COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE MOSES
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CLARKE
LORD JUSTICE JONATHAN PARKER
| MOUNT COOK LAND LIMITED
MOUNT EDEN LAND LIMITED
|- and -
|WESTMINSTER CITY COUNCIL
Mr Timothy Corner, QC, and Mr. Robert Palmer (instructed by Mr. C.T. Wilson, Director of Legal and Administrative Services, Westminster City Council) for the Respondent
Hearing dates : Tuesday 20th & Wednesday 21st May 2003
Crown Copyright ©
Lord Justice Auld:
"An alternative scheme has been submitted on behalf of the freeholders for new shop fronts to the Market Place elevation of the building. Given that each case is treated on its own merits, these proposals are not considered relevant to an evaluation of this application "
And, in subsequent correspondence, the Council stated that the planning officer responsible had circulated the Mount Cook correspondence to the members of the Sub Committee, who had fully considered it. Mount Cook's solicitors' note of the meeting records that the planning officer responsible for the application had referred to Mount Cook's advisers' letters, summarised its concerns as set out in the report for the meeting, "with the addition of a reference to improving Market Place", and advised that, as to the complaint about prejudicing future applications, Redevco's application had to be considered on its merits. The note also records that he and another officer expressed the view that the proposal would enhance the Building and the appearance of the Conservation Area. Notwithstanding Mount Cook's objections, the Sub Committee approved the application.
" failure to have regard or proper regard to the effect that implementation of the approved proposal is likely to have on the conservation area within which the building is situated particularly with regard to its adverse impact upon the prospects of completing improvements to the conservation area begun by the Oxford Market Initiative."
"Since this application was presented to the Sub-Committee in March there has also been further correspondence on behalf of the freeholder. This refers to the adverse implications of the proposed works, in particular the creation of dead frontage to north elevation of 200 Oxford Street, for potential improvements in Market Place linked to extending the 'Oxford Market Initiative'. Sub-Committee considered a similar objection previously. There is no agreed package of environmental improvements for this part of the public highway. "
In the result, the Council, by letter of 9th May 2002, formally granted conditional permission to Redevco in accordance with its application and Mount Cook duly proceeded with its application for permission to claim judicial review.
The applications at first instance for permission to claim judicial review
"12. The Council had no power to refuse permission on the basis that the proposal would not enhance he character of the area; see South Lakeland District Council and Secretary of State for the Environment  1 All ER at page 573. The only obligation of the Council was to consider whether the development left the character or appearance of the conservation area unharmed. In fact, the officer advised that the proposals would enhance the character and appearance of the building and the conservation area, and meet the policy tests . The fact that there might have been a better scheme for enhancement was, in the view of the Council, nothing to the point. That, in my judgment, was an approach that the Council was perfectly entitled to adopt."
"13. Further, the suggestion that the Council was bound to consider the alternative scheme is, in my view, fallacious because there was no basis for suggesting that there was any possibility of the proposals of the claimants coming to fruition. Redevco owns a 999 year lease of number 2000. It is plain that they were intent upon developing the north side of the building in the way they proposed. The claimants had no power whatsoever to compel them to do otherwise. If permission were refused then the northern aspect of that building would remain as it was. In my view, it is not arguable that it is open to the claimants to seek to exercise some control over the building in the face of Redevco's leasehold interest, by saying that as a matter of law the Council was under an obligation to consider alternative schemes as disclosing a better proposal."
"17. There is, in my view, nothing in ground 1. The claimants had no realistic prospect of being able to force Redevco to adopt their plan. The Council was correct in law to regard the existence of rival proposals as being irrelevant. Even it is was not irrelevant, it was bound to make no difference to the result, as Ouseley J. said when refusing permission in writing."
1) whether a local planning authority, when determining a planning application is entitled to grant it without regard to a possibility, where drawn to its attention, of an alternative and preferable proposal;
2) whether a local planning authority, in determining a planning application for operational development of land, is entitled to refuse it on the ground that grant of it would make a future change of use contrary to its local planning policy materially harder to resist;
3) whether, in the event of the Court holding that the Council had erred in law in granting Redevco's application for planning permission, it would nevertheless be entitled to dismiss Mount Cook's claim for judicial review in the exercise of its discretion; and
4) the circumstances in which a court, on an oral application for permission to claim judicial review, may award costs to a defendant who has attended and successfully resisted the application.
