England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S DIVISION (ADMINISTRATIVE COURT)
(MR GEORGE BARTLETT QC sitting as a Deputy High Court Judge)

		Royal Courts of Justice Strand London WC2A 2LL Monday 24 June 2002

1. LORD JUSTICE MAY: Lord Justice Laws will give the first judgment.
2. LORD JUSTICE LAWS: This is a renewed application for permission to appeal against a decision of Mr George Bartlett QC, sitting in the Administrative Court as a Deputy High Court Judge, given on 27 March 2002 when he refused permission to seek judicial review. I refused permission to appeal on the papers on 15 May 2002. I can give no better introduction to the case than by setting out the beginning of the judgment below:

"The claimant in this case seeks permission to apply for judicial review to challenge a decision of the Mayor of London not to direct refusal of a planning application made to Brent London Borough Council by Bellway Homes Limited North London. The application was for the construction of 344 dwellings, four retail units, a doctors' surgery and nursery buildings, accesses, car parking, landscaping and open space on a site of 8.97 acres at Hirst Research Centre, East Lane, Wembley. The Council resolved to grant the full planning permission sought on 25th October 2001. The Mayor's decision not to direct refusal was taken on 7th November 2001. The planning permission was issued on 5th December 2001.

The claimant is a resident of Wembley, who lives almost opposite the proposed development. She is a member of the North Wembley Residents' Association, who have been opposing the development of the site for residential purposes. The remedies she seeks are quashing orders to quash the Mayor's decision not to direct refusal and the Council's grant of planning permission. The challenge that the claimant seeks to make thus concerns the exercise by the Mayor of London of his statutory planning functions."

3. The site is allocated as a Primary Employment Area in the Brent Unitary Development Plan ("UDP"), adopted in 1996. In 1999 Brent's Planning Subcommittee allocated the site as a joint employment and housing site in the proposed UDP review against officer advice. 41 objections were raised against the policy in 2000. These objections were heard by an independent inspector at the UDP Inquiry in March 2002. The inspector's report is still awaited, at least it was at the time of the hearing before the Deputy Judge.
4. The powers, duties and functions of the Mayor of London are generally established by the Greater London Authority Act 1999. Section 334 of that Act requires him to prepare what is called a Spatial Development Strategy which by subsections (2) and (3) must include his general policies in respect of the development and use of land in Greater London. By force of subordinate legislation contained in the Town and Country Planning (Mayor of London) Order 2000, the Mayor has power in certain circumstances to direct refusal of applications for planning permission. The power applies in cases where the application is of "potential strategic importance" as that phrase is defined in the Schedule to the Order.
5. The application in the present case fell within that part of the definition called Category 3E, being:

"Development which does not accord with one or more provisions of the development plan in force in the area in which the application site is situated and-

....

(b) comprises or includes the provision of more than 150 houses or flats or houses and flats".

6. Article 3 of the Order requires the local planning authority as soon as reasonably practicable after receiving an application of potential strategic importance, to send to the Mayor a copy together with the supporting documentation. As the Deputy Judge noted, this has come to be known as a stage 1 referral. Unless the Mayor has notified the authority in writing that he does not wish to be consulted, the authority may not then grant planning permission on the application unless they have sent the Mayor copies of all representations, the relevant committee report, a statement of the planning permission they propose to grant plus any conditions intended to be imposed, and 14 days have elapsed since the Mayor received those documents or he has notified the authority that he is content for permission to be granted. All these matters are catered for by article 4 of the Order and constitute what is called a stage 2 referral. The power to direct refusal of permission is given by article 5. Article 5(1) provides:

"If the Mayor considers that to grant permission on an application which has been notified to him under article 3 would be-

(a) contrary to the spatial development strategy or prejudicial to its implementation, or

(b) otherwise contrary to good strategic planning in Greater London,

he may, within the period specified in article 4(1)(b)(i), direct the local planning authority to refuse the application."

