IN THE HIGH COURT OF JUSTICE Case No: CO/510/2001
|Royal Courts of Justice|
London, WC2A 2LL
B e f o r e :
FRIENDS PROVIDENT LIFE & PENSIONS LIMITED
- and - THE SECRETARY OF STATE FOR TRANSPORT, LOCAL GOVERNMENT AND REGIONS
(1) NORWICH CITY COUNCIL
(2) LEND LEASE NORWICH LIMITED
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Philip Sales and Paul Nicholls, instructed by The Treasury Solicitor, appeared for the Defendant;
John Pugh-Smith and Matthew Reed, instructed by Mr Philip Mason, Head of Legal Services, Norwich City Council, appeared for the 1st Interested Party; and
Timothy Straker QC and Sarah-Jane Davies, instructed by Travers, Smith Braithwaite, appeared for the 2nd Interested Party.
Crown Copyright ©
MR JUSTICE FORBES :
to as “Friends Provident”) challenges by way of Judicial Review the
decision of the Secretary of State for Transport, Local Government and Regions (“the Secretary of State”) not to call in for his own determination
a planning application which has been submitted by the Second Interested
Party (“Lend Lease”) to the First Interested Party (“the Council”) for the
development of a major retail shopping centre and residential
development at the former Nestle site at Chapelfield, Norwich (“the
Ground 1. (a) in the particular circumstances of the present case, the Council’s determination of the planning application will constitute a breach of Friends Provident’s rights under Article 6 of the European Convention of Human Rights (“the Convention”);
(b) in contrast, the Secretary of State's determination of the planning application following its call-in would not be a breach of Article 6 of the Convention; therefore, in deciding not to call in the planning application, the Secretary of State has acted in a manner which is incompatible with Friends Provident's Article 6 rights and which is unlawful by virtue of Section 6(1) of the Human Rights Act 1998; and
Ground 2: (c) further and in any event, in the particular circumstances of the present case, the Secretary of State is obliged to give reasons for his decision and he has refused to do so.
See also paragraph 2 of the written skeleton argument prepared by Mr Katkowski QC and Mr Kolinsky on behalf of Friends Provident.
(i) The Town and Country Planning Act 1990 (the “TCPA 1990”):
“Section 58 Granting of Planning Permission: general
(1) Planning Permission may be granted –
(b) by the local planning authority…on application to the authority…
Section 70 Determination of applications: general considerations
(1) Where an application is made to a local planning authority for planning permission –
(a) subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or
(b) they may refuse planning permission.
(2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.
Section 77 Reference of applications to Secretary of State
(1) The Secretary of State may give directions requiring applications for planning permission…to be referred to him instead of being dealt with by the local planning authorities.
(2) A direction under this section
(a) may be given either to a particular local planning authority or to local planning authorities generally; and
(b) may relate … to a particular application…specified in the direction.
(ii) The Town and Country Planning (Inquiries Procedure) (England) Rules 2000 (“the TCPIR 2000”)
Application of Rules
3.- (1) These Rules apply in relation to any local inquiry caused by the Secretary of State to be held in England before he determines-
(a) an application for planning permission referred to him under section 77…
17.- (1) After the close of an inquiry, the inspector shall make a report in writing to the Secretary of State which shall include his conclusions and his recommendations or his reasons for not making any recommendations.
(5) If after the close of an inquiry, the Secretary of State
(a) differs from the inspector on any matter of fact mentioned in, or appearing to him to be material, to a conclusion reached by the inspector; or
(b) takes into consideration any new evidence or new matter of fact (not being a matter of government policy),
and is for that reason disposed to disagree with a recommendation made by the inspector, he shall not come to a decision which is at variance with that recommendation without first notifying the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reasons for it; and affording them an opportunity of making written representations to him or (if the Secretary of State has taken into consideration any new evidence or new matter of fact, not being a matter of government policy) of asking for the re-opening of the inquiry.
(iii) The Human Rights Act 1998 (“he HRA 1998”)
Section 1 The Convention Rights
(1) In this Act “the Convention rights”means the rights and fundamental freedoms set out in –
(a) Articles 2 to 12 and 14 of the Convention,
(b) Articles 1 to 3 of the First Protocol, …
as read with Articles 16 to 18 of the Convention
Section 3 Interpretation of legislation
(1) So far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with the Convention rights.
Section 6 Acts of public authorities
(1) It is unlawful for a public authority to act in a way
which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if –
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(6) “An Act” includes a failure to act…
Section 7 Proceedings
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings
but only if he is (or would be ) a victim of the unlawful act.
Section 8 Judicial remedies
(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(iv) The European Convention on Human Rights (“the Convention”)
Right to a fair trial
1. In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…
THE FIRST PROTOCOL
Protection of Property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
“We contend that the proposed development is unsupported by any reliable assessment of the need and capacity for further retail floorspace in Norwich. This has to be undertaken because the proposed development would, in our opinion, have very serious adverse consequences for both Castle Mall and the City Centre as a whole, because the Chapelfield development will have an adverse impact upon the vitality and viability of the established City Centre and would fundamentally alter the balance of the City which has emerged carefully within the Local Plan framework. This is contrary to the implementation of City Centre regeneration initiatives which have evolved from the Local Plan framework over many decades.
Whilst the potential for some kind of retail scheme has been considered by Norwich City Council and Norfolk County Council in the past, at no time has a scheme of anything like the size now been (sic) proposed been considered as being appropriate for the redevelopment of the Nestle site.”
A further succinct and accurate summary of Insignia R.E.’s full submissions in support of Friends Provident's objection to the proposed development is to be found in the Planning Officers’ report to the Council’s Planning Committee (“the Planning Committee”) and is quoted later in this judgment (see paragraph 18, below).
(i) there had not been a proper assessment of the likely effect of the proposed development on the City Centre and a full and proper assessment would have shown:
(ii) that there was and would be insufficient money in the system, when properly assessed up until 2011, to support further retail development on this scale in this location in Norwich, with the likely result (amongst others) that retail spending would be spread too thinly across the City Centre, reducing the viability of existing retail businesses in the City Centre ;
(iii) that more than 15% of tenants of retail shops/units would be drawn from the City Centre to the Chapelfield development; and
(iv) that there would be significant traffic problems in both the general area and the City Centre.
“Dr Davies was, until recently, Director of the Oxford Institute of Retail Management which he founded in 1985. He is the secretary of the Oxford Retail Group, which is a pressure group of 12 companies that seek to promote clearer retail policies. The Oxford Retail Group was the principal body responsible for the revision of PPG 6 and was influential in further strengthening the note in 1997, following a House of Commons Environment Committee’s Enquiry into Shopping Centres and their Future. He was one of the two specialist advisers to this Committee. He is also a member of various research organisations dealing with retail trends.
“The first part provides a personal assessment of the future of the retail industry in the UK, writ large, over the next five to ten years. The second part looks at Norwich City Centre as a regional shopping centre for East Anglia. The third part focuses on the Lend Lease proposal for a new mall, called Chapelfield, on the former Nestle factory site within the Norwich downtown area.”
“I have been very impressed by the Norfolk County Council’s quantitative assessments of retail need for all kinds of centres in the county including Norwich city centre. The initial concerns over the size of the proposal and the possible tenant mix of retailers (were that the) Lend Lease Chapelfield proposal is for a very large centre and its potential impact on existing high streets and the Castle Mall scheme needs to be carefully evaluated. My (concerns) have largely been allayed…I am generally satisfied with the analyses on what the city centre can absorb by way of new retail development going forward. I met personally with the County planner who undertook the analyses…
Inevitably, in an exercise like this, there will be disputes over the precise figures used to calculate potential retail demand (including assumptions about the growth of consumer spending in the region and the size of Norwich’s catchment area). I have seen the critique by Insignia Richard Ellis of Montagu Evans forecasts undertaken for Lend Lease and found the analyses bewilderingly complicated. I am more impressed with the Montagu Evans report that gave emphasis to the need for qualitative assessments of development proposals as well as quantitative ones.”
“In the same way that I have talked to officers from Norwich County Council, I have also talked with the European Chairman of Lend Lease, Mr Allan Chisholm. Mr Chisholm has given me detailed insights and information on what Lend Lease plans for the proposed development, particularly in the crucial area of tenant mix. Some of these insights and information remain confidential…”
Quite rightly, Mr Katkowski did not suggest that there had been anything improper in the way that Dr Davies gathered relevant information for his report. Mr Katkowski’s point was simply that, inevitably, it had not been possible for Friends Provident to investigate or challenge any of the factual or other material which had been provided to Dr Davies by the planning officers and by the senior executives of Lend Lease, nor had it been possible to challenge any of the conclusions which Dr Davies had drawn from such material. It was Mr Katkowski’s submission that the position would be very different at a public inquiry, where all such material and conclusions would be subject to scrutiny and challenge by way of cross examination and other evidence and to the assessment and determination of an independent inspector.
“I find the Lend Lease Chapelfield proposal to be very convincing, on three grounds:
1. Norwich City Council is encouraging the pressure for new retail development to be accommodated “in-town” rather than “out-of-town, in line with Government stipulations.
2. Norwich City Council and Norfolk County Council are at one in seeing Norwich as the pre-eminent regional shopping centre in East Anglia and jointly they have created one of the best retail environments in the UK.
3. I have no doubt that Lend Lease will bring to the Chapelfield development a tenant mix that will both complement the existing structure of Norwich city centre and raise its overall status.
I hope that Norwich City Council will endorse this proposal.”
16. On 1st September 2000, the statutory consultees and all those who had made representations to the Council were notified of the time and place of the meeting of the Council’s Planning Committee (“the Planning Committee”) at which Lend Lease's planning application was to be considered.
17. On 15th September 2000, copies of the Planning Officers’ report concerning the planning application, which had been prepared for and submitted to the Planning Committee for the purposes of the meeting, were made available to the public. The Officers’ report was very full and detailed (see pages 647 to 681 of Court Bundle 3) and, having regard to the issues in these proceedings, in my opinion it is helpful to summarise some of its contents at this stage of my judgment.
18. The report commenced, in the usual way, with a summary followed by a description of the site and its relevant planning history (including the fact that the Council owned part of the site – i.e. the Chantry Car Park site etc.). The proposed development was then described in outline, together with a list of the documentation which had been submitted in support of the planning application and details of all those who had been consulted and how the consultation process had been carried out. As I have already indicated, Insignia R.E.’s submission on behalf of Friends Provident was summarised in Appendix 1 to the Officers' Report, together with the Officers’ response to it. As it seems to me, the summary was accurate and fair and, in combination with the Officers’ response, produced for the consideration of the Planning Committee a balanced discussion of the issues raised by Friends Provident’s objection, as follows:
“Insignia R.E. (Rep. Friends Provident Life Office)…Does not object to the principle of retail development at Chapelfield. The role of the City Council should be that it is redeveloped in a sustainable manner, to maximise its potential, to bring forward a true mix of uses and to ensure that there are no unacceptable adverse impacts on the rest of the City centre. Contend that the proposed development is unsupported by any reliable assessment of the need and capacity for further retail floorspace in Norwich. The development would have very serious consequences for Castle Mall and the City Centre and would fundamentally alter the balance of the City.
The development is contrary to the Development Plan.
The Local Plan is under review and also scheme of this size cannot properly be assessed until its status has been considered and ratified in principle at the regional, county and local levels through the development plan process. The development exceeds the County Council’s assessment of what was required on the site. The application should be refused as premature because its size prejudices the outcome of the plan process.
The development is contrary to the Planning Brief for the site.
It is also contrary to national and regional planning policy guidance because it will have an adverse impact on the vitality and viability of the (City) centre. There will be a shortfall of expenditure compared to floorspace of £140m by 2006.
The development will be a car dominated proposal contrary to PPG13 and NATS. The access arrangements will increase congestion on inner ring road. The TDA fails to demonstrate the true traffic impact.
The development is not sustainable, the site is a valuable resource which should be used to create a truly mixed-use development.
Scale and massing is out of keeping with historic centre and is poorly designed. It is also poorly integrated into City centre.
