
Territorial & Auxiliary Forces Association of the County of London v
Nichols [1949] 1 KB 35 at 50, Kai Nam v Ma Kam Chan [1956] AC 358 at
367; and Jorden v Money (1854) 5 HL Cas 185. It seems to me that each
of the representations upon which Mr Roots relies falls into one or other of
these categories.
49. For issue estoppel to apply four matters have to be established (see
Porter v Secretary of State for Transport (1996) 1 PLR III per
Stuart-Smith LJ at 117 B-D):
"1. The issue in question must have been decided by a court or tribunal of
competent jurisdiction. ...
2. That the issue must be one which arises between parties who are parties to
the decision ...
3. That the issue must have been decided finally and must be of a type to which
an issue estoppel can apply.
4. The issue in respect of which the estoppel is said to operate must be the
same as that previously decided."
In the present case the issue - whether the permissions and the section 106
agreement should be quashed as being unlawful - was not before the Secretary of
State. It was not a matter for him. He had to consider whether three planning
permissions should be revoked or modified. He had to treat them as valid for
the simple reason that they had not been quashed. In doing so, however, he was
not addressing the question that is now before the court.
Are the proceedings statute-barred?
50. Under section 288 of the Town and Country Planning Act 1990 a person
aggrieved by a revocation or modification order may apply to the High Court to
have the order quashed. An application must be made within six weeks of the
date on which the order takes effect. No such challenge was made in this case.
Under section 284, except as so provided, such an order "shall not be
questioned in any legal proceedings whatsoever." Mr Roots says that if the
1997 planning permission is held to be invalid, by implication the Secretary of
State had no jurisdiction to make the modification order, which would also,
therefore, be invalid. Consequently, he says, the claimants' challenge to the
validity of the planning permission is to question in these proceedings the
validity of the modification order.
51. I cannot accept this submission. A planning permission is valid unless it
is quashed by order of the court. The Secretary of State made his decision to
make the modification order on the basis that the 1997 planning permission was
valid. He was right to do so. The permission had been granted and had not
been quashed by the court. No challenge could have been made to the Secretary
of State's decision on the basis that he had wrongly treated the 1997
permission as being valid. The present proceedings do not call in question the
lawfulness of the Secretary of State's decision, since to conclude that the
1997 permission was invalid and to quash it now would not imply any error of
law on the Secretary of State's part when he gave his decision. The result of
quashing the permission would simply be to render the modification order of no
effect. The exclusion in section 284, therefore, does not operate so as to
prevent the present applications for judicial review.
Delay and discretion: the principles
52. The decisions which the council seek to challenge were made on
5 January 1994 (the 1993 permission), 8 August 1994 (the 1994 permission),
18 April 1997 (the section 106 agreement) and 13 May 1997 (the 1997
permission). The judicial review application was lodged on 19 April 2000.
Thus there was a lapse of time of over 6 years from the earliest decision and
nearly 3 years from the most recent. On any view this is a very considerable
delay. Section 31(6) of the Supreme Court Act 1981 provides:
"Where the High Court considers that there has been undue delay in making an
application for judicial review, the court may refuse to grant ... (b) any
relief sought on the application, if it considers that the granting of the
relief sought would be likely to cause substantial hardship to, or
substantially prejudice the rights of, any person or would be detrimental to
good administration."
53. In R v Criminal Injuries Board, ex parte A [1998] QB 659, Simon
Brown LJ set out the approach to be adopted when applying section 31(6) at the
substantive stage. Having considered the different approach required at the
leave stage (the subject of section 31(6)(a)), he said (at 676B-677B):
"If, of course, at the substantive hearing it appears that the grant of relief
would be likely to cause hardship, prejudice or detriment, then clearly the
reasons for the earlier delay may come back into play. But by that stage the
applicant will have established his substantive challenge (else he will in any
event fail on the merits and all questions of delay will be irrelevant) and the
question will be: Should the applicant have to suffer an unlawful decision or
should the respondent (or third party) have to suffer the hardship, prejudice
or detriment which would result from its being quashed? (I pose the question
by reference to a certiorari challenge such as this.) It is into that balance
that the earlier `undue delay' must then be put its weight in the scales being
affected principally by the following considerations.
(i) The length of the delay in seeking leave.
(ii) The extent to which the applicant was to blame for the undue delay. He
may, of course, have been wholly blameless: three months may have passed before
be could possibly have discovered any basis for challenge yet the grounds would
nevertheless have arisen (see 4(3)) so as to set time running, and `there is
undue delay for the purposes of section 31(6) whenever the application for
leave to apply is not made promptly and in any event within three months from
the relevant date:' see Ex parte Caswell [1990] 2 AC 738.
(iii) The extent, if at all, to which the hardship, prejudice or detriment that
would result from the quashing, results also from the delay. It does not, of
course, need to - that was precisely the point decided in Furneaux
[1994] 2 All E.R. 652. It is, perhaps, unlikely that it will; be period of
delay in applying for leave is likely to be far shorter than the subsequent
time taken to bring the substantive challenge to court. But if there is a
casual connection between the original delay and the hardship, prejudice or
detriment (as, for example, when a developer commits himself to implement a
planning permission before it is challenged but after it could have been
challenged), then the applicant can hardly complain if that delay weighs
heavily against him in the final balance.
(iv) Whether the applicant can be shown to have misled the court when he
obtained leave. If he did, then again he can hardly complain if it weighs
heavily against him. Indeed, if the extension of time is shown to have been
obtained in bad faith, then the court in its discretion can properly refuse
relief irrespective of whether the respondent makes out a case of hardship,
prejudice or detriment.
In short, quite different questions arise with regard to delay depending upon
whether the point is raised at the leave stage or at the substantive hearing.
At the leave stage (putting section 31(6)(a) aside), the question is whether
there is `good reason' for extending time and allowing the substantive
application to be made. This involves consideration both of the reasons for
the delay and the apparent merits of the challenge; the better the prospects of
success, the readier will the court be to extend time even where the delay is
unjustifiable, i.e. the merits themselves can contribute to or even supply the
`good reason.' At the substantive hearing, however, the question is whether,
in a case where there was initially `undue delay' (which may have been wholly
justifiable), the merits of the challenge (by now actually established) should
be overridden by the hardship, prejudice or detriment that would result from
the grant of relief."