7. The "period specified" as there referred to is the 14 days to which I have referred. Article 5(2) requires the Mayor to take account of a large number of matters. The judge thought that by force of the Town and Country Planning Act 1990, his decision whether to direct refusal must be made in accordance with the development plan unless material considerations indicate otherwise. I am not so sure about that; section 74(1)(c) merely requires the Mayor to have regard to the development plan.
8. The deputy judge described the procedures which are in practice adopted as follows:

"In practice, when a stage 1 or stage 2 referral is made, the Mayor receives a report from his officers, which he then considers in a fortnightly mayoral planning and spatial development strategy meeting. Attending are the Mayor, the Deputy Mayor, Mayoral and Deputy Mayoral advisers, and officers from the Authority's Policy and Partnerships, Legal, the London Development Agency and Transport for London. The meetings are held in private. The public and assembly members have no legal right to attend and the Mayor chooses to exclude them. Agenda papers are not published beforehand but after the meetings have taken place copies of officer reports to the Mayor and the Mayor's decision letters to the boroughs are published on the planning decisions page of the authority's web site."

9. Critical to the issues arising on this application is the fact that there was an earlier application for planning permission to develop the same site. It was made before 3 July 2000 and so the provisions of the Town and Country Planning (Mayor of London) Order had no application to it. On 13 December 2000 Brent's planning subcommittee resolved that planning permission should be granted on that application subject to a section 106 agreement. On 4 April 2001 the Council's public services deciding committee resolved to grant planning permission subject to a section 106 agreement. However, a resident brought judicial review proceedings which in due course were resolved on the Council's undertaking not to issue any planning permission pursuant to the resolution of 4 April. On 14 August 2001 the High Court accordingly ordered the judicial review application to be withdrawn and Brent paid the applicant's costs.
10. The planning application, the subject of the present dispute, was made earlier on 15 June 2001. On 29 August 2001 the Mayor gave his stage 1 consideration to the application. The report from his officers referred to the earlier planning permission application and the fact that it was then "under judicial review". He summarised the reasons for that. On 30 August 2001 the Mayor's Planning Decision Manager wrote to Brent as follows:

"Having considered the report, the Mayor has concluded that his views on the proposal are as follows:

The proposed residential development on a strategic employment site is contrary to the emerging economic policies in the London Plan proposals document. However, the principle of the proposed change of use has been established by virtue of the proposed outline planning permission, which the Government Office for London has not raised an objection to.

The proposed development provides a very good level and mix of affordable and general market housing in accordance with the Mayor's emerging policies and this is to be commended."

11. Thereafter, on 25 October 2001 the Council resolved that planning permission should be granted on this second application. The stage 2 referral to the Mayor followed. The Mayor received a further report from officers which included the observation:

"In his letter of 13 August 2001 the Mayor accepted the principle of residential development as it had been established by virtue of a previous approval for outline planning permission."

12. In conclusion, the report said:

"The decision made by Brent Council secures a good level and mix of affordable and general market housing in accordance with the Mayor's emerging London Plan policies and some improvements have been made to meet the requirements of TfL [Transport for London]. Whilst the site layout remains unappealing, the overall benefits of the development, particularly the affordable housing provision, are on balance, in the interests of good strategic planning in London."

13. The Mayor then wrote to Brent as follows:

"Having now considered a report on this case ... I am content to allow Brent Council to determine the case itself (subject to any action that the Secretary of State may take), and do not therefore wish to direct refusal. I would however encourage you to negotiate with the applicant to achieve a further reduction in the amount of proposed parking of around 15 - 20 spaces, as part of your Section 106 negotiations, to secure a more sustainable development."

14. The Mayor having on 7 November 2001 decided not to direct refusal of planning permission, planning permission was issued on 5 December 2001. This judicial review application was filed on 27 December 2001 and served the next day.
15. A major complaint sought to be made in the judicial review is that the Mayor acted unlawfully in resting his decision of 7 November 2001, in part at least, on the proposition that the earlier resolution to grant outline planning permission for residential development established that the principle of residential development on the site in question had been accepted. Since the earlier proceedings had been settled on the basis that the Council would not act on the resolution of 4 April 2001 so as to grant planning permission, that resolution or decision should have been treated as irrelevant by the Mayor when he came to consider his functions under the 2000 Order in relation to the later application for planning permission. In consequence the argument was that the Mayor had failed to comply with section 54A of the Town and Country Planning Act 1990 requiring him to arrive at a decision in accordance with the development plan unless material considerations indicated otherwise.
16. Having regard to this extant application to seek permission for judicial review, on 24 January 2002 the Mayor considered a further report on the merits of the planning application. The Deputy Judge below set out substantial extracts from the report which appear in paragraphs 37 to 42 of the judgment. The report was supplied to the Administrative Court and to the parties under cover of a letter from the Mayor's solicitors dated 30 January 2002. That letter read in part as follows:

