England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST

		The Royal Courts of Justice The Strand London Wednesday 24 April 2002

Wednesday 24 April 2002

1. LORD JUSTICE LAWS: This is a renewed application for permission to appeal against the decision of Collins J made on 17 January 2002 when he dismissed a claim for judicial review of the refusal by the Secretary of State to call in, and establish a public inquiry to consider, certain applications for planning permission and listed building and conservation area consents which the local planning authority (the London Borough of Hammersmith and Fulham) had decided in principle to grant. Permission to appeal was refused on the papers by myself on 7 March 2002.
2. The case concerns the Fulham football ground. It was first opened in 1896. It embraces at least two listed buildings and is in the Fulham Reach Conservation Area. As Collins J pointed out:

"As is perhaps obvious, the site is hardly ideal for a football club which aims to attract a large number of fans and plays in the Premier League. It is surrounded by houses, mainly late Victorian and Edwardian two storey terraced and semi-detached and modern blocks of flats. To the south of the ground is Bishops Park, a large public park extending to Putney Bridge the other side of which is the nearest underground station. Buses run along Fulham

Palace Road, which runs from Putney Bridge to Hammersmith Broadway .... On match days it is almost impossible to park a car within the immediate vicinity of the ground and so walks of 2 kilometres or more will be necessary for most who choose to travel by car to the ground."

3. The judge proceeded to describe what may be called the planning history of the site. Not least he referred to an application for permission made in 1994 by the Fulham Football Club for what I will loosely call regeneration of the ground. That would have involved retention of the listed buildings and the erection of substantial further buildings.
4. In relation to that the Secretary of State considered whether to exercise his call-in powers. Those powers arise under section 77 of the Town and Country Planning Act 1990 as amended. That provides, so far as material:

"(1) The Secretary of State may give directions requiring applications for planning permission ... to be referred to him instead of being dealt with by local planning authorities.

(2) A direction under this section -

may be given either to a particular local planning authority or to local planning authorities generally; and

may relate either to a particular application or to applications of a class specified in the direction."

5. In August 1995 the Secretary of State decided that he would call in the application. The learned judge sets out the letter of 9 August which indicates as much. There followed a public inquiry. The Secretary of State decided to give planning permission. That was challenged. The challenge was ultimately successful in their Lordships' House and the grant of permission was quashed.
6. So it was that in March 2000 the present applications were submitted. The judge briefly describes them thus:

"They involved the erection of a 30,000 all-seater stadium with ancillary facilities, a new riverside walk and a 7-storey apartment block containing 30 residential units. The existing buildings, including the listed buildings save for the brick facade to the Stevenage Road stand, were to be demolished."

7. Then the judge describes a modification to the scheme in October 2000 and notes that the application had been accompanied by a full environmental statement. Other details are given. In particular, the judge describes the extensive publicity and comprehensive consultation accorded and conducted by the local planning authority.
8. The meeting of 27 February 2001 of the local planning authority's relevant committee is a critical event in the history of the matter. It was on that occasion that the committee resolved that permission should be granted. The meeting was attended by some 600 people. There had been substantial objection to the proposals but also, as the judge notes, very substantial support. Members of the public were by standing orders not permitted to address the meeting.
9. After the committee decided that the scheme should be approved the present applicants applied to the Secretary of State again to exercise his powers of call-in. On this occasion, however, by letter of 28 March 2001 he declined. He said this:

"The Secretary of State's policy on call-ins is to be very selective. It is right that in almost all cases the initial decision on whether a development should proceed should be taken by the local planning authority.

Therefore, planning applications are in general only called-in if planning issues of more than local importance are involved, and if those issues need to be decided by the Secretary of State rather than at local level. Each case is considered on its individual merits. However, we have given as examples of cases where the Secretary of State might consider call-in appropriate those which, in his opinion, may conflict with national policies on important matters; could have significant effects beyond their immediate locality; give rise to substantial regional or national controversy; raise significant architectural and urban design issues; or may involve the interests of national security or of foreign Governments.