54. Further authority as to the correct approach in a case such as the present
is to be derived from R v Bassetlaw District Council, ex parte Oxby
[1998] PLCR 283. It is this case that forms the foundation of the claimants'
case on the present application. There two planning permissions had been
granted against officers' advice for residential development on two areas of
land on 21 February 1994 and 14 October 1994 respectively. After concern was
expressed about a possible association between the landowners' agent and the
councillors who had chaired the Planning Sub-Committee meetings at which the
permissions had been granted, the council set up an independent inquiry. The
report of the inquiry (the "Phelps report") was delivered to the council on 14
March 1996 and was considered by the council at a meeting on 22 March 1996.
The report said that there was no evidence that any money or tangible benefits
had passed but that the conclusion must be reached that the system was
manipulated. It concluded that there must have been a failure on the part of
some councillors to disclose an interest on certain occasions. Judicial review
proceedings commenced in the name of the leader of the council on 21 May 1996.
Apparent bias on the part of the two chairmen was alleged, and the landowners
did not contest the case on the merits. Their first argument was that the
leader of the council had no locus standi to challenge the council's decision.
This contention failed. Hobhouse LJ, giving the substantive judgment, said in
the passage to which I have already referred (at 293A) that it was an
acceptable approach that the leader of the council should apply for relief. He
went on (at 293 A-B and D-E):
"It is a convenient and appropriate course to adopt provided, of course, it is
not abused. Such a role of the applicant is sufficient to meet the
requirements of the statute and the rules at the stage of application for
leave. At the stage of the decision whether or not to grant the remedy asked
on the substantive application for judicial review, the nature of the role of
the applicant is one of the factors which can, and should in cases such as the
present, be taken into account in deciding whether to grant the remedy sought
....
When exercising the discretion whether or not to grant the remedy the court
must take into account that in substance, though not in form, it is the council
itself that is seeking to have decisions of its own, through one of its own
committees, declared void. The questions of delay, alternative remedies and
prejudice to interested third parties and the ultimate exercise of the
discretion must all be assessed with this factor in mind."
55. The second contention on the part of the landowners was that it would be
wrong and a dereliction of duty for the council to seek to have its own
consents set aside rather than to exercise its power to revoke them. This
contention also was rejected, Hobhouse LJ saying (at 294 D-F):
"In my judgment this is a legitimate and proper attitude for the council to
adopt. If they are entitled to have the consents set aside without the payment
of compensation, that is what should occur and they should not lend themselves
to the payment of inappropriate and unnecessary compensation by reason of
exercising their power under section 97.
However this point again serves to focus what this case is about. Is it just
that these consents should be vacated on the application of the council without
the payment of compensation to the Howcrofts? To categorise the point as one
of `alternative remedies' is over-formalistic as is the argument of Mr Mole,
QC, for the applicant that the applicant is an individual who as such has no
capacity to revoke consents under section 97, which power lies solely with the
respondent council. As previously stated, the relevance of the sufficient
interest point is to demonstrate that it is in reality the council that is
bringing these proceedings and it is the council's interest that is being
served thereby."
56. The third contention, again rejected by the Court of Appeal, was that
relief should be refused because of the delay in making the application. On
this the court agreed with the judge at first instance that it was reasonable
for the council to await delivery of the Phelps report before deciding what
action to take. The lapse of time was relevant to the need to consider
carefully whether the landowners' interests had been prejudiced by the delay.
Hobhouse LJ said (at 298B) that, in the exceptional circumstances of the case,
the degree to which it could be said that there was delay and, in criticism of
the council, that it was undue was only marginal. The critical factor was thus
the hardship, prejudice and detriment to the landowners. No point arose on
whether the making of the orders asked would be detrimental to good
administration. Counsel for the landowners had "somewhat faintly" argued that
it would be.
"But in the present case it is the council that is seeking the remedy and it is
doing so in what it regards as the needs of good administration - that invalid
planning decisions should be declared to be what they in truth are and should
be set aside. The delay which has occurred, has not, in respect of the two
consents with which we are concerned, invalidated that submission." (At 298
D-E)
57. The landowners did not seek to make out a case on hardship. On prejudice,
the landowners said that they had entered into a conditional contract to sell
the land, and had incurred some unspecified expense in doing so. About this
Hobhouse LJ said (at 299 D-F):
"What they are submitting is that they should be entitled to enjoy the
benefits, as yet unrealised, of realising the development value of the land and
they will lose that if the planning consents are invalidated.
This submission adds nothing with the basic framework of the case. It is not
just that the Howcrofts should enjoy this benefit if they should not have
received it in the first place. They have no legitimate grievance on being
deprived of what they should never have had."
58. The lord justice rejected a further contention on prejudice relating to a
loan that the landowners had made to their agent. He then went on (at 300
D- F):
"Finally, they submit that they will have suffered prejudice because any fresh
application that they may now make will have to be made in changed
circumstances and may not be successful. This adds little to the basic point.
If the case had been that the existence of bias or apparent bias had not had
any effect on the original planning applications and that they should on their
own merits have been granted when originally applied for, there would be very
strong arguments that no order should be made setting aside the consents. The
effect of any such order would be to deprive the Howcrofts of planning consents
which they were either clearly or probably entitled. But that is not this
case. As explained in the Phelps Report and as is apparent from the summarised
history which I have recited earlier in this judgment, the only view that one
can take is that these planning applications ought never to have been
granted."
On the merits the lord justice confined his observations to the matter of bias.
His views can be seen in the following two passages (at 301 E-G and 302
B-C):
"The evidence of probable bias on the part of Councillor Hoare and Councillor
Crossland has been persuasively established. The history which I have outlined
provides a strong inference that that was what occurred. There is further
evidence which the council has obtained and which is deposed to on affidavit
that there were connections between Mr Coney and the councillors who played a
leading part in not only the decisions but in the preparatory steps that led to
a favourable consideration of the applications. A close association existed
between the relevant persons and the consistency of the conduct of the relevant
councillors provides a strong inference that the conduct was at least
influenced if not directed by that association...
