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Adlard, R (on the application of) v Secretary of State for the Environment, Transport & the Regions & Ors [2002] EWHC 7 (Admin) (17th January, 2002)
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
| Royal Courts of Justice Strand, London, WC2A 2LL | ||
B e f o r e :
____________________
The Queen on the Application of: William ADLARD Claimant - and - Secretary of State for the Environment, Transport & The Regions Defendant (1) Fulham Stadium Ltd. Interested Parties (2) LB of Hammersmith & Fulham
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)
Ms Natalie Lieven (instructed by The Treasury Solicitors for the Defendant)
Mr. Tim Straker Q.C. & Mr. A. Tabachnik (instructed by Linklaters, Solicitors for the First Interested Party)
Mr. K. Lindblom Q.C. & Mr. Russell Harris & Mr. Craig Howell Williams (instructed by the LB Hammersmith & Fulham Legal Department for the Second Interested Party).
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
- This claim attacks the refusal by the Secretary of State to call in and to set up a public inquiry to consider applications for planning permission and listed building and conservation area consents which the local planning authority, the London Borough of Hammersmith and Fulham (LBH), have decided in principle to grant. The effect of the Secretary of State ’s refusal is to permit the grants to be made and so the proposed development can go ahead. The development in question involves the demolition and rebuilding of the Fulham football ground to increase its capacity and to include housing. Although a claim against the LBH was threatened, it has not materialised. However, both the LBH and Fulham Stadium Limited, the applicants for planning permission and the consents, have properly been served as interested parties and have appeared by counsel before me.
- There are 11 claimants. Most of them live near to the football ground and will, they say, be adversely affected by the proposed development. In particular, their use and enjoyment of their homes will be seriously damaged. Six of the claimants are members of the Fulham Alliance, an umbrella group for local residents concerned about the development which has been very active in putting objections to the proposals before the LBH. Others have a particular concern about the impact of the proposed development on the River Thames, both in respect of the wildlife which take advantage of it and its use for recreational purposes. There is also concern about the impact of the development both visually and in terms of traffic congestion and parking problems likely to be caused by the increased number of fans going to matches at the ground beyond the immediate vicinity and beyond the boundary of the LBH.
- The ground was opened in 1896. By then, there had been considerable residential development in the area. In 1905, the stand on Stevenage Road, which is listed Grade II as an early surviving example of a football grandstand, was constructed together with a building known as Craven Cottage (which gave its name to the ground itself) which contained changing rooms, a flat and a director’s balcony from which matches could be viewed. Craven Cottage is also listed Grade II. The ground itself is in the Fulham Reach Conservation Area, one of a number of contiguous conservation areas along the banks of the River Thames. As is perhaps obvious, the site is hardly ideal for a football club which aims to attract a large number of fans and plays in the Premier League. It is surrounded by houses, mainly late Victorian and Edwardian two storey terraced and semi-detached and modern blocks of flats. To the south of the ground is Bishops Park, a large public park extending to Putney Bridge the other side of which is the nearest underground station. Buses run along Fulham Palace Road, which runs from Putney Bridge to Hammersmith Broadway. Putney Bridge station is some 15 minutes and Hammersmith Broadway some 25 minutes walk from the ground. The houses do not on the whole have garages and so residents depend on street parking which is limited. On match days, it is almost impossible to park a car within the immediate vicinity of the ground and so walks of 2 kilometres or more will be necessary for most who choose to travel by car to the ground. However, Craven Cottage has been the home of Fulham Football Club for well over 100 years and its departure would create a major change in the area and constitute what many would regard as a real loss. Indeed, the retention of the Club at Craven Cottage is regarded as of considerable importance in terms of both planning policy and the benefit it brings to the community in economic and other ways.
- In 1989 the site was acquired by a property development company which applied for permission for a development that would have meant that it ceased to function as a football ground. Prior to that in the 1990s various applications which would have upgraded the ground and involved housing and office development were refused. The LBH decided to acquire the site compulsorily and to put forward its own proposals for development which would retain the ground. There was a public inquiry to consider the Compulsory Purchase Order and the development proposals by the Council and by the property development company. All applications were refused. Following this, in January 1991 the LBH approved a set of planning guidelines, pending a Unitary Development Plan (UDP), which included the retention of the listed buildings in association with what was described as an appropriate field-based spectator sport.
- In 1992 the deposit version of the UDP included a specific policy requiring retention of the listed buildings, use of part of the site for spectator sports, residential use of the remainder of the site and (by a subsequent addition) the provision of a Riverside walk. In June 1992 there was a public inquiry following the LBH’s refusal of planning permission and listed building consent for a development which included the demolition of the Stevenage Road stand and alterations to Craven Cottage. The development was largely residential and included a Riverside walk. The appeal was dismissed on the ground that, although it would generally enhance the appearance of the conservation area to demolish the unsightly buildings and the floodlighting towers, the removal of the listed buildings could not be justified. Following a public inquiry held between January and March 1993 at which arguments very similar to those raised at the earlier inquiry in June 1992 were deployed in relation to the football ground, the UDP was adopted in December 1994. It included Site Policy 19, which reads: -
- Meanwhile, in March 1994 Fulham Football Club submitted an application for planning permission and listed building consent which involved in its final form retention of the listed buildings, the erection of substantial buildings on the three other sides of the ground to provide all-seater accommodation for 15,000 spectators and 142 residential units. A Riverside walk was part of the proposals. In June 1995 the Council resolved to grant permission subject to conditions but the Secretary of State exercised his powers to call in the proposals. His powers in that respect are set out in Section 77 of the Town and Country Planning Act 1990 as amended. So far as material, that reads: -
- In March 2000 the present applications were submitted. They involved the erection of a 30,000 all-seater stadium with ancillary facilities, a new riverside walk and a 7-storey apartment block containing 30 residential units. The existing buildings, including the listed buildings save for the brick façade to the Stevenage Road stand, were to be demolished. In October 2000, the scheme was modified in that the residential block was lowered to 5 storeys and the units reduced to 16 and there was some reduction to the proposed length of the building. There were some modifications to the design of the riverside walk. The application had been accompanied by a full environmental statement which was supplemented in October 2000. That statement was submitted for review and grading to the Institute of Environmental Management and Assessment and overall it was considered to be a good statement, containing only minor omissions and inadequacies (which were identified), and in some respects was excellent. In addition, the LBH gave the proposals extensive publicity and carried out comprehensive consultation. That exercise was also carried out in relation to the similar proposal lodged in July 1999. This was overtaken by the March 2000 applications largely because the LBH in September 1999 required the applicants to produce an Environmental Impact Assessment which was to and did include the following: -
- The responses to the consultation exercises are summarised in the very full and detailed report which was prepared for the Committee which considered the applications on 27 February 2001. It runs to 115 pages together with a further 191 pages of annexes. Annex 2 (145 pages) contained the consultation responses which were summarised in the body of the report in Annex 1. It is not nor could it be suggested that the report failed fairly to identify the objections which had been put forward or to set out all relevant considerations which the committee must take into account, including the fact that the proposals were not in accordance with the UDP in the respects to which I have already referred. The report recommended that the applications should be approved and planning permission granted subject to a satisfactory s.106 agreement and to a number of conditions to ensure that there should be as much compliance as possible with the relevant policies in the UDP and that the adverse impact of the development on local residents should be kept as small as possible. In particular, it was proposed (and the committee agreed) to include the following conditions:-
- It is to be noted that there were a large number of responses which supported the applications. Overall in terms of numbers more responses in support were received than in opposition. However, many letters in support were what are described as standardised. But it is clear that there is considerable support for the proposals as well as objection to them. Furthermore, it is important to bear in mind that the development will not bring a new football ground to a residential area where none existed before. Those who live nearby either came to or have spent all their lives close to a football ground which, depending on the future of the club, has attracted a more or less substantial number of fans. The problems of parking and congestion on match days have always existed. In addition, there have been recent concerns, reflected in correspondence, about the loutish behaviour of fans which has intimidated local residents and which the police have not seemed either willing or able to control. One of the matters to be covered by the s.106 agreement involves the installation of CCTV in the streets immediately adjoining the stadium. It is convenient to set out the brief summary of the matters raised against and in support of the proposals. These are in Paragraphs 4.13 to 4.15 of the officer’s report, which read:-
- The Fulham Alliance had submitted a fully reasoned objection to the proposals through expert advisers. There was a further reasoned objection from Thamesbank, which dealt with the social and environmental damage which would be caused by the proposals, particularly to the River Thames. The Fulham Alliance document made the point that it was ‘not convinced that the football club have fully explored the possibility of pursuing a smaller all seater stadium, for example accommodating 20,000 – 25,000 spectators’. The present capacity of the ground is 25,000, but that is because it is not all seat and it will not be approved by the Football Association unless it is. That follows the recommendations made in the Taylor Report on the Hillsborough disaster. Fulham Stadium Ltd. assert that a ground with a capacity of 30,000 is the minimum which will be financially viable in the long term. In the report, the officers have said that they are not convinced of this or that a development with a smaller capacity ground would necessarily mean that the Club would not have a future. But they say in Paragraph 15.22:-
- The meeting of the Committee on 27 February 2001 attracted a full house: some 600 people apparently attended it. There were complaints made that the Committee seemed to have made their minds up in advance and that objectors were not able to make any representations. English heritage, whose views on the listed buildings consent were of great importance, had stated that their support for the proposal:-
- So far as the complaints about an inability to make representations at the meeting are concerned, it is said by LBH that standing orders prohibited oral representations and that no application was made to dispense with standing orders. It seems likely that such an application could not have been made. But whether or not it could is in my view immaterial since no challenge is made to the manner in which the LBH dealt with the applications. As I have said, the only decision in issue is that of the Secretary of State not to call in the applications. He is not an alternative to judicial review in the sense that he should consider such matters as alleged procedural improprieties in deciding whether to exercise his call in powers. In any event, the objectors had submitted full written representations. Procedural propriety does not require that oral representations must be permitted: see R(Vettorlein) v Hampshire County Council CO/0253/2001 14.06.01 per Sullivan, J.