After very careful consideration, the Secretary of State has concluded, from the information before him that it is right in this case to leave the decision to be taken by the planning authority."

10. The applicant's solicitors wrote again demanding "full and cogent reasons", as it was put. They claimed that by failing to call the matter in the Secretary of State was denying a hearing to objectors and that was contrary to his obligations pursuant to the incorporation of the European Convention on Human Rights by the Human Rights Act 1998. But the Secretary of State replied saying there was no requirement to give reasons and in effect, as I understand it, repeating the general thrust of his earlier letter. He has certainly not given any express reasons touching the applicants' complaints concerning their Convention rights.
11. So it was that the claim for judicial review was made. It was said that the Secretary of State had failed to give reasons in relation to the call-in application. Arguments upon Article 6 of the European Convention were also run before Collins J and it was said that the refusal to call in was inconsistent with the Secretary of State's own policy and his decision to call in the earlier application in 1995. Collins J refused to accede to the application and dismissed the arguments put forward by the applicants on all points.
12. Before us today Mr McCracken for the applicants has concentrated on two points. They may be tabulated "reasons" and "Article 6". As I shall explain in a moment it seems to me that the two run together. But first I will deal very shortly with the complaint, which remains alive on the papers, that the Secretary of State's decision not to call in is inconsistent with the earlier decision in 1995. The learned judge said at paragraph 16 of his judgment:

"The alleged inconsistency with the previous call in decision is more apparent than real. The absence of an environmental statement [on the earlier occasion] had meant there had been no detailed consideration of the River Thames in particular and on car parking in the area. This had been covered by the time the current applications were before the Committee. There was not only a full environmental statement but a lengthy and detailed officers' report. Further, the representations made by the objectors had set out all arguments very fully. The Secretary of States' policy in relation to call in was clearly stated in the letter; it is a power which is very sparingly used."

13. Then at the end of the paragraph the learned judge says this:

"The Secretary of State is not only entitled but is in my judgment correct to base his decision on the facts of the particular case and the decision of his predecessor on different facts cannot be determinative."

14. On this point for my part I think the judge was entirely right. There was no inconsistency of a kind that ought to generate judicial review here. Indeed, it was the Secretary of State's duty, as the judge implied, to consider the individual merits of the call-in application before him.
15. Collins J proceeded to deal with the reasons challenge. The essence of his reasoning there is under paragraph 17. In view of the decision I have come to as to whether permission should be given I can deal with this shortly. The judge refers to what he describes as "a consistent line of authority" that reasons need not be given for a decision not to call in. Certainly there has been some first instance learning to that effect. In the case of R (Alconbury Developments Ltd) v SSETR [2001] 2 All ER 929 in the Divisional Court, this was said at paragraph 111:

"In our view, it is important to bear in mind that, under s 77 of the 1990 Act, the Secretary of State is given a very wide discretion whether or not to call in an application for his own decision. Furthermore, there is no statutory requirement for him to give reasons for his decision whether or not to call in an application."

16. The learned judge concluded that the Secretary of State had given sufficient reasons. There was no duty to give what I might call full or narrative reasons in the context of an application to call in and in short there was no breach of any legal obligation constituted by the terms of the letter of 28 March 2001.
17. It is necessary before pronouncing on that conclusion to refer to the Article 6 challenge. There is now quite a lot of learning as to the application of Article 6 in contexts where a decision of an administrative nature falls to be made by a public authority which is then subject to supervision by the High Court either by means of judicial review or by statutory appeal. In the present case, Collins J cited some of the learning, not least (if I may be allowed so to put it) the major decision of their Lordships' House in Alconbury. He found helpful a passage in a judgment of Forbes J in a case R(Friends Provident Life Office) v SSETR CO/0510/2001 in which the learned judge had said this:

"In my judgment, however these issues are characterised, the assessment of such matters as the likely impact of the proposed development on Norwich City Centre and its associated traffic issues is clearly very different from findings 'of facts, or the evaluation of facts such as arise on the question of whether there has been a breach of planning control': see Lord Hoffman at paragraph 117 of his speech in Alconbury. As it seems to me, this is a reference by Lord Hoffman to the type of dispute which requires the making of findings of primary and immediate fact by the administrative decision maker - findings which are needed to resolve substantial issues of fact in the dispute in question, which issues have to be resolved in order to make the decision which will determine that dispute."

