Case No: 0224/2001
Neutral Citation Number:  EWHC Admin 565
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 20th July 2001
PERSIMMON HOMES (THAMES VALLEY) LTD
TAYWOOD HOUSES LTD
BRYANTS HOMES SOUTHERN LTD
GARDEN VILLAGES PARTNERSHIP PLC
NORTH HERTFORDSHIRE DISTRICT COUNCIL
SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS
The third point your Lordship has not had regard to is the fact that one would anticipate where there is statutory duty imposed, as there is in the Act and the regulations, to proceed through a series of steps that are important from the public interest to find an express duty to override that, if it is proposed to be provided. My Lord, that is not a point your Lordship has addressed.
MR JUSTICE COLLINS: Implied by implications, perhaps.
MR PURCHAS: My Lord, as I say, I am not particularly arguing these points and, your Lordship, plainly I am not involved in a reasons challenge. Fourthly, my Lord, your Lordship has not dealt with the point about where the power actually stops. The particular point is that with structure plans and UDPs it expressly applies after call-in. Now your Lordship has suggested in paragraph 10 of your Lordship's judgment that the process comes to a halt when it takes over. If your Lordship is intending to imply by that that the local authority is without power at that stage, I would respectfully be submitting your Lordship is wrong. There is a limit on the control, and it is deliberately there. Your Lordship has not dealt with the question whether this implied power applies before or after that call-in. That is another matter, in my submission, which lends support to not making, as it were, the irresistible inference.
Your Lordship then has set out section 50 in paragraph 12 but without coming back to it. Of course in section 50 one has in the same section the position of the structure plan and the local plan dealt with cheek by jowl. That is another matter, in my submission, where it really is impossible here to say there is the irresistible inference which should be drawn. My Lord, if I have not mentioned I should have mentioned of course the Secretary of State's call-in. My Lord, that is the first area that we wish to explore. The second is this.
As we read your Lordship's judgment, particularly in paragraphs 22 and 25, we understand your Lordship to have placed quite considerable weight on the identity between abandonment and withdrawal. My Lord, we say, first of all, that your Lordship is simply wrong as a matter of language and that if one was going to put a special interpretation on withdrawal or abandonment then there would have to be grounds within the statute. Your Lordship has not dealt with it in that way. What your Lordship has said, if we look at paragraph 25, is that the effect of an abandonment and of withdrawal is the same.
MR JUSTICE COLLINS: Yes.
MR PURCHAS: In argument I did not produce the dictionary definition.
MR JUSTICE COLLINS: Well, I looked at it.
MR PURCHAS: My Lord, I left it to your Lordship and, in my submission, if one looks at the dictionary definition there is no way of reconciling your Lordship's judgment.
MR JUSTICE COLLINS: It depends which dictionary you look at, Mr Purchas.
MR PURCHAS: My Lord, I am not here to argue the point. If your Lordship puts it that way, I pass your Lordship the Concise Oxford English -- Shorter Oxford English Dictionary.
MR JUSTICE COLLINS: I looked at the Shorter too, I also looked at my namesake.
MR PURCHAS: My Lord, I am only here to indicate what I seek to challenge is not fanciful.
MR JUSTICE COLLINS: No, I can see there may be an argument, it depends what you abandon, but yes.
MR PURCHAS: That I will come to in just a moment, if I may. In my submission, the concept here of abandonment - desert; leave behind; leave whatever - and contrasts that with withdrawal - take back; retract, and so on ----
MR JUSTICE COLLINS: Yes you "give up" if you abandon, you "take it back" if you withdraw. You say it is still left lying around--
MR PURCHAS: My Lord, the importance of that----
MR JUSTICE COLLINS: --and can be picked up by somebody else.
MR PURCHAS: The importance of that, which your Lordship has not dealt with here, is that if there is withdrawal then, on the face of it, there is nothing left to deal with. So there is no possibility of call-in by the Secretary of State.
MR JUSTICE COLLINS: I follow the argument, Mr Purchas.
MR PURCHAS: That is not a matter your Lordship has addressed. Your Lordship seems to have placed weight on the fact of what your Lordship describes as the proposals, which is the second point. That is, in our submission, a misunderstanding of the position. As we submitted to your Lordship in fact the proposals, in other words the plan, has an important, independent existence both through the process required by statute being examined through the local plan in the light of objection, but of course it can be approved by the Secretary of State and it is still a local plan.
Of course one does not know on your Lordship's judgment whether, even at that last stage after call-in, this implied power is relevant or not, because that is something which is not dealt with.
Your Lordship helpfully indicated in argument that if there was withdrawal the plan could still be called-in, that was during argument.
MR JUSTICE COLLINS: No, I did not indicate, I was raising the possibility.
MR PURCHAS: Well, then, your Lordship has helpfully indicated that now. But it is not a matter your Lordship addresses in your Lordship's judgment.
MR JUSTICE COLLINS: No, it did not seem to me to be a good point when I thought about it.
MR PURCHAS: Your Lordship has also failed to deal at all with the very clear distinction made in the regulations that preceded the 1990 and 1991 Acts consistently through 1971, 1972, 1974, and 1982. If one takes 1982 by way of example the precise language used in regulation 19 of withdrawal of a plan, the structure plan, in regulation 26 withdrawal of copies of the plan, intending it to be withdrawal in that sense, and in regulation 33 abandonment and withdrawal within the same regulation. Your Lordship has not touched at all upon that precise use of language which was there before----
MR JUSTICE COLLINS: I have not spelt it out in the sense that I have not referred to every regulation which uses the language, but I should have thought it was very clear what I was saying.