- Following the meeting, the Fulham Alliance wrote a long letter to the Secretary of State dated 28 February setting out its case against the proposals and asking him to call in the application. On 15 March the claimant’s solicitor, Mr. Richard Buxton, wrote a letter stating that his clients expected that the applications would be called in because the normal criteria for call in ‘in terms of being of more than local importance etc’ were met. He also drew attention to the previous call in decision, stating:-
- Refusals by the Secretary of State have been the subject of at least two other recent claims each of which relied on an alleged breach of Article 6 of the European Convention on Human Rights (E C H R). These have had to consider the decision of the House of Lords in R(Alconbury Developments Ltd and Others) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389. That case involved a challenge to inter alia a decision to call in an application for planning permission on the ground that the decision was contrary to Article 6 of the ECHR. The first of those claims was decided by Forbes J on 16 October 2001 and I have been provided with a transcript of his judgment: see R(Friends Provident Life Office) v Secretary of State for the Environment, Transport and the Regions CO/0510/2001. That claim also relied on a failure to give reasons. Since I reserved judgment, Ouseley J has given judgment in R(Cummins and others) v Secretary of State for the Environment, Transport and the Regions CO/2003/2001. One part of this claim concerned an alleged breach of Article 6 of the ECHR in the failure to call in. Ouseley J gave judgment on 21 December 2001 and again I have been provided with a transcript. I have not sought any further submissions from counsel since Ouseley J, in a lengthy and detailed judgment, gives his views on the matters which have been fully argued before me. I have found his analysis helpful and, as will become apparent, it accords with my views on the relevant points.
- In addition to the Article 6 argument, Mr. McCracken has relied on an alleged failure to give reasons and has submitted that the refusal to call in was inconsistent with the Secretary of State’s own policy and with the previous decision to call in the application in 1995. He prayed this previous decision in aid to support his submission that reasons were required and that this and the involvement of ECHR rights meant that the decisions relied on by the Secretary of State which held that there was no duty to give reasons could not be relied on.
- The alleged inconsistency with the previous call in decision is more apparent than real. The absence of an environmental statement had meant that there had been no detailed consideration of the impact on the River Thames in particular and on car parking in the area. This had been covered by the time the current applications were before the Committee. There was not only a full environmental statement but a lengthy and detailed officers’ report. Further, the representations made by the objectors had set out all arguments very fully. The Secretary of States’ policy in relation to call in was clearly stated in the letter; it is a power which is very sparingly used. The evidence in the Alconbury case was that of some 500,000 planning applications made annually about 130 were called in. The present case is a proposed development which had given rise to considerable local feeling and, since it is at the edge of the LBH area, it inevitably will have some impact outside the area. In addition, there is the effect on the River Thames and on parking and traffic. But that is not in itself a reason to call in; it is simply a reason to consider whether to call in. the Secretary of State is not only entitled but is in my judgment correct to base his decision on the facts of the particular case and the decision of his predecessor on different facts cannot be determinative.
- There is a consistent line of authority that reasons need not be given for a decision not to call in. Mr. McCracken has submitted that that line of authority cannot survive the Human Rights Act. While it is true that the courts have been more inclined to impose a duty to give reasons, all will depend on the circumstances and it is clear that there is no general duty to give reasons for every administrative or discretionary decision. In Alconbury a reasons argument was deployed. This was dealt with by the Divisional Court at Paragraph 112 of the judgment (see [2001] 2 All ER 929 at p.962g) as follows:-
- I now come to the Article 6 argument. Article 6.1 reads, as far as material, as follows:-
- There is no doubt that Article 6 can be engaged by a planning or licensing decision which affects a third party. In Zandor v Sweden [1993] 18 EHRR 175 the applicant’s land adjoined a waste tip and his water supply had been polluted by waste. A subsequent licence was granted to dump further waste and the applicant’s request that any licence should be conditional on precautionary measures being taken to avoid pollution was rejected. His only appeal was to the government and this was dismissed. The Court decided that there had been a breach of Article 6.1. The applicant’s rights were affected because he had standing in the licensing application and conditions were attached to the dumping permit of which he was beneficiary. There was a genuine dispute which was decisive for the applicant’s right to protection against pollution of his water and the ability to use water on one’s own land for drinking was one facet of the property right which was clearly a civil right. The Swedish government raised the spectre of the need for a multitude of court remedies where there might be exposure to potential not just actual risks of damage. This was met by the proximity of and direct effect on the applicant’s land of any pollution of his water.
- The need for the effect of any decision to be direct was spelt out in Dalmer-Schafroth v Switzerland [1997] 25 EHRR 597. The applicants in that case lived within 5 kilometres of a nuclear power station and were challenging a decision to permit a 10 percent increase in production and the extension of the operating licence for the power station. It was accepted that Article 6.1 could apply but only if the applicants were able to show that the operation of the power station exposed them to a danger which was specific, serious and imminent. Only if the outcome of the proceedings in issue (the grant of the licence) were directly decisive of the right in question could Article 6 be involved. In Athanassoglov v Switzerland [2001] 31 EHRR 372, a case involving the same power station, the Court confirmed its previous decision and made the further point (at paragraph 54 on p.345) that how best to regulate nuclear power was a policy decision for each Contracting State to take according to its democratic processes. The Court did not need to decide whether the existence of civil remedies for damage were established was sufficient to comply with Article 6.1.
- It is necessary to identify a civil right which is directly affected. It is said that the right to use and enjoy one’s own property is engaged and that that is a civil right. Reliance is placed on what Lord Hoffmann in particular said in Alconbury ([2001] 2WLR at p.1410). It must be remembered that the claimants in the Alconbury cases were applicants who were challenging the decision to call in or to ‘recover’ an appeal or to acquire land which was owned by them. Thus the rights of individuals to use, enjoy and own their land were the subject of the decisions in issue. A decision to grant planning permission to A will often affect B’s enjoyment of his property. For example, his view may be affected or his garden or house may be overlooked or the sunlight entering his garden or his house may be diminished. But I do not think that Lord Hoffmann or the House in Alconbury was considering or was intending to consider the effect on third parties and was not as it seems to me, using the expression ‘use and enjoy’ in that wide context. Thus I am far from persuaded that the rights asserted by the claimants are civil rights within the meaning of Article 6. I accept that if a direct effect on the value of the property can be demonstrated civil rights may be engaged. The civil right in question is the right of property which, following Zander v Sweden, clearly is a civil right. Oltenberg v Austria [1995] 19 EHRR 524 is another example of an objector who was able to establish a violation of Article 6.1 where the noise generated by a grant of planning permission directly affected the market value of her own land and her right to enjoy it. But the right is a civil right because of the direct effect on the value of the land, and there is no evidence in the present case of any diminution in value of a property. Further, it is very difficult if not impossible to identify any civil right which could even arguably be affected in respect of the claimants who do not live sufficiently close to the ground to be directly affected by the additional numbers and behaviour of fans, the problems of parking or the direct impact of the size of the new stadium.
- However, I am prepared to assume the engagement of Article 6.1, at least in the case of some of the claimants. The absence of a public inquiry does not mean Article 6.1 will be violated. The judicial review powers of the Court may and in most planning cases will provide the necessary compliance with Article 6.1.
- In Alconbury the distinction between findings of primary fact and matters of policy or expediency was identified to be of fundamental importance. Only in the case of disputes of fact could it be said that judicial review might not be adequate to comply with Article 6.1. Lord Hoffmann was clearly thinking in terms of the distinction between enforcement action and other planning decisions. In the case of the former, there might be an issue whether a breach of control had occurred and an inspector’s decision on that issue would be regarded as truly independent. In the case of the latter, such considerations would rarely apply. In the Friends Life cases, Forbes J said this (at Paragraph 93):-
- One can I think go further. I do not think it is generally possible in a planning decision to isolate out findings of fact from questions of judgment and policy. In reality, the decision is a composite one based necessarily on a substratum of fact, which is rarely in issue, and of planning judgment and the assessment of the accuracy, reliability of survey material or of effects of a development which will usually be in issue. Mr. McCracken has had to trawl through the officer’s report to find what he submits are issues of fact whose determination is of importance and should therefore require an inquiry. He particularly relies on parking issues. How many cars can be parked within a given radius of the ground is, he says, a matter of fact which is in issue. Similarly, how many people on average would be expected to travel in one vehicle is equally a question of fact. These are not in my view the sorts of factual issues which can mean that judicial review is inadequate. The evidence is given by experts who have their own opinions and the final decision involves a judgment based on all the material put before the decision-maker. It is quite impossible sensibly to divide the decision making process up in this fashion and I am sure that the House of Lords in Alconbury did not contemplate that this sort of exercise should be carried out.
- In Paragraph 117 of Alconbury, Lord Hoffmann said this ([2001] 2 WLR at p.1424):-
- While I do not rule out the possibility of a need for a factual review in the form of an inquiry in a decision whether or not to grant planning permission, such a need will be very rare and certainly does not exist on the facts of this case. All in all, I agree with, although I need not repeat, what Ouseley J said in Cummins at Paragraph 346 in particular.
- Mr. McCracken submitted that there was a civil right involved because Article 8 of the ECHR applied. That argument I reject. Article 8 (Right to respect for private and family life) is subject to 8.2 which permits interference with the right inter alia for the protection of the rights and freedoms of others. Planning decisions will usually involve a conflict between the rights of landowners to use and to enjoy their land and the rights of their neighbours who may be adversely affected. Provided the decision-maker has regard to the relevant issues, there can be no breach of Article 8. That is the situation here.
- Finally, I am satisfied that the Secretary of State has no duty to consider whether the procedures would be compliant with Article 6 in deciding whether or not to call in. It is a matter for the Court to decide whether overall the procedures were compliant and fair. I am satisfied in this case that they were. But the challenge should in my view have been made to the LBH’s decision, not the Secretary of State’s. Mr. McCracken suggests that is unreasonable since, if the call in power is exercised, judicial review will not be needed. The answer to that is to notify the LPA in question that proceedings will be brought if no call in is directed and to pursue them immediately the Secretary of State’s decision is known. But, as is clear from this judgment, I have not found against the claimants on this ground but have considered the merits of their claims.
Mr Justice Collins:
“(a) Retention and enhancement of listed buildings in association with football or other spectator sport or entertainment as appropriate in the location;
(b) Provision of a public Riverside walk with links inland as appropriate;
(c) Residential development reasonably necessary to enable the achievement of these objectives and in accordance with normal housing and environment policies.”