There is insufficient demand from new retailers to fill the proposed scheme. The assertion that only 15% of lettings will be from existing retailers in the centre is inaccurate.
The development is contrary to the Structure Plan.”
“Officer Response. Lack of objection to principle of retail development is noted.
Site is sustainable as a City Centre location.
The applicants have demonstrated that the impact is not unacceptable in the Centre. The studies conform to a recognised capacity exercise undertaken as part of the Structure Plan review.
City Council has sought expert opinion who doubts the effect on Castle Mall will be negative due to the different nature of the retailing proposal.
The proposal is in accordance with Structure Plan and Local Plan policy and there is no argument to suggest that this should be rejected because it is premature.
The proposal is in accordance with the Planning Brief and national and regional guidance.
It is anticipated that it will strengthen Norwich’s retail attraction.
The development provides for a modal shift and makes provision for improvements for park and ride and pedestrians and cyclists.
There has been no strategic highway objection from the County Council.
The scale and massing is appropriate and the site integrates extremely well with other parts of the Centre.
No evidence is put forward to indicate that the scheme will directly compete with existing retail.
The City Council’s retail expert has advised that the scheme will attract a different type of tenant.
Modal split calculations are based on producing a robust case in terms of traffic impact. They represent a worse case assumption and in any case the car modal split is slightly lower than present.
The NATS target is for 2011. The journey times on the Inner Ring Road are not predicted to alter greatly but whereas a degree of burden on the road network as a whole is acknowledged, it is concluded that this is adequately addressed by provision of measures to assist non-car modes including park and ride.
TDA suggests that journey times along the Inner Ring Road will either slightly increase (max 16s) or decrease depending (max 52s) on the time of day. A signal controlled crossing between N&N site and application site is proposed.
In aggregate terms, the scheme will lead to an increase in car parking of only 47 spaces within the Inner Area compared to 1997.”
“19…In the interests of fairness and good administration, it is proposed that it would be advertised as such as well as notifying the Secretary of State.”
The report then followed with advice that the scale of the proposed development was such that it was necessary to refer the planning application to the Secretary of State in any event and that:
“20. … … The City Council is therefore not in a position to determine the application until 21 days after receipt of the application by the Secretary of State. Informal discussions have taken place with GO-East and they have suggested that the appropriate time for referral will be once Planning Committee has given its view on the principle of the development.
21. The Planning Committee is therefore not in a position to approve the application now, but rather to express either that it is minded to approve the application (subject to the referral outlined above) or refuse it.
22. In order to assist in the consideration of this application the Council has commissioned a report by an independent retail expert, Dr Ross Davies…”
“69. The applicants have undertaken a thorough assessment of need in quantitative terms. There is clearly a significant demand for the scale of retail proposed and it is considered that the City Centre and the Nestle site, in particular has the capacity to accommodate this. The assumptions used in the forecasts are considered the most appropriate and follow advice on best practice.”
“79. The Lend Lease scheme will help to add to the retail attraction of Norwich in the future and help to strengthen its position in the Region. The scheme will provide diversity in terms of unit size (which needs to be controlled by condition) and by the likely tenant profile.”
“The applicants have submitted a retail impact assessment as part of the application. The assumptions and methodology were agreed between the applicant and City and County Council officers at the outset and these are considered to be acceptable…”
However, as I have already stated, Insignia R.E.’s submissions as to the suggested inadequacy of the assessment of the impact of the proposed development on the City Centre had been accurately summarised in Appendix 3 to the report and there were a number of appropriate and relevant further references to Insignia R.E.’s representations in the body of the report itself. So it was that the officers’ conclusion on the likely impact of the proposed development on the City Centre was expressed in the following terms;
“91. Whilst there may be an effect on existing retailers in the City Centre as a result of the impact of the increase in floorspace from the Chapelfield scheme, it is not the role of the planning system to protect retailers from competition and the impact on the vitality and viability of the centre as a whole is not considered so significant as to justify a refusal of the planning application. In fact, the scheme is considered to have a positive impact qualitatively on the City Centre by adding to its retail offer.”
“102. The residential element complies with policy requirements and helps to create a more mixed scheme. The scale, and mix of units is considered acceptable; however, the introduction of a residential element in “the village” will help to create a better mix in this part of the site.”
“147. Whilst there is an impact on the highway network as a direct consequence of the scheme, the package of measures to relieve this impact and encourage a shift to non-car modes is acceptable and therefore there is no reason to resist the proposal on highway grounds.”
“212. The applicants have satisfactorily addressed the environmental aspects of the development. There will be controls over various issues by condition and through the S. 106 agreement.”
“S.106 requirements adequately address all the obligations arising from the proposal.”
“218. The key principles relating to the proposal are considered to be acceptable, having regard to the development plan and other material planning considerations. As with any scheme of this scale and significance, at this stage, there are clearly a number of detailed aspects which remain to be resolved, namely: (these are then listed and deal with such matters as detailed landscape proposal and the development of detailed design for certain specified aspects of the development)…
220. The scheme has sufficient merit to commend itself to receive support in principle and therefore be referred to GO-East for their consideration. The applicants have given a commitment that they are able to address all the outstanding concerns. These aspects will now need to take the form of revisions to the scheme, be readvertised to allow a period of further consultation on the changes, and brought back to committee for your consideration in due course.”
“221. It is recommended that:
Members agree that they are minded to grant planning permission for the planning application…subject to
• Advertisement and referral to the Secretary of State …
• A S.106 agreement covering all aspects listed above
• Conditions attached in Appendix 9
• Satisfactory resolution of the detailed areas of concern set out above.
(ii) Amended proposals addressing these areas of concern are readvertised
(iii) A report on the amended proposals including any comments received on the revisions is brought back to committee in due course.
(iv) Members agree that they are minded to approve the application for Conservation area consent …subject to:
• Response from the Secretary of State that the Council can determine the planning application
• Conditions attached in Appendix 10.”
“As you will see, Friends Provident considers that there are a number of significant reasons why it is important and appropriate that the applications are now called in by the Secretary of State so that there can be a proper consideration of the key planning issues which the proposal raises.”
“7. THE NEED FOR A CALL-IN
7.1 Friends Provident recognise that it is the Secretary of State’s policy to be very selective about calling in planning applications and that he will, in general, only do so if planning issues of more than local importance are involved.
7.2 In this case the Council has acknowledged that the need to refer the Lend Lease planning application to the Secretary of State for a decision on call-in arises under all of the heads set out in Circular 7/99…
7.3 For the reasons set out in this statement Friends Provident is of the view that the proposed development is, and is being promoted as, a scheme which would be of regional significance.
7.4 There is no demonstrable need for the development and as a result its impact on the existing retail facilities in Norwich would be amplified and severe. It would also draw significant amounts of trade from centres further afield…primarily through a very significant number of people accessing the site by car.
7.5 The appropriate forum for the consideration of development of this scale is the emerging Local Plan. Paragraph 4.12 of PPG 6 makes it clear that major new retail developments of regional significance should be addressed in this manner and it would be wrong for a proposal of this size and potential impact to be determined by the Council on the ad hoc basis of a planning application outside the Local Plan process.
7.6 The proposal has also attracted significant local controversy as evidenced by the number of local traders and retailers within Norwich who share Friends Provident's concerns. There are also the unresolved objections submitted to the scheme by CABE and by English Heritage.
7.7 In the circumstances we would respectfully request that the Secretary of State forthwith issues a direction under Article 14 of the General Development Procedure Order 1995 restricting the Council for (sic) granting planning permission indefinitely and then a direction to call-in the Lend Lease application for consideration at a Public Inquiry.
7.8 In making such a direction we would respectively suggest that the Secretary of State include in the list of matters upon which he will require evidence to be submitted at that Public Inquiry the following;
(i) whether the proposal is premature in the context of the replacement Local Plan and the guidance in PPG1 and PPG6;
(ii) whether the proposal is in accordance with the 1996 Local Plan and the 1999 Structure Plan;
(iii) the relationship between the proposal and the emerging guidance in RPG 6;
(iv) the relationship between the proposal and the Government’s guidance in PPGs 6, 12 and 13;
(v) whether the proposal would, either individually or cumulatively have a serious effect on the vitality and viability of Norwich City Centre;
(vi) whether the proposal and its associated traffic implications would have an acceptable impact on the amenity and environment of Norwich City Centre;…etc…
7.9 We can confirm that if the application is called-in Friends Provident would wish to appear to present a full case in support of its objections at the Public Inquiry given its detailed knowledge of the retail market in Norwich through its longstanding involvement and commitment to the City Centre.”
“5.4 The consideration of the applications by the Council is in breach of Article 6 of the ECHR (as now given effect to by the Human Rights Act 1998) in that the Council as landowner of part of the site cannot be said to be “an independent and impartial tribunal” in this matter.
5.5 In such circumstances, the European Court of Human Rights has adopted the approach that in order to comply with the convention, there must be a right of appeal to or review by a body which complies with the Article…
5.6 Accordingly, in this case, unless the matter is called-in for a review by an independent tribunal (i.e. the Secretary of State), there would be a breach of the convention.”
“As you know, the application was referred to the Department as a departure from the development plan. I am writing to let you know that the Secretary of State has now completed his consideration of the case and has decided, on the information before him that he should not intervene. Accordingly Norwich City Council were informed on 10th January 2001 that they may determine the proposal as they think fit”
“1. As you will be aware:
(a) By a letter dated 10 January 2001 the Secretary of State declined to call-in Lend Lease Norwich Limited’s applications … for his own determination;
(b) Your letter dated 5 January 2001 provided a partial explanation for the Secretary of State's decision not to call-in the said applications; and
(c) Our client’s claim for Judicial Review of the Secretary of State’s decision is listed for hearing on 23-24 July 2001.
2. The purpose of this letter is to request that the Secretary of State reconsiders his decision whether to call-in the said applications in the light of the decision of the House of Lords in (Alconbury)…
“I refer to your letter of 17 May 2001. The Secretary of State has now re-considered his decision not to call-in the planning application in the light of the decision of the House of Lords in R (Alconbury Developments Ltd) v SSETR…
The Secretary of State’s general approach is not to interfere with the jurisdiction of local planning authorities unless it is necessary to do so. There are occasions when he considers it necessary to call-in a planning application to determine himself, instead of leaving the decision to the local planning authority, but his policy is to be very selective about calling in planning applications. He will, in general, only take this step if planning issues of more than local importance are involved. Such cases may include, for example, those which, in his opinion, may conflict with national policies on important matters; could have significant effects beyond their immediate locality; give rise to substantial regional or national controversy; raise significant architectural and urban design issues; or may involve the interests of national security or of foreign Governments. However, each case will continue to be considered on its merits.
The Secretary of State has had regard to the representations made by you in this case, and has given careful consideration to the issues raised in the light of his policy stated above. Whilst it is appreciated that there are matters of concern for local residents, the Secretary of State does not consider that the issues warrant his intervention.
The Secretary of State does not accept that there is any obligation on him to give reasons for his decision.”
“…to carry out an independent review of the retail issues raised by the application by Lend Lease Ltd for the redevelopment of the former Nestle site, Chapelfield in Norwich City Centre.
1.2 Our terms of reference are to review the Retail Statements submitted in support of the application by Messrs Montagu Evans in April 2000 and the assessment by Dr Ross Davies…and to consider any changes in retail policy or the commercial climate since September 2000, which would have any bearing on the Council’s resolution to grant planning permission…”
As Mr Katkowski pointed out, it is clear that Hillier Parker’s terms of reference did not require them to review Insignia R.E.’s work, nor did Hillier Parker purport to do so.
“The scheme will lead to a significant increase in the comparison goods turnover of the City Centre as a whole. While it is likely to dilute sales in existing retailers, by in the region of 10% taking a test year of 2006, this would still enable existing traders to achieve real growth in sales of in the order of 1% per annum over this period. This would normally be regarded as sufficient margin to maintain acceptable trading conditions.
5.22 …Based on the scale and form of the development proposed, we would expect it to create an extension of the prime shopping area…in particular attracting new retailers not currently represented in the centre.”
