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
ADMINISTRATIVE COURT
(Mr Justice Sullivan)
R

		oyal Courts of Justice Strand London WC2 Friday, 3th May 2002

1. LORD JUSTICE SEDLEY: Mr Cousins has come before the court this morning in person to apply for permission to appeal against a judgment of Mr Justice Sullivan given on 20th February 2002, at the conclusion of a hearing that had begun the previous day. There too Mr Cousins was in person, conducting his case against Camden Council over a grant of planning permission to the proprietors of a house at the end of his garden.
2. Mr Cousins lives on Belsize Crescent. The offending property was originally the stables with accommodation over them at the end of the garden, and is now separately owned. Putting it briefly, in 1991 the owners of the mews property obtained planning permission to make use of the roof as a terrace, notwithstanding that it overlooked Mr Cousins' home at fairly close quarters. For some reason which nothing in the papers has enabled me to comprehend, it was thought acceptable by the Council to give permission, but only for ten years. That, however, is water under the bridge. At the conclusion of ten years the owners applied for the indefinite renewal of the planning permission, and the development sub-committee gave it to them. It is to that decision that Mr Cousins brings his challenge. If he presented it as well to Mr Justice Sullivan as he has presented it to me, his case will have had very adequate justice done to it.
3. In a full and closely reasoned judgment Mr Justice Sullivan dismissed the application for judicial review. Because his reasoning is so full and cogent (and Mr Cousins may know that he was before a judge whose knowledge of planning law and procedure is practically unrivalled in this building) it is not necessary for me to recite in any detail what the issues were or how Mr Justice Sullivan decided them. I will turn straight to the points that Mr Cousins wants to bring to this court on appeal.
4. First of all, it is his case that the chairman of the sub-committee, apparently on the clerk's advice, at the hearing at which Mr Cousins was present and was heard, told the members of the sub-committee that the issue of overlooking was in effect off the agenda. The reason appears to have been that it had been disposed of by the 1991 decision. The evidence about this on Mr Cousins' side was detailed and circumstantial, and was set out in a proper form inviting admission or challenge. The Council finally put in evidence challenging Mr Cousins' case, but it did so some seven months later with evidence which it is Mr Cousins' submission was stale and which was, when one looks at it, vague in the sense that the deponents were at best able to say, "I have absolutely no recollection of any such thing."
5. Mr Justice Sullivan considered all the evidence in detail, and at paragraph 55 of his judgment concluded:

"I have no doubt that the claimant understood the Chairman to be saying that overlooking should not be considered. I am equally satisfied that the Chairman, in fact, said no such thing and that there has been a misunderstanding on the part of the claimant and his neighbours."

6. There was plainly material within the evidence upon which the judge could come to such a conclusion; but Mr Cousins' challenge is to the judge's justification for doing so.
7. Judicial review in the ordinary way is not ideally suited to the resolution of conflicts of fact. Typically it consists of the reading of affidavits which, in a case like this, give diametrically different accounts. There is power in the court, for that very reason, to permit cross-examination of the deponents, so that the court can come to the most accurate possible conclusion as to who is telling the truth or, much more often, who has got the wrong end of the stick and who has got the right end of it. No doubt because he was in person and is not a lawyer, Mr Cousins did not appreciate that this was a possibility, and Camden's advocate did not apply for cross-examination either. The result was that the judge had to do his best to gauge what the truth most probably was on the basis of the written evidence before him.
8. Having myself considered that evidence, I am afraid I can see no way in which as a matter of law it could be argued that it was not open to the judge to come to the conclusion he did. That is not for a moment to say that he might not equally legitimately have come to an opposite conclusion; but such a proposition is not enough to found an appeal, and it is necessary for Mr Cousins to show that in law the judge could not reach the evaluation he did on the evidence. I am afraid that that is an argument which does not begin to run.
9. I have now adumbrated, in dealing with Mr Cousins' first point, his second and, as he views it, main point, which is that Camden Council's evidence was served out of time. So it was. Mr Cousins, moreover, had pointed out in correspondence at an early stage that the Council had exceeded their allotted time, and he repeated it as the trial approached. However, although out of time, the evidence had been served weeks in advance of trial and Mr Cousins therefore did not suggest - and, indeed, would not have been believed if he had - that he was so embarrassed by the delay that he could not properly conduct his case. He had done, as most litigants do, the best he could in the circumstances and he had taken in and digested the evidence. It was only at the very conclusion of his argument, just before the judge rose to consider his judgment, that Mr Cousins said this (he has helpfully furnished the page of transcript where it is recorded):

"I just come back to the six witness statements in the claim. I would just point out to the court that they were out of time."