I appreciate the seriousness of the conclusion that there probably was bias on
the part of councillors induced by the agent acting for an applicant for
planning permission. But the court has to act upon the evidence that is placed
before it and in my judgment the only proper conclusion on the evidence
available to us is that there was such bias.
In my judgment the applicant has presented a strong case in support of his
application that the two relevant planning consents were rendered invalid by
bias or apparent bias and had made out what is necessary for him to establish
on an application for the judicial review of the decisions."
59. Finally, taking into account all the factors and submissions, Hobhouse LJ
turned to the exercise of discretion. He said (at 302 E - 303A):
"The applicant has established what he needs to establish in order to
demonstrate that the two relevant decisions were improperly arrived at and
liable to be declared invalid. The counter arguments advanced on behalf of the
Howcrofts come down to the critical submission that they ought not to be
deprived of the fruits of the consents which they obtained, or certainly not
without compensation, and not on the application of the council itself made so
long after the event. In my judgment the arguments of the Howcrofts are
inadequate to lead to the conclusion that the applicant should not be granted
the remedy for which he asks. If it has been clearly established, as it has in
this case, that a planning consent was improperly and invalidly granted, then
it should, in principle, be declared to be void. It is not appropriate that,
other things being equal, the council should be required to pay compensation as
a condition of achieving that result. The answer would be different if the
planning consent was one which should in any event have properly been granted
or where at least it appears that that might be the case. Similar, the
position would be different if there had been a material change of position on
the part of an affected party on the faith of the consent being valid. Each
case would depend upon its own facts and an evaluation of the relevant factors
overall."
60. Mr Roots submits that there is a special need for promptness in the case of
challenges to planning permissions. In R v North West Leicestershire
District Council, ex parte Moses (12 April 2000, unreported) on an
application to quash a planning permission granted some years earlier, Simon
Brown LJ said:
"Hardship and prejudice apart, to quash the 1994 consent would involve
substantial detriment to good administration. As Pill LJ stated in R v
Newbury District Council ex parte Chieveley Parish Council [1999] PLCR 51,
67:
`It is important to good administration that, once granted, a permission should
not readily be invalidated. As confirmed in the House of Lords, s.31(6)
recognises that there is an interest in good administration independent of
hardship, or prejudice to the rights of third parties. The court is entitled
to look at the interest in good administration independently of those other
matters. It is important that citizens know where they stand and how they can
order their affairs in the light of the relevant decision ...'
Laws J had made the same point - in the context, be it noted, of alleged
non-compliance with an EC Directive - in R v Secretary of State ex parte
Greenpeace [1998] Env LR 415, 440:
`... there is ... every detriment to good administration, if the legal system
is seen to contemplate and accept challenges of the validity of this licensing
process at a stage when licensees have accepted the risks of venture on the
faith of what must have seemed a firm decision to grant the licences in
question. ... the promotion of this challenge now would generate a severe and
undesirable uncertainty within the whole process of the licensing regime, and
potentially within other analogous systems."
Delay. The rule that any application for judicial review must be made promptly
applies with particular force when seeking to challenge the grant of planning
permission by a local authority. As I stated in R v Exeter City Council ex
parte J.L. Thomas & Co [1991] 1 QB 471, 484:
`I cannot sufficiently stress the crucial need in cases of this kind for
applicants to proceed with the greatest possible urgency, giving moreover to
those affected the earliest possible warning of an intention to proceed. In
this connection it should be remembered that there is conspicuously absent from
the legislation any right to appeal in fact or law from a planning authority's
grant of planning permission. And even when a right of challenge is given -
the right of statutory application ... to challenge a ministerial decision - it
must be exercised within six weeks. Only rarely is it appropriate to seek
judicial review of a ... permission [granted by a local planning authority];
rarer still will be the occasions when the court grants relief unless the
applicant has proceeded with the greatest possible celerity.'
In R v Ceredigion County Council ex parte McKeown [1998] 2 PLR 1, 2 Laws
J cited that passage and continued:
`I would go further. I find it nearly impossible to conceive of a case in
which leave to move for judicial review will be granted to attack a planning
permission when the application is lodged more than six weeks after the
planning permission has been granted. I can see no rhyme or reason in
permitting the common law remedy of judicial review to be enjoyed upon a time
scale in principle more generous to an applicant than Parliament has seen fit
to fix in relation to those who desire to challenge a refusal of permission or
its grant subject to conditions. I do not say there cannot be such a case,
but, in my judgment, it would be a wholly exceptional one.'"
61. Further explanation for the need to avoid delay in challenging planning
decisions was given by Keene J in R v Cotswold District Council, ex parte
Barrington Parish Council (1998) 75 P & CR 515 at 524. While a number
of these passages cited relate to applications for permission to apply for
judicial review, the reasons for avoiding delay in such challenges apply
equally, in my judgment, at the substantive stage. I would also add that
fairness to the landowner whose planning permission it is sought to quash will
in most cases demand that delay in quashing the decision should not deprive him
of the opportunity to have his application reconsidered on a proper basis by
the authority that has acted unlawfully. That was a point that,
understandably, was found to be of no moment on the particular facts of the
bias challenge in Bassetlaw, but it is potentially of importance where
the challenge is one based (as here) on the failure to take account of material
considerations or to follow the proper procedures.
62. In the present case a number of factors require consideration in relation
to the issues of delay and discretion. There is the question of the extent to
which blame attaches to the applicants; whether to quash the decisions now
would cause substantial hardship to L & P or prejudice their rights; and
whether there would be prejudice to good administration. There are submissions
of Mr Katkowski and Mr Litton that L & P ought not to receive
compensation for a permission that they should never have had and that the
council tax payers of Restormel should not have to provide money to pay L &
P compensation. The position of the claimants also needs to be considered; and
since it colours much of what follows, I will take this matter first.