Issue 1 The materiality to a planning application of a possibility of an alternative preferable proposal
"54A 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."
"70(2) [in making a determination of a planning] application the [local planning authority] shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."
" any consideration which relates to the use and development of land is capable of being a planning consideration. Whether a particular consideration falling within that broad class is material in any given case will depend on the circumstances."
"If the judgment is made, whether through the development plan process or indeed outside it, that it appears desirable to preserve the option of using a piece of land for a purpose seen to be of benefit in the public interest for the country or the local community, this is in principle, a material planning consideration for the purposes of sections 70 and 54A of the Act. I understood this to be common ground in the case. The weight given to the consideration will vary hugely from case to case . Each case will turn on its own merits, but the importance of the project or proposal, its desirability in the public interest, are undoubtedly matters to be weighed. Therefore, in considering whether to grant planning permission for a proposal (use B) which will pre-empt the possibility of desirable future use (use A), the relative desirability of the two uses have to be weighed. In striking the balance, the likelihood of use A actually coming about is doubtless a highly material consideration" [my emphasis]
"I accordingly hold that, subject to matters to which I turn below, it was in principle open to the Inspector to refuse residential development in the instant case ., in the light of his conclusion that it was desirable to preserve the option of retaining the appeal site for educational use , albeit that he made no finding that it was more likely than not that the site would effectively be put to educational use."
Such a proposition, which the Deputy Judge derived in part from the judgment of Mr. George Bartlett, QC, sitting as a Deputy High Court Judge in South Buckinghamshire District Council v. Secretary of State  PLCR 72, at 79-80, logically follows from his first proposition (at paragraph 22 above) in those cases where the importance or desirability in the public interest of preserving a particular alternative option is so great that the decision-maker could reasonably conclude that to grant the application in the circumstances would or could constitute a planning harm. Again, both the preferability in planning terms of an alternative scheme and the degree of possibility or likelihood of it coming about may, depending on their relative strength, go to materiality or to weight. In the context of this case, Mr. Steel placed much emphasis on: 1) the claimed public importance and desirability of extending, in the outline way in which Mount Cook proposed, the Oxford Market Initiative, including the provision in the rear elevation of the Building of both retail displays and access to the retail areas behind them from Market Place; and 2) the fact that Mount Cook had alerted the Council to its proposals and also to its contention that grant of permission to Redevco to make its alterations would preclude the possibility of them coming about.
1) in the context of planning control, a person may do what he wants with his land provided his use of it is acceptable in planning terms;
2) there may be a number of alternative uses from which he could choose, each of which would be acceptable in planning terms;
3) whether any proposed use is acceptable in planning terms depends on whether it would cause planning harm judged according to relevant planning policies where there are any;
4) in the absence of conflict with planning policy and/or other planning harm, the relative advantages of alternative uses on the application site or of the same use on alternative sites are normally irrelevant in planning terms;
5) where, as Mr. Corner submitted is the case here, an application proposal does not conflict with policy, otherwise involves no planning harm and, as it happens, includes some enhancement, any alternative proposals would normally be irrelevant;
6) even, in exceptional circumstances where alternative proposals might be relevant, inchoate or vague schemes and/or those that are unlikely or have no real possibility of coming about would not be relevant or, if they were, should be given little or no weight.
30. consideration of alternative sites would be relevant to a planning application only in exceptional circumstances. Generally speaking and I lay down no fixed rule - such circumstances will particularly arise where the proposed development, although desirable in itself, involves, on the site proposed, such conspicuous adverse effects that the possibility of an alternative site lacking such drawbacks necessarily itself becomes, in the mind of a reasonable local authority, a relevant planning consideration.
31. But even if the potentially available site were not a necessary planning consideration, might a reasonable planning authority nevertheless have regarded it a possible planning consideration, and so should have taken it into account?
32. I do not think so. There were no clear planning objections here (to use Simon Brown J's language [in the Trusthouse Forte Hotels case]. In context, the learned judge in that case, by those words, was, I think, referring to substantial objections, which were on the facts, made out. Here, there were, of course, objections, otherwise plainly we would not be here at all. There had been objections in relation to [the alternative site] as well. If the council, as the judge held, were obliged to consider whether to have regard to the alternative site, that can only have been upon the basis that that factor might have prevailed so as to persuade the council to refuse planning permission. But, in my judgment, it was simply not capable of amounting to a good enough reason for refusing planning permission on the site in question here. Objections put forward against a planning applications such as this are, of course, judged upon their merits. If they outweigh the planning benefits of the development applied for, the application will be refused. To introduce into that equation a consideration of a different character, namely whether there would be less disbenefits on another site, could only be justified for some special reason, such, as I have said, as the existence of particularly pressing need for the development. .