"It will be noted that the Mayor considers that the strategic need to increase significantly the supply of new housing in London, combined with the affordable housing contribution provided by this development in line with the Mayor's emerging policies, is a sufficient justification in strategic planning terms to support this development as an exception to strategic employment policies. Accordingly, the Mayor has affirmed that he would not wish to see the planning application of 15 June 2001 refused. It thus appears, as suggested, that the proposed proceedings serve no purpose."

17. Reference to "the proceedings" is a reference to the judicial review application which was then before the court. It will be plain from this letter, and this is supported by the report to which I have referred, that the Mayor's conclusion upon this reconsideration was to maintain his earlier view that he did not wish to interfere by way of his powers granted by article 5(1) of the Order of 2000.
18. The Deputy Judge considered that the applicant's contention that the Mayor's reliance on the earlier planning resolution as showing that the principle of residential development on this site was established was unlawful, was an arguable point (see paragraph 27). But he also concluded that the Mayor's reconsideration, through the January 2002 report, of independent grounds supporting the use of the site for residential development, meant that to quash the Mayor's earlier decision not to direct refusal of planning permission would be a pointless exercise (see paragraph 50 of his judgment). There was no reason, he held, to suppose that a yet further reconsideration might lead the Mayor to alter his view. In arriving at this conclusion, the Deputy Judge rejected arguments to the effect that (a) the January 2002 report did not necessarily represent the Mayor's own view (see paragraph 44); (b) that the Mayor had not approached this reconsideration with an unbiased mind (paragraph 46); and (c) that the Mayor had again failed to address the strategic question of the type of land used to be permitted on the site free of any regard to the earlier resolution of 4 April 2001 (see paragraph 50).
19. The Deputy Judge also held that the judicial review application had not been made promptly as the rules required. It is not necessary to go into the details of that, since, as my Lord indicated at the close of Mr Harwood's submissions, we would not refuse permission in this case purely on time grounds.
20. It is submitted that the judge should not have held that relief would inevitably be refused in the light of the Mayor's reconsideration. That is the only issue upon this application. Although the Mayor does not accept that his decision of 7 November 2001 was legally flawed on any of the grounds put forward in the judicial review application, it is not, as a I understand it, contended on his behalf that the judge was wrong to hold that the judicial review was arguable. The question therefore is whether, given the reconsideration of January 2002, there is anything beyond the most fanciful possibility that the Mayor might decide on a third look that, after all, he will direct refusal, and (this arises from the skeletons put in by the Mayor and the developer) even if there is, whether that could avail the applicant given the still extant application for planning permission that was launched before the Mayor's statutory powers arose.
21. Mr Harwood has marshalled a series of sustained criticisms of the processes surrounding the reconsideration of the reconsideration itself. They are summarised in his supplementary skeleton argument as being:

"Pre-judged, secretive, self-serving, open to substantive legal and merits criticism, kept from the public and the Greater London Assembly and the reasons given were contradicted by the Mayor's officers' evidence to the Assembly's Planning Advisory Committee."

22. The details behind this somewhat breathless description are given in the applicant's substantive first skeleton. If the question in these proceedings was whether the January 2002 reconsideration, seen as a distinct administrative or executive act by a public authority, itself fulfilled the public law tests which the court impose on such authorities, I would think that there is probably sufficient in the applicant's point to merit the grant of judicial review permission, although it is right to say that in a third skeleton put in on behalf of the Mayor powerful considerations are advanced to show that the Mayor is not required to operate like a local authority and the decisions he is enjoined to take are very much his own.
23. However that is not the question. The question is as to the utility of any relief, presumably a quashing order, directed to the Mayor's decision of 7 November 2001. As to that, I have concluded as follows. First, whatever the rights and wrongs of the reasoning and circumstances of the reconsideration, and despite Mr Harwood's submissions before us, it is clear that the Mayor is of the firm view that he does not desire to direct refusal in this case. This is a substantial consideration, not least in light of the shape of the Town and Country Planning (Mayor of London) Order 2000. The Mayor does not have to justify a decision not to direct. Article 4(2) provides that a temporary prohibition of any grant of planning permission by the authority does not apply "where the Mayor has notified the local planning authority in writing that it does not wish to be consulted pursuant to this article."
24. Article 5(4) of the Order provides:

"Any direction given under paragraph (1) shall be accompanied by a statement setting out the Mayor's reasons for that direction."