“69. The Chapelfield scheme is still acceptable in principle as there have been no changes in circumstances which would suggest a need to vary the “minded to approve” resolution. In addition the revised proposals satisfactorily address the outstanding concerns set out in the September 2000 report and indeed represent some significant improvements to the form, content and detailed design of the scheme. Detailed aspects can satisfactorily be addressed by condition which is inevitable in dealing with a full application for a scheme of this scale and complexity…
70. It is recommended that members:-
First Issue: whether, in the exercise of the Court’s discretion, these proceedings should be dismissed or relief denied because of delay and/or lack of promptness on the part of Friends Provident in bringing the proceedings (“Delay”);
Second Issue: whether Article 6 of the Convention is engaged: i.e. whether Friends Provident have Article 6 rights in the circumstances of this case (“Engagement of Article 6”);
Third Issue: if Article 6 is engaged, whether the Council’s procedures, when taken together with the High Court’s power of review, constitute an Article 6 compliant procedure for the determination of Friends Provident's civil rights (“Compliance with Article 6”);
Fourth Issue: having regard to the second and third issues, whether the Secretary of State's refusal to call in the planning application is unlawful by virtue of Section 6 of the HRA 1998 and what, if any, relief may be granted against him (“Lawfulness of Secretary of State's Refusal to Call in”); and
Fifth Issue: whether the Secretary of State was obliged to give reasons for his decision not to call in the planning application (“Reasons for Decision”).
“65. …the issue in these three appeals is whether it is compatible with the Human Rights Act 1998 for Parliament to confer upon the Secretary of State the power to make decisions which affect people’s rights to the ownership, use or enjoyment of land…
68. All three cases involve general social and economic issues. They concern the rights of individuals to use, enjoy and own their land…”
“148. The scope of article 6 accordingly extends to administrative determination as well as judicial determination … The rights with which the present appeals are concerned are the rights of property which are affected by development…Those clearly fall within the scope of “civil rights”. But there is no issue about the existence of these rights and no determination of the rights in any strict sense is raised.
149. … The decision need not formally be a decision on the rights. Article 6 will still apply if the effect of the decision is directly to affect the civil rights and obligations … But it must have a direct effect of deciding rights or obligations …
150. It is thus clear that article 6(1) is engaged where the decision which is to be given is of an administrative character, that is to say one given in an exercise of a discretionary power, as well as a dispute in a court of law regarding the private rights of the citizen, provided that it directly affects civil rights and obligations and is of a genuine and serious nature.
156. …the subject matter of the decisions are in each case matters of planning determination, in relation to proposed developments which are of some considerable public importance. As planning decisions, even if they were not of some size and importance, they fall within what the court has recognised as a specialised class of case. … The rights affected are principally rights to use land, which may be the subject of development or of compulsory acquisition. Moreover, the right to use land is not an absolute right. It is under the domestic law subject to the controls of the planning regime, whereby permission may be required for the carrying out of a development or for the making of some change of use. Planning permission is not in general a matter of right.” ”
See also the speeches of Lord Slynn at paragraphs 27, 28 and 41, Lord Hoffman at paragraphs 133 to 135 and Lord Hutton at paragraphs 181 to 184.
“In this instance the applicant relied on public law and alleged that the provisions of … the … Act had not been complied with. In so doing, she nonetheless wished to avoid any infringement of her pecuniary rights, because she considered that the works on the land adjoining her property would jeopardise her enjoyment of it and would reduce its market value.
Having regard to the close link between the proceedings brought by Mrs Ortenberg and the consequences of their outcome for her property, the right in question was a “civil” one.
Accordingly, Article 6(1) applies.”
“civil right” within Article 6 and that, just as there was in Ortenberg, there is a “close link” between the outcome of Friends Provident’s objections to Lend Lease’s planning application and the impact such an outcome will have on Friends Provident’s right of property in Castle Mall (i.e. its value will be protected if planning permission is refused and it will be diminished if permission is granted), which also shows that Friends Provident’s civil rights will be directly affected by the determination of Lend Lease’s planning application.
(i) Administrative decision making of the type with which this case is concerned is a determination of civil rights within the scope of Article 6, provided it directly affects such rights. I accept that this is correct. Consideration of this point has been central to my decision in respect of the Second Issue (see paragraphs 54 to 69 above) and requires no further elaboration.
(ii) In his own right, the Secretary of State is not an independent or impartial tribunal for the purposes of Article 6 because, with regard to the subject matter in question, he is both decision maker and policy maker. Again, I accept that this is correct. In this regard, Mr Katkowski also submitted that, by a parity of reasoning, the same is also true of the Council as local planning authority, because it decides planning applications and, in doing so, applies policies of which it is itself the maker. Mr Katkowski went on to suggest that, in this case, the Council’s lack of impartiality was exacerbated by the fact that it owns part of the site in question (i.e. the Chantry Car Park), although Mr Katkowski made it clear that he did not put this aspect of the matter “at the heart of Friends Provident’s case”.
(iii) In Alconbury the House of Lords had considered whether the overall decision making process, comprising the Secretary of State’s procedures and the High Court’s powers of judicial review and by way of statutory appeal (conveniently referred to by the parties as a “composite process”), was Article 6 compliant and had decided that it was. This is clearly correct and was not in issue in these proceedings.
(iv) At the heart of the decision of the House of Lords in Alconbury is the significance attached by most of their Lordships to the holding of a public inquiry before an Inspector, who is sufficiently independent and impartial for the purposes of issues of fact (“the independent Inspector”), as part of the Secretary of State’s decision making procedures. Mr Katkowski went on to describe this aspect of the matter as critical to Friends Provident’s case on Ground 1 in these proceedings.
“108. Mr Bratza pointed out … that an inspector hearing an appeal …(against an enforcement notice)… acted in a quasi-judicial capacity and in accordance with prescribed procedures. Both parties were entitled to be heard and he gave a reasoned decision. It was true that, for the purpose of applying policy, the inspector could not be said to be independent … But for the purposes of finding and evaluating the facts, he was sufficiently independent.
109. Mr Bratza then discussed the breadth of the High Court’s judicial review powers and said that this power of review, “combined with the statutory procedure for appealing against an enforcement notice”, was sufficient to meet the requirement of “full jurisdiction” inherent in article 6(1).
110. Mr Bratza’s particular insight … was to see that a tribunal may be more or less independent, depending upon the question it is being called upon to decide. On matters of policy, the inspector was no more independent that the Secretary of State himself. But this was a matter on which independence was unnecessary – indeed, on democratic principles, undesirable – and in which the power of judicial review, paying full respect to the views of the inspector or the Secretary of State on questions of policy or expediency, was sufficient to satisfy article 6(1). On the other hand, in deciding the questions of primary fact or fact and degree which arose in enforcement appeals, the inspector was no mere bureaucrat. He was an expert tribunal acting in a quasi-judicial manner and therefore sufficiently independent to make it unnecessary that the High Court should have a broad jurisdiction to review his decisions on questions of fact.
111. I have spent some time on Mr Bratza’s opinion because I think it is clear that it influenced and illuminates the reasoning of the European court. …
116. … I have discussed Bryan’s case at length because the Divisional Court placed heavy reliance upon it and … seriously misunderstood it. The Divisional Court treated it as holding that, whatever the issues, the “safeguards” which the court enumerated in paragraph 46 as attaching to the functions of the inspectors were necessary before the existence of an appeal on a point of law or judicial review would satisfy article 6. But this is the very opposite of what the court was at pains to emphasise. It said, in paragraph 45, in language echoing that of Mr Bratza’s opinion:
“in assessing the sufficiency of the review available to Mr Bryan on appeal to the High Court, it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.”
117. If, therefore, the question is one of policy or expediency, the “safeguards” are irrelevant. No one expects the inspector to be independent or impartial in applying the Secretary of State’s policy and this was why the court said that he was not for all purposes an independent or impartial tribunal. In this respect his position is no different from that of the Secretary of State himself. The reason why judicial review is sufficient … to satisfy article 6 has nothing to do with “safeguards” but depends upon the Zumtobel principle of respect for the decision of an administrative authority on questions of expediency. It is only when one comes to findings of fact, or the evaluation of facts, such as arise on the question of whether there has been a breach of planning control, that the safeguards are essential for the acceptance of a limited review of fact by the appellate tribunal.
122. … I conclude from this examination of the European cases on our planning law that, despite some understandable doubts on the part of some members of the Commission about the propriety of having the question of whether there has been a breach of planning control determined by anyone other than an independent and impartial tribunal, even this aspect of our planning system has survived scrutiny. As for decisions on questions of policy or expediency such as arise in these appeals, whether made by an inspector or the Secretary of State, there has never been a single voice in the Commission or the European court to suggest that our provisions for judicial review are inadequate to satisfy article 6.
128. The second strand (of the reasoning of the Divisional Court in Alconbury) concerns the facts. These are found by the inspector and must be accepted by the Secretary of State unless he has first notified the parties and given them an opportunity to make representations in accordance with rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000. This is the point upon which, in my opinion, the Bryan case … is authority for saying that the independent position of the inspector, together with the control of fairness of the fact-finding procedure by the court in judicial review, is sufficient to satisfy the requirements of article 6.
129. Finally, the third strand is that of planning judgment. In this area, the principle in the Zumtobel case 17 EHRR 116, as applied in the ISKON and Bryan cases to questions of policy, does not require that the court should be able to substitute its decision for that of the administrative authority. Such a requirement would in my opinion not only be contrary to the jurisprudence of the European court but would also be profoundly undemocratic. …”
“the quasi-judicial character of the decision-making process; the duty incumbent on each inspector to exercise independent judgement; the requirement that inspectors must not be subject to any improper influence; the stated mission of the Inspectorate to uphold the principles of openness, fairness and impartiality.”
“…subsequent European authority shows that “full jurisdiction” does not mean full decision-making power. It means full jurisdiction to deal with the case as the nature of the decision requires.”
“Regard being had to the respect which must be accorded to decisions taken by the administrative authorities on grounds of expediency and to the nature of the complaints made by the Zumtobel partnership, the review of the Administrative Court accordingly, in this instance, fulfilled the requirements of Article 6(1).”
“44. … However, apart from the classic grounds of unlawfulness under English law (going to such issues as fairness, procedural propriety, independence and impartiality), the inspector’s decision could have been quashed by the High Court if it had been made by reference to irrelevant factors or without regard to relevant factors; or if the evidence relied on by the inspector was not capable of supporting a finding of fact; or if the decision was based on an inference from the facts which was perverse or irrational in the sense that no inspector properly directing himself would have drawn such an inference.
45. Furthermore, in assessing the sufficiency of the review available to Mr Bryan on appeal to the High Court, it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.”
(i) the decision may depend on the administrative decision maker making a finding as to some present or future fact – typically in enforcement proceedings (see Lord Hoffman in Alconbury at paragraphs 90, 95 and 117);
(ii) the decision may depend on the administrative decision maker making a judgment as to the progress or outcome of some future event or events: e.g. (as in the present case) the impact of a particular development on a particular locality; or
(iii) the decision may be based by the administrative decision maker on purely planning (i.e. policy) grounds.
“It is not the role of Article 6 of the Convention to give access to a level of jurisdiction which can substitute its opinion for that of the administrative authorities on questions of expediency and where the courts do not refuse to examine any of the points raised: Article 6 gives a right to a court that has “full jurisdiction”.
(i) the incompatibility of the Council’s determination of the planning application with Article 6 and the extent of that incompatibility in the present case;
(ii) the fact that the foregoing incompatibility was specifically drawn to the attention of the Secretary of State;
(iii) the fact that reasons were specifically and reasonably requested;
(iv) the need for the Secretary of State to re-evaluate the human rights implications of his decision in the light of the judgment of the House of Lords in Alconbury and the need to explain why his decision has remained the same, despite the important changes to the applicable principles of law which had resulted from Alconbury; and
(v) because this planning application is of the type and scale that would, in principle, be appropriate for the Secretary of State to call in for his own decision, having regard to his existing practice and stated policy.
