England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL ( CIVIL DIVISION )
ON APPEAL FROM QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
(MR RABINDER SINGH QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		23rd June 2010

Lord Justice Laws :

1. There is before the Court of Appeal, with permission granted by Keene LJ on 15 July 2009, an appeal against a judgment of Mr Rabinder Singh QC sitting as a deputy High Court judge in the Administrative Court on 7 April 2009, when he dismissed the appellant's application for judicial review.
2. For reasons I shall explain, the case has in my judgment become moot and this court should not entertain the substantive merits or demerits of the legal argument. I should introduce the background.
3. The judicial review claim was originally aimed at a direction given by the Secretary of State on 21 September 2007 pursuant to paragraph 13 of Schedule 8 to the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"). At the heart of the case is a planning policy, Policy T1. It was included in the South Kesteven Local Plan when that was adopted in April 1995. The Local Plan formed part of the Development Plan. The Development Plan is the key document in the town and country planning system. That is because of the terms of section 38(6) of the 2004 Act, which provides:

"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."

4. The 2004 Act came into force on 28 September  2004. Under its provisions policies in the Local Plan would expire by operation of law on 27 September 2007 unless the Secretary of State saved them by a direction under paragraph 13 of Schedule 8 to the 2004 Act. That is set out at paragraph 38 of the Deputy Judge's judgment, but I need not in the events which have happened replicate it here.
5. The policy T1 provided so far as relevant:

"The District Council will refuse planning permission for development which would prejudice the construction of the following new roads, as shown on the proposals map."

6. Then number 2:

"The A16/A6121 Stamford Ryhall road link"

7. The appellants, who are the Stamford Chamber of Trade and Commerce and the local company, have long been concerned about Stamford's traffic problems and especially with the desirability of relieving traffic in the town's historic centre. Policy T1, in particular its reference to the Stamford Ryhall road link, had in the appellant's view an important part to play in the achievement of new road traffic measures, in short a bypass which would meet that desirable aim. The appellants were therefore concerned that policy T1 should be preserved by a direction of the Secretary of State pursuant to paragraph 13 of Schedule 8 until eventually it would, as was inevitable, be replaced by new policy documents under the revised arrangements having effect under the 2004 Act. But the Secretary of State's direction of 21 September 2007, while it saved certain local plan policies, so that they survived statutory expiry on 27 September 2007, did not include policy T1 among the planning policies thus saved. The second respondents, the District Council, had not requested that the Secretary of State should save policy T1. They did not put out for public consultation the question whether they should so request.
8. The appellants' primary case is that the District Council should have done so. They say that by virtue of certain past statements, which are in the documentation before the court, the District Council had generated a legitimate expectation in the public of which they, the appellants, were entitled to take advantage that such consultation with the Secretary of State would take place.
9. Though there are other points, the first and principal ground of judicial review is that the Secretary of State's direction was arrived at against this flawed legal background. The legitimate expectation of public consultation as to what the council should put to the Secretary of State was not fulfilled.
10. Events have, however, moved on since the hearing at first instance. A report by the Core Strategy Examination Inspector was produced on 10 June 2010. The Inspector had taken evidence from the first appellants and the second respondents and, it may well be, others. She concluded that a safeguarded route for a relief road such as had been contended for by the appellants was not justified in current circumstances. The relief originally sought in these proceedings included orders to quash both the decision of the second respondent, without consultation, not to ask the Secretary of State to save policy T1 and the Saving Direction of the Secretary of State insofar as it did not include T1. The appellants have concluded, as is shown in their supplementary skeleton argument, that in the light of the report by the Core Strategy Examination Inspector there is "no realistic prospect of persuading the Secretary of State that policy T1 should be saved": paragraph 5 of the supplementary skeleton. They have therefore discontinued the claim against the Secretary of State. They say, however, that they remain involved in the processes by which the district council's development plan documents are being and will be produced: see paragraph 12 of the supplementary skeleton. They will be pressing the case for action on Stamford's traffic problems. They say (paragraph 15):

"It is a matter of considerable importance to the appellants that the District Council has a proper understanding of the extent of its obligations in relation to consultation."

11. Thus they seek what to my mind can only be properly be described as an advisory opinion from this court, in the hope, indeed the expectation, that it will assist them in positions they will take hereafter in relation to the decision-making processes of the district council. That was the case much pressed by Mr Bedford before us this morning. He touched on another proposition, which was that as a matter of justice if his clients have been wronged by a failure to fulfil a legitimate expectation, why then the court should right the injustice. But, as I understood it, he accepted that if this court is to grant relief in a public law case of this kind it is to be done effectively only in the anticipation of some utility or benefit of a practical kind arising from that relief.
12. It is important to recognise that Mr Bedford's case on the substantive merits is an arguable one. As I have said, Keene LJ gave permission to appeal Mr Rabinder Singh's judgment. However, despite Mr Bedford's persuasive submissions to the contrary I am not inclined to entertain the substantive appeal.
13. My reasons are as follows. 1) Though there are cases and perhaps especially in the public law field when it is right for the court to give an advisory opinion, that remains an exceptional course requiring particular justification. The court's resources have to be deployed as effectively as possible and the court has to have in mind the overriding objective set out in Part 1 of the Civil Procedure Rules.

2) A judgment in the appellant's favour would not, I think, bind the hands of the Secretary of State in any future deliberations by him on planning proposals put up by bodies such as the District Council. The bite of paragraph 1(3) of Schedule 8 of the 2004 Act has expired by an effluxion of time. Any future decisions to which the court's judgment might possibly be relevant will therefore necessarily be taken under other statutory provisions. The nature of those provisions, whatever they are, may have a profound effect on any issue relating to legitimate expectation. As was said in Inland Revenue ex parte MFK Underwriting [1990] 1 WLR 1545 at paragraph [114] :

"The correct approach to legitimate expectation in any particular field of public law depends on the relevant legislation."

I should add with great respect that I was not assisted by the case of R(Majed) [2009] EWCA Civ 1029 to which Mr Bedford referred this morning

3) This last point, my second reason, is really part of a wider if obvious consideration. The determination of legitimate expectations is extremely sensitive to the facts of the particular case. In this present case the appellants rely on particular statements made in particular documents created by the District Council in the context of the transition from the Local Plan to the New Development Plan documents contemplated in the 2004 Act. Any judgment of ours on these facts will be historic only. It would by no means necessarily regulate and perhaps would not even touch the position arising on other facts. It would, I think, be lamentable if further litigation were generated solely in order to decide how far this court's judgment in this case bit off other and different states of affairs.

14. Lastly, while I emphasise I will express no view as to the appeal's substantive merits because of course we have not heard them argued, I think it right to add that, if after full argument, this court had been minded to hold that the Deputy Judge was after all right, why then that might actually be a factor which would inhibit the employment of legitimate expectation arguments on more promising facts and in different circumstances at some later date or dates.
15. For all those reasons, for my part I would exercise the court's discretion not to enter into the merits of this appeal and it would be strictly on that basis, if my Lords agree, that the appeal would fall to be dismissed.

Lord Justice Wilson:

16. I do indeed agree.

Lord Justice Mummery:

17. I agree. In my judgment the interests of justice would not be served by entertaining an appeal on the fact-sensitive question of legitimate expectation of consultation which, by reason of the supervening events described by my Lord, no longer has any practical utility. I have reached the same conclusion as my Lord.

Order: Appeal dismissed