MR PURCHAS: My Lord, I am not here to criticise your Lordship's judgment.
MR JUSTICE COLLINS: No, you are but----
MR PURCHAS: My Lord, I started off by indicating----
MR JUSTICE COLLINS: Which is fair enough.
MR PURCHAS: The role I am in, my Lord, is simply to indicate to your Lordship the points I wish to challenge are not fanciful.
MR JUSTICE COLLINS: No, fine.
MR PURCHAS: The last point I would wish to deal with, if your Lordship will bear with me, is simply this. Your Lordship has taken the approach of looking back at the history of these legislative provisions. In doing so, your Lordship rightly has directed that there would have to be ambiguity. Your Lordship in finding ambiguity appears at paragraph 18 to have fastened upon three points. First, the deeming provision in the 1985 Local Government Act; secondly, note 3 to paragraph 3 in schedule 13; and thirdly, the apparent inconsistency between UDPs and local plans. In my respectful submission, there is no grounds for concluding ambiguity on those three reasons I have just indicated to your Lordship. First, that the local Government Act 1985 is simply using a deeming provision. It is a separate Act.
MR JUSTICE COLLINS: Mr Purchas, forgive me, I can understand that there are substantial arguments which could be raised, but I am not sure, is it necessary for you to spell out what they are?
MR PURCHAS: If your Lordship is with me that there is, as it were, a real prospect of success I would not----
MR JUSTICE COLLINS: I am not saying that there is necessarily that. What I am saying is that I understand that there are arguments, mainly which you put before me.
MR PURCHAS: My Lord, that brings me back to where I started. The test here is that the grounds are not unrealistic and not fanciful. There is a scope for a different view.
MR JUSTICE COLLINS: At the moment I recognise that this was not entirely straightforward, as I think I indicated when I first read the papers. I thought the answer was fairly clear and was against you. But you persuaded me that there was a lot to think about. In the end, you did not persuade me that it came down in your favour. But I do not pretend that there is not a substantial argument.
MR PURCHAS: If that is right, my Lord, I mean one of the dangers is that if at this stage permission is not granted we have to take court time and expense----
MR JUSTICE COLLINS: Mr Purchas, at the moment I am leaning in your favour.
MR PURCHAS: My Lord, I am quite confident that an application for permission is unlikely to be resisted by the Secretary of State----
MR JUSTICE COLLINS: I do not know.
MR PURCHAS: It is a matter of great public importance.
MR JUSTICE COLLINS: Yes, I recognise the importance as well.
MR PURCHAS: If I may say this, as I pointed out----
MR JUSTICE COLLINS: Perhaps the message should go to the draftsman that in the next amendment they might think of actually making it clear.
MR PURCHAS: Yes. My Lord, I will not finish the grounds that I would wish to take but I better have that on the transcript. But, my Lord, I do say this----
MR JUSTICE COLLINS: You will not need them on the transcript because you will put them in your notice of appeal, will you not?
MR PURCHAS: But on occasion it is important to have them on the transcript.
MR JUSTICE COLLINS: All right.
MR PURCHAS: Can I just say this, it is important also for those many other objectors to this plan to suddenly have the plan removed, nothing to do with our proposal.
MR JUSTICE COLLINS: Yes. But I do not suppose they are particularly worried if they were objecting. But still, that is by the way.
MR PURCHAS: My Lord, I say no more than that. My Lord, I will not elaborate further, unless there is anything else.
MR JUSTICE COLLINS: What is the attitude, Mr Morshead?
MR MORSHEAD: My Lord, it is certainly not a case where it would be appropriate for me to indicate consent to the grant of permission. I resist the application. My Lord, equally, in my submission, it would be inappropriate for me to take on each of the arguments foreshadowed by my learned friend in an attempt to knock them down.
Your Lordship accepted the main submission of both the Secretary of State and my client, which was that the straightforward obvious one, as it were, that it must follow from the fact there is a discretion not to (inaudible) that is a very forceful point. In my respectful submission the way that your Lordship has dealt with the various obscurities tending against that implication is more than sufficient to have dealt with them, and clarified what might otherwise have been a murky area.
In my submission, the fact that there are a great number of obscurities does not in the end amount to a forceful argument against the existence of the (inaudible) power. It is in a way not for me to do more than to indicate that those are among the important matters for your Lordship to have in mind when considering whether this it an appropriate case for permission. I leave it to your Lordship with that in mind.
MR ABRAHAMS: My Lord, my instructions are to remain neutral on the question of permission to appeal.
MR JUSTICE COLLINS: At least you have not got an opposition. Mr Purchas, without giving any encouragement. I do take the view that this was not entirely straightforward. It is obviously an important point for planning law. I am prepared to grant leave to appeal to avoid the need for you to go to the Court of Appeal.
MR PURCHAS: My Lord, I am much obliged.
MR ABRAHAMS: My Lord, on the question of costs, I assume that costs are for detailed assessment?
MR JUSTICE COLLINS: I am sorry, I had forgotten that you had mentioned the possibility of some reassessment. Do you want to pursue that?
MR ABRAHAMS: I do not pursue that. The costs should be detailed assessed.
MR JUSTICE COLLINS: I would have thought that that was appropriate.
MR PURCHAS: My Lord, yes. We got the schedule at seven minutes past four last night. We do not have instructions on it.
MR JUSTICE COLLINS: I mean it is obviously-----
MR PURCHAS: I think your Lordship's order will involve a little bit of scrutiny anyway.
MR JUSTICE COLLINS: Possibly, yes. It might be that both of them will try to get as much as they can out of it.
MR PURCHAS: I have no doubt.
MR JUSTICE COLLINS: All right. Thank you very much.