18. Collins J agreed with those observations and concluded that in the circumstances of this case it was not within the legal rights of the objectors to be accorded a public hearing inquiry or other similar procedure.
19. Those then are the two points principally taken by Mr McCracken before us, reasons and Article 6.
20. It seems to me very important to bear in mind the nature of the decision that the Secretary of State was asked to make. He was not being asked, of course, to decide the planning merits of this major application. He was being asked to decide only the procedure by which those merits would be determined. In general terms it seems to me that it would not be right for this court to lay upon the Secretary of State's shoulders any duty to give full or narrative reasons in that context, because it would generate satellite litigation in an area where the interests of many third parties, unknown to the court, are likely to be involved; and expedition and speed are very important. It is true (as Mr McCracken reminded us this morning) that the Secretary of State for his own part has decided that he will give reasons for call-in decisions in the future. That of course is a matter for him. Elementarily, we are concerned only with the extent to which the court should control the colour of these procedures.
21. But Mr McCracken puts the matter in this way. He says we are now living in a world after the incorporation of the European Convention. His clients, in particular residents in the locality, have rights under Article 8 of the Convention which may be very closely engaged by this development if it goes ahead. He has shown us correspondence in which one or more local residents -- and we understand there is a good deal of this material -- have indicated both to central government and of course to the local planning authority their fears of violence or intimidation or abuse in their area generated by the greatly increased numbers of people who are likely to attend matches if the development goes ahead. He says that is an important issue so that in the light of it it really was incumbent on the Secretary of State to consider whether to accord an oral hearing to the objectors. The call-in route was it seems the only route by which that might be done, because the local planning authority did not set in place procedures for their part by which a public inquiry or oral hearing might be given.
22. That was not considered by the Secretary of State. It seems that he was asked to consider the Convention generally by the follow-up letter from the applicants' solicitor. Mr McCracken in fact puts the matter higher. He says not only should the Secretary of State have considered whether an oral hearing ought to have been accorded, but it is clear in law that it should have been so accorded; and therefore the Secretary of State was obliged to call in the application.
23. I see great difficulties with that latter proposition. But I am driven to conclude that somewhere along the line, this being a very major development with arguably very important consequences for the local people, consideration should arguably have been given to whether perhaps exceptionally an oral hearing was required, having regard not least to the fears and concerns of the residents. I have a sense that may not have been properly done. I would grant permission.
24. I repeat I would not grant permission on the argument as to inconsistency. I would not for my part shut out Mr McCracken from arguing that his clients were entitled as of right to an oral hearing: though I have already said that I think that is a very uphill struggle. I am principally moved to grant permission by the proposition that it is arguable that the Secretary of State should have considered whether an oral hearing was required in the particular circumstances.
25. I should say that we have received written material from Fulham Stadium Ltd who are the owners of the site and the prospective developers. They have made some written submissions as to the merits of Mr McCracken's application. They have also put in a witness statement indicating (and I summarise because some of this is disputed) that very great continuing extra costs are involved and will be involved by the time taken to process these proceedings any further. I do not propose to go into the details of that.
26. If my Lady agrees that permission should be granted I would propose that the application be expedited and that that the civil listing office here should be asked to list this case as matter of real urgency.
27. LADY JUSTICE ARDEN: I agree that permission should be granted on the limited basis that my Lord has mentioned. I would add that I am not satisfied that the judge was wrong to conclude that absolutely no reasons had been given by the Secretary of State, but such reasons as were given do not indicate that any consideration was given to the particular considerations which might justify an oral hearing in the present case and I agree with my Lord that it is arguable that exceptionally consideration ought to have been given to that factor. I also agree with the directions that my Lord has proposed.
ORDER: Application allowed. Appeal to be expedited with a time estimate of one day. Costs to be in the appeal. (Order not part of approved judgment)