England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Collins)

		Royal Courts of Justice Strand London WC2 Monday, 17th December 2001

1. LADY JUSTICE HALE: Mrs Tilly seeks permission to appeal against the order of Mr Justice Collins made on 5th September 2001 in the Administrative Court. He refused her permission to bring judicial review proceedings against the Government of the United Kingdom. Sir Richard Tucker had previously refused permission on paper.
2. The application for judicial review is dated 20th June 2001. The decision which it says it wishes to challenge was made on 12th March 2001: that was a decision by the local planning authority, the London Borough of Tower Hamlets, to grant planning permission to News International in respect of satellite dishes on the roof of their building in Wapping.
3. The background to this application is that Mrs Tilly lives in a flat in East London near the News International building. On its roof is a considerable quantity of transmitting and receiving equipment. She believes that this equipment is damaging her health and disturbing her sleep. She also believes that its presence there contravenes both national and European legislation and the Human Rights Act and should not be permitted.
4. Her argument is well summarised in an affidavit and a skeleton argument which she submitted to the court below, but she has also put it very clearly to me. She describes this equipment as a complete satellite earth station containing generators, receivers and transmitters, operating on a microwave frequency. It has been there on that roof since 1995 to 1996. Initially there was no planning permission for it, nor were there any licences to operate it. In her view such a major installation on a 30 metres high building could not have been placed there without the authority of the Government.
5. She points to a number of factors which have led her to that conclusion. The first is that the first planning application in relation to this equipment was only made after she had placed pressure upon the authorities. She had taken a helicopter ride and observed what was on the roof and taken photographs. She realised that it was a complete earth station. The Council said they knew nothing about it. They sent somebody round to inspect and said that they would ask News International to apply for planning permission; yet planning permission was only granted in March 2001, five years later.
6. Secondly, it also required licensing; and yet licences were not granted until 1999. A parliamentary question which was asked on her behalf by her member of Parliament in December 1999 drew an answer from the minister, Patricia Hewitt, that they were licensed. The frequency given is, she tells me, a microwave frequency. The answer does not state when the licences were granted. But she says that they were granted in 1999 and therefore again the Government must have known about this installation and kept it a secret.
7. Thirdly, she draws attention to News International's denial that they are using microwave frequencies, which she says is a deliberate mis-statement, and to the size of these dishes. In her bundle there is a plan which contains a drawing and photographs and gives dimensions for the three largest dishes of 2800mm (2.8 metres). She says that those dimensions were written on the plan by News International itself; yet the planning permission which was eventually granted was granted on the basis that they were only 1.8 metre dishes.
8. Further, she draws attention to the Radiation Agency, which in 1996 said that these were all receiving dishes. They repeated that assertion in 1998. However, in 1999 they had to retract it but, in doing so, they said that these dishes were 2.4 metres in size.
9. She argues that that contravenes the law. She relies on a Department of the Environment, Transport and the Regions news release in 1998, which gave permitted sizes for satellite dishes generally and gave the information that a 1.3 metre limit was introduced for satellite dishes installed on buildings other than dwelling houses of 15 metres or more in height. There were other limits for other types of buildings. She interprets that as saying that in no circumstances could a dish be larger than that. I would not myself draw that conclusion because permitted development will be that for which further permission is not required, whereas development beyond that would require permission, which was eventually granted.
10. The main point that Mrs Tilly is making is that this combination of circumstances adds up to evidence that the Government knew all about this and was taking no action against News International to regularise the position for political reasons. In her skeleton argument she refers to News International's recent support for the Labour Party and wonders whether that is the explanation; although she would acknowledge, no doubt, that the installation took place initially before the Labour Government was elected.
11. There may very well be something here which deserves investigation at a political or governmental level. I do not know whether that is the case. I certainly understand why Mrs Tilly thinks it is the case. But instead of that, she has come to this court seeking judicial review.
12. She has already made several unsuccessful attempts to bring proceedings against what, on the face of it, are much more appropriate targets, were any of the proceedings to be appropriate. On 26th October 1999 the Court of Appeal refused her permission to appeal against the decision of Mr Justice Keene (as he then was) that she could not challenge the decision of the local planning authority not to serve an enforcement notice in respect of this installation but instead to require News International to apply for planning permission. The Court of Appeal took the view that that was a decision within the discretion of the local planning authority and that the court could not in the circumstances interfere with it. I detect a certain sympathy for Mrs Tilly in the terms of the judgment of Lord Justice Mantell, who gave the first judgment on that application.
13. Then on 4th July 2001 Lord Justice Tuckey refused her permission to appeal against the decision of Mr Justice Turner refusing to allow her to bring judicial review proceedings in relation to a decision of the Radio Communications Agency. The basis of that application was their refusal to provide her with the information that she wanted, which was confirmation of her view that there was unlicensed equipment in the installation. They had told her that all the equipment was, at least by that stage, appropriately licensed. The court, of course, was not in a position to engage in the resolution of any dispute of fact which that challenge involved.
14. Thirdly, and more to the point for the purpose of this application, on 17th October 2001 Lord Justice Schiemann refused her permission to appeal against the decision of Mr Justice Ouseley. He had refused to give her permission to bring judicial review proceedings against the London Borough of Tower Hamlets in respect of the very decision to which these proceedings relate. Lord Justice Schiemann pointed out that our whole litigation process depends upon having identified in a clear form precisely what was being alleged against whom. He also pointed out that the difficulties which Mrs Tilly was putting forward were not matters which went to the validity of the planning permission; nor, from what he was able to gather, was there a breach of the planning laws involved in the grant of planning permission.
15. That, I have to say, is basically the end of the matter on this application as well. Judicial review is a process whereby the court brings up before it and reviews a particular decision of a public authority. They do not investigate the merits of that decision. They decide whether it was properly made and whether it was in accordance with the law. The decision which Mrs Tilly says she wants to challenge in this application is the decision of the local planning authority, and she has already been refused permission to challenge that decision. One cannot have a second bite at the cherry in this way.
16. I quite understand that the case she is putting before me is a different one. It is that this combination of circumstances is evidence of some sort of Government plot and that is why she wishes judicially to review the Government of the United Kingdom. I cannot comment on whether there is any cause of action which she could bring for that purpose, still less on whether it would stand any real prospect of success. But I can be confident that this is not the way to try to do that. I am very sorry that Mrs Tilly feels that launching this sort of application is the best way to do it because, as the fate of the four applications which she has now made shows, she is very, very, very unlikely to succeed in this course. I would only hope there might be some other way in which she could bring to official attention the concerns which she has, in such a way that she might get some explanation that would satisfy her or some satisfaction in terms of the modification or otherwise of this installation. It is not for me to give advice. I cannot do that. I do not know whether this is something in which the local or central government Ombudsman would be interested. I see that her MP has taken a certain amount of interest in it.
17. But I cannot give her permission to bring the proceedings which she wants to bring. The application to me must therefore be refused.
Order: application for permission to appeal dismissed; there being no right of appeal from this decision to the House of Lords, Mrs Tilly's application to take the matter further refused; transcript of this judgment to be provided to Mrs Tilly at public expense.