33. It follows, in my judgment, that no reasonable council could have treated the [alternative site] as relevant. In those circumstances, it matters not that the council thought that they were obliged not to consider it. If they had considered it, they would have been bound to reject it."
"In striking the balance, the likelihood of use A actually coming about is doubtless a highly material consideration."
It would be highly harmful to the efficient and otherwise beneficial working of our system of planning control if decision-makers were required to consider possible alternatives, of which, on the facts before them, there is no likelihood or real possibility of occurrence in the foreseeable future.
Issue 2 whether the permission of external operational development coupled with proposals to make internal alterations not in themselves susceptible to planning control, might prejudice future planning control of non-conforming change of use
"Notwithstanding the objectors' concerns about the future use of the building, the Council has a duty to consider the current application on the basis on which it has been submitted i.e. for continued retail use. Any objections relating to the loss of retail accommodation on the upper floors would be assessed as part of a separate application."
He confirmed this advice orally to the Sub Committee on its consideration of the application, observing that the application proposal would enhance the appearance of the Building and the character and appearance of the Conservation Area and that it had to be considered on its own merits.
Issue 3 - Discretionary refusal of relief
Issue 4 Costs at the permission stage
"8.5 Neither the Defendant nor any interested party need attend a hearing on the question of permission unless the court directs otherwise.
8.6. Where the defendant or any party does attend a hearing, the court will not generally make an order for costs against the claimant."
There are two important points to make about these provisions. First, on one view, when read together, they provide that, in general, a claimant should not have to pay a defendant's or other interested party's costs of attendance at a permission hearing, but say nothing about the costs of filing an acknowledgment of service by a defendant who intends "to take part" in the judicial review, whether or not he subsequently attends such a hearing. On another view, they do not, or should not, distinguish between the costs of obligatory acknowledgment of service and of optional attendance at a permission hearing whether or not the party who has filed an acknowledgment of service attends such a hearing, see Robert McCracken and Gregory Jones, Leach and Permission Costs,  JR 4. Second, the guidance, in my view, applies to the costs of preparation for, as well as of attendance at, a hearing.
"14. The purpose of [CPR 54.9(2)] would appear to be that where points which showed that the claim lacked merit were not made at the permissions stage but were raised on the hearing, the court might take the view that it was not fair that the applicant should pay the extra costs which could have been avoided if only the points had been made at the earlier stage. But that, of course, only underlines the point made by Mr. Corner [counsel for the defendant], that if that is one of the purposes behind the new provisions, and the requirement is there, then why should the successful party, in this case the defendant, have to bear the costs of putting forward his objections to the claim, if those objections then serve to defeat the claim? Why should he be required by the rules to incur costs which he can never recover, even if he is successful as a result of what he has done? That, submits Mr. Corner, is manifestly unfair, and I agree with him. It clearly is on the face of it, and having regard to the new rules, it is difficult to see that there is any sensible answer to the submission which Mr. Corner has made. It seems to me that, in principle, if a defendant incurs costs in submitting an acknowledgement of service, as required by the rules, then he ought to be able, if he succeeds, to recover his costs of so doing.
15. How much in principle should he be able to recover? It seems to me that it should be limited to the costs incurred in actually producing the acknowledgement, and those will obviously depend on the circumstances.
17. But it seems to me that if this is to prevail, and if I am right in my conclusion that, in principle, costs should be awarded, it is thoroughly undesirable that there should be a need for an application such as had to be made in this case to obtain such costs. That, of course, only adds to the amount payable.
18. It is obvious that the Rules Committee is going to have to consider in detail the implication of this decision, but, as it seems to me, it ought to be dealt with by the judge when he deals with the permission application, and that can only happen if the application for costs is made in the body of the acknowledgement and an indication is given as to the amount of costs which are being requested. That, of course, has to be served on the other side, who would have to have an opportunity to deal with it."
21. I am conscious that I have not been able, since this is an extempore judgment and it would be equally undesirable to reserve to incur yet further costs, to have spelt out precisely what should be done for the future. One thing that seems to me to be essential is that this decision of mine, that in principle costs ought to be awarded, must be given wide publicity because I suspect that claimants at the moment are simply unaware that they run the risk of orders such as this as a result of the change in the rules. ."