The position of the claimants
63. The nature of the challenge made by Councillor Parkyn is an exceptional
one. He applies, with the authority of the council, to quash four of the
council's own decisions. Although the application is in his name, it has to be
borne in mind that it is in reality, though not in form, an application by the
council itself, and thus material to it is the conduct of the council, in
relation to each decision, over the years since that decision was given. Mr
Katkowski sought to make out that Councillor Parkyn was more virtuous than the
council he represents - in that on two occasions, 3 August 1998 and 19 April
1999, he put motions before the full council that application should be made
for judicial review. What is material, however, is not that Councillor Parkyn
moved these motions but that the council rejected them. It is the conduct of
the council itself that matters and not that of its nominee claimant.
64. Councillor Corbett, in contrast to Councillor Parkyn, says that he makes
his application on his own behalf. He believes that the council faces a
particular difficulty in that it twice resolved not to seek judicial review and
argued at the modification order inquiry that its decision to grant planning
permission were not so grossly wrong as to justify revocation. He says that he
applies as an individual council tax payer in Restormel. Having only become a
councillor in May 1999, he was not a party to the conduct of the council which
he recognises as presenting them with a difficulty, and he had no more
knowledge than as a member of the public of what was going on. His only
concern is with the impact that he thinks a compensation payment would have on
Restormel council tax payers and accordingly, Mr Litton says on his behalf, he
had no grounds for challenging the council's decisions until the modification
order was made.
65. The reality of the matter is, it appears, somewhat different. At the
meeting of the council on 10 April 2000 at which a report on the possibility of
a judicial review application was considered three resolutions were passed.
The first was that Councillor Parkyn be authorised to act as the applicant in
judicial review proceedings. The second was that the costs of the application
be met by the council. The third was in these terms:
"The Chief Executive and Assistant Solicitor, in consultation with the Leader
and Deputy Leader of the Council, the Leader of the Liberal Democrat Group and
Councillors Budge and Corbett, be authorised to take all action necessary in
respect of such proceedings, including the appointment of an external applicant
at the Council's expense if Counsel advises this would be a better course of
action."
66. In the event, I was told, Councillor Corbett is paying his own costs. The
reality, however, is that he is added as a claimant in order to support the
council's case and as the result of the resolution that I have quoted. His
case is simply part of the council's case and accordingly, if the difficulties
which he sees facing the council are real ones, I do not think that the fact of
his participation in these proceedings can overcome them.
Blame for delay
67. The facts on which the claimants rely to make out the case on grounds 1 and
2 that the decisions were unlawful were known to or ascertainable by the
council at the time the decisions were taken. It cannot claim, as was the case
in Bassetlaw, that more evidence was required (as, in Bassetlaw,
the Phelps report) before it could establish illegality. Here the facts - what
the council did or did not take into account in reaching its decisions,
conflicts with development plan policy, and the floorspace of the proposed
retail development - were ones which the council was particularly well-placed
to know. Before the Secretary of State's decision on the modification order no
proceedings were taken on its part to have the decision quashed for two reasons
- firstly because it was in favour of the development it had permitted; and
secondly because it was advised by counsel that judicial review proceedings
would fail. It twice resolved not to take judicial review proceedings.
68. In my judgment judicial review proceedings would indeed have failed. As
Bassetlaw makes clear, for a council to seek to have its own decisions
quashed is an exceptional course of action, and there must in my view be strong
public policy reasons against allowing an authority to succeed in such course
of action in the absence of exceptional grounds. As a matter of discretion,
the court would be likely to refuse to quash a decision on an application by
the authority made simply on the ground that it had omitted to take account of
material considerations, even ones of major importance. Something more would
be required to justify quashing the decision. In the present case, if an
application had been made promptly after any of the decisions in question, it
would inevitably have met with strong opposition from L & P, who would no
doubt have pointed out, as far as the planning merits were concerned, that
there were arguments, including the benefits to the local economy and
employment, and the previous commitment to development, why planning permission
should be granted; and in these circumstances that the council should not be
allowed to have its decision set aside if it was one to which, had it taken
account of material matters, it could lawfully have come. If the decision was
simply perverse, one to which no reasonable authority could have come, such
illegality might have constituted exceptional circumstances justifying the
court's intervention. But it is not part of the council's case that any of the
decisions were unlawful in this sense; and although the Secretary of State
considered them to be grossly wrong it is not suggested that this implies a
conclusion that they were Wednesbury unreasonable.
69. As far as ground 2 is concerned, it is hard to see how an application on
the council's part to have the decisions quashed could have met with success
unless it had had the explicit support of the Secretary of State. The purpose
of the 1992 Directions was to provide the Secretary of State with the
opportunity to call in an application if he thought it appropriate to do so.
There is, however, no evidence that the Secretary of State would have supported
an application to quash the decisions on the ground of conflict with the
Directions rather than that he would have chosen to follow the course which he
has in the event followed, of considering revocation and modification.
70. Thus the likelihood is, in my view, that any application by the council,
even if made promptly, would have failed; and the longer any such application
was delayed, the less chance it would have had of success. This could perhaps
have been advanced by the council as a reason justifying delaying an
application until the decision on the modification order, with its compensation
implications, had been made. (Of course the position of a person other than
the council would have been different in this respect.) But in fact Mr
Katkowski's submissions are to the contrary. He says that the council could
and should have taken proceedings earlier and that it was only because of wrong
advice that they did not.
71. It was in fact only after the Secretary of State's decision on the
modification order that the council resolved to alter its stance and seek
judicial review. At that point the council became potentially liable to pay
compensation, and, it argues, council tax payers will suffer if the decisions
are not quashed. Mr Litton submits that Councillor Corbett for his part could
not reasonably have been expected to seek judicial review until this potential
impact on him had been established. The fact is that all matters relevant to
illegality were known or ascertainable at the time of the decision. The
modification order, on the other hand, has relevance as far as the merits are
concerned; and the stronger the claimants' case in this respect, it seems to
me, the less blame should be attached to them in delaying their application
until the modification order was made. I consider this later.
Substantial hardship
72. On the basis of Mr Lott's witness statement, Mr Roots points to the
following actions taken by L & P in reliance on the planning permissions.