(i) the inability to ascertain whether the Secretary of State has taken all material considerations into account or has taken in account any immaterial consideration;
(ii) the inability to identify what view the Secretary of State has taken with regard to the various issues raised by Friends Provident’s request that the planning application be called in and the lack of opportunity to correct any misunderstanding or draw attention to subsequent relevant developments; and
(iii) because of the foregoing matters, curtailment of the efficacy of the only remedy available to Friends Provident, namely judicial review.
MR JUSTICE FORBES: Has everybody received the most recent version of the judgment, which I propose to hand down this morning?
MR FORSDICK: Yes.
MR JUSTICE FORBES: Let me say at once that I am very grateful to everybody, solicitors and counsel, for the various corrections which were suggested to me, all of which I have accepted and incorporated into the latest version. Accordingly, I direct that the written judgment which I hand down this morning is to stand as the transcript of my judgment in this matter. Accordingly, these proceedings are, for the reasons contained in that judgment, dismissed.
MR NICHOLLS: My Lord, I appear on behalf of the Secretary of State on this occasion. I am grateful to your Lordship for his judgment. May I ask for an order that Friends Provident pay the Secretary of State's costs of this matter.
MR JUSTICE FORBES: Yes. Is there anything you want to say about that, Mr Forsdick?
MR FORSDICK: No, I cannot resist that, my Lord.
MR JUSTICE FORBES: Very well. I order that the claimant is to pay the Secretary of State's costs, to be assessed on a standard basis if not agreed.
MR NICHOLLS: My Lord, I am grateful. There is one other matter which, it may be, has been picked up in the corrections your Lordship referred to. I note this morning, I apologise for not having noted it previously, that the Secretary of State is now the Secretary of State for Transport, Local Government and the Regions. He appears on the front cover as "for the Environments and the Regions" and inside as "for the Environment, Transport and the Regions". His correct title now, since the elections, is "Secretary of State for Transport, Local Government and the Regions".
MR JUSTICE FORBES: When did it change to that?
MR NICHOLLS: After the election.
MR JUSTICE FORBES: Very well. I am grateful to you, Mr Nicholls, for pointing out that change in his title. I will ask the shorthand writer to make all the necessary alterations in the transcript.
MR NICHOLLS: I am grateful.
MR FORSDICK: On that short point, my Lord, there is also a change to the name of Friends Provident Life, which has been demutualised, and is now, as from June, Friends Provident Life & Pensions Limited.
MR JUSTICE FORBES: Again, I will ask the shorthand writer to make the necessary adjustments to the transcript to reflect that change in name.
Are there any other applications?
MR REED: My Lord, I appear on behalf of the Council in this matter. I also apply for the Council's costs. On an alternative basis, either full costs or a partial order of costs.
MR JUSTICE FORBES: Thank you. Anybody else?
MS DAVIES: My Lord, I do not apply for costs.
MR JUSTICE FORBES: Thank you very much, Ms Davies. Mr Forsdick, what do you have to say about that application?
MR FORSDICK: My Lord, it will take a bit of time to deal with that application. Can I hand in, first of all, the Bolton case. Can I just start with a very short preliminary point. First of all, my clients lost on a very narrow point, namely what is and what is not a factual issue that is worthy of determination by an independent inspector: paragraphs 93 and 94 of my Lord's judgment. That point had nothing whatsoever to do with anything that Norwich City Council did and did only by itself. The point that we lost on was one that was taken by Mr Sales on behalf of the Secretary of State. My Lord relied on that throughout, and Mr Sales' submissions, and did not pick up or rely on any further submissions by Mr Pugh-Smith on behalf of the Council. That is the introductory point.
MR JUSTICE FORBES: Yes.
MR FORSDICK: The next introductory point, my Lord, is really a rhetorical question. In circumstances where there is a clearly arguable point of general public importance, and a point of law of general public importance, is it right, as a matter of general principle, for my client to be at risk to an interested party's costs on that point of law which everybody knew from the outset the Secretary of State was going to fully argue, and fully argue, through to the Treasury junior? My Lord, in my submission, a party cannot come before this court and say "well, we had to be here because we were not sure the Secretary of State was going to fully argue the point" in those circumstances.
My Lord, of course, also the City Council attended before your Lordship on at least two points which they raised of their own volition, the Secretary of State refused to argue, and which they lost on. I will come back to that point a little later on.
My Lord, in my submission, this case comes nowhere near the Bolton Metropolitan District Council type situation, where two sets of costs could be permitted. If my Lord could turn up that case, just Lord Lloyd's judgment at page 52 H.
MR JUSTICE FORBES: I think I have it.
MR FORSDICK: It is the last page. The appeal was about a huge shopping development, I think 132 hectares, in Trafford Business Park. Lord Lloyd at paragraph 2, letter H, said:
"The developer will not normally be entitled to his costs [for developer we can read here the Council as well] unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he has an interest which requires [and I place emphasise on requires] separate representation."
My Lord, there was no separate issue upon which the City Council was required to attend before your Lordship. The two issues which were separate they lost on, and it cannot possibly be right that we should be at risk as to their costs on those.
The issue therefore becomes simply whether the City Council has an interest which, in the context of the Secretary of State fully arguing the point of law, requires separate representation. My Lord, in my submission, it is quite obvious that that test is nowhere near satisfied in the circumstances of this case. My Lord, the Secretary of State made it clear right at the outset, in his grounds of opposition, that he was homing in on, and homing in only on, what has become effectively the issue 3/issue 4 point. There was, in my submission, no requirement, because that is the word of Lord Lloyd, for interested parties to be represented on that point.
My Lord, there were three reasons in Bolton why it was considered appropriate to make two orders for costs. Those are set out at page 53, letters B to E. If I can read, please, from the second line under B:
"I accept that the issues were all capable of being covered by counsel for the Secretary of State, but the case has a number of special features."
Then he sets out three special features that were relevant. First of all, there had been a change in government policy, which the Secretary of State sought to defend, but the court held that the Secretary of State had a wider interest than the developer and had to remain aloof, and the developer there was only concerned with his permission. Secondly, the exceptional size of the development and the exceptional importance of it to the parties. My Lord, there it was pretty much the biggest retail development of all time in Trafford, 230 hectares, major subregional context, exactly different from the position here, where the Secretary of State said this was not of more than local significance. The third factor that influenced Lord Lloyd in granting a second award of costs to the developer was the nature of the opposition coming from eight neighbouring local authorities supported by a consortium of local businesses.
In my submission, this case demonstrates nothing like that sort of specialness. First of all, on the first basis upon which Lord Lloyd proceeded, the change in policy and the Secretary of State having to remain aloof, my Lord, the Secretary of State quite clearly did not have to remain aloof on this point of law in this case. He went right into it, right from the start, and won on it through his own efforts. So, in my submission, there is no question as to the first special circumstances applying. Secondly, of course, the development there was of a wholly different character and totality than the development here. Thirdly, the fact that this claimant is a commercial venture is, in my submission, of no relevance given that this is clearly, and it is accepted as such, to be a point of law of general public importance which was going to be raised, and will inevitably be raised through the higher courts, at some point. My Lord, I say this is a simple, straightforward -- straightforward not being the right word of course -- single point of law upon which separate representation was not required. Therefore, there is nothing in the circumstances of this case that justifies a second award of costs for the representation before my Lord.
My Lord, there is then the question as to the evidence that was presented by the Council in relation to the pre-Alconbury point on the Council having a direct financial interest. My Lord may recall that point. My Lord, as soon as the decision of the House of Lords in Alcobury was promulgated, that issue was down played immediately by my clients in a revised claim form that was circulated. So from being, I think, paragraph 26 of the original claim form, it became a subsidiary, and expressly so, paragraph 27(a). It ceased to be a principal controversial issue in this case that my Lord was being asked to decide. Indeed, I believe in opening my learned friend, Mr Katkowski, said as much. He said that it was not at the heart of the case, and my Lord has recorded that in my Lord's judgment.
My Lord, there was clearly preparation of evidence to rebut that point, and my Lord will have to make a decision as to the costs of that evidence. The fact that that evidence in relation to the Council's car parking issue -- if they persuade your Lordship that it was necessary to prepare all that evidence -- can have no bearing whatsoever as to whether or not, post that point being down played, it was right for them to actually attend before my Lord in the way that they did.
MR JUSTICE FORBES: What are you suggesting I should do with regard to that aspect of the matter, because it was, of course, the main plank in Friends Provident's original claim -- well, it was certainly an important factor.
MR FORSDICK: I accept that. My Lord will be aware, of course, that I was not involved in this case, I have only come in at very short notice now to do this hearing. I do not know enough about the background, and perhaps my learned friend for the City Council will be able to explain the circumstances in which that evidence became necessary. It may be that my Lord, having heard all the evidence and seen the way in which this case evolved, is of the view that that evidence was required by the way that the case was originally put in the pre-Alconbury world. But of course, my Lord, in my submission, in the world of the Divisional Court decision in Alconbury it was entirely appropriate for that point to have been raised.
MR JUSTICE FORBES: Yes.
MR FORSDICK: That was the law that my clients were facing at the time that that point was raised. As soon as that point was no longer open to them, in the light of the House of Lord's judgment being promulgated, it was dropped.
Even if my Lord were to come to the view that there was some merit in a costs application in relation just to that evidence, I make the point very strongly that it would be a completely inappropriate exercise to the discretion to say that it follows from that, after the point was down played significantly, for the City Council still to turn up in front of my Lord and to argue a point that the City Council knew the Secretary of State was fully arguing through the Treasury devil(?). In my submission, if my Lord were to depart from that line of logic, it would be effectively to completely emasculate the Bolton doctrine. The parties, in my clients' position, should not be at risk unless there are very special circumstances giving rise to the need, the requirement for, a separate representation before the court.
My Lord, I do not address any particular partial costs application because I do not know what any partial costs application is to be made, but, in general principle, a second award of costs to the City Council would be entirely inappropriate.
My Lord, even if there were to be an award of costs, it clearly, in my submission, cannot cover a number of matters. First of all, it clearly cannot cover issues 1 and 2. These were points that were robustly rejected by my Lord on the basis of very strong authority and which the Secretary of State, rightly, right from the outset, said that he was not prepared to run. So it cannot cover points 1 and 2. Indeed, I will be making an application for costs in relation to those points myself against the City Council. That is the first point.
Secondly, it cannot cover the huge duplication between that which was argued by the Secretary of State and what which was argued by the City Council. My Lord, I only have to pray in aid skeleton arguments to demonstrate the duplication. The skeleton arguments of the Secretary of State and the skeleton argument of the City Council cover exactly the same ground on issue 3, exactly the same cases, albeit put in slightly different ways. My Lord, not once in the judgment is there a reference to any new point made by Mr Pugh-Smith that influenced my Lord's determination of issue 3. I say that is all unnecessary duplication and we should not be at risk in relation to it.
Thirdly, even if an award of costs in relation to representation before this court were to be considered, in circumstances where the Secretary of State -- and I will say it again -- was represented by a Treasury devil(?) and was taking the case extremely seriously, and in circumstances where Lend Lease was also appearing through a QC, and where a very senior junior was appointed on behalf of the City Council, it simply is inappropriate for my clients to be at risk as to the costs of two counsel for a second interested party, maybe for the Secretary of State, but for a second interested party, where effectively two points are raised which are wrong, it would make a mockery of the Bolton judgment if my clients were to be at risk in relation to those costs.
Subject to anything my learned friend says as to exactly what the partial costs order sought is, those are my submissions.
MR JUSTICE FORBES: Thank you, Mr Forsdick. Yes, Mr Reed.
MR REED: My Lord, we say there is a considerable difference between the position laid out in Bolton and the position here. That was a case concerning a developer and the costs that he would receive. In this situation we are the City Council whose decision making process has been directly impugned. It was not simply a matter of the Secretary of State defending one of his inspectors or indeed his own decision under a calling; part and parcel, indeed central to the case of the claimants in this matter, was the allegation that our procedures were unfair, and thus incompatible with Article 6. It might be right, in those circumstances, that the Secretary of State would be defending it on a similar basis, but it is that directness of effect upon us, effectively us being in the same situation as the Secretary of State. We had to turn up in order to defend our position. We also had to look to the future, nevertheless, that if the challenge was successful it would effectively mean that our procedures in determining planning applications, in respect of a great deal of those applications, would be unfair. So, my Lord, very real effects and to that extent, even if we are not within some of the Bolton guidance, we, nevertheless, have a proper reason for being here.
