England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR JUSTICE WYN WILLIAMS)

		Sitting at: Cardiff Civil Justice Centre 2 Park Street Cardiff CF10 1ET
		23 November 2010

Lord Justice Carnwath:

1. This is an appeal from one aspect of the decision of Wyn Williams J, which relates to his refusal of a remedy.PRIVATE 
2. The background can be stated relatively briefly. The Hendry family, who are a gypsy family, were in unlawful occupation of highway land in another part of Newport. The council needed to refurbish the Newport transporter bridge, which was nearby, in time for the 2010 Ryder Cup and they wished to start works on the bridge in January 2010. They needed to move the Hendry family before that was done.
3. They decided to move them to a vacant plot on an industrial estate next door to the works of the applicants, Corus UK Limited. They began clearance works in October, at that time, I understand, thinking that they could do so under permitted development rights, but when it became clear that that was not the way forward they made a planning application for temporary permission on 5 November 2009. They carried on with the works and the laying of drainage and preparing a hard surface and so on.
4. The planning application was approved on 16 December and they continued to implement it. Corus and other local businesses complained about the permission, and on 21 December the solicitors sent a pre-action letter. On 23 December the Hendry family moved on to the site with the agreement, or at least acquiescence, of the council.
5. There were further exchanges, with Corus seeking to assemble evidence, and in due course it filed judicial review proceedings on 19 February. It may be noted that one of the conditions of the permission, Condition 7, provided that prior to the first beneficial use of the site details of an emergency plan relating to the consequences of a flood event should be submitted and approved in writing by the authority. We were told that that was not in fact done, or the approval was not obtained, until 7 January 2009, with the result that technically until that point the council were not in a position to implement the permission.
6. The learned judge, in a careful judgment, which is not criticised on this aspect, found that the permission was unlawful for five different errors of law, which included inaccurate reporting of the views of the council's Economic Development Manager; failure to inform the committee that the council had carried out substantial works on site without permission and giving the impression that the proposal did not involve groundworks; inaccurate reporting of the view of the council's Public Protection Department that an assessment of land contamination was recommended; failure to report the view of the Environment Agency that permission should be refused on flooding grounds; an error of law in thinking that the council was under a statutory duty to allocate sufficient gypsy sites. That is a summary and the judgment can be referred to for the full details. As I say, none of that is now in issue.
7. The normal consequence of a permission being found unlawful in that way and certainly on grounds which are not merely technical, but go to the merits of the proposal would be that the permission would be quashed. That would leave the council free to re-determine the matter if they so wished on a proper basis or to consider some other way of dealing with the problem.
8. The judge did not take that course. He decided that he should look at the matter as a discretionary matter. At paragraph 104 of his judgment he rightly reminded himself, in line with R Edwards v Environment Agency [2008] UKHL 22 at [63] that the normal result of his decision would be to quash the permission. He considered the line of authority which suggests that a quashing order might be refused where the court is satisfied the outcome would be the same when it was considered afresh, but he took the view that that was not appropriate here where it was, he said, impossible to predict what a planning committee would do when faced with the information which it should have received. He also thought that the fact there were a number of different matters which had led to the unlawfulness of the permission was a factor that militated in favour of the grant of the quashing order.
9. He then went on to ask himself whether it was permissible to take account of the position of the Hendry family. The Hendry family had not been represented before him and there was no representations, as I understand it, or indeed evidence from them that they felt prejudiced by what had been going on. They had moved onto the site. They were living there and they had the protection of the fact that they were on council land for which the council was responsible. However, Mr Gareth Price, head of law at the council, gave a written statement in which he put himself forward as the representative of the interests of the Hendrys. He said that they had been kept informed of the proceedings by the council. He then went on to say:

"If the planning permission was now quashed the human rights of the Hendry family would be severely prejudiced, given that there are no other authorised gypsy sites in Newport either temporary or permanent to which they could be transferred and the tolerated authorised encampment at Stephenson Street is no longer available for their occupation due to the ongoing works at the transporter bridge."

He says they would be significantly affected by the outcome and the delay in pursuing the challenge will mean living on the site for over four months.