10. He then went on to remark that there was a possibility of extending time, but that that had not happened. The judge said:

"It is a bit late to say that they are out of time now ..."

11. Mr Cousins, just before he sat down, said:

"They were given a firm date ... from 10th October, that would have been 12th November. They didn't serve it until the 23rd. I make that point. That concludes my submissions, my Lord."

12. It can be seen that while Mr Cousins was perfectly legitimately making the point that Camden had not distinguished themselves by promptitude, he was not saying that he was placed in any difficulty. If he had been placed in any difficulty, of course, one would have expected him to say it right at the start of his submissions. In those circumstances there was on any view as clear a waiver as there could have been of any objection to the admissibility of Camden's evidence. It seems to me, therefore, that the judge rightly took the view that this was not a point that could serve Mr Cousins' case in a legal sense, although it was not a bad jury point in Mr Cousins' general endeavour to show that Camden were perhaps not the most efficient of Councils. (I say that knowing that they have just won a nomination which suggests the contrary.)
13. Those really are the main points, but the other two points Mr Cousins has developed before me today are these. He says that the decision of this court in the case of R (Barker) v Waverley Borough Council [2001] EWCA Civ 566 was not properly heeded or applied. In that decision Pill LJ said:
14. The statutory duty would not be discharged lawfully if one consideration, the length of time for which the condition had persisted, could in law be held to prevail over duty to have regard to the considerations set out in those sections."
15. Mr Cousins, I think, accepts that this is a secondary version of his first submission; in other words, he says that if he is not going to succeed in his argument that on the evidence the Council has been shown to have closed its mind to the question of overlooking, then it had allowed the previous decision of 1991 to predominate to such an extent as in effect to occlude the present problems which overlooking was going to present. For the same reasons, however, as led the judge, upon the evidence, to the conclusion that I have quoted from paragraph 55 of his judgment, this too will not run. The evidence which the judge accepted was evidence that the councillors had thought about the overlooking issue, although inevitably they had done so in the context of the fact that for ten years overlooking had been tolerated by the Council, although not by Mr Cousins.
16. The last issue is a somewhat sketchy one. It is that Mr Cousins wishes to submit to this court that there was a duty of the Council to give proper reasons explaining its decision. This point did not feature prominently before Mr Justice Sullivan. It was taken in a very short paragraph in the application for judicial review, but it was moderated by Mr Cousins himself when, in a subsequent document, he described the point as "solely an indication of bad administration". That is perfectly intelligible and the defendants themselves relied upon that moderation of the submission. However, in his skeleton argument Mr Cousins tells me (and I have no reason to doubt him) that he resurrected the point as a full-blown argument. It cannot have been that full-blown because in a very detailed judgment Mr Justice Sullivan has not dealt with it in terms; but let me assume that it was a point before the judge that should have been dealt with.
17. The duty to give reasons is a shifting and not altogether easy area of English law. Mr Cousins understandably does not have a familiarity with it, but he does know that there are European sources of at least strong guidance that in the interests of transparency official decisions ought to be explained with intelligible reasons. This is capable of being translated into law in certain classes of case in this country. But it would take a good deal to push council planning decisions into this arena. This is a decision taken on the basis of full officers' reports which are disclosed, on the basis of oral submissions which Mr Cousins himself was able to make at a meeting of the sub-committee, and ultimately in this case on grounds which were explained in evidence by Camden councillors who deposed to what had happened. In those circumstances I do not think Mr Cousins can say (and, being an honest man, he has not tried to say) that he did not, by the time of the hearing before Mr Justice Sullivan, have any idea why the councillors had decided as they did. His argument was that he knew, and that everybody present knew, that they had decided as they did because they had taken unlawful advice to exclude overlooking from their decision-making process. On that, on the facts, he failed, but the "reasons" challenge is in those circumstances one which I think Mr Cousins will have realised would not stand alongside the principal challenge, and for that reason I suspect was not a proper part of his case. Certainly in the circumstances of this case I do not think it can be said that there was any lack of information about why the Council came to the conclusion it did, contested though the evidence was.
18. In those circumstances I fear that, attractively though he has presented his case, Mr Cousins does not have a case which merits the grant of permission to appeal. It may be some consolation to him to reflect that, if I were to give him permission to appeal on a case which is as risky as this one would be, he would be faced with a very large bill of costs indeed which he would not thank me for having exposed him to. It may be that the permission process which we have now been through is beneficial to that extent.
19. Permission to appeal, therefore, will be refused.
Order: application for permission to appeal dismissed.