In reliance on the 1994 permission, he says, L & P -
(i) acquired the land from the receivers of ML Real Estate Ltd for
£450,000;
(ii) incurred costs of about £10,000 in employing agents to find a
developer to assist in the development of the land; and
(iii) incurred costs of £640 in securing the amendment of the section 52
agreement.
In reliance on the 1997 permission, L & P -
(iv) allowed the 1994 permission to lapse by not submitting an application for
approval of reserved matters;
(v) negotiated and entered into a conditional contract for sale of the site to
Castle Court Retail Ltd, and incurred costs of £16,000 in doing so;
(vi) spent about £9,500 in ensuring that roads and sewers were adopted and
a restrictive covenant discharged to enable the 1997 permission to be
implemented;
(vii) made reserved matters applications under the 1997 permission and incurred
costs in doing so;
(viii) incurred costs in borrowing money to finance the company's staff and
offices;
(ix) was forced to transfer half share in the freehold of the land to raise
additional finance;
(x) incurred costs of £60,000 in appearing at the modification order
public inquiry.
73. Mr Katkowski accepts that (x), the costs of the public inquiry, would not
have been incurred if the council had successfully moved for judicial review
before the inquiry; but he says, in relation to (v), that there is no mention
of whether Castle Court paid L & P for the benefit of the conditional
contract; and, in relation to (vi), the expenditure on roads and sewers and on
getting the restrictive covenant discharged, he says that such expenditure must
have added to the value of the land and the works cannot have related to any
specific scheme of development because there was no detailed consent.
74. Accepting as he does that L & P may have suffered loss as a result of
the council's delay in seeking judicial review, Mr Katkowski draws attention to
de Smith's Judicial Review of Administrative Action (5th edition) at paras
20-028 to 20-029, where it is suggested that in certain circumstances it might
be appropriate for the court in judicial review proceedings to require the
payment of compensation as a condition of its either granting or refusing
relief. He argues that this course should be followed here. In my judgment,
however, the loss to L & P goes beyond what could reasonably be calculated
in the present proceedings. The fact that L & P bought the land in
reliance on the 1994 permission is, in my view, a matter of substantial
importance. So also is the point that, if in May 1997 the 1997 application had
been refused by the council or had been notified to the Secretary of State,
instead of being permitted, L & P would have realised that they needed to
submit details under the 1994 permission. They had to do this before 8 August
1997 in order to keep that permission alive. I have no reason to believe that
they could not or would not have done this. The fact is that L & P
conducted their business over a number of years on the basis that the
permissions were valid, and whether or not the loss they would suffer in having
their entitlement to compensation removed is correctly characterised as
substantial hardship, as a detriment to them it must be a matter of
considerable weight in the exercise of my discretion.
Good administration
75. The possibility of prejudice to good administration must inevitably fall to
be considered where a council is seeking to have one of its own decisions
quashed. In the present case different considerations in my view apply in
relation to the two grounds on which, as I have held, the decisions of the
council were unlawful. Ground 1 is made out because the council failed to take
account of material considerations. But, as I have said, on the evidence it
would probably still have granted planning permission if it had taken account
of all that it should have done. To allow it in these circumstances to have
its decisions quashed would, in my judgment, be to harm good administration.
76. As far as ground 2 is concerned, where a court is being asked to quash a
decision for failure to comply with a procedural provision it must be a matter
of some weight that it is now too late to observe the correct procedure. The
person for whose administrative benefit the procedure was provided, the
Secretary of State, has not sought to have the decisions quashed so that the
correct procedure could be followed. He has chosen to go down the modification
route. In these circumstances it would not seem to me to be consistent with
good administration that the council should now be able to pray in aid their
own failure to observe the requirements of the Directions.
77. Furthermore, as a result of the Secretary of State's decision to proceed by
way of modification, substantial administrative time and money has been spent
on pursuing this procedure. A public inquiry has been held running into many
days. The department itself, the Highways Agency, Cornwall County Council and
other bodies and individuals have devoted to this process resources which could
no doubt otherwise have been directed elsewhere. To set aside at this stage
the decisions on which this procedure was based would, in my view, be
inconsistent with good administration.
78. Another aspect of prejudice to good administration arises in relation to
the question of what is the right approach to the quashing of planning
permissions unlawfully granted. Mr Katkowski places strong reliance on what
Hobhouse LJ said in two of the passages from his judgment in Bassetlaw
that I have referred to ([1998] PLCR 283 at 298 D-E and 302E-303A). In the
first he apparently accepted the council's view "that invalid planning
decisions should be declared to be what they are in truth and should be set
aside;" and in the second he said: "If it has been clearly established, as it
has in this case, that a planning consent was improperly and invalidly granted,
then it should, in principle, be declared to be void." Those statements must
however, in my judgment, be read in relation to the particular, and unusual,
circumstances of that case. Indeed in R v Newbury District Council ex parte
Chievely Parish Council, in which Bassetlaw was considered, Hobhouse
LJ agreed with the judgment of Pill LJ ([1999] PLCR 51 at 67, which is also
quoted above) that: "it is important to good administration that, once granted,
a permission should not readily be invalidated." That I take to be the right
approach in the absence of something exceptional, like the bias in the
Bassetlaw case.
79. It is nevertheless important to bear in mind that in the present case the
modification order, by removing the offending part of the unlawful planning
permission, has removed also part of the justification for not quashing the
permission. The principal good administration reason against quashing a
planning permission - that people may have ordered their affairs on the basis
that it is valid - has rather less application where the permission itself has
been revoked (or where, as here in the case of the 1997 permission, the
disputed part has been modified). I am asked to quash the 1997 permission in
part, so as to excise from it as unlawful the part that has been removed by the
modification order. To do this would affect no one apart from those (L & P
and the council) with an interest in the possible payment of compensation. In
a sense this is the obverse of a submission that Mr Roots made, that the
decisions ought not to be quashed because to do so would serve no planning
purpose. It is the fact that quashing would serve no planning purpose that
reduces the force of the principal good administration argument against
quashing planning permissions.