As is made clear in the UAP, the site was considered to contain a rare group of listed buildings and there was need for a use (preferably the sports use for which they were defined) that would preserve them largely intact and in an appropriate setting.
“(1). The Secretary of State may give directions requiring applications for planning permission … to be referred to him instead of being dealt with by 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 may relate either to a particular application or to applications of a class specified in the direction”.
S. 77(5) requires that there should be an inquiry if either the applicant or the local planning authority so wish following a call in direction. Applications for listed building and conservation area consents are included within this call in power; Planning (Listed Buildings and Conservation Areas) Act 1990. S.12. Local Planning Authorities must notify the Secretary of State of applications which they do not propose to refuse which are not in accordance with the relevant development plan and which include more than 150 houses or flats or more than 5000 square metres of gross leisure floor. In addition, the Secretary of State may decide to exercise his powers following representations made by interested parties. In a letter dated 9 August 1995 directing a call in, the Secretary of State said this: -
“2. On the information before him, the Secretary of State is of the opinion that the application is one which he ought to decide himself in order to assess the proposed housing density impact on car parking in the area and the impact of the proposed development on the River Thames”.
Following a public inquiry, the Secretary of State decided in August 1996 to grant permission. That decision was challenged by Lady Berkeley, one of the present claimants. The proposals included a riverside walk on an embankment which would encroach on the river and would, according to a body of expert evidence, adversely affect the wildlife of the river. There was no environmental impact assessment and the question whether there should be provision of such an assessment had not been properly considered by the Secretary of State. Lady Berkeley eventually won her case in the House of Lords on 6 July 2000 (see Berkeley v Secretary of State for the Environment [2000] 3 WLR 420) and the grant of permission was quashed.
“(i). The impact of the physical scale of the development in relation to surrounding land uses and occupiers.
(ii) The impact of the use of development on match days, including how other uses within the site operate during that time, how people would arrive at and depart from the site and the impact and extent this would have on the surrounding area including adjoining Boroughs, in terms of noise, disturbance, litter and transport (including issues such as traffic generation, on and off street parking, existing/potential public transport provision, pedestrian movements etc). Also any additional impact connected with the emergency evacuation of the stadium.
(iii) The impact of the use of the development on non-match days, the type, frequency and hours of use of all the proposed activities and the numbers likely to be involved and the impact of this on the surrounding area in terms of noise, disturbance, litter and transport.
(iv) The impact of the development on the historical and architectural interest of the remaining listed buildings, the character and appearance of the conservation areas and the justification for the demolition of the listed buildings. The impact of the development on Bishops Park as a landscape of historical/cultural/archaeological interest.
(v) The impact of the development on the ecology of Bishops and Stevenage Park.
(vi) The impact of the development on the archaeology of the application site which includes the foreshore of the River Thames.
(vii) The visual impact on the development on the River Thames from the river, from riverwalks on both banks, from Hammersmith and Putney Bridges and from other points across the river.
(viii) The impact on the ecology of the River Thames.
(ix) The impact of the development on the hydrology and flood defences of the River Thames.
(x) The impact of the development on the recreational, leisure and commercial uses of the River Thames.
“7. The stadium’s primary purpose shall be for the playing and watching of Association Football and the playing area and terracing and seating overlooking the playing area shall only be used for the following purposes: -
(a) The home matches of only one professional club for the playing of Association Football.
(b) Events within Use Class D2(e) for children and educational establishments.
To ensure that the development does not result in conditions prejudicial to the amenities of the surrounding area from additional traffic, noise and disturbance which may be generated by the development contrary to UDP policies. EN21, TN14 and TN15 as a consequence of more frequent crowd-generating or noise than one club’s football matches.
9. On non-match days the total number of patrons using all the facilities of the stadium shall not exceed 150 at any one time unless it is for an event under Use Class D2 (e) for children and educational establishments”.
There were other conditions (such as a prohibition use of the stadium between 11pm and 9 am and that the restaurant must only be used as such and the café must not be used after 8pm except on match days) which were designed to keep disturbance to a minimum, including restrictions applicable to the demolition and construction involved.
“4.13. The main representations put forward by objectors are: -
(i) The demolition of the listed buildings, involving the loss of Craven Cottage in its entirety and the demolition of all but the façade of the Stevenage Road stand is unacceptable and unjustified.
(ii) The scale and design of the Stadium is unacceptable in relation to the site and the surrounding area.
(iii) The proposals would fail either to preserve or enhance the character and appearance of the conservation areas within the site lies and adjoins. The site lies within the Fulham Reach Conservation Area and adjoins the Bishops Park and Crabtree Conservation areas.
(iv) The height, massing and visual appearance of the proposal, because of the site’s prominent position on the River Thames, would have an unacceptable impact.
(v) The development would be detrimental to residential amenity by reason of its visual impact, traffic generation and associated affects upon air quality.
(vi) The proposed development is contrary to UDP policies, particularly Site Policy 19.
(vii) The highways impact on the proposals would be unacceptable. The use of the existing stadium puts pressure on the highway network and upon parking. The redevelopment proposals have the potential to more than double the attendance. The impact of the additional cars would be felt in Fulham and outside the Borough. There would be 26,000 HGV movements during the construction period which would adversely impact on residential amenity and highway network.
(viii) The public transport system would be incapable of adequacy catering for the increase in passenger movements.
(ix) The development would severely prejudice the function of the River Thames as an ecological resource and as a recreation facility.
(x) The stadium might become a “white elephant” if the football club either fail to achieve promotion to the Premier League or fail to maintain Premier League status if promotion is attained.
(xi) The applicants have failed to consider all alternatives to the proposals, including the feasibility of the football group being redeveloped as a phased programme which would have different environment impacts.
(xii) The need case for a new stadium of 30,000 capacity has not been proven nor has the need for the housing block.
(xiii) There would be unacceptable encroachment on to the River Thames which is public open space and should be protected from development. Any development should be contained within the site.
4.14 Additionally objectors criticised the Environment statement. They contend that it is deficient in its assessment of a number of key issues including highways and transportation, Impact on the river and consideration of alternatives.
4.15 The main points made by supporters of the development are as follows:
(i) The proposal would be an improvement visually over what is on the site at present.
(ii) The stadium has to be brought in line with safety requirements and football guidelines and this is an opportunity to provide a well designed and up to date new stadium.
(iii) It is important to retain the club on the site as it is part of the Borough’s heritage.
(iv) The development would introduce a valuable new section of river walk and enhanced river views.
(v) The football club makes a significant contribution to the local community and the development would enable this contribution to continue and to be enhanced by securing Fulham Football Club’s future at its historic home.
(vi) The development would bring employment to the area”.
“What is apparent is that, if the proposed stadium were built, Fulham Football Club would be likely and probably more likely to remain on its historic site into the foreseeable future. Additionally, it is likely that the existence of the new stadium would contribute towards future sporting success though, of course, it would in no way guarantee it"”
“… has been and continues to be made on the basis that the Council shall have properly satisfied itself that the size and capacity of the proposed stadium is the minimum to ensure the viability of the Football Club development and the provision of the benefits referred to in the supporting documentation”.
At the meeting, the Assistant Director (Development Services) told the Committee that the officers had concluded that, because of the intangibles surrounding the financing of football clubs and a scheme such as the one proposed, it was most unlikely that any conclusive evidence could ever be forthcoming. Officers, he said, therefore took the view that notwithstanding the qualification contained in the English heritage letter, the visual, historic and aesthetic qualities of the proposals remained unchanged and the recommendations to approve the applications should stand. There can be no doubt that English Heritages’ concerns were properly put before the Committee which was, in the exercise of its judgment, entitled to decide that the scheme could nevertheless be approved.
“it seems to us beyond argument that if it was thought right to give the opportunity for objectors to be heard previously, then our client and other local people are entitled to the same opportunity in relation to the new application and proper decision-making process”.
On 28 March the Secretary of State replied saying that he had decided not to call in the application. The letter continued: -
“The Secretary of State’s policy on call-ins is to be very selective. It is right that in almost all cases the initial decision on whether a development should proceed should be taken by the local planning authority.
Therefore, planning applications are in general only called-in if planning issues of more than local importance are involved, and if those issues need to be decided by the Secretary of State rather than at local level. Each case is considered on its individual merits. However, we have given as examples of cases where the Secretary of State might consider call in appropriate 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.
After very careful consideration, the Secretary of State has concluded, from the information before him that it is right in this case to leave the decision to be taken by the planning authority”.
On 6 April Mr. Buxton wrote again saying that the points he had raised in his letter of 15 March had not been met and it was important that the Secretary of State provided ‘full and cogent reasons for his decision’. He added: -
“One also notes that by failing to call the matter in, the Secretary of State is, in effect, negating the rights of people affected by the development to a hearing, contrary to the Human Rights Act 1998. This is unlawful and I trust you will address this issue too. A similar point arises in relation to the lack of hearing in relation to departure from the development plan, which had been subject to inquiry"”
On 25 April the Secretary of State replied stating that there was no requirement to give reasons and effectively repeating what he had said in his previous letter. This claim was instituted on 15 May 2001. Permission was granted on the papers by Forbes, J on 18 June 2001.
“In our view, it is important to bear in mind that under s.77 of the 1990 Act, the Secretary of State is given a very wide discretion whether or not to call in an application for his own decision. Furthermore, there is no statutory requirement for him to given reasons for his decision whether or not to call in an application”.
Since he has to identify the matters which should be dealt with in any inquiry, namely when he does call in he will identify what was concerning him and by that means give his reasons. That is apparent from the letter of 9 August 1995. But if he is not calling the application in he need not explain why. The approach of the Divisional Court in Alconbury was not the subject of leave to appeal to the House of Lords and there was no criticism. In the Friends Provident case, Forbes J rejected the argument that there was any obligation to give reasons. I am content to adopt what he said at Paragraph 103 of his judgment, namely:-
“In my view, … the short answer to this issue is that it is well established that the Secretary of State is ordinarily under no duty to give reasons for his refusal to call in a planning application and that, in any event, he did give reasons for his decision in his letter of 18 June 2001 … In that letter, [he] indicated that it was his general policy only to call in applications which raised more than local planning issues and that this particular application do not do so. I agree with Mr. Sales [counsel for the Secretary of State] that those were sufficient reasons in the circumstances and that this case is indistinguishable from the decision of the Divisional Court in Alconbury on this point …”
The letter of 18 June 2001 was in very similar terms to those of 28 March 2001 and 25 April 2001 in the present case. Thus here the reasons are implicit, namely that the Secretary of State has decided that the circumstances do not fall within his policy on calling in applications. The additional factors relied on by Mr. McCracken do not create an obligation to give further reasons or require the Secretary of State to give what Mr. Buxton suggested was needed. The suggestion that he should, once permission was given for this claim to proceed, have given detailed reasons is misconceived. If there is no duty to give reasons, the Secretary of State cannot be obliged to give them if proceedings are brought, although no doubt he can, if he so desires, give any further reasons in any evidence he decides to submit to the Court. If the position were otherwise, a duty to give reasons could be created by the institution of proceedings and that is clearly wrong. I note that the Secretary of State has recently announced that he will give reasons for refusing to exercise his call in powers. That cannot affect the position, but is to be applauded.