"The High Court has now held that, as a result of the changes in the rules governing judicial review claims, a defendant who resists the grant of permission should, in principle be entitled to recover his costs. The High Court applied that principle to the costs incurred in filing an acknowledgment of service, and did not limit the defendant simply to recovering the costs of attendance at an oral hearing. Defendants who wish to claim such costs should normally make the application for costs in the body of the acknowledgment of service and provide details of the amount claimed. "
"82. It is plain now that the court will from time to time award costs to a defendant, not only of the oral hearing but also of the acknowledgement of service, despite paragraph 8.6 of the Judicial Review Practice Direction. The notes in the White Book under 54.12.6 make this plain, as does the decision in R v. Leach and the Commissioner for Local Administration, a transcript of which I do not have before me, although I have seen it in the past. It does seem to me that a defendant who persists in renewing an application in circumstances such as these, where it is a highly sophisticated claimant with access to the highest possible quality legal team, pursues a claim in the face of trenchant dismissal by an experienced planning judge, forcing a local authority, funded by the local council taxpayers, to attend a full hearing, should, at the very least, pay the costs in full of the oral hearing.
83. The more difficult question is as to whether it should pay the costs leading up to that hearing, in particular the preparation of papers and of the acknowledgment of service. Generally, as it seems to me, there should be special features, which are not possible or indeed desirable to identify, before all the costs are borne, merely because the rules require an acknowledgment of service to be filed [sic]. The whole process of applying for permission for judicial review was not intended to be like ordinary litigation: the issue of a claim with issue of a defence. The mere fact that the defendant is now required to participate does not seem to me that normally where the defendant is successful he should have his costs of that acknowledgment of service and general preparation. [my emphasis]
84. There are, however, in my view, special features in this case. It is plain that Ouseley J., a highly experienced planning judge, thought there was absolutely nothing in this case; nor do I. Although it has been skilfully argued with great attraction by Mr. Steel QC, underlying it was, in my view, an absolutely hopeless attack upon the Council.
85. In those circumstances, , it is right that that should be reflected by the Council having all its costs of resisting the claim. ."
1) The effect of Leach, certainly in a case to which the Pre-Action Protocol applies and where a defendant or other interested party has complied with it, is that a successful defendant or other party at the permission stage who has filed an acknowledgment of service pursuant to CPR 54.8 should generally recover the costs of doing so from the claimant, whether or not he attends any permission hearing.
2) The effect of paragraph 8.6, when read with paragraph 8.5, of the Practice Direction, in conformity with the long-established practice of the courts in judicial review and the thinking of the Bowman Report giving rise to the CPR 54 procedure, is that a defendant who attends and successfully resists the grant of permission at a renewal hearing should not generally recover from the claimant his costs of and occasioned by doing so.
3) A court, in considering an award against an unsuccessful claimant of the defendant's and/or any other interested party's costs at a permission hearing, should only depart from the general guidance in the Practice Direction if he considers there are exceptional circumstances for doing so.
4) A court considering costs at the permission stage should be allowed a broad discretion as to whether, on the facts of the case, there are exceptional circumstances justifying the award of costs against an unsuccessful claimant;
5) Exceptional circumstances may consist in the presence of one or more of the features in the following non-exhaustive list:
a) the hopelessness of the claim:
b) the persistence in it by the claimant after having been alerted to facts and/or of the law demonstrating its hopelessness;
c) the extent to which the court considers that the claimant, in the pursuit of his application, has sought to abuse the process of judicial review for collateral ends a relevant consideration as to costs at the permission stage, as well as when considering discretionary refusal of relief at the stage of substantive hearing, if there is one; and
d) whether, as a result of the deployment of full argument and documentary evidence by both sides at the hearing of a contested application, the unsuccessful claimant has had, in effect, the advantage of an early substantive hearing of the claim.
6) A relevant factor for a court, when considering the exercise of its discretion on the grounds of exceptional circumstances, may be the extent to which the unsuccessful claimant has substantial resources which it has used to pursue the unfounded claim and which are available to meet an order for costs.
7) The Court of Appeal should be slow to interfere with the broad discretion of the court below in its identification of factors constituting exceptional circumstances and in the exercise of its discretion whether to award costs against an unsuccessful claimant.
Lord Justice Clarke:
Lord Justice Jonathan Parker