The merits relating to compensation
80. Echoing the judgment in Bassetlaw Mr Katkowski submits that it would
be wrong for L & P to be paid compensation for the modification of a
planning permission that it never should have had. It was unlawful for the
council to have granted planning permission and it would not be right to allow
L & P to profit from this illegality. In putting the matter as he does, he
does not, I think, rely, for this argument, on the Secretary of State's
conclusion that each of the grants of planning permission was "grossly wrong".
He is right not to do so, in my view. He accepts that a conclusion that a
permission was grossly wrong does not itself imply that the permission was
unlawful. It is at least part of the purpose of the revocation and
modification order procedures that a local planning authority and the Secretary
of State should be able to take away planning permissions which they think
should not on their merits ever have been granted. But it is part of the
scheme of the Act that compensation should be paid in these circumstances.
81. The illegalities on which the council relies in the present case are very
different from the bias that was found to vitiate the planning permissions in
Bassetlaw. Moreover it is not suggested, again in contrast to
Bassetlaw, that L & P were in any way associated with or responsible
for the illegalities. The faults were purely those of the council. The nature
of the illegalities - the failure to take account of material considerations
and the failure to refer the applications to the Secretary of State - are not
ones from which the conclusion can be drawn that permission would never have
been granted if the council had instead acted lawfully. The evidence suggests
that, left to themselves and taking into account all that they were required
to, the council would still have granted the planning permissions. And I do
not think it is possible to conclude that each of the applications, if notified
to the Secretary of State, would inevitably have been called in and refused by
him, although it appears very likely that this would have happened. Thus the
assertion that the permissions were ones which L & P should never have had
can only be put on the basis of the planning merits, and this, in the light of
the function of the modification order procedure and the compensation
provisions to which I have referred, is insufficient.
82. It is the burden on council tax payers that the payment of compensation
would impose that the council relies on as the decisive factor on the merits.
It has, however, adduced no evidence to show what the size of this burden might
be - or indeed to show that there would be any significant burden at all.
There is no valuation evidence, as there could have been, as to the value of
the land with and without the retail permission. Instead Mr Katkowski asks me
to take judicial notice of the fact that land with retail planning permission
is very valuable. In my judgment it would be quite wrong to make any
assumption on this matter at all. Many factors, about which I have no
evidence, could affect the value of the land, and the mere fact that it is to
be valued as having planning permission for retail development is wholly
insufficient for me to form any conclusion or make any assumption. The fact
that L & P hope that compensation will be substantial is of no assistance.
The compensation may be very substantial or it may not be.
83. Mr Roots points out that the council have insurance up to £500,000 and
he says also that the council have not sought to explain the extent to which
compensation might in practice be funded by grant rather than out of the
pockets of council tax payers. Both these are points which it is right, in my
view, to bear in mind. The highest it can be put on the council's part is that
there is an unquantifiable risk that the payment of compensation will impact to
some unquantifiable extent on council tax payers.
Conclusion on delay and discretion
84. The overriding considerations are in my judgment these. The delay in
applying for judicial review in this case is, as I have said, very substantial
indeed - 6 years in the case of the earliest decision, and nearly 3 years in
the case of the most recent decision; and all the facts relating to the
unlawfulness of the decisions were known or were ascertainable at the time that
they were made. That in itself is an argument against relief in view of the
function of judicial review to provide an early correction of administrative
errors. Nevertheless it must be borne in mind that this is a challenge by the
council, and any challenge brought by them before the decision on the
modification order would have been so lacking in merit that it would have
failed. The modification order raises the prospect of the council having to
pay what could be a substantial sum by way of compensation because of the
modification of a permission that, like the two earlier permissions, the
Secretary of State considered to be grossly wrong. However the risk that
compensation will be substantial is unquantifiable, and it is also impossible,
on the evidence, to form any assessment of the possible impact on council tax
payers. On the other hand L & P have placed reliance on the permissions
and the council's favourable approach to their proposals in that they bought
the land in reliance on the 1994 permission, forebore to cement that outline
permission through the submission of details and have over the years conducted
their business on the basis that they had valid permissions to carry out the
retail development. It is not suggested that they share any of the blame for
the unlawfulness of the permissions. For its part the council not only granted
the permissions but also, throughout the period up to and including the
modification order inquiry, maintained that they were both lawful and
appropriately granted on the merits. They thus refused the invitation to make
modification orders and they resisted the Secretary of State's proposal to do
so at a public inquiry that consumed a large amount of administrative time. On
three occasions, when faced with the prospect of modification orders being
made, they resolved not to seek judicial review. Taking into account all these
matters I am satisfied that it would not be just to grant relief. The
applications are refused.
- - - - - - - - - - -
MR BARTLETT QC: The applications in this case are refused for the
reasons set out in the judgment handed down.
MR TAYLOR: My Lord, in those circumstances I would apply for costs,
firstly in relation to the matter relating to Mr Parkyn. I ask for costs of
this hearing and of the leave application and to be assessed if not agreed. I
remind your Lordship of the order that was made in respect of the leave
hearing, which can be found at page B in the bundle, by Sullivan J on 19th May,
namely that costs were in the application.
MR BARTLETT QC: Yes.
MR TAYLOR: And in respect of Mr Corbett's application I would ask for an
award of costs to be assessed if not agreed as well.
MR BARTLETT QC: Yes, Mr Maurici?
MR MAURICI: My Lord, I do not resist an order that Councillor Parkyn pay
these costs of the Parkyn judicial review.
MR BARTLETT QC: Thank you, yes. Mr Litton?
MR LITTON: My Lord, I have to confess I am in some difficulty because I
was only made aware last night that your Lordship was handing down judgment
today. A copy of the judgment, I am afraid, did not get to me until about five
minutes before your Lordship came in, therefore I have not had an opportunity
to read the contents of that judgment, save for, really, the concluding
paragraphs, paragraphs 37 and 38.
MR BARTLETT QC: They are not the concluding paragraphs.
MR LITTON: It is the conclusion on delay and discretion.
MR BARTLETT QC: That should have the number -- it has, I think, in terms
of the paragraph numbers now been corrected so that there should be a version
available to you under the heading "Conclusion on delay and discretion" as
paragraph 84.
