England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, PLANNING COURT
(MRS JUSTICE PATTERSON)

		Royal Courts of Justice Strand London, WC2A 2LL
		15 September 2015

1. LORD JUSTICE RICHARDS: This is an application by Wiltshire Council for permission to appeal against an order of Patterson J by which she declared that a decision of the Secretary of State (the first respondent to the present application) allowing a planning appeal by a number of developers (the second to fourth respondents) was unlawful but she declined to quash the decision. The essence of the application to this court is that the judge should have granted a quashing order, not a declaration.
2. The background is set out fully in the main judgment below, [2015] EWHC 1261 (Admin). The developers were appealing to the Secretary of State against the Council's refusal of planning permission for the erection of a number of dwellings. One of the issues was that of housing need. The Council had conceded that it could not demonstrate a five year supply of housing in compliance with the National Planning Policy Framework. Under the emerging Wiltshire Core Strategy it was planning to deliver at least 42,000 homes, some 2,000 below the full objectively assessed need. At an extremely late stage in the planning appeal, however, the Council submitted to the Planning Inspectorate (PINS) a final report by the Inspector examining the emerging Core Strategy in which that Inspector found that the 42,000 figure was sound and that the Council could demonstrate a five year supply of housing against that requirement.
3. That report was submitted to the Inspectorate but did not find its way to the Inspector determining the appeal and was, therefore, left out of account in the decision.
4. The judge found that the decision was unlawful in failing to take the report into account. Her main judgment on the issue concluded as follows at paragraphs 72 to 74:

i. "72. It follows that I find that the claim succeeds in Appeal A. The second to fourth defendants though contend that the claimant has suffered no prejudice and that the court should, in the circumstances exercise its discretion not to quash the decision.

ii. 73. I am satisfied that the claimant has suffered prejudice in that planning permission has been granted for a development contrary to development plan policy on a basis which was or may have been in error, namely, housing need.

iii. 74. As to discretion that is harder. The second to fourth defendants were not on notice that they should be doing something, they lost the opportunity to make representations to PINS and if the decision is quashed the application will be re-determined against a revised development plan situation. None of that is of their making. However, the fact is that it cannot be said as per Simplex... that the decision would have been the same. That is just not known. In the circumstances and, with a degree of reluctance, I find that I am unable to exercise my discretion not to quash the decision letter."

5. She ended her judgment by inviting written submissions on the final order and costs. Whilst such submissions can often be made and taken into account between receipt of the draft judgment by counsel and the handing down of the approved judgment by the judge, in this case the submissions followed hand down of the judgment.
6. In those submissions, the developers argued in favour of relief by way of a declaration rather than a quashing order. The Council's submissions resisted that argument, contending that the principle of quashing had been determined in the main judgment, which was already a public judgment, and that a declaration should in any event be refused. The Secretary of State adopted a neutral position.
7. On consideration of the parties' submissions, the judge issued a supplementary judgment, [2015] EWHC 1459 (Admin). In that supplementary judgment, she set out the rival post-judgment submissions and decided in favour of a declaration rather than a quashing order. At paragraphs 7 to 9, she said this:

i. "7. No argument was raised at the hearing that a declaration would be an appropriate way of proceeding if an error of law was found. As it has been raised and all parties have dealt with it, so do I. I can do so as the argument is not about whether relief should be granted but about its nature and whether a declaration is appropriate as an alternative to quashing the decision letter.

8. It is clear from my judgment of 5 May 2015 that the facts of the case were unusual. The error of law arose because of a failure on the part of the first defendants.
9. It is clear from paragraphs 68 and 74 of the judgement that the second to fourth defendants were placed at a disadvantage as a result of the error on the part of the first defendant when that error was not of their making and to which they had not contributed. Issues of fairness, therefore, arose. Fairness though was a two-way process of which the second to fourth defendants were an unwitting victim of whatever flaw there was in the first defendant's systems that operated in the case."
10. In paragraph 10, the judge rejected various specific points made by the developers, but in paragraphs 11 and 12 she concluded as follows:

i. "11. In all of the circumstances, and taking the position of all of the parties into account, evaluating the remaining points raised by the second to fourth defendants against any prejudice to the claimant, in my judgment, it is appropriate, in the exceptional circumstances of this case, to grant a declaration in the terms agreed by the parties as to the unlawfulness that occurred.

11. That approach recognises the public interest, that the first defendant acted unlawfully, that the claimant acted in an appropriate way but that the second and fourth defendants, through no fault on their part, have found themselves disadvantaged. I find that although the decision in invalid in the exceptional circumstances here it is appropriate to exercise my discretion and grant the alternative form of relief, namely a declaration."
12. Mr Hugh Richards, counsel for Wiltshire Council, submits that the judge thereby erred in law. His grounds of appeal are that (1) the judge was wrong to hold that no argument was raised at the hearing that a declaration would be an appropriate way of proceeding if an error of law was found and (2) that the declaratory relief granted was in direct contradiction to the judge's earlier clear statement that she would not exercise her discretion not to quash the decision.
13. Laws LJ refused permission to appeal on the papers, expressing the view that the judge was entitled to make a declaration rather than a quashing order for the reasons she gave. He said he had also had regard to the developers' written respondent's statement pursuant to Practice Direction 52C, thereby suggesting (without stating in terms) that he found that statement persuasive.
14. Mr Richards has renewed the application before me this morning, contending that an appeal has a real prospect of success and that there is, in any event, a compelling reason why the Court of Appeal should consider the extent to which discretion should be exercised at the stage where the judge is considering the substantive merits and what, if any, overlap should remain when the parties try to reach agreement as to the terms of an order to give effect to the judgment on the substantive merits.
15. Despite Mr Richards' vigorous written and oral submissions, I agree with Laws LJ that permission should be refused. I do not accept that an appeal has a real prospect of success or that there is anything about this case which provides a compelling reason why an appeal should nonetheless be heard.
16. It seems to me that, despite the judge's expression of view in the main judgment as to the exercise of discretion not to quash and despite the fact that that main judgment had been handed down and was publicly available, the judge was entitled to give the matter further or fresh consideration in the light of the post-judgment submissions concerning the appropriateness of remedy by way of declaration in lieu of a quashing order.
17. There was no error in the judge saying that no argument had been raised at the main hearing that a declaration would be an appropriate way of proceeding if an error of law was found. In my view, such an argument was not inherent in the developers' contention that the judge had exercised her discretion not to quash. The possibility of a specific declaratory remedy in lieu of a quashing order was indeed a new suggestion. When it was raised in terms in the post-judgment submissions and was addressed in that context by all parties, it was, in my view, open to the judge to address it and to reach a decision on it in her supplementary judgment.
18. This may not have been a possibility she contemplated when inviting submissions on the final order following her main judgment, but it was a possibility that she was entitled to consider in the light of the submissions actually received. I acknowledge that she might possibly have taken the view that it was too late for the declaration issue to be raised, but it was nonetheless within her discretion to entertain that issue in the circumstances and her doing so gave rise, in my judgment, to no unfairness.
19. It was, moreover, well within the reasonable bounds of her discretion to decide that a declaration would, after all, be the appropriate form of relief. Her hands were not tied by what she had said in the main judgment about being unable to exercise her discretion not to quash the decision. She gave valid reasons for taking the course she did in the exceptional circumstances of the case.
20. In short, I am satisfied that there is no good reason for the Court of Appeal to entertain an appeal against the judge's order and no real prospect of the court setting that order aside even if an appeal against it were entertained.
21. The application before me must, therefore, be refused.