“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 …”
It is not immediately obvious from the language used that any of the claimants’ civil rights are being determined by the decisions made on the planning application. However, the Strasbourg jurisprudence has given a more extended meaning to the language, adopting, as it always will, a purposive approach to the reach of the Article. And, as the House of Lords has made clear in Alconbury the courts in this country should follow established Strasbourg jurisprudence even though it may appear to extend the scope of any Article beyond that which would otherwise be considered appropriate. Miss Lieven has submitted that Article 6 is not engaged in the circumstances of this case. Mr. Lindblom and Mr. Straker have not pursued that argument but have submitted in common with Miss Lieven that, if it is engaged, there is no breach in the refusal of the Secretary of State to call in.
“In my judgment, however these issues are characterised, the assessment of such maters as the likely impact of the proposed development on Norwich City Centre and its associated traffic issue is clearly very different from findings ‘of facts, or the evaluation of facts such as arises on the question of whether there has been a breach of planning control’: see Lord Hoffmann at Paragraph 117 of his speech in Alconbury. As it seems to me, this is a reference by Lord Hoffmann to the type of dispute which requires the making of findings of primary and immediate fact by the administrative decision maker – findings which are needed to resolve substantial issues of fact in the dispute in question, which issues have to be resolved in order to make the decision which will determine that dispute”.
I entirely agree.
“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 the reason 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 in both cases to satisfy Article 6 has nothing to do with the ‘safeguards’ but depends upon the Zumtobel principle [Zumtobel v Austria 1993 17 EHRR 116] 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”.
It is important to see that Lord Hoffmann was not there saying that the existence of a factual issue meant that judicial review was necessarily inadequate. The Zumtobel case indeed supports that view. Every decision on a question of expediency must be based on fact or the evaluation of fact but that does not, as Lord Hoffmann makes clear, mean that it is nonetheless to be regarded as requiring an independent fact finding tribunal where there are factual disputes involved.
29. In the circumstances, this claim is dismissed.
MR JUSTICE COLLINS: I have spotted two minor typos, which I had better just correct. On page 3 at the end of paragraph 5 after the quotation, "UAP" should be "UDP". On page 10, paragraph 11 on the first two occasions when "English Heritage" appears there should be a capital H. Otherwise -- and I am grateful for other corrections -- for the reasons given in the judgment, which has been handed down, the claim is dismissed.
MS LIEVEN: My Lord, may I just point out one further correction?
MR JUSTICE COLLINS: Yes, certainly.
MS LIEVEN: Paragraph 23. You say, "In the Friends Life cases". It should be "Friends Provident cases". That is how it has been shortened.
MR JUSTICE COLLINS: That is right and I am grateful, and it should be "case" not "cases".
MS LIEVEN: My Lord, the Secretary of State is seeking his costs and I understand that that application is not opposed.
MR JUSTICE COLLINS: Well, I imagine that that cannot be opposed.
MR HARRIS: May it please your Lordship, I appear on behalf of the local planning authority and we apply for our costs also. Your Lordship will be very familiar with the general rule that there are no general rules and that the matter of costs is a matter for your discretion.
MR JUSTICE COLLINS: Well, yes, except that I think the Burnley case makes it plain, does it not, that it is normal perhaps -- if there is a norm -- for there to be only one set of costs and it needs a reason for there to be more than one, unless -- and I am quoting from the case now:
"He demonstrates a separate issue not covered by the Secretary of State, on which he was entitled to be heard, or has an interest requiring separate representation."
MR JUSTICE COLLINS: There was not really, was there?
MR HARRIS: Can I say that there was, my Lord, in these two respects. First we say -- and your Lordship will remember -- that a significant part of the claimant's case was based upon the nature and lawfulness of the conduct of the local planning authority. In particular, detailed issues were taken as to the content of the report to the committee and significant issues and, second, allegations were made as to the lawfulness of the committee proceedings and the standing orders. Now, they were matters upon which, firstly, the local planning authority were clearly entitled to appear. That is the first issue --
MR JUSTICE COLLINS: Oh, there is no issue of entitlement.
MR HARRIS: -- but, second, my Lord, they were not matters which could properly be defended by the Secretary of State. Your Lordship makes it clear in your Lordship's judgment that it is not part of the Secretary of State's role to vet local authority procedures. If that is true as a matter of substantive judgment, then it must follow that it is not the position of the Secretary of State to seek to defend the local planning authority at hearings such as this. If the claimant seeks, as he did in this case, to make substantial and serious allegations about the lawfulness of the local planning authority's procedures, he can expect the local planning authority to turn up, and to pay for the privilege of them turning up in the event that they are dismissed.
MR JUSTICE COLLINS: Yes, except that the reality is surely, as I have decided, that those attacks should be made against the local planning authority. They should be joined then or judicial review will be taken against them. The only way that they were used or sought to be used was to attack the Secretary of State, and that lost. The Secretary of State could have dealt with that. Maybe it would have been helpful for you to put in some evidence, but that is as far as it goes. Anyway, your evidence on the standing orders was not very impressive.
MR HARRIS: My Lord, that is how the case turned out. Your Lordship found that, in effect, this was a collateral attack on the local planning authority by way of an attack on the Secretary of State. That was not how it was pleaded and we sought to make this matter clear to the claimant at all material stages. I do not want to take up too much of the court's time but I wonder if I can take your Lordship to the bundle, because it is perfectly clear from the contents of the bundle that this was in the event an attack by the claimant on the local planning authority, and how that developed in court and how your Lordship determined the issue is another matter. If your Lordship looks to the main bundle index and in particular to the claim form.
MR JUSTICE COLLINS: Page?
MR HARRIS: Page 3 of the main bundle. Your Lordship will see that part of the relief sought was relief which directly related to an administrative decision of the local planning authority, in particular relief at number 4:
"... a stay prohibiting us from granting planning permission or, if planning permission has been granted or is hereafter granted before final determination hereof, an order quashing the decision."
So, a direct attack on our administrative decision. But it goes further than that because --
MR JUSTICE COLLINS: It is very questionable whether that relief could ever have been granted, where the local authority was not --
MR HARRIS: I accept that but the fact that a bad point had been taken should not sound against us. We are entitled to come and defend the bad point. If it is a bad point, then it should paid for by the claimant.
MR JUSTICE COLLINS: If it is bad enough, you simply have to write in and say, "Are you really pursuing this?"
MR HARRIS: We did, exactly the point I am now going to take your Lordship to. We, in response to that, filed a very short summary of our case, which raised in terms the point of whether the claim was being pursued in that way, and your Lordship will find that set out at page 22 of the bundle. Paragraph 3. It is admirably terse.
"The council is concerned that proceedings ought not to be treated so as to represent a challenge to the council's resolution of February 2001."
Now, we say, in reality that was always likely to be a very bad point taken by the claimant, and here we were giving him notice of that fact. He responded, my Lord -- page 26 in the bundle -- in the clearest possible terms. Paragraph 7:
"Contrary to the assertions by the interested party, Fulham Football Club -- "
MR JUSTICE COLLINS: Yes, I take your point.
MR HARRIS: The claimant does challenge the decision. Now, we were led --
MR JUSTICE COLLINS: Nothing was said by Mr Justice Forbes, I see, on granting permission.
MR HARRIS: So, in those circumstances we had to appear. But it goes one stage further than that. I do not know whether your Lordship has the very short -- I think your Lordship discarded Linklaters' bundle.
MR JUSTICE COLLINS: The second bundle?
MR HARRIS: Yes, it is a very small bundle. At page 84, where we wrote to the Administrative Court, doing our utmost to put the court and the claimant on notice that this was a thoroughly bad point as far as we could see but if he pursued it, they were certain risks. Fourth paragraph:
"The council's view that the way in which the claimant's solicitors put forward the claimant's position and the allegations made ensure that it is both appropriate and necessary for counsel to attend. In these circumstances the council will be seeking costs from the claimant. We have written to the Administrative Court, copied to Richard Buxton."
Now, in those circumstances we say we clearly meet the test set out in Doncaster: (a) we are entitled to be here; (b) we put him on notice that he was taking a bad point; (c) he continued taking the bad point and we were not entitled to rely on the fact that your Lordship would rule against us without us being entitled to be here. If you take the bad point, you pay the consequences. Those are our submissions.
MR JUSTICE COLLINS: You cannot trust the judge to spot the bad point?
MR HARRIS: Well, ordinarily you can, but you are entitled -- and the claimant must know, if he brings a bad point, that the price of bringing a bad point is the risk of paying two costs.
MR JUSTICE COLLINS: Yes.
MR STRAKER: My Lord, I appear for the developer and we make no application for costs.
MR JUSTICE COLLINS: Very sensible.
Well, Mr McCracken, what do you want to say?
MR McCRACKEN: My Lord, the first thing that I have to say is that an application for a second set of costs by a party represented by a queen's counsel and two junior counsel of standing is a very serious matter indeed.
MR JUSTICE COLLINS: That is a matter for a decision by the relevant authority, should I decide to award costs. I certainly would not be prepared, as at present advised, to certify that it was fit for two juniors. I do not think that application would actually be made.
MR McCRACKEN: My Lord, it is also relevant to the amount of time that your Lordship may have to spend on this now, as it were. It is by way of explaining why I may take some time to deal with this point, because of the very considerable importance to my clients.
MR JUSTICE COLLINS: There is a lot of money at stake, that I understand, but I do have the power to make a limited order, do I not?