MR LITTON: My Lord, yes, and as I understand it, your Lordship has, in
essence, refused the applications on the basis of an exercise of discretion,
refusing relief.
MR BARTLETT QC: Yes.
MR LITTON: Substantially because of delay that had occurred,
particularly in relation, I think, to the council's failure to bring
proceedings at an earlier stage. What I do not see in those concluding
paragraphs, if I can call them that, my Lord, is any reference to Mr Corbett
and how delay has affected him, bearing in mind the submissions I made to your
Lordship at the hearing that, in effect, delay is not something that can be
levelled at Mr Corbett because his interest only arose once compensation was
likely to be paid.
MR BARTLETT QC: No, you will find that, Mr Litton, dealt with, it should
be on page 29 under the heading "the position of the claimants". It starts
there, and Councillor Corbett is dealt with on the next page, if the paragraphs
are correctly numbered they should start "64...
MR LITTON: My Lord, yes. Well, my Lord, I see that you refer to one of
the resolutions in paragraph 65.
MR BARTLETT QC: Yes, and the conclusion that I come to in relation to
the position of Councillor Corbett is that he was, in effect, added as a
claimant in order to support the council's case so that his case should be
treated simply as part of the council's case.
MR LITTON: I understand that.
MR BARTLETT QC: You recall the submission that was made and--
MR LITTON: Yes, indeed.
MR BARTLETT QC: And I have acceded to that.
MR LITTON: I understand. I am very grateful, my Lord. On that basis,
my Lord, I do not see that I can properly argue that Councillor Corbett can
resist an order for costs but I will have a further application in due course
to make but unrelated to costs.
MR BARTLETT QC: Yes, yes. Very well. Then in relation to each of the
applicants there is an order that they pay the costs of Land and Property
Limited and in relation to Councillor Parkyn that he pays Land and Property's
costs of the application for permission as well.
MR LITTON: My Lord, can I -- just reflecting, would it, perhaps, be
appropriate, my Lord, given your Lordship's conclusions that, in effect,
Councillor Parkyn's application was brought in support of the council's
application, that the order for costs should make clear that Mr Corbett should
only pay those costs which are in addition to the costs incurred by the
respondents in defending the claim brought by Mr Parkyn because you will
recall, my Lord, that the argument and the time taken up for the hearing was
largely that taken by the council through Mr Parkyn and by the respondents in
dealing with the assertions made and submissions made by Mr Katkowski. There
was significantly less amount of time taken up by the submissions I made on
behalf of Mr Corbett and, correspondingly, the response made by the respondents
to that.
MR BARTLETT QC: Yes.
MR LITTON: In my submission it would be unjust that he should be
lumbered with the full costs of those hearings as well, it should only be those
addition costs.
MR BARTLETT QC: Yes, Mr Maurici?
MR MAURICI: All I would say is that the proper order should be that each
Councillor meet the costs of the respective applications that they have made
and that the quantification of that will be a matter for detailed assessment in
due course, but the order that I did not resist was an order that Councillor
Parkyn pay the costs incurred with the Parkyn application and I would say that
Councillor Corbett should pay the costs incurred by the Corbett application,
but the quantification of that would be a matter for detailed assessment as to
what costs were incurred in relation to which application.
MR BARTLETT QC: Well, the difficulty is, of course, that there is a very
large amount of common ground between them and to the extent that Councillor
Corbett was a separate party he, nevertheless, associated himself with the
arguments on the council's behalf, so his case is, to that extent, inseparable.
So I think an order in those terms might not serve the purpose that you seek.
If I were to make an order in the terms that Mr Litton asks, that is to say
that Councillor Corbett should pay such costs as are attributable to his
application over and above the costs incurred in respect of Councillor Parkyn's
application, would you resist that?
MR MAURICI: My Lord, I would not resist that.
MR BARTLETT QC: No, thank you.
MR TAYLOR: My Lord, I think that is a perfectly proper order to make.
MR BARTLETT QC: Very well, I make an order then in those terms.
MR MAURICI: My Lord, I do seek permission to appeal. As your Lordship
will be aware your Lordship can grant permission if either I can persuade your
Lordship that there are real prospects of success on appeal or if there is some
other compelling reason why this matter should go to the Court of Appeal. My
Lord, having just given judgment against Councillor Parkyn I do not seek to
persuade you that there are real prospects of success, that would be an uphill
struggle, but, my Lord, I do say that there are other compelling reasons why
this matter should go to the Court of Appeal. My Lord, really, what it comes
down to is this case raises a number of important issues about the scope of the
Court of Appeal's decision in Oxby and, my Lord, I say that in regard to
a number of aspects, first of all your Lordship's judgment does touch on the
issue of what grounds of challenge in judicial review can properly be brought
as part of an Oxby challenge. Secondly--
MR BARTLETT QC: Wait a minute, the first ground is?
MR MAURICI: Well, your Lordship's judgment touches on what grounds of
judicial review can properly be the basis for an Oxby challenge, and
your Lordship obviously indicates that the special feature of Oxby was
bias. Your Lordship also refers to the fact that a Wednesbury
unreasonable challenge might be a proper basis for an Oxby-type
challenge but your Lordship indicates against the failure to take into account
the material considerations as being a proper basis for an Oxby
challenge. So, my Lord, there is an issue here about what grounds could
properly be the subject of an Oxby challenge.
Secondly, your Lordship's judgment touches on the issue of the proper
timing of an Oxby challenge particularly in relation to whether such a
challenge could have been made before modification proceedings or whether it
should be made after. And then, my Lord, thirdly, this issue does raise very
squarely the proper approach the Court should take to the exercise of
discretion in an Oxby-type case where one is dealing with issues of
delay and your Lordship's judgment touched on a number of issues relating to
the way matters such as prejudice and good administration and hardship caused
to third parties which to an extent goes beyond what the Court has considered
in Oxby and what I would say, my Lord, is that this judgment will be
read alongside Oxby. It does deal with, effectively, a number of the
issues that are part of the fall out of Oxby and in those circumstances,
my Lord, I would say it is proper for the Court of Appeal to have an
opportunity to reconsider or at least to consider, effectively, what the proper
limits are in its judgment in Oxby were and for those reasons I say that
there are compelling grounds to allow the appeal to the Court of Appeal so that
they can give proper consideration to the judgment given in the judgment of
Oxby.