My Lord, there was another matter which was raised by the claimants concerning the importance of this matter. An attempt was made to suggest that this was an unimportant planning application. It was of considerable importance both to the Council and to the developer themselves, but particularly to the Council in the public interest. The public interest that arose out of this matter was a large-scale shopping development within the city centre that was to have real benefits, the Council believes, in respect of the city centre. Consequently, again, of great importance to ourselves.
My Lord, concerning some of the points that we took that the Secretary of State did not, we did not win on those. They were, however, entirely reasonable points to make, perfectly proper that we should make those points to your Lordship given that the Secretary of State was not making them. Another point of real importance to the Council was the fact that there was a real allegation of impartiality on the part of the Council, which, again, could have been and was dealt with by the Treasury solicitors, but an allegation of impartiality --
MR JUSTICE FORBES: Of non-impartiality.
MR REED: Yes, I apologise. An allegation of non-impartiality clearly is of direct interest to the Council, something that they, quite reasonably, wanted to defend in this court. My Lord, it was not down played as an issue as --
MR JUSTICE FORBES: Well, it was down played to some extent, but it was used as a make weight on. If I can find the reference again, as Mr Forsdick rightly says, I do refer to it in the judgment.
MR FORSDICK: I think it is paragraph 70(ii).
MR JUSTICE FORBES: Thank you very much, yes. It was used as an additional basis for emphasising that the Council was not an independent and impartial tribunal for these purposes.
MR REED: Indeed. My Lord, Mr Katkowski though down played --
MR JUSTICE FORBES: It was not abandoned.
MR REED: Indeed, my Lord.
MR JUSTICE FORBES: Not completely.
MR REED: It was raised in considerable depth in the skeleton argument that they produced before the hearing and actually was only stated as being a make weight on the first day of the hearing.
MR JUSTICE FORBES: Yes. Can I just have a look at the way it was dealt with in the skeleton that was used before me.
MR REED: Page 12, my Lord.
MR JUSTICE FORBES: It is really paragraphs 30-35. It is all drawn together in paragraph 35.
MR REED: And 36, my Lord. It was of the utmost significance that --
MR JUSTICE FORBES: In the course of his opening submissions, Mr Katkowski made it clear, as I have indicated in the judgment, that, despite this, it did not lie at the heart of the case, that is how he put it and that is how I have recorded it.
MR REED: Indeed, my Lord, but in terms of the costs that the Council had incurred in order to defend that position, they will have already incurred them on that first day.
My Lord, I have already dealt with the fact that we did raise two issues, delay and engagement of Article 6, which the Secretary of State did not. Mr Forsdick criticises us for that and seeks to make a partial award of costs in their favour on that issue. As I say, they were two reasonable points to take in this case and, in any event, they did not take up very much court time. My Lord, it has to be recognised of course that it was, nevertheless, two grounds that were raised.
MR JUSTICE FORBES: Yes, absolutely. What are you suggesting I should do, Mr Reed?
MR REED: My Lord, I apply for a full award of costs in those circumstances. But if your Lordship is not with me on that, then I ask for a partial award in respect of the witness statements we provided. There were two witness statements by Gywneth Ann Jones and one by Michael Loveday. Would your Lordship like to be reminded of the content of those witness statements?
MR JUSTICE FORBES: What are you envisaging that I do, that I allow the costs of the specifically named witness statements, or that I take a broad brush approach and allow a proportion of the costs overall?
MR REED: In addition to the witness statements, there are also the grounds of objection that were drafted on behalf of the Council in respect of those --
MR JUSTICE FORBES: Yes. There are ways in which I could go about a partial order for costs, if I were to go down that particular route. One way of doing it would be to specify the various matters in respect of which the claimant was to pay the Council's costs, and I could enumerate them, or I could go down another route, which is to take a broad view of the overall situation and award a proportion of the costs. Which is it you are suggesting that I should do?
MR REED: Frankly, I was dealing with it on the basis of those specific witness statement and the grounds of objection. Those were the costs that I could find that would be directly relevant to the question of evidence that had to be put before the court.
MR JUSTICE FORBES: Right. So the witness statements of ...
MR REED: Gwyneth Ann Jones, there were two of those, and also one witness statement of Michael Loveday.
MR JUSTICE FORBES: One witness statement?
MR REED: Yes, my Lord.
MR JUSTICE FORBES: Then grounds of objection.
MR REED: Then the detailed grounds of objection on behalf of the Council.
MR JUSTICE FORBES: Costs of attendance?
MR REED: Well, my Lord, in terms of my partial award, I was not looking to that, but if your Lordship was considering dealing with it on that basis, it would have to be on the basis of the issues that your Lordship felt it was right that we did attend upon.
MR JUSTICE FORBES: Yes. Suppose I was to take the view that on issues 1 and 2 there should be no award of costs in favour of the first interested party, and suppose I were to take the view that two counsel was unnecessary in the circumstances, and that the best way I could achieve justice in the matter, having regard to the failure on points 1 and 2 and the fact that there was no need to have two counsel, suppose I were to take the view, therefore, that on that basis the Council was to be paid two-thirds of its assessed costs in relation to preparation and attendance for one counsel and for one counsel only, would there be anything more you wanted to say about that approach to a partial award of costs?
MR REED: My Lord, save as regards the need for a second counsel, my Lord, I do not, in terms of the rightness of that sort of approach, if your Lordship felt that there should be not be an award of costs in relation to issues 1 and 2. The principle I do not seek to make comment on, only as regards the need for a second counsel.
MR JUSTICE FORBES: As to that?
MR REED: My Lord, if it be right that it was important that the Council should attend in order to protect its own interests --
MR JUSTICE FORBES: Why would it not be adequately protected by counsel of Mr Pugh-Smith's seniority and experience?
MR REED: Well, my Lord, the complexity of the matter was reflected in the fact that the other two parties who defended it were represented by two counsel, as was the claimant. So if it be right that we should have attended in any event, it was right that we should have had the opportunity of properly investigating and preparing our case.
MR JUSTICE FORBES: Yes. Thank you.
Well, Mr Forsdick, I am not quite sure what order of submissions we are at now. This was Mr Reed's application for costs and you responded to it. In the course of your response you incorporated an application for costs of your own.
MR FORSDICK: I was going to make that separately. Sorry if I had not made that clear, my Lord. That was a separate issue that I was going to come onto later, but at the time that I stood to respond to Mr Reed, I did not know what the application was based upon. If I could respond.
MR JUSTICE FORBES: Yes, of course.
MR FORSDICK: First of all, it is said that our argument was that the procedures that were taken by the Council were necessarily unfair. That was not a criticism of the Council, it was a criticism of the system, and the Secretary of State was here to defend that. My Lord made that very clear through the way in which the judgment is framed. It was the system that required the Council to do what it did and it is the system for which the Secretary of State was answerable. I say that the fact that the Council's decision was being directly impugned is not to the point at all. Council's decisions are often impugned by the Secretary of State because it is the Secretary of State who imposes the system which forces the Council to act as they did.
Secondly, it is said that the Council had to defend its position for the purpose of future cases. Well, of course, it is not their job to defend the national system which we are impugning on Article 6 grounds. If we were right that the system is wrong, then the Council procedures across the country will have to change, not just this one council.
Thirdly, the importance of the case. This is a wholly different context to that of Bolton. If it be right that just because this is a big development which the Secretary of State himself has said is not of more than local significance, if that be right as a justification for a second order of costs, claimants would always be at risk of a second award of costs.
Finally, on those submissions, in terms of impartiality, of course it was never said that the Council had actually been biased; it was said that the system was such that a person who stood to benefit could be a judge on the facts in relation to that. My Lord, that is again a criticism of the system, not of this specific Council.
MR JUSTICE FORBES: Let us have a look at the specific paragraph. I quite accept that it was down played by Mr Katkowski in the course of his opening in the way that I summarised in my judgment. If one goes to paragraphs 30 to 36 of the written skeleton argument of the claimants, the Council's interest is described as a financial interest in the outcome of the planning application.
MR FORSDICK: Could my Lord see the bottom of page 30, which exacerbates the incompatibility, and that incompatibility, of course, is the fact finding job of the Council in these circumstances. That is the point that everything else gets to.
MR JUSTICE FORBES: Nevertheless, it is an allegation of lack of impartiality on the part of the Council by reason of its direct financial interest, is it not?
MR FORSDICK: But as a result of the system, not as a result of this Council doing anything inherently wrongly under the system.
MR JUSTICE FORBES: Yes, I see.
MR FORSDICK: It was the system that forced it to act it in the way it did. My Lord, we say that all those points, as a justification for coming before my Lord, are not to the point. I do not propose to make any further submissions on the costs of the witness statements, save to say that the point as to financial benefit was clearly in play under the Divisional Court ruling in Alconbury. It ceased to be so when the House of Lords' decision was given, and at that point the central importance of it was down played in the claim form itself. It is quite evident from the claim form, as amended, that it was down played.
My Lord, the question as to whether it would be appropriate for my Lord to go down a sort of two-thirds assessment or whatever, in my submission, it would not be. My Lord needs to identify what was necessary for the City Council to do in this case. It may be that my Lord decides that it was necessary for them to put in that evidence, and maybe to put in their grounds of opposition, but it was not necessary for them to run two points upon which they failed, it was not necessary for them to duplicate entirely the submissions of Mr Sales for the Secretary of State, and it was not necessary for them to be represented before my Lord by two counsel. In those circumstances, what I ask my Lord to do, if he was minded to grant an order at all, is to specifically exclude all of those factors for the taxing master to take into account when it comes to assessing costs.
MR JUSTICE FORBES: What are you suggesting, if I were to go down that route, that I allow costs but not in respect of certain specified --
MR FORSDICK: This is very far down my argument, of course.
MR JUSTICE FORBES: I recognise that.
MR FORSDICK: If you were to get that far, my Lord, I would ask my Lord to decide what is necessary in relation to the earlier period up to the delivery of briefs and so on, and then from that point look at what aspects of the case was it appropriate for the Council to be represented on and what were the costs of that. As I have said, in my submission, there is very little that is left once you cut out the duplication and the wrong points that were taken. It may be that you would say it was appropriate for a senior junior to be here to hold the fort, if I can put it like that. That may be the bottom line, but it was not appropriate -- and this will be my separate cost's application -- for the delay point and the Article 6(1) point to be pursued for a day at my client's expense, wholly unmeritoriously, as my Lord has found. That is effectively my response. Thank you very much, my Lord.
MR JUSTICE FORBES: This is an application for costs by the first interested party, Norwich City Council, in relation to these proceedings, the application for costs being made against the claimants.
The application is resisted on behalf of the claimants by Mr Forsdick, who relies upon the well-known authority of Bolton Metropolitan District Council and others v Secretary of State for the Environment and others  3 PLR 37. Mr Forsdick relies, in particular, on the passage in the speech of Lord Lloyd which is to be found at page 52, between letters G and H, and is in the following terms:
"The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he has an interest which requires separate representation. The mere fact that he is the developer will not of itself justify a second set of costs in every case."
Mr Forsdick submits that, in the circumstances of this case, the test in respect of the first interested party is whether the first interested party had an interest in these proceedings which required its separate representation not only at the hearing, but in the course of the proceedings leading up to the hearing. Mr Forsdick submitted that, having regard to the sort of factors which persuaded the House of Lords that a second order for costs was appropriate in Bolton, this case did not have any such factors. The point upon which the Secretary of State succeeded in these proceedings, Mr Forsdick submitted, was a point of law of general importance which was bound to be raised by the Secretary of State, which was raised by the Secretary of State, and was fully argued on his behalf by Mr Sales. In all those circumstances, separate representation on the part of the first interested party was not required.