10. The judge was evidently impressed by that. He thought that he should take account of the Hendry family and their interest when exercising a discretionary decision. He thought that the prejudice to them was very significant because they had moved onto the site in December 2009. He pointed out that Corus had not taken steps to notify them of the proposed challenge and he says that during the time that elapsed before the proceedings the family would have presumed, reasonably, that as time was passing the prospect of a challenge for permission was receding, and he added that they themselves were untainted by the illegality. He also considered the position of Corus and he considered there was no significant prejudice to them.
11. He considered the suggestion that in practice they were going to stay there come what may, given the fact that the authority was unlikely to move them until the position had been resolved. He said at 114:

"I can see an argument that the prejudice to the Hendry family consequent upon a quashing order is minimised if the reality is that they will remain on site for a substantial period of time. On balance, however, I reject that view. If the planning permission is quashed the occupation of the site would be unlawful in planning terms and there would be an unnecessary legal lacuna.

That leads me to the final factor which in my judgment is to be taken into account in the exercise of my discretion. The planning permission subsists for two years only. In my judgment, in the particular context of this case, that militates against the making of a quashing order. I do not regard it as conducive to good administration that a significant part of the two-year period should be taken up with uncertainty over whether or not the Hendry family is lawfully entitled to be on the site. There is a distinct danger that a quashing order would lead to further disputes, yet all the while the Hendry family would remain on site."

12. He went on to hold in addition that there had been undue delay in bringing the challenge and at the end of that. He said:

"The fact that about two months went by before these proceedings were commenced would have induced in the minds of the adults of the family at least a hope, and probably a belief, that no challenge would be made. That hope was then dashed. In my judgment that state of affairs is properly to be regarded as prejudicial."

13. I have not been in detail into his reasoning because it seems to me, with respect, that at this point in his judgment he went wrong in principle. He seems to have come down to treating this as though it were some sort of private law dispute between Corus and the Hendry family and to be resolved by balancing the prejudice of the one against the other. Even on that analysis, I find his approach somewhat difficult to understand. From Corus's point of view quashing the permission had the -- one would have thought important -- advantage that the council would be forced to reconsider the matter in order to decide how to regularise it and although it is possible they would reach the same planning conclusion, at least that would be on a proper basis. Alternatively, they might have to find some other solution.
14. Conversely, from the point of view of the Hendry family, there was no evidence at all that they regarded themselves as prejudiced by what was going on. Whenever a planning permission is quashed, inevitably, if people have acted upon it, it affects their interest and uncertainty is created, but I am not aware that this has ever been regarded in itself as a reason for refusing to quash. The Hendry family had the considerable advantage over most people in that position that they were on the site. There was no immediate likelihood of them being disturbed and even if and when they were to be disturbed the council had clearly had their interest well in mind and no doubt would be aware of its responsibilities under Article 8 of the Human Rights Act. The idea that the Hendry family's hopes would have been dashed by the actions taken by Corus, with respect, seems to be unsupported by any evidence.
15. So even if one looks at it on the way the judge did as a sort of balancing of prejudice, I find the approach, with respect, difficult to support. In my view, it ignores the very important consideration, which is that a planning permission is a public act and if it is found to be unlawful the normal result is it should be quashed and the matter should be regularised. That is not simply a matter of concern to Hendrys or Corus. It is a matter of public concern. That is why there are plenty of authorities which say that a normal rule is that unlawful permission should be quashed.
16. I would only add that the form of the order made by the judge in this case seems to me, with respect, to create its own problems. The order itself declares that the decision to grant planning permission was unlawful and sets out the reasons why that was found to be so, but then goes on to say that the planning permission is not quashed. I would need some persuasion that there is very much difference in practical terms between a declaration that a grant of a permission is unlawful and the quashing of the permission. Either way, anyone who is occupying the site must realise that they are doing so under unlawful authority, but I do not need to rule on the effect of that.
17. There is no doubt in my mind that the proper order here was to quash the permission and I for my part would substitute such an order.

Lord Justice Elias:

18. I agree. I would only add this. The judge refused to quash the order both under the general discretion that is given in any case where rememby is sought by way of judicial review and independently of that relying on section 31(6) of the Senior Courts Act 1981.
19. For the reasons given by my Lord, I entirely agree that the exercise of the general discretion was wholly inappropriate and in my judgment so was the exercise of the discretion given, pursuant to section 31(6), which arises where there has been an undue delay in making the application for judicial review.
20. I would only add that, without going into the detail, I do not accept in this case that the proceedings were not taken promptly by the council and I do not think that section 31(6), properly analysed, came into play.

Lord Justice Pitchford:

21. I also agree, for the reasons given by my Lords.

Order: Appeal allowed; permission quashed