MR McCRACKEN: I do not think it would be any consolation at all to my clients to know that they were paying for a queen's counsel and a junior of standing and not two juniors of standing.
MR JUSTICE COLLINS: Mr McCracken, that, as I repeat, is not a matter for me. If you can persuade the authorities, and indeed persuade me perhaps -- I do not know whether I have a power to make any directions that this is only fit for one junior -- or persuade me that, if I were minded to make any order, I should limit it, I have power to order a lump sum.
MR McCRACKEN: My Lord, I fear I am getting distracted or distracting your Lordship into considering details when it is the principle that is most important.
MR JUSTICE COLLINS: Let us deal with the principle. The principle is clear enough, I would have thought.
MR McCRACKEN: My Lord, yes, and I would like to hand up a Court of Appeal decision in the case of Berkeley, where, although the appeal was unsuccessful against the decision of Mr Justice Tucker, the Court of Appeal deprived a second respondent of costs, even though, as is apparent on the penultimate page of transcript, the court accepted that the second respondent, who had been awarded costs, was uniquely able to assist the judge as to the information available at the planning inquiry. That is a case where there had been a planning inquiry. A lot turned upon what had happened at the inquiry and the inspector's response to that and, therefore, the second respondents, who were deprived of their costs at first instance by the Court of Appeal, had been uniquely able to help in relation to what had happened at the inquiry. Now, this is a very different case because in this case the issue, as your Lordship has found at paragraph 12 of his judgment, does not turn upon the criticisms of the manner in which the local planning authority made their decision. Your Lordship found in terms at paragraph 12 --
MR JUSTICE COLLINS: Mr McCracken, the fact that I found against that submission by you is nothing to the point. The only question here, as I see it -- and I think it was put really on this basis -- is that, because you took a point against the local authority, a point which went to the local authority's procedure and which the Secretary of State could not directly deal with without some material put in by the local authority, that was a point which was a thoroughly bad point because, if you were pursuing it, you should have pursued it against the local authority and not against the Secretary of State, and you were warned.
MR McCRACKEN: My Lord, that is the only point --
MR JUSTICE COLLINS: Otherwise I would not dream of giving a second set of costs.
MR McCRACKEN: My Lord, your Lordship found as a fact, though, that the point is bad as a matter of fact because your Lordship --
MR JUSTICE COLLINS: Well, I found as a fact that you took it.
MR McCRACKEN: No, my Lord, your Lordship found as a fact at paragraph 12 that I did not take it. Your Lordship found that no challenge is made to the manner in which the borough dealt with the application. That is a finding of fact by your Lordship, which binds my learned friend.
MR JUSTICE COLLINS: That may be, but the point is that representation depends upon the case that is put against an individual. He has to decide on that case that is put whether he should appear and be represented. If at the end of the day the point is either abandoned at trial or turns out to be a bad one, that does not help the person who took it.
MR McCRACKEN: My Lord, the point was not abandoned at trial. At trial the point was put exactly the way that it had been put in the claim and exactly the way that it was put in the skeleton argument. The point that was being made was that any relief for the failure of the Secretary of State to call in would be rendered nugatory if a planning permission had in the meantime been issued. The point was quite simply that, for relief against the Secretary of State to be effective, it was necessary that any planning permission granted should be quashed. Now, in the event --
MR JUSTICE COLLINS: Mr McCracken, all you needed to do was to write to the local authority and say, "Look, will you agree and accept that you must not and will not grant permission until these proceedings are concluded." If they had said yes, no problem. If they had said no, then you would have no doubt sought an interlocutory order from the court against them. It is as simple and straightforward as that.
MR McCRACKEN: It is actually even simpler than that, my Lord. Hammersmith have not issued the planning permission and therefore their attendance here has, even within the context of the way in which Mr Harris puts it, been entirely unnecessary. They have not issued the planning permission and therefore the very thing that they say they had to come here to prevent happening -- that is a prohibition or a quashing -- is something that in practice they have not wanted to do. So their attendance here has been a futile exercise even seen from their own perspective because the way that Mr Harris is putting the point is that, well, there was a specific order directed to us and we needed to come here to prevent that order being made. But they did not need to come here because they did not in fact have any intention of issuing the planning permission.
MR JUSTICE COLLINS: I see what you are saying.
MR McCRACKEN: And that in my submission must be determinative of the application from the way in which it is made.
Now, so far as the correspondence, in my submission the way in which the claim is made makes it quite clear that my clients were raising points that could be dealt with by the Secretary of State with, if necessary, any evidence from Hammersmith and Fulham as to what actually happened. Now, in the event, as your Lordship observed, the only witness statement that was produced -- your Lordship is aware of the point that the only witness statement that was produced had the value that it exhibited the standing orders but had the great demerit that it misunderstood the standing orders.
MR JUSTICE COLLINS: (Inaudible) by producing the standing orders which showed that it could not have been a motion to set aside.
MR McCRACKEN: If my learned friend's concerns had been real rather than forensic, then they could have written to the court and made an application to have the issues clarified. If there had been a serious worry that something was going to happen to them, about which they were concerned, they could have applied to the court for --
MR JUSTICE COLLINS: They did write to you, did they not?
MR McCRACKEN: Well, my Lord, we presented the case as we set it out in the claim and that is -- and I take your Lordship to the skeleton argument because that sets it out very clearly.
MR JUSTICE COLLINS: I am afraid I have not brought that.
MR McCRACKEN: I do not know whether we have any unmarked copies.
MR JUSTICE COLLINS: Well, just read it.
MR McCRACKEN: There is nothing -- well, paragraph 3 in the skeleton argument:
"The court is asked to prohibit the borough from granting permission for the development or, if it has been granted by the time of the court's decision, to quash any such permission. Otherwise any order made by the court to the Secretary of State's decision will be rendered nugatory."
That is in the skeleton and I think that skeleton was actually submitted in the summer or in the early part of the autumn, when the case was originally listed. It was then stood out of the list.
MR JUSTICE COLLINS: Did you answer the letter from the borough of 9th July, which is the letter at page 84?
MR McCRACKEN: I am sure that we have it, but the point is the claim was never --
MR JUSTICE COLLINS: Did you answer it?
MR McCRACKEN: I do not know what answer was given to that. Your Lordship must appreciate that the letter was written in the context of a suggestion --
MR JUSTICE COLLINS: Yes, but they were telling you --
MR McCRACKEN: I am just taking instructions on whether there is correspondence on that point, but the point that I make, my Lord -- if your Lordship turns to the claim. Perhaps it is most helpful in this context to look at the claim. If your Lordship looks at the claim, it is:
"Quashing order in respect of the decision not to call in.
"A mandatory order to the Secretary of State to reconsider according to law.
"A mandatory order to the defendant to give reasons for his decision."
Now, let us suppose any or all of those had been successful but in the meantime the borough had issued the planning permission. Success against the Secretary of State would have been entirely ineffective. It would have been rendered nugatory.
"To make any order against the Secretary of State effective it was necessary to have a consequential order -- "
MR JUSTICE COLLINS: Mr McCracken, I repeat, all that Mr Buxton needed to do was to write to the authority and say, "Will you please undertake not to grant planning permission until our challenge to the Secretary of State is decided."
MR McCRACKEN: But in relation to that, my Lord, I return to the point that Hammersmith and Fulham have not in fact issued planning permission.
MR JUSTICE COLLINS: That may be but you could have put the matter beyond any doubt at all in your own mind, you need not pursue this point at all, if you had only written to them and said, "Do you intend to ... ?"
MR McCRACKEN: My Lord, can I take then you into the body of the claim, and I ask forensically where in the body of the claim is there anything other than the point that has been pursued before your Lordship, which your Lordship found as a matter of fact was not based upon the manner in which Hammersmith and Fulham made their decision?
MR JUSTICE COLLINS: Page 26, the letter from Mr Buxton.
MR McCRACKEN: I am sorry, my Lord, page 26 of the claim?
MR JUSTICE COLLINS: Of the bundle. The letter of 18th June from Mr Buxton to the court, which is effectively a response to the acknowledgment of service.
MR McCRACKEN: If your Lordship will give me just a moment to identify that.
MR JUSTICE COLLINS: Pages 24 to 26 of the bundle.
MR McCRACKEN: I cannot immediately find those letters, my Lord, so --
MR JUSTICE COLLINS: It is in the main bundle.
MR McCRACKEN: No, that is the difficulty I am having, my Lord: finding it in the main bundle at the moment. Page 26?
MR JUSTICE COLLINS: Page 24.
MR McCRACKEN: No, I am having difficulty finding page 24 of the bundle. I am sorry.
MR JUSTICE COLLINS: Your bundle is defective?
MR McCRACKEN: Yes, my bundle is defective. I just wonder if -- if your Lordship could identify the dates of the letter upon which --
MR JUSTICE COLLINS: It is 18th June 2001. As I say, it is the response to the acknowledgment of service and the relevant paragraph is paragraph 7, the penultimate paragraph of the letter. It refers back to the football club's representations, or grounds for contesting, at 4.4, and if we look at those at page 23 of the bundle.
MR McCRACKEN: My Lord, yes. The point about this letter is that Hammersmith and Fulham were saying, "Do not give permission for this challenge to the Secretary of State's decision not to call in because there is no point in doing that, since Article 6, if it is a criticism, ought to be made in respect of the local planning authority." And the response was, "Yes, we are saying to the Secretary of State, 'You should have called in because the local planning authority proceeding cannot apply with article 6'."
MR JUSTICE COLLINS: So not an attack on the authority.
MR McCRACKEN: Not a separate attack. It is a sort of parasitic claim, which is consequential in nature rather than independent, and so I would respectfully submit that the position was clarified --
MR JUSTICE COLLINS: It was not, but I take your point.
MR McCRACKEN: My Lord, yes.
MR JUSTICE COLLINS: It would have been so much easier to have made it absolutely clear, but there we are -- particularly to have replied to their letter of 9th July.
MR McCRACKEN: Well, my Lord, I suppose opinions will often differ about what letters mean, as illustrated by the --
MR JUSTICE COLLINS: They are saying that, look, they need to attend because you are challenging the decision. You say, "Well, we are only saying that the decision was bad, and that is not an attack on the council, that is an attack on the Secretary of State because he ought to have called in because he appreciated that the council's decision was flawed." That was the way you were putting it. On the other hand, that meant that some evidence was bound to be needed from the council about their own procedures, and you should pay, as it seems to me, in principle for the production of that evidence, even if for nothing else.