On behalf of the Council, Mr Reed submitted that separate representation was required in this case because the Council did have an interest which required such representation. He pointed to the following factors in support of that submission: first, that the Council's decision making process was directly impugned by the claimant in these proceedings; second, that the Council's procedures in relation to its decision making processes were said to be unfair; third, that the planning application was one of considerable importance to the Council, bearing, as it does, on the retail development of Norwich City Centre; fourth, that it was reasonable for the City Council to take the points which are referred to in my judgment as issues 1 and 2; and, fifth and finally, that it was an important feature of the claimant's case that the Council did not have the necessary impartiality for the purposes of its decision making process - this particular factor being a reference to the allegation that the City Council's direct financial interest in the proposed development seriously undermined its impartiality as a decision maker. The matter is referred to in paragraphs 30 to 36 of the claimant's written skeleton argument, although it is fair to say that Mr Katkowski played it down in the course of his opening submissions, as summarised by me in paragraph 70(ii) of my judgment.
I have come to the conclusion that the City Council did have sufficient interest in these proceedings to justify representation, but not to the full extent suggested by Mr Reed. I am satisfied that in all the circumstances the City Council was justified in incurring the costs of the witness statements of Gwyneth Ann Jones and Michael Loveday and the costs associated with the preparation and production of those witness statements. I am also satisfied that the City Council was justified in incurring the costs of the detailed grounds of objection and, furthermore, that the City Council was justified in having a senior junior counsel present at these proceedings, save and insofar as that attendance related to issues 1 and 2. I do not consider that the cost of a second counsel was justified with regard to any aspect of these proceedings.
Accordingly, the order for costs which I make is that the claimants are to pay the first interested party's costs in respect of the following matters, namely, the preparation, production and filing of the witness statements of Gwyneth Ann Jones and Michael Loveday, the preparation of the detailed grounds of objection for the purposes of these proceedings, and for the costs of senior junior counsel to be in attendance at these proceedings, save insofar as that attendance related to issues 1 and 2 of these proceedings. Those costs are to be assessed on a standard basis if not agreed.
MR FORSDICK: I am grateful, my Lord.
There is then my application for costs in relation to the failed grounds. An unusual request, but one that is justified on the facts of this case for the following reasons. First of all, Lord Woolf has made it clear in the case of AEI Rediffusion Music Ltd v Phonographic Performance Ltd, if I could hand that case up, that the court should be astute to the individual issues raised and seek to do justice between the parties in relation to costs --
MR JUSTICE FORBES: Are you making this application against both the interested parties or just ...
MR FORSDICK: No, my Lord, it was effectively -- Lend Lease did not make an application against us and we did not make an application against them. It is perfectly permissible for that to be done, in the case of Winter v Winter, which is recorded --
MR JUSTICE FORBES: I just want to be sure.
MR FORSDICK: Just against the City Council.
MR JUSTICE FORBES: Lend Lease are out of it altogether.
MR FORSDICK: Lend Lease are out of it. What, effectively, I am asking for is a set off against the costs my Lord has just awarded against the City Council. The reason I am doing that is because Lord Woolf has made it clear that parties should be astute to only pursued points that have substantial merit, and the costs orders should reflect the success on individual parts of the case. If I could ask my Lord to turn up Lord Woolf's judgment, which is towards the back of AEI at page 1522 at the bottom, the last two lines:
"... the "follow the event principle" will still play a significant role, but it will be a starting point from which a court can readily depart. This is also the position prior to the new Rules coming into force. The most significant change of emphasis of the new Rules is to require courts to be more ready to make separate orders which reflect the outcome of different issues. In doing this the new Rules are reflecting a change of practice which has already started. It is now clear that too robust an application of the "follow the event principle" encourages litigants to increase the costs of litigation, since it discourages litigants from being selective as to the points they take. If you recover all your costs as long as you win, you are encouraged to leave no stone unturned in your effort to do so."
My Lord, what I say is that here the Secretary of State rightly confined the case to the big important point of law. The City Council raised two issues which were robustly rejected by my Lord, certainly the Article 6(1) point, issue 2, was rejected in the light of overwhelming House of Lords and European Court jurisprudence against the argument being raised.
My Lord, in my submission, those two points, the delay point and the Article 6(1) being in play at all point, are wholly distinct and separate points from the substantive issue in play. They took up a significant amount of time in the hearing, in the skeleton arguments and in the preparation of the authorities bundles and so on. It is entirely appropriate in those circumstances that where my client has been put to the cost of defending points that were unmeritorious on my Lord's judgment, that the costs in relation to those aspects should be awarded to my client.
I was not here, but the position, as I understand it, was that the two points took up a very considerable amount of time before my Lord in submissions. They also took up a majority of the skeleton argument of the City Council. Therefore, in the light, first of all, of the separateness of those two points, the length of the argument, the amount of preparation time of rebuttal and so on, and the fact that the whole ranch of other authorities was required, I say that this falls squarely and fairly within Lord Woolf's judgment in Rediffusion. For that reason, I ask for a partial award on that basis.
MR JUSTICE FORBES: Yes, thank you very much. Mr Reed?
MR REED: My Lord, Mr Forsdick referred your Lordship to the AEI case. He indicated that the point was that a defendant or a claimant had to take a point that had substantial merit. My Lord, that is not the test, I say, as to whether or not costs should follow in respect of that issue; it is whether or not the point was reasonable to take. My Lord, it was a reasonable point to take. The authorities were not --
MR JUSTICE FORBES: But you lost it.
MR REED: We lost it, my Lord, I have to accept it.
MR JUSTICE FORBES: Then why should that not be reflected in the order for costs?
MR REED: Because, my Lord, we had to turn up to argue it generally. We were entitled to take all reasonable points. It would be a different matter if they were unreasonable points to take, but they were not.
MR JUSTICE FORBES: I am not sure about the delay point, indeed, either of them. The Secretary of State took neither of the points. There were exchanges between myself and Mr Sales that made it quite clear to me that this position had been taken by the Secretary of State after very careful consideration. It was a very considered position and, in the event, I held that it was absolutely right. In those circumstances how do you say that either or both points were reasonable points to take?
MR REED: Because whether they found an arguable basis in law was not clear on the face of the Convention cases as to the approach when one dealt with financial interests arriving out of property rather than property rights generally. That was the point that was being taken.
MR JUSTICE FORBES: Yes, I am fully aware of that. Equally, I have said that it is absolutely clear from the speech of Lord Hoffmann that Article 6 is engaged in matters such as this. You just have to read what he says. Mr Straker, it has to be said, made most of the running on this matter, but Mr Pugh-Smith fully supported it. Mr Straker's submissions were an ingenious attempt to get round what was actually a very clear statement as to the position to be found in Alconbury and the relevant European jurisprudence.
MR REED: My Lord, in the light of your Lordship's views on that point, there is little more that I can say than that the test is whether or not it was reasonable to take. We say it was reasonable to take those points.
MR JUSTICE FORBES: Yes, I see.
MR REED: My Lord, in terms of the amount of time that was taken up, it was not a considerable amount of time given the length of the hearing as it did proceed. Your Lordship was aware, of course, that there was some time taken up and it cannot be regarded as being an immaterial amount of time. Your Lordship pointed out that Mr Straker was the person who took most of the points during the hearing.
MR JUSTICE FORBES: Well, the way in which submissions were dealt with were agreed between counsel, so that I did not actually have duplicated speeches, but on points 1 and 2 Mr Straker made the main running, but Mr Pugh-Smith was fully in support, the Secretary of State sitting on the sideline. So to the extent that time was taken on issues 1 and 2, that was the responsibility of both interested parties equally, although Mr Straker was the one who was doing most of the talking.
MR REED: My Lord, yes. In essence, I rely on the reasonableness point and there is little more that I can add.
MR JUSTICE FORBES: Thank you. I need not trouble you any more, Mr Forsdick.
I am satisfied that in the circumstances of this case it is appropriate that the first interested party pay the costs of the claimant in relation to issues 1 and 2, such costs to be assessed on the standard basis if not agreed.
The reason I make that somewhat unusual order is that I am satisfied Mr Forsdick is right in his submission that, so far as concerns issues 1 and 2, the nature and outcome of those issues are such that the matter falls fairly and squarely within the principles recently stated by Lord Woolf, MR, as he then was, in the decision of the Court of Appeal in AEI Rediffusion Music Ltd v Phonographic Performance Ltd  1 WLR 1507 at 1522, where Lord Woolf stated as follows:
"From 26 April 1999 the "follow the event principle" will still play a significant role, but it will be a starting point from which a court can readily depart. This is also the position prior to the new Rules coming into force. The most significant change of emphasis of the new Rules is to require courts to be more ready to make separate orders which reflect the outcome of different issues. In doing this the new Rules are reflecting a change of practice which has already started. It is now clear that too robust an application of the "follow the event principle" encourages litigants to increase the costs of litigation, since it discourages litigants from being selective as to the points they take. If you recover all your costs as long as you win, you are encouraged to leave no stone unturned in your effort to do so."
Mr Forsdick made the following powerful points. First, in this case the Secretary of State had been careful to confine the issues in this case to the important point of law, which was dealt with by me in issue 3. The Secretary of State also made submissions in relation to the second ground of challenge, which was dealt with by me in issue 5, but that particular issue played a very small part in the overall proceedings. Essentially, this was a case where the Secretary of State's important submissions were directed at issue 3, and it was in respect of that issue that the Secretary of State was successful in defeating the challenge brought on ground 1 in these proceedings.
In relation to ground 1, the interested parties both raised two separate further issues, which are issues 1 and 2 in my judgment. As Mr Forsdick pointed out to me, those two issues were robustly rejected by me in my judgment. Mr Forsdick submits that they were, in truth, non-starters and should have been recognised as such by the interested parties. Mr Reed submitted that the two issues were reasonable issues to raise. I do not agree. I think that Mr Forsdick is right about that. These were non-starters. They were points which were taken by the interested parties but not by the Secretary of State. They did take up a significant amount of time by way of submissions before me, and of course I had to deal with them in my judgment. I think it is clear from my judgment that these points never had a reasonable prospect of success and were therefore points which the interested parties took, in my view, at risk with regard to subsequent orders as to costs.
I am satisfied that, for those reasons, it is appropriate to adopt the approach summarised by Lord Woolf in AIE Ltd and, by reference to those two issues, make an appropriate order for costs in favour of the claimant and against the first interested party, namely the Norwich City Council.
I have already identified the nature of the order to be made at the outset of this ruling. The effect of that will be to give the claimants an order for costs in their favour which they can then set off against the order for costs which I made earlier in favour of the first interested party.
Is there anything further I need to say about that?
MR FORSDICK: I do not think so.
My Lord, you will not be surprised that there is one further application, an application for permission to appeal. My Lord, the application is made under part 52 on both grounds: first of all, that the appeal appears to have a reasonable prospect of success and, secondly, that there is some compelling reason why it should be heard by the Court of Appeal.
The starting point is that, as I understand it, the Secretary of State is not objecting to this case going further, recognising, as my Lord indeed has done, that it is an important point of principle here. In the circumstances where the Secretary of State does not object, in my submission, it will be very difficult for the interested parties to raise a sustainable objection to this case going higher.
My Lord, just by way of overview, this is the first case post-Alconbury concerning a local authority decision making's compatibility with Article 6. We lost on a very narrow point, in effect, one of five issues that my Lord had to determine, namely the ambit of the fact-finding mission that it was appropriate, and Lord Hoffmann in Alconbury required, to be covered by an independent adjudication. My Lord held that matters such as retail impact assessments and traffic impact assessments and so on were quintessentially matters of planning judgment and so on. My Lord, that is a matter which I will address my Lord on in a moment. We say that that distinction, namely where you draw the line as to the question of what is and what is not a question of fact falling within Lord Hoffmann's formulation, is of crucial importance in these cases. My Lord, Alconbury has resulted in everything other than facts being policy expedient and therefore okay to go through the JR route without an independent adjudication. My Lord, the importance of what is and what is not a fact has therefore been heightened in very considerable measure by the limitations of Alconbury, in terms of what it does not allow to be a breach of human rights. So, my Lord, we say that the distinction made by my Lord in paragraphs 93 and 94 of the judgment are really at the heart of what is a very important point of general public importance --
MR JUSTICE FORBES: Is that where I say what --
MR FORSDICK: This is the distinction between --
MR JUSTICE FORBES: Where I say you do not look at the label that can be attached to the issues, you look at the nature of the issues themselves, even though they can be characterised as issues of fact.