25. It is conspicuous that the Order does not oblige the Mayor to give any reasons for declining to direct.
26. Secondly, it is of considerable importance that the local planning authority has twice resolved to grant planning permission for this or an effectively identical development. It is entirely plain that the Council believes that the development should go ahead. There is no suggested illegality in the second decision leading to the grant of planning permission on 6 December 2001. Although the planning authority have undertaken to the court not to issue planning permission based on their resolution taken on the first application, there is nothing to stop the developers from asking the authority to decide that first and still extant application again. The Mayor would have no power to interfere. The express view of the local planning authority is that permission should be granted. It would clearly be possible to make such amendments to this earlier application as would be necessary to cater for the requirement of environmental impact assessment screening.
27. There is a third consideration. I would not found on it, but I cannot say other than that I have had it in mind. Assuming that the Mayor's decision of 7 November 2001 not to direct refusal was unlawful, I find it difficult to see what statutory right or power he might now have to direct refusal. Article 5(1) of the 2000 Order closes with the words:

"....he may within the period specified in article 4(1)(b)(i) direct the local planning authority to refuse the application."

28. The vires for this permission is section 74(1B)(a) which provides:

"Provision may be made by a development order-

(a) for enabling the Mayor of London in prescribed circumstances, and subject to such conditions as may be prescribed, to direct the local planning authority for a London borough to refuse an application for planning permission of a prescribed description in any particular case."

29. It seems to me that the time limit prescribed in article 5(1), 14 days from receipt by the Mayor of the article 4 document, is as if it had been contained in main legislation. I cannot see how it may be suspended or put in abeyance by the timetable for a judicial review. This does not render the Mayor's functions under the 2000 Order above the law. If he makes an article 5 direction, there is nothing in the article 5 time limit to inhibit a challenge. If he does not, the integrity of the planning system remains intact with all the statutory rights under the planning legislation given to objectors and others left to be exercised in relation to the planning authority's decision whether or not to grant permission. None of this seems to me to be affected by section 31(5) of the Supreme Act 1981 nor, with respect, by the decision of Ognall J in Brown [1997] ELR 100. This is not a case in which the court's proper role is in the least undermined by strict adherence to the timetable provided for by article 5(1). I would, as I have said, not found on this last consideration, which may have to be argued to a conclusion on another day.
30. It seems to me, for the reasons I have given, that this is simply a case in which there is no utility in granting permission. I cannot see that a court properly directing itself might give relief at the end of the day.
31. For all those reasons, I would refuse permission.
32. LORD JUSTICE MAY: I agree that this application should be refused for the reasons which Lord Justice Laws has just given. The Mayor decided not to direct refusal of the relevant planning permission. He had 14 days in which to do so. That time ran out. The reasons which led the Mayor to the decision to do nothing were, for the purpose of permission to bring judicial review proceedings, sufficiently attacked in one significant particular. But that would not of course mean that the Mayor would have had to have come to the opposite conclusion if he were required to think again. If required by the court to do so, and if it remains statutorily possible, the Mayor would have to reconsider the matter. He has informally done so and indicated what his reconsidered decision would be.
33. The reasons for this and the process by which he came to this latter view are attacked both by counsel and by the relevant committee. We are concerned with judicial review of his initial decision not to direct refusal, not with his informal reconsideration. The question is whether there is any point in directing the Mayor to reconsider the matter formally within the statutory framework.
34. I agree with Lord Justice Laws for the reasons which he has given, and with the judge, that there is not. I also agree that there might well be problems with the time limit of any such reconsideration, the 14 days having expired before ever these judicial review proceedings were launched.
Order: Application refused. Public Funding Assessment of Applicant's costs.