MR McCRACKEN: My Lord, we accept that in principle we should pay for the production of evidence, subject to the point that, as the evidence in fact failed to understand the standing orders, its defects should be reflected in a penalty as to costs. The court ought to exercise its discretion to all the parties that, if they are putting in material in the Administrative Court and they are public bodies, they should think about that material and understand it and they should not misrepresent --
MR JUSTICE COLLINS: It is not only public bodies that should think about what they put in, Mr McCracken.
MR McCRACKEN: My Lord, I accept that. My Lord, might I take you to Mr Justice Ouseley's judgment in the Cummings case, to which your Lordship referred.
MR JUSTICE COLLINS: Again, I have not brought a copy of it with me, I am afraid.
MR McCRACKEN: It is just at the end on costs, my Lord.
MR JUSTICE COLLINS: Can I be naughty and say that, since this would appear to be covered by the practice direction and Mr Justice Ouseley has not indicated that it should come outside the practice direction, neither I nor you should be referring to it, should we, because it is not authority for anything.
MR McCRACKEN: No, my Lord, that might arise later on, perhaps, this morning. But it may be that the way I can deal with it is this: might I adopt the words of Mr Justice Ouseley?
MR JUSTICE COLLINS: This bit of course I have not seen, so I do not --
MR McCRACKEN: If your Lordship looks at about four pages from the end.
MR JUSTICE COLLINS: This is the argument about costs?
MR McCRACKEN: In fact it is the first page that is before your Lordship:
"There was not so distinct a point that was raised as to entitle them to have what would be an unusual order [and that is an order for costs in favour of the developer], so the application is dismissed."
Now, of course, it is even more unusual to make an order in respect of a local authority -- and I think there is more about witness statements and so on there. Might I just return, as it were, to -- immediately before that Mr Justice Ouseley says:
"I consider that, although the witness statements of Mr O'Neill and Mr Murphy were of assistance, as indeed of course were Mr Harris's own submissions, it was not so distinct a point that was raised as to entitle them to have what would be an unusual order."
That is for an order in respect of the developer.
My Lord, might I make a couple of more points? One has to ask oneself, looking at the way the case was presented by the borough, what separate points were they taking, what separate interests were they representing? The answer to that is no more separate points, no more separate interests than, say, in the Cummings case or Berkeley (No 1), whatever doubts they might have had right at the outset. One also asks this: when a city embarks upon litigation of this sort, there is a lot of anxious soul searching about liability for costs and so on. The usual rule is that one pays the Secretary of State's costs. Should this case be one where the citizens are exposed to a greater liability for costs?
One asks this question -- in my submission it is important in the context of the overriding objectives which govern decisions as to costs; this was new legislation and a new decision of the House of Lords -- should a citizen be exposed to a greater liability for costs in such a case, or a lesser liability, and if the liability for costs should change, it would if anything change in respect towards a lower liability for costs?
MR JUSTICE COLLINS: Mr McCracken, I am sure it is my fault but I am frankly not following the thrust of that submission.
MR McCRACKEN: Normally, the parties can take advice on prospects for success and they can be advised on the basis of the trend of decisions over the past years, and they are to some extent dependent upon the good judgment of their counsel. Where Parliament has changed the law --
MR JUSTICE COLLINS: In what respect has Parliament changed the law?
MR McCRACKEN: It incorporated the European Convention on Human Rights.
MR JUSTICE COLLINS: Oh, I see, you are referring to --
MR McCRACKEN: Yes, my Lord. Then the Auchenbury decision was made by the House of Lords and of course the Stefan decision had been made by the Privy Council, but particularly taking the Auchenbury decision -- there are a number of questions that flow from the Auchenbury decision. My clients embarked upon this litigation without any of the persuasive authority that influenced your Lordship being available today.
MR JUSTICE COLLINS: With great respect, what does that have to do with whether you attack the local authority or whether you should pay the local authority's costs? The Article 6 point was directed against the Secretary of State and, perfectly properly, it failed, but it does not in any way depend upon whether the local authority did or did not behave itself in a procedurally proper manner, save and except on the point that you submitted, that the Secretary of State should have had regard to that in deciding whether or not to call in because it all came in with the Article 6 argument.
MR McCRACKEN: But that was the full extent of the attack upon the local authority.
MR JUSTICE COLLINS: I know, but once you make an attack, surely the Secretary of State is entitled to say, (a) there was no procedural impropriety, (b) if there was, it would have made no difference and you must expect the response to be in that form, and that is, indeed, the form in which it was made. That does not of itself mean that the local authority had to appear but at least it meant that you would anticipate the local authority would take some active part, even if it was limited to the production of evidence.
MR McCRACKEN: My Lord, yes, but that point, of course, applies to every challenge to a planning permission. You always expect that the developer will take some active part in the --
MR JUSTICE COLLINS: Not necessarily. It depends whether it is necessary for any evidence to come from the developer. He may, of course, choose to attend but normally he does so at his own expense.
MR McCRACKEN: I can see the point about evidence, my Lord, subject to the qualification that -- I can see that. The overall point that is most important is that the very thing that Mr Harris says made it necessary for the authority to attend was the application for prohibition or stay, but that is the very thing that is not in practice of any concern to the authority because they have not issued the permission in the meantime.
MR JUSTICE COLLINS: I do not think that is a very good point.
MR McCRACKEN: Your Lordship did say that all we needed to do was to ask them --
MR JUSTICE COLLINS: Well, exactly. I cannot understand why you did not.
MR McCRACKEN: But they have not, my Lord --
MR JUSTICE COLLINS: So what? Why on earth did you not simply ask them not to? If they had said, "We are not going to give you any undertaking," then you would have had a very much stronger case, but you did not even bother to ask them. I cannot understand why not.
MR McCRACKEN: My Lord, with respect, what is the difference in substance between the situation where they are asked for and say they will give such an undertaking and the situation where they do not want to implement the planning permission and therefore do not do it? Why do they need to be here, if they do not --
MR JUSTICE COLLINS: In the second case you have made your application, which you are apparently intending to pursue. In the first case you simply do not pursue it.
MR McCRACKEN: My Lord, the claim made it clear that the challenge in respect of the local authority was wholly parasitic upon, was consequential upon the success against the Secretary of State. There was no danger that, if we failed against the Secretary of State, we were still going against the local authority. As they did not actually want to implement the permission, they cannot sensibly, and certainly not in a way that would entitle them to have costs, have decided to be --
MR JUSTICE COLLINS: Well, the one thing that I do think is that your clients should not bear any extra costs, if any are awarded.
MR McCRACKEN: That is a different matter, my Lord, and I am not going to -- it would be quite wrong for me to respond to that.
MR JUSTICE COLLINS: I mean your lay clients, the claimants.
MR McCRACKEN: I appreciate that, my Lord. I understand what your Lordship is saying but I do emphasise the point -- I pray in aid what the Court of Appeal said when they took away the costs that one of the parties had received at first substance in the Berkeley case. I pray in aid what Mr Justice Ouseley said in Cummings. I do emphasise that the borough have not in fact wanted to implement the permission and therefore, reading the claim form, appreciating that it is parasitic and consequential, there was no benefit to them in resisting this and at the end of the day the matter is entirely in your Lordship's discretion, and so ... My Lord, I invite your Lordship in the exercise of his discretion not to make an order for costs in favour of the borough.
MR JUSTICE COLLINS: My Harris, is there anything you want to add?
MR HARRIS: I just have three points, my Lord. The key limb of our submission has not been addressed by Mr McCracken at all and that is this. It was an important part of the claimant's case that the Secretary of State's failure in this case depended at least in part on putting the unlawful conduct of the local planning authority right. I take your Lordship to the parts in the skeleton or in the claim where that was asserted.
MR JUSTICE COLLINS: You do not need to do that.
MR HARRIS: You remember the point?
MR JUSTICE COLLINS: Yes.
MR HARRIS: The Secretary of State is not in a position to deal with that. He is not in a position to say, as your Lordship has found, that the local authority got it right or wrong. Only the local authority can deal with that limb of my learned friend's submission. There is no answer to that in our submission.
The second point is this. My learned friend speaks of anxious soul searching taking place. Well, no doubt that anxious soul searching took place before Mr Buxton's letter was drafted. It is clear and unambiguous. It maintains the stance that this claim is addressed at least in part to the conduct of the local planning authority. The fact that the consent has not yet been issued is beside the point entirely. The fact that the consent has not yet been issued relates to other matters, negotiations as to the context of section 106 agreements, et cetera.
MR JUSTICE COLLINS: But, I mean, if you had been asked to give an undertaking not to issue until these proceedings were concluded, you would have had to decide whether or not to give it, I suspect.
MR HARRIS: Yes.
MR JUSTICE COLLINS: If you had had any sense, you would have given it.
MR HARRIS: I have no instructions on the point but my advice would have been to give it.
MR JUSTICE COLLINS: Of course.
MR HARRIS: But it was not asked for, notwithstanding the letter which we specifically wrote seeking to clarify the point, a letter which was not answered. That was not the only piece of correspondence. I need not take your Lordship to it but Linklaters & Paine, acting on behalf of Fulham, wrote a letter in almost identical terms, which similarly was not answered, seeking an assurance on the same point. For my learned friend's benefit, it is page 85 of the Linklaters bundle, paragraph 2.
Those are my submissions, my Lord. This is a case where the principle of costs being paid to a second party ought to be in your Lordship's discretion.
Does your Lordship have the Linklaters bundle, page 85, second paragraph? This is a letter not originating from the authority, but it says this:
"The comments made in page 7 of your letter appear to be inconsistent with the statement made in section 3 of the claim form. We would be most grateful if you could confirm, as required by section 3, full details of the decision or decisions to be judicially reviewed, and if, as asserted in your letter of 18th June, the claimants do seek to judicially review the decision of the local authority, we would request that the claim form is amended to show clearly on the face of it which particular decisions are being challenged."
MR JUSTICE COLLINS: It seems to me that the major problem was that paragraph 4 of section 7 of the claim -- that is the request for prohibition against the London Borough -- was totally misconceived. It could not be claimed in a claim against the Secretary of State to which the local authority was not a respondent.