MR FORSDICK: And my Lord accepts, effectively, Mr Sales' three point formulation, which is, I think, at paragraph 89.
MR JUSTICE FORBES: Yes.
MR FORSDICK: And takes that forward to find that the matters that were before the Council on this aspect, traffic impact assessments and retail impact assessments and so on, fell within the second category.
My Lord, I am not standing before my Lord to say that there is an obvious flaw in the logic. What I am standing before my Lord today to say is that it is arguable that the limitation of the factual matrix that my Lord has imposed is too narrow. I do that by reference to two cases, first of all, to Alconbury itself, where Lord Hoffmann was clearly, in paragraph 117, purporting to go further than just pure primary facts because he used the phrase "it is only when one comes to findings of fact, or the evaluation of facts..." That was the formulation that Lord Hoffmann adopted at that point.
MR JUSTICE FORBES: It goes a little bit than that, does it not, "... findings of fact ... such as arise on the question of whether there has been a breach", so it actually identifies the general type of dispute which gives rise to the sort of issues of fact that he is there describing.
MR FORSDICK: I accept that of course, my Lord, in terms of what he says. The question is how narrow was that meant to draw the distinction between facts and non-facts. On that issue, my learned friend, I believe in argument before the court on the substantive hearing, prayed in aid the Edinburgh City Council case and the judgment of Lord Clyde, in respect of which all the other Law Lords agreed. My Lord, the position in of Lord Clyde in the City of Edinburgh case was that the appeal was all about matters of fact because the court below had held that the inspector had not had a proper factual basis to reach the conclusions which he did.
MR JUSTICE FORBES: In respect of one particular type of issue.
MR FORSDICK: Yes. That all went forward, right up to the House of Lords. By the time the case got to the House of Lords it was concerned with retail need in terms of predicted population and expenditure levels and the levels of trading in stores.
MR JUSTICE FORBES: Yes.
MR FORSDICK: You will see that from the judgment at page 190 F of the judgment. Those are all matters which Mr Sales submitted, and on his category 2 he would say they all fell within his category 2. Lord Clyde in the Edinburgh case described those as "factual conclusions".
MR JUSTICE FORBES: Well, I have referred to that specific passage in paragraph 75 of my judgment.
MR FORSDICK: I accept that, of course, my Lord. The question then becomes how far Lord Clyde's formulation in City of Edinburgh sits with, or contradicts, or how it impacts upon Lord Hoffmann's formulation in paragraph 117. My Lord, in my submission, given that there are two House of Lords authorities that do not expressly face the point head on as to how far one takes facts, but where there is Edinburgh saying those are factual issues --
MR JUSTICE FORBES: Factual conclusions.
MR FORSDICK: Yes, factual conclusions, and where Lord Hoffmann does not say that those sorts of matters, retail impact assessments and so on, the facts that go into those assessments, that they are not facts, in my submission, that gives rise to a matter that is clearly capable of giving rise to a point of importance and an arguable point on appeal. Even if my Lord is totally satisfied that his judgment is robust on that point, I still say --
MR JUSTICE FORBES: What I have done, in short, is to not quarrel with Lord Clyde's characterisation of such conclusions, in that particular case it is conclusions of fact, but go on to say that how you characterise these issues is not the sole answer to the decision as to whether those issues are the sort of issues of fact and evaluation of fact that Lord Hoffmann had in mind in paragraph 117.
MR FORSDICK: Of course, and my Lord refers to the Bryan(?) and the flexibility approach and so on as being matters. But, my Lord, clearly in these sorts of cases, where retail impact -- the bottom line in this case is that retail and traffic impact are always going to be the bottom line on major shopping developments such as this. What we say is that the factual starting point for the Council's conclusions has to be their conclusion on those retail matters. My Lord, I am not going to try and persuade my Lord now that the judgment is wrong, what I am trying to show my Lord is, firstly, that there is arguably a point of law here that should be taken further, but, secondly, given that this is the first post-Alconbury decision as to the ambit of the local authority's compatible Article 6 decision making powers, this is clearly, as a matter of general approach, worthy of consideration by the Court of Appeal. For those reasons I ask for permission.
MR JUSTICE FORBES: Yes, thank you. Is there anything that the Secretary of State wishes to say about matters, Mr Nicholls?
MR NICHOLLS: My learned friend is right. The Secretary of State does not object to this. We accept that there are important issues of law which it is appropriate for the Court of Appeal to consider.
MR JUSTICE FORBES: And the interested parties?.
MS DAVIES: My Lord, I rise to my feet first. I do object to permission to appeal being granted. If I take my learned friend's points in order, he first says that this is important because it is the first case, post-Alconbury, in which the compatibility of local authority decision making with Article 6 has been tested. Your Lordship is doubtless aware, it is in a different field of local authority decision making, housing, but the Court of Appeal has considered the compatibility of local authority decision making with Article 6 in the McLellan(?) case, judgment in which was handed down on Tuesday of this week. That case raised various similar sorts of issues. I do not know if your Lordship has had an opportunity of looking at it.
MR JUSTICE FORBES: Yes, I know about it.
MS DAVIES: So it is not right to say that it is the post-Alconbury case, and indeed that matter has been considered by the Court of Appeal, not simply this court. For that reason I say it does not raise, on that basis alone, any point of general importance.
Turning to your Lordship's judgment, I say there is not an important point of law that requires the consideration of the Court of Appeal. The point of principle, in my submission, was settled by Lord Hoffmann in the Alconbury case at paragraph 117. Your Lordship's judgment at paragraphs 93 to 94 is merely a straightforward application of that principle. That is precisely the sort of matter that should be left to your Lordship, to have a look at the principle that has been laid down by the House of Lords and to decide in each case which side of the line it falls. I say that is exactly what your Lordship has done in this case.
Your Lordship had an exchange with my learned friend regarding the Edinburgh case. That was not a case that was concerned with Article 6. I say it is nothing to the point. Your Lordship has, in my submission, rightly said that this is not about labels and about how any particular person may label a particular finding, it is about the substance of the matter. So there is no incompatibility between the decision in the Edinburgh case and the decision in the Alconbury case. That certainly does not justify the grant of permission to appeal.
Your Lordship has expressed, at paragraph 105 of his judgment, his finding that this is a firm conclusion. In those circumstances, my Lord, I say that if this is a matter that is to go further, then it should be the Court of Appeal themselves who say that and not your Lordship. Your Lordship is plainly in no doubt as to what the right answer is.
I merely add that your Lordship is, of course, aware of the tremendous importance to Lend Lease of getting on with this matter.
MR JUSTICE FORBES: Well, you are getting on with it presumably, are you not, because there was an agreed approach to that aspect of the matter?
MS DAVIES: Some steps have been taken, my Lord, but until there is permission free of legal challenge your Lordship will appreciate there is a awful lot of --
MR JUSTICE FORBES: Permission has now been granted presumably, has it?
MS DAVIES: It has, my Lord.
MR FORSDICK: Depending on whether my Lord grants permission, there will be a further matter as to whether the draft order that was before my Lord on day one gets extended over. I believe that if my Lord grants permission to go forward the parties consent to that order being carried forward.
MS DAVIES: But certainly, my Lord, as a matter of commercial sense, there are extreme limits on what Lend Lease can do while permission is susceptible to challenge. For those reasons, my Lord, I say that permission to appeal should not be granted by your Lordship.
MR JUSTICE FORBES: Thank you, Ms Davies. Is there anything you wanted to say, Mr Reed?
MR REED: My Lord, it is safe to say that we support the submissions of the second interested party, in particular as regards the importance to the Council.
MR JUSTICE FORBES: Yes, thank you. Well, Mr Forsdick is there anything you want to say finally on that?
MR FORSDICK: Nothing that I can add, my Lord.
MR JUSTICE FORBES: I am not prepared to grant permission in this matter. I am not persuaded that there is a reasonable prospect of success. Given the basis upon which I have decided the matter, I am equally not persuaded that there is any compelling reason for this matter to go to the Court of Appeal. Of course, it will be open to the claimants to place the matter before the Court of Appeal if so advised. In coming to that conclusion, I have taken into account the fact that the Secretary of State did not oppose the grant of permission in this case.
I will just fill this form in while I have it in my mind. I will read you what I have written on the form, although you do get a copy of this, I presume, through the ordinary channels, as my reasons for my decision not to grant permission is this:
"I am not persuaded that there is any reasonable prospects of success on appeal and, given the way in which I decided issue 3, which is the principal issue, in paragraph 93 and 94 of my judgment, I am not persuaded that there is any compelling reason to grant permission."
MS DAVIES: My Lord, I have heard your Lordship's comments about issues 1 and 2 this morning and that will certainly be a matter that I will discuss with my clients. If the matter does go further, there may be a possibility that, certainly in respect of issue 2, the second interested party would want to raise arguments on that again. Simply formally in order to protect my client's position at this stage, I would ask formally that your Lordship grant permission to cross appeal on issue 2 if the matter does go further, if the Court of Appeal were to grant permission. As I say, I will certainly discuss the matter with my client having heard your Lordship's comments, but it is something that I formerly need to ask your Lordship.
MR JUSTICE FORBES: Thank you very much, Ms Davies. Is there anything further you want to ask for Mr Reed?
MR REED: No, my Lord.
MR JUSTICE FORBES: No, I am not prepared to grant permission on any cross appeal in relation to issue 2. My reasons for that are that I regard that as a matter in respect of which there is no reasonable prospect of success on appeal, nor is there any other compelling reason for granting permission.
MR FORSDICK: My Lord, I am reluctant to rise to my feet again, but I hope this is for the last time. There is then the question as to what happens with the planning permission judicial review. My Lord will recall that that was effectively put off to one side, parked, pending the determination of this case before my Lord and perhaps any future application.
MR JUSTICE FORBES: There was a draft order which I have with the papers.
MR FORSDICK: There is a draft order. Effectively, everyone has agreed that it would be in play until today, and now my Lord has dismissed the application and refused permission to appeal, as I understand it, the consent to extend it is not there. My Lord, the position therefore is that my clients, they will have heard what my Lord has said this morning, may decide to try to persuade the Court of Appeal to grant permission.
The whole reason, as my Lord will know, for that second claim, paragraph 6 of the claim form itself says so, is to make sure that these challenges do not become academic by reason of (inaudible) of time and planning permission having been implemented and so on. The only reasons my clients were prepared to park that JR was on the basis that it was a pragmatic response to the situation with which they were faced, namely the developers wanted to off and get their stopping orders and so on, and my clients did not object to that process. But, of course, it remains the position that, but for that JR, our challenge on any appeal to the Court of Appeal has the potential to become academic. Therefore, I have two options open to me, one is to apply now to my Lord for permission on that second claim form. The second is to ask my learned friends, through my Lord, to consent to extending that draft order for 14 days to see whether or not we apply to the Court of Appeal for permission, and thereafter, if we do so apply, until the Court of Appeal has determined that question as to permission to appeal, on the understanding, of course, that we will take all steps as expeditiously as possible to get the permission question before the Court of Appeal as quickly as possible. The alternative, as I hope I have made clear, is that I will have to ask now for that case to be resurrected because otherwise my clients are faced in a position where all of this becomes potentially academic.
MR JUSTICE FORBES: On what possible basis would you expect me to grant permission on the second JR?
MR FORSDICK: Quite clearly, my Lord, the position is that the constitutional (inaudible) -- I put it quite highly because it is quite a high point -- once matters are removed into the jurisdiction of the High Court the general procedure is that public authorities generally do not do anything, and are not permitted to do anything, that circumvents the jurisdiction of the High Court.
MR JUSTICE FORBES: That I understand.
MR FORSDICK: The grant of planning permission in circumstances where the very jurisdiction to issue a planning permission is up for grabs, because we say the Secretary of State not just could have, but had to call this case in --
MR JUSTICE FORBES: I understand that, but on what basis, in the light of my judgment, could I be persuaded that there is an arguable case for granting permission on your second JR, which will automatically fail if I refuse permission, subject to an appeal.
MR FORSDICK: I was trying to address that point, maybe I was not making myself clear. Our position is that whilst a case is going through the court system, that has a fundamental bearing upon the jurisdiction of the Council to grant permission in the first place. Whilst it is clear to the Council that the claimant intends to seek to go further, it is a fundamental basis of the whole way our system of government works that local authorities do not circumvent that.
MR JUSTICE FORBES: Yes.
MR FORSDICK: Therefore, I say that whilst they know that we are in the process of considering and perhaps making an application to the Court of Appeal for permission, their grant of planning permission is still unlawful because it is to circumvent our rights to go in front of the courts to test the validity of the circumstances we want the Secretary of State to be faced. Now, my Lord, I accept that it is a novel argument. It is not one that has had to be raised before, as I understand it. I have done considerable research on this, it is not one that has had to be raised because local authorities simply do not do this. They do not pre-empt the court's decisions on points of major public importance by jumping the gun. Therefore, I say I am perfectly entitled to say any attempt by them to jump the gun, namely the resolution to grant planning permission or the issue of planning permission itself, is simply unlawful per se, I put it like that because it is a -- why I started by saying it is constitutionally --
MR JUSTICE FORBES: You say that your second JR would be issued on that basis, but the ordinary approach in such a situation would be to seek interlocutory relief from whichever court it is you are seeking to appear before. In this case it would be the Court of Appeal, and you would have to seek interlocutory relief from the Court of Appeal. As far as I am concerned, the whole proceedings are now at an end, subject, of course, to your right to go to the Court of Appeal and seek permission.
MR FORSDICK: I understand that. If there was a position where I was standing up in front of my Lord and saying "look, my clients might at some point somewhere in the future think about resurrecting some sort of claim against somebody in relation to this", then I would not have a leg to stand on.
MR JUSTICE FORBES: Why do you not apply to me simply for a stay of the planning decision process, say of the Council's considerations or whatever it is, for a certain period of time to enable you to go to the Court of Appeal?
MR FORSDICK: First of all, my Lord, because there is no proceeding before my Lord upon which that can be done. Secondly, that would be, as I understand it, and I will be completely upfront about this, my clients are not prepared to give an undertaking in damages on any stay.
MR JUSTICE FORBES: I am sorry to interrupt you, but I do not understand why you say there is no proceeding in front of me which will enable that to be done. These proceedings are still alive in front of me at the moment, otherwise you would not have any right to make representations to me, or your representations would all be to no avail.
MR FORSDICK: I am sorry, which proceedings? Is my Lord talking about the second ones?
MR JUSTICE FORBES: The current ones, the ones in respect of which I have given a judgment, and in dealing with various applications I have, amongst other things, refused you permission to appeal, but unless my whole experience both at the bar and on the bench is completely wrong, my experience is that it is appropriate for the trial judge to consider applications that would enable the aggrieved litigant to preserve the status quo pending an appeal. Does anybody here suggest I do not have jurisdiction?
MR FORSDICK: If it is accepted by everybody here, and I understood that the whole basis of the second proceedings and the draft order was that it was not accepted, that my Lord can make an interlocutory decision now to stop the Council doing something that is not under challenge in proceedings that have just been dismissed by my Lord --
MR JUSTICE FORBES: Let me find out. Does anybody suggest I do not have jurisdiction to give a stay for a very short period of time pending permission being sought?
MR REED: My Lord, the difficulty with that submission is there is no decision before your Lordship that is relevant to what concerns Mr Forsdick, which is the second permission granted by the Council which has actually been issued. It was issued on 8th October as per the agreement that was made between the parties, so there is no matter that could be the subject of a stay.
MR JUSTICE FORBES: I see, that creates a problem. Permission has been issued.
MR FORSDICK: Exactly, my Lord. There are two options now. I say that the Council cannot, save for special circumstances, circumvent the jurisdiction of the High Court by jumping the gun and doing something which is up for grabs in the High Court and potentially Court of Appeal proceedings.
MR JUSTICE FORBES: What is it that is up for grabs in the High Court?
MR FORSDICK: The jurisdiction to determine this application at all, if we are right --
MR JUSTICE FORBES: The second JR?
MR FORSDICK: No, my Lord. If our arguments are right that the Secretary of State had to call this in, then the whole basis for the local authority decision making is simply not there. There is no foundation upon which it can be built because they have not got any --
MR JUSTICE FORBES: I have decided that that is not so.
MR FORSDICK: I accept that, of course. What I say is that the next stage of the analysis is to say that in circumstances where a case may, and the time limits are very tight, within 14 days be lodged before the Court of Appeal to ask for permission to appeal, can it possibly be right that a local authority can circumvent that appeal and make that appeal academic by its own actions in circumstances, where if that appeal is successful, the whole foundation of the Council's approach becomes unlawful.
MR JUSTICE FORBES: You say "can it circumvent?", but it has issued the permission, so what is it that the Council will do which will, to use your words, "circumvent the jurisdiction of the court" to deal with the matter in the Court of Appeal?
MR FORSDICK: The Council has issued the permission, which is exactly the reason for the second JR, to stop that.
MR JUSTICE FORBES: It cannot stop it because it has happened.
MR FORSDICK: But it was stopped on a particular factual basis, which was that my clients were prepared to concede that the planning permission could be issued upon the basis of a draft order being agreed to by --
MR JUSTICE FORBES: If you say that that is all, somehow or other, tainted, and that any issue of permission in the circumstances that now exist is in some way invalid, then it would be open to your clients to issue proceedings in respect of that matter and seek interlocutory relief if you wish to do so, but you are now faced with a situation in which the permission has been issued. I cannot direct the local authority to withdraw that permission. Now what has to be done, if anything, is for your clients to issue further proceedings for judicial review, if so advised, and seek interlocutory relief of some sort in those proceedings. Additionally, or in the alternative, seek appropriate interlocutory relief in the Court of Appeal in the event that you make an application to the Court of Appeal for permission.
MR FORSDICK: Well, I have made the point.
MR JUSTICE FORBES: I do not see how I can help you.
MR FORSDICK: My Lord, can I just try to encapsulate it just once more, and if it does not find favour with my Lord, then of course. The position is that the parties came before my Lord on a judicial review of the Secretary of State's decision. The Council indicated that it was minded to grant permission and was going to go through that route. We issued proceedings in relation to that "minded to grant" indication, saying "we are going to JR that because it is going to make our whole proceedings academic, a circumvention of the whole purpose for the High Court challenge in the first place". The Council then agreed that in circumstances where the application was ongoing before this court on the substantive Secretary of State matter -- the terms of the draft order, effectively, that if we are successful --
MR JUSTICE FORBES: The draft order was intended to deal with the situation which would arise if the claimants were successful in these proceedings and, in the meantime, the planning consent was granted. The draft order was designed to nullify the grant of the planning consent.
MR FORSDICK: Exactly.
MR JUSTICE FORBES: Just let me rehearse my understanding of the situation. That remained a draft order. No undertakings were given on either side, but it was recognised by the claimants, and accepted by the claimants, that given that the Council and the interested parties were prepared to agree to the imposition of such an order in the event that the claimant was successful, the Council could go ahead with its procedures to grant permission, and that is exactly what has happened. The problem from Friends Provident's point of view is that the proceedings have failed, so the draft order, as drafted and agreed between the parties, did not contemplate what was to happen in the event that Friends Provident's proceedings failed. Now, what you have is permission which has been granted, proceedings which are unsuccessful and Friends Provident seeking to deal with the situation with regard to the planning consent which has been granted perfectly properly. Have I misunderstood the overall position?
MR FORSDICK: The only chain in the logic that I seek to stress is that this is a situation where my clients may well, within 14 days, want to take this matter to the Court of Appeal. In those circumstances, the draft order should either come over to the 14 days, as I have already indicated, or I will seek to persuade my Lord that there cannot be any delay point raised on the second claim for judicial review because it was agreed by everyone that it should be parked and that I resurrect that now. If I am successful in resurrecting that now then the planning permission goes, the issue of the planning permission is of no relevance because permission --
MR JUSTICE FORBES: How can you resurrect that now when there was an agreed way of dealing with those proceedings which made it unnecessary to consider the grant of permission? Those proceedings were directed at the Council's decision to go ahead and grant permission on a certain date. Everybody was alarmed at the prospect of that being stopped, because there were stop orders and matters of that sort that had to be dealt with on highway matters, and those all had to be set in train. For that, amongst other, reasons it was decided that what should happen was that the Council should go ahead with their planning permission but that you would have the protection of the draft order, which was agreed, in the event that you were successful in these proceedings. There was nothing, as I understand it, in that agreed approach to suggest that the grant of the planning consent would be anything other than perfectly proper in the event that you were unsuccessful.
MR FORSDICK: Yes. It may well be that the way in which my Lord has put means that I have to issue another judicial review.
MR JUSTICE FORBES: I think you do, yes.
MR FORSDICK: So be it.
MR JUSTICE FORBES: If you think it is an appropriate way to deal with it.
MR FORSDICK: Well, we will have to consider that in the light of what my Lord has put to me just now.
MR JUSTICE FORBES: If I have misunderstood the position, please correct me. As I understood what was happening amongst the parties was that, in effect, it was agreed that the Council should go ahead with granting the planning consent in the way that they had indicated they were prepared to do, the claimants would have the protection of a draft order which would reverse that situation in the event that the claimants were successful in these proceedings, but the draft order did not deal with what was to happen if the claimant failed, the implication being that if the claimant failed they would have to decide what to do in those circumstances.
MR FORSDICK: I understand entirely the way my Lord puts it. Our position is simply that it is entirely inappropriate for a Council to offer it on the one hand for the purposes of the High Court, and then for the Secretary of State to concede that there is a point of general public importance that should go further, and for us to be faced with a situation where the Council says they will not extend the draft order, but that may well be a matter that has to be raised in a separate judicial review, unless my learned friends are prepared to concede a 14 day extension of the draft order.
MR JUSTICE FORBES: There are we are. I will go through each of you in turn. Mr Nicholls, is there anything you want to say or any concession you wish to make?
MR NICHOLLS: Consistent with the stance Mr Sales took at the hearing, I remain neutral about this.
MR JUSTICE FORBES: Mr Reed?
MR REED: We do not accept that it should be carried over. It hangs over us still. Permission has been refused and in those circumstances there are no proceedings ongoing.
MR JUSTICE FORBES: Planning consent has, in the meantime, been granted.
MR REED: It has, and work is being undertaken in respect of it. We accept, of course, that if permission is granted by the Court of Appeal, then in those circumstances we will look at it again. In principle, my Lord, I can say that we would not have an objection to that point, but at this stage we do because it is simply not there.
MR JUSTICE FORBES: Yes, I understand. Ms Davies, anything you want to say?
MS DAVIES: I do not think I can add anything, my Lord.
MR JUSTICE FORBES: Mr Forsdick, I do not think there is anything further that I can do, by way of a stay or interlocutory order, to deal with the position. In the proceedings before me the parties agreed a formula to deal with the potential grant of planning consent by the City Council some date after the commencement of the hearing before me and prior to my giving judgment in the matter. In order to deal with the various interests of the parties, what was agreed was that the Council should go ahead with its planning procedures and grant planning consent and issue planning consent on the basis that the Council and Lend Lease agreed to an injunction being granted which nullified that grant of planning consent in the event that the claimants were successful in these proceedings. A draft order was agreed between the parties to that effect and a copy of it was provided to me and is in my papers. What the draft order did not contemplate was what should happen in the event that the claimant failed in these proceedings. As it seems to me, the grant of planning consent, which has taken place in the meantime and has been issued, is, as matters stand at the moment, entirely proper. It is now a matter for the claimant to decide whether to institute further proceedings to challenge the validity of that planning consent or, alternatively or additionally, to seek some form of appropriate order from the Court of Appeal in the course of any application for permission to appeal against the orders made by me in these proceedings. As it seems to me, therefore, for those reasons there is nothing further which I can or should do about the matter.