MR BARTLETT QC: Yes. Mr Litton, do you have an application?
MR LITTON: My Lord, again, for obvious reasons I am in some difficulties
in formulating precise grounds for seeking permission to appeal. I would
certainly ally myself with the grounds that Mr Maurici has put forward on
behalf of Councillor Parkyn.
My Lord, I must necessarily in order to protect Mr Corbett's position at
least ask for permission. I do not think I can properly go beyond the grounds
advanced by Mr Maurici if they are sufficient to allow Mr Parkyn to be given
permission to appeal, then, in my submission, they are also grounds which
justify, in part, Mr Corbett to appeal, all be it that, of course, he does not
fall precisely in that ex parte Oxby category because he is not an
applicant funded by the council and, in effect, the council. But the issues
are so close that, my Lord, it would be inappropriate, in my submission, that
he should be precluded from appealing if Mr Parkyn, it is right, is given
permission. But at the very least, my Lord, I need to ask for permission so
that if I am refused I can properly go to the Court of Appeal.
MR BARTLETT QC: Yes, of course. It does not seem to me to be
appropriate that I should grant permission to appeal. The reasons that are
raised relate to the interpretation and the application of what I call the
Bassetlaw decision and those as treated in my judgment do not appear to
me to raise the sort of compelling reasons that would justify the grant of
permission.
MR MAURICI: My Lord, there is one further application I would seek to
make. Your Lordship has power under CPR 52 rule 4.2(A) to grant an extension
of time for filing of the appeal notice to the Court of Appeal even in a
situation where your Lordship refuses permission. My Lord, I would ask in this
case that the time for filing that notice be extended from the normal 14 days
to 28 days principally for three reasons. First of all, my Lord, we are at the
tail-end of the vacation period and, obviously, that means a number of people
are still away. My Lord, we are dealing, as your Lordship's judgment
recognises, with effectively a challenge by the council and obviously the
council has decision-making processes which must be gone through in terms of
deciding whether to pursue an appeal and to consider, of course, your
Lordship's judgment.
My Lord, my third submission would be obviously this is not an
uncomplicated matter, your Lordship's judgment runs to 38 pages, and time needs
to be given for both leading and junior counsel to advise on the prospects of
appeal and for such an application to be made. So my Lord, in those
circumstances I would seek an order that the time for filing notice to the
Court of Appeal would be extended to 28 days which was the period of time
previously allowed under the old rules and I would say in the circumstances of
this case that order is justified.
MR BARTLETT QC: Yes, as far as the fact that this is a council is
concerned, the time limit is intended to apply as much to councils as to any
other body and, as one knows, authorities do or should have in place procedures
that enable urgent decisions to be taken.
MR MAURICI: My Lord, although the way the 52(4) rule is phrased is that
the first notice must be filed at the Court of Appeal either in 14 days or such
other period as the court below directs, so it is not really a strict 14-day
rule. It does allow the court a discretion in a case where it thinks it
appropriate to extend that time. It is not really a strict 14-day rule and I
do say, in the circumstances of this case, given the particular complexity of
the case and the length of judgment that it is appropriate to allow 28 days
rather than 14.
MR BARTLETT QC: Yes.
MR LITTON: Can I again add that I ally myself to that application? My
Lord, in so far as Mr Corbett is concerned there is a particular difficulty,
your Lordship is aware that no consideration has yet been given to this
judgment. There is no benefit in Corbett's case of leading counsel having
either advised or appeared in front of your Lordship. I professionally am in
enormous difficulties, I begin a three-week highway enquiry on Tuesday of next
week, preparation for which is on-going at the moment and, therefore, it is
likely that someone else is going to have to be instructed in relation to any
notice of appeal. In this case where matters are complex, clearly they are
going to have to have sufficient time to be briefed and be brought up to speed
as to the issues so that they can properly formulate that notice of appeal.
MR BARTLETT QC: Yes, Mr Taylor?
MR TAYLOR: My Lord, I would object to the application. I would remind
your Lordship that, as is set out in your Lordship's judgment on page 30, the
council has already authorised the chief executive and the assistant solicitor
and a number of councillors to take all necessary action in respect of these
proceedings. There is no need for committees to consider this or for time to
be taken for those committees to sit.
This matter came to your Lordship with an expedition order, the reason for
that being the continuing prejudice being caused to my clients of not being
able to deal with their land and being able to pursue the compensation claim
further. There is nothing that my learned friends have raised this morning
which is unusual in the nature of litigation. A 14-day rule which is set out,
as my learned friend drew your Lordship's attention to, is the normal rule and
there is nothing that they have raised that I would suggest justifies an
extension of time.
MR BARTLETT QC: Yes. I am not prepared to extend the 14 days.
MR TAYLOR: My Lord, there is just one further matter, I should have
raised it earlier. My instructing solicitor has just reminded me of a point.
I think there might have been a slight slip in your Lordship's judgment in one
respect, it appears on the last page, on page 38, about four lines from the
bottom, your Lordship indicates that on three occasions when faced with the
prospect of occupation orders the council resolved not to seek judicial review.
I believe that should read two, but as I say I am slightly uncertain about that
comparing it with paragraph 63 on page 30.
MR BARTLETT QC: Well, I think the factual position, as I understand it,
is there were two occasions on which Councillor Parkyn moved that judicial
review proceedings should be taken, but that there were three occasions in
total on which the council actually resolved.
MR TAYLOR: In that case I apologise for wasting your Lordship's time.
MR BARTLETT QC: I believe that you should find all three dates set out
elsewhere in the judgment. I cannot, at the moment, place my finger on it.
But that is the explanation of the three. If it is wrong, it is wrong, but I
believe it to be right.
MR TAYLOR: Thank you, my Lord.
MR BARTLETT QC: Thank you.
© 2000 Crown Copyright
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