MR HARRIS: Hence the reason for the two interested parties seeking clarification. They have it in Mr Buxton's letter. So on that basis, that they felt it necessary --
MR JUSTICE COLLINS: There was not much clarification.
MR HARRIS: Well, it was made clear that the claim persisted against the local planning authority.
MR JUSTICE COLLINS: Well, I am not sure that it is actually quite as clear as that, because what they are saying is that they challenge the decision of the local authority, that is true, but they did not ever amend to claim against the local authority, and they put in -- if you look at the grounds, they do not actually allege anything directly against the local authority and, once the skeleton comes, it is clear that it is put on the basis that they are putting it. I agree with you that Mr Buxton was clearly at fault in not answering the letters, as I suspect he now recognises, and it should have been made much clearer.
MR HARRIS: But, my Lord, does it not go just one stage further? I do not want to take up much of the court's time, but page 12 of the bundle, paragraph 6.6, which is one of the paragraphs that Mr Buxton refers to, says this:
"The right which the promoter of the development had to a hearing if they failed to secure planning permission may be contrasted with the absence of an opportunity for the claimants even to address the committee. This was unfair, both in a lay sense and in the sense of Article 6."
Now, if there is anything that is parasitic in this case, it is the case which is put by the claimants because they claim that that unlawfulness infects the Secretary of State's failure to call in, but the Secretary of State is not in a position to deal with the contents of paragraph 6.6. We are, we were here and had to deal with it on that basis.
I think your Lordship has my submissions.
MR JUSTICE COLLINS: The Secretary of State claims his costs and there is no dispute but that the claimants must pay those. There is also an application made on behalf of the local authority, the London Borough of Hammersmith and Fulham, that its costs also should be paid by the claimants.
The principle upon which a second order for costs in these planning cases can be made is set out in a decision of House of Lords in Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 1 WLR 1176. It is not necessary to do more than look to the headnote, which reads, as far as is material, as follows:
"Although costs are in the court's discretion in planning appeals, where the Secretary of State succeeds in defending his decision he will normally be entitled to the whole of his costs and should not be required to share them by apportionment. The developer will not normally be entitled to his costs unless he demonstrates a separate issue not covered by the Secretary of State on which he was entitled to be heard, or has an interest requiring separate representations. The second set of costs is more likely to be awarded in the first instance than in the Court of Appeal or the House of Lords."
The principle applicable to a developer is no different from that applicable in a case such as this to the local planning authority. The claim here was solely against the Secretary of State's decision not to call in. One of the grounds, which is at 6.6 in the grounds of claim, was that there had been procedural unfairness by the local authority, in particular in that there had been no opportunity to address the committee of the local authority at the time when they were deciding whether or not planning permission ought to be granted, and that the Secretary of State had a duty, in accordance with Article 6 of the European Convention on Human Rights, to remedy that by exercising his call-in powers, or rather that was a factor which he should have taken into account in deciding whether to exercise his call-in powers.
The claim also included an application for a stay prohibiting the local authority from granting permission or quashing any permission that they might have granted. I am bound to say that that particular claim seems to me to be wholly misconceived because it is not possible in judicial review proceedings against X to claim specific relief against Y unless Y is also made a party to the proceedings. Of course, they have joined as interested parties but that does not mean that any relief can be obtained against them. The acknowledgements of service challenged the claim on a number of grounds, but specifically referred to this point. In particular, the response of the football club stated at paragraph 4.4:
"The claimants have not sought to impugn the legality of the resolution on either or both of these bases."
That is to say the alleged improprieties.
"Indeed on any basis their time for any such challenge has now expired."
Mr Buxton, the solicitor for the claimants, responded to the acknowledgements and in that response stated:
"Contrary to the assertions by the interested party, Fulham Football Club, at 4.4, the claimants do challenge the decision by the local authority. They specifically refer to the absence of a public hearing at the local planning authority in the section headed 'Unexplained incompatibility with Article 6 and 8 of the ECHR' at paragraph 6.5."
Indeed, 6.5 also leads into 6.6, to which I have already referred.
On 9th July the solicitors to the local authority wrote a letter to Mr Buxton, in which they said that they were surprised at the suggestion in the letter of 18th June that the claimants did challenge the decision by the local authority, because that was not in the 86A, nor was there any challenge made directly to the council, and they concluded:
"It is the council's view that the way in which the claimant's solicitor has put forward the claimant's position and the allegations made ensure that it is both appropriate and necessary for the council to attend any hearing of this matter. In these circumstances the council will be seeking costs from the claimants."
Unfortunately, it seems that Mr Buxton never replied to that letter. Certainly, there is no reply in the bundle which has been put before me, and Mr McCracken has not been able to produce any such reply. The reality therefore is that the claim was put in this way: one of the matters which should have persuaded the Secretary of State to call in was his recognition that the procedures of the council were such as to have deprived the claimants of their right fairly to object to the proposals which were being put forward by the developers, and that constituted a procedural impropriety. It was clearly foreseeable, indeed inevitable, that the answer to that was likely to be: (a) there was no such impropriety; (b) even if there was, it was not a matter which the Secretary of State had to have regard to in reaching his decision.
The first of those responses, as it seems to me, would inevitably and properly have required the local authority to produce some evidence because that is not a matter which the Secretary of State would have any direct knowledge of or ability to deal with, and so it was clearly inevitable that some costs would be incurred by the local authority. The question is whether it was, in addition, necessary for them to appear. Clearly, they were entitled to appear and clearly it was an issue in the sense that whether or not there was such impropriety was a matter in issue, on which they and they alone would be able directly to assist the court. On the other hand, of course, it would have been open to them to have put in the evidence and to have left it to the Secretary of State to have made the necessary arguments.
MR JUSTICE COLLINS: It is in my view clear that an additional order for costs is to be regarded as unusual. Of course, in some cases it is wholly appropriate and I have taken the view on balance that this is not a case where it would be right for me to say, despite the shortcomings by the claimants, to which I have referred, that they should have to bear the substantial additional costs of paying for the representation on behalf of the council. However, I think they should pay some sum to reflect the fact that evidence has had to be prepared. Now, I do not imagine that Mr Harris is in a position to produce any particular figures and so, either I am going to pluck a figure out of the air which I hope is reasonable, which may be the sensible way of dealing with it, rather than put it to expensive and time-consuming detailed assessment -- Mr Harris, can you help me as to the sort of figure which you would submit was appropriate?
MR HARRIS: My Lord, I cannot, but we have no --
MR JUSTICE COLLINS: Can anybody help from behind you?
MR HARRIS: Can I just check?
MR JUSTICE COLLINS: Incidentally, you do not have a schedule of costs, I take it? It is a question of detailed assessment, is it?
Mr Harris, I think it would be reasonable to include taking advice of counsel on the scope of the evidence and so on.
MR HARRIS: On that issue, as leading counsel was involved, the sum is likely to be in excess of £3,000.
MR JUSTICE COLLINS: Yes, well, I am not sure that leading counsel was really needed for that. What I had in mind, subject to Mr McCracken's submissions -- and I appreciate this is a nominal figure -- was to say that it should be a sum of £1,000. Mr McCracken, do you have any submissions on that?
MR McCRACKEN: I have no submissions on quantum.
MR JUSTICE COLLINS: I am grateful. In that case, what I propose to do, as I say, to avoid any further costs being incurred in this issue and appreciating that it is in a sense a token -- although I have no doubt to the claimants £1,000 will not seem like a token -- but that, as I see it, is the fair way of dealing with this and, accordingly, I shall order, so far as costs are concerned, a detailed assessment in respect of the Secretary of State's costs -- or of course agreement -- and that the claimants pay to the council costs in the sum of £1,000.
MR HARRIS: I am grateful.
MR McCRACKEN: My Lord, that takes us, I think, to what is always the very distasteful business --
MR JUSTICE COLLINS: You want leave to appeal?
MR McCRACKEN: My Lord, yes.
MR JUSTICE COLLINS: Let me say, Mr McCracken, that I think you have a slightly uphill struggle, for this reason: that this is actually the third decision which really makes the same point and I think that prima facie in those circumstances it would be right to leave it to the Court of Appeal to decide whether to grant leave. I do not know whether any of the other cases are being pursued.
MR McCRACKEN: Can I ask that there be circulated some draft grounds of appeal because it may be helpful to your Lordship, but I appreciate your Lordship has a heavy list probably on other matters immediately after this.
MR JUSTICE COLLINS: I have an immigration case, yes.
MR McCRACKEN: So, can I ask first of all that these be circulated --
MR JUSTICE COLLINS: Another human rights case.
MR McCRACKEN: I am going to take instructions from Mr Gregory Jones, who is very much more aware of what is happening in the public law field than I am, as to whether the other cases are subject to appeal. (Pause)
My Lord, I understand that the only point where there was commonality between Cummings and our case, no appeal is being pursued.
MR JUSTICE COLLINS: No, it is not. That I did know.
MR McCRACKEN: Can I, as it were at the outset, say this, that --
MR JUSTICE COLLINS: It is really the Friends Provident.
MR McCRACKEN: Indeed. I think in relation to Friends Provident, of course, your Lordship --
MR JUSTICE COLLINS: I have heard -- I forget where I heard or -- I think I heard anyway that there was not going to be an appeal in that one.
MR TABACHNIK: My Lord, I think I can assist on that. That is right. I think we informed your Lordship of that during --
MR JUSTICE COLLINS: There is no appeal in that.
MR McCRACKEN: My Lord, the position is this: Friends Provident, the Court of Appeal will not have an opportunity to look at; Cummings, they will not have an opportunity to look at it on the point of commonality. Now, in those circumstances, if the points that have been discussed by your Lordship and his brethren in these three cases are to be considered by the Court of Appeal, it will be in this case. Now, the fact that there have been three other cases of persuasive authority reinforces rather than weakens the arguments for granting permission to appeal in this case because normally one decision by a first instance judge is just one decision by a first instance judge, even if it is your Lordship --
MR JUSTICE COLLINS: You will not get anywhere by flattery.
MR McCRACKEN: -- but in this case, in addition to your Lordship, there are two other decisions and therefore this is a case where, even if your Lordship did not take the view that the basis for granting permission to appeal -- that is conceivable success -- applied, it would be a case where it would have a real --
MR JUSTICE COLLINS: Real prospect of success?
MR McCRACKEN: Yes, yes, yes.
MR JUSTICE COLLINS: The same test we apply in the Immigration Tribunal.
MR McCRACKEN: My Lord, yes. The alternative ground, which sometimes puzzles commentators, is the compelling reason to grant permission to appeal.
MR JUSTICE COLLINS: Yes.
MR McCRACKEN: Now, many people are puzzled as to why that is there, and one reason --
MR JUSTICE COLLINS: They should not be. It is fairly obvious: for example, there is an important point that needs to be decided, or at least have the authoritative decision of the Court of Appeal.
MR McCRACKEN: My Lord, yes.
MR JUSTICE COLLINS: Or a practice has built up which needs to be sorted out.
MR McCRACKEN: My Lord, yes, and a classic instance of that, my Lord, is where you have a series of decisions by first instance judges which may well be wrong, but which the Court of Appeal has the opportunity to say either they are right or they are wrong, to avoid what otherwise --
MR JUSTICE COLLINS: Why should not the Court of Appeal decide whether it wants that opportunity, because surely the more judges who go the same way, the more likely it is that the point is a bad one.
MR McCRACKEN: Well, no. Put your Lordship in the position of the Lord Justice of Appeal hearing the application that is made. He will have 20 minutes or so to get to grips with this, whereas your Lordship has had a three day hearing, a period of vacation for reflection and quite a lot of submissions. So your Lordship is in a very good position to come to a view about the issues here.
MR JUSTICE COLLINS: Well, my view is that I am right.
MR McCRACKEN: I am not sure, my Lord, because, if your Lordship remembers, during oral submissions we submitted that there was a general duty to give reasons for not calling in and your Lordship said, "Well, I am quite attracted by that, but I, sitting at this level, am not going to make such a finding," and I therefore indicated I would reserve that point for appeal rather than take it now. Now, your Lordship did actually indicate, as it were, a real concern that the --
MR JUSTICE COLLINS: Well, I have also said that I think that there were actually sufficient reasons given.
MR McCRACKEN: Ah, well, in relation to that, my Lord, that we deal with in item C.
MR JUSTICE COLLINS: I know you do not agree with me but --
MR McCRACKEN: It is not simply that. I have my note actually and I hope your Lordship will forgive me for taking your Lordship to it. In argument I had suggested to your Lordship that it was not clear from the Secretary of State's letter whether he felt we fell into the categories, "more than any local interest". Your Lordship said, "Well, it is pretty clear to me what he was saying," but then later on Ms Lieven, when she was making her submissions, said, "It is obvious that the examples do not apply here." Now, the view that your Lordship took when looking at that letter was quite different from the view that Ms Lieven took, and I quite accept that your Lordship has at the end of the day come to one decision rather than another, but the point is, the initial impression that your Lordship had was one; Ms Lieven's submission was to contrary effect. In those circumstances it must be at least be possible that the Court of Appeal would agree with your Lordship's earlier view rather than your Lordship's later view. So, that is point C.
Point D: your Lordship has already adverted to the questionable nature of the practice of referring to a draft judgment such as Cummings, but there is a more fundamental point -- and I put the point with deference and with appreciation of the difficulties that your Lordship had and his concern to avoid waste of time, but of course the bodies were not told that your Lordship was proposing to take Cummings into account or given an opportunity to make submissions, and we well appreciate why your Lordship --
MR JUSTICE COLLINS: It would not have made any difference. All it is is Mr Justice Ouseley's views on the point that you have argued.
MR McCRACKEN: But your Lordship did characterise his views as helpful and we make two additional points on this: first, that the propositions of law that it was derived from and supported by are not, as it were, clear for your Lordship's decision; but perhaps most importantly -- and I should emphasise that it was only through the very considerable efforts of Mr Pyke, my pupil, yesterday that we managed to get hold of copies of the transcript, which had not previously been on CaseTrack, so I should emphasise that we have had only really a very limited amount of midnight hours to absorb something like 372 paragraphs, many of which are in very small font.
MR JUSTICE COLLINS: All of which, apart from the bit at the end, are nothing to do with this point.
MR McCRACKEN: Ah, but there is a paragraph, my Lord, which I would like to take your Lordship to. It is paragraph 327, where Mr Justice Ouseley says this. You see what he was talking about. He said:
"On the facts here ... its only significance is to fail to reach the threshold required for breach of that article. It is inconceivable that the overshadowing or the overlooking of a playground attached to a block of flats would constitute a want of respect for home or family life. A less attractive view from the windows of one flat cannot do so either."
It is next paragraph, the next passage:
"The claim is not made that the effect of the grant of planning permission would (inaudible) some overlooking of the domestic accommodation which would interfere with the normal level of privacy which someone in a central London block of flats would expect to enjoy. Accordingly, no civil rights of the defendant were engaged or determined."
So he was obviously contemplating that, if there had been overlooking that might have involved an infringement --
MR JUSTICE COLLINS: That is not what he says later. But yes.
MR McCRACKEN: Our case is --
MR JUSTICE COLLINS: That case is not to be irrefutable though. I do not suppose there has ever been such a lengthy judgment on a refusal of leave.
MR McCRACKEN: My Lord, no. It is interesting that the point was unarguable but nonetheless took quite so many paragraphs to deal with, but --
MR JUSTICE COLLINS: (Inaudible) was a two-day hearing, I think.
MR McCRACKEN: So in my submission Cummings does not necessarily lead to a rejection of our case; it could, looking at that part, be turned the other way. The next point, my Lord, is this --
MR JUSTICE COLLINS: You have a genius for picking on the odd sentence and saying that it affects the whole decision.
MR McCRACKEN: I plead in mitigation in this case, my Lord, that I have only had limited opportunity to absorb it and so perhaps it is not surprising that I should light upon the part that is most helpful to us. The next point is really very important. Your Lordship has, as it were, interpreted Auchenbury in a way that restricts the scope. Now, I evidently do not want to debate with your Lordship -- it would be wholly inappropriate -- whether or not your Lordship is right to restrict the scope of the observations of the House of Lords on the importance of an independent inquiry in satisfying Article 6, but can I just illustrate the importance of the point and the desirability of the Court of Appeal looking at it by this: in paragraph 24 of your Lordship's judgment, your Lordship says:
"The evidence is given by experts, who have their own opinions, and the final decision involves a judgment based on all the material put before the decision-maker. It is quite impossible sensibly to divide the decision-making up in this fashion, and I am sure the House of Lords in Auchenbury did not contemplate that this sort of exercise should be carried out."
Now, your Lordship, of course, I recognise, may be right about that, but equally your Lordship may be wrong about it, and certainly I would submit this: it is very surprising that their Lordships in the House of Lords expressed themselves in the way that they did in their opinion if they took the view that your Lordship does that you cannot distinguish questions of fact and questions of expediency.
MR JUSTICE COLLINS: It is not what I am saying, at least not in that bald form.
MR McCRACKEN: It could be, of course, that the distinction that Mr Justice Forbes took in Friends Provident is the one that does not correspond with the opinion of the House of Lords, and if it is the case that you cannot distinguish between expediency and questions of fact, then the proper construction of the House of Lords' decision is that in fact you do have an Article 6 right to a hearing, regardless of whether you are dealing with expediency or questions of fact. In that case we would certainly be entitled to win in the Court of Appeal, but we put our case in two alternative ways. We say that is the correct interpretation of the House of Lords' opinions but, even if it were not the correct interpretation of the House of Lords' opinions, even if one goes down the route that Mr Justice Forbes went down, still one does have to address the question: are they questions of fact? One then distinguishes them from the questions of expediency.
Now, I do not in the least seek to reopen the matter that your Lordship has decided in his judgment before your Lordship, I simply invite your Lordship to recognise that it might be that the Court of Appeal would take a different view and that it would be in the public interest that, instead of this argument taking place on a 1001 occasions in front of your Lordship's brethren over the next few months, that all those arguments, in accordance with the overriding objective of saving time, be resolved by this matter being referred to the Court of Appeal.
MR JUSTICE COLLINS: You can persuade the Court of Appeal of that, if you are able to.
MR McCRACKEN: Let me carry on through the other points.
MR JUSTICE COLLINS: I have read them, Mr McCracken. It may be they are all points that you can persuade someone are arguable.
MR McCRACKEN: My Lord, can I take your Lordship to the practice direction because I think it may be that the practice direction -- the civil court procedure in relation to the practice direction does suggest that it is important for first instance judges to, as it were, really grapple with whether or not, if they were Lord Justices of Appeal, they would grant permission to appeal, not because they are inviting them, as it were, to have doubts in their own judgment, but simply because it is more convenient for them, who have all the material, to deal with it.
MR JUSTICE COLLINS: Yes, I entirely accept that. I have to ask myself, and I do, whether in my view there is a real prospect of success, and that is what I will do.
MR McCRACKEN: I would also invite your Lordship to ask the question: are there going to be so many cases involving this issue that, whether or not the Court of Appeal would uphold or reverse your Lordship, it would be desirable that that should be done in a authoritative, binding manner by the Court of Appeal because, until the Court of Appeal do that, it will be open to every advocate -- and I suspect your Lordship's rather bitter experience of the Administrative Court, which is far greater than mine, is to the effect that, if a point can be taken in the Administrative Court, it is taken.
My Lord, I have addressed your Lordship at some length and those are my submissions.
MR JUSTICE COLLINS: No. I take the view that this is a case where I should not grant leave to appeal. It seems to me that this issue has now been before judges on a number of occasions and each has come to the same conclusion. I take the view that in the circumstances of this case there are no reasonable prospects of success on an appeal but that of course does not preclude the claimants from applying to the Court of Appeal, who may well decide that I am wrong. So be it.
MR TABACHNIK: My Lord, I have one further application on behalf of the developer, which is that the time for filing any appellant's notice, if the course that your Lordship has indicated is to be taken up by the claimants, be limited to 4 o'clock on Wednesday of next week.
MR JUSTICE COLLINS: What is the normal time limit?
MR TABACHNIK: The default time limit, as it were, is 14 days, and in effect I ask that that be reduced to half the period, namely seven days.
MR JUSTICE COLLINS: Why?
MR TABACHNIK: Because, my Lord, the prejudice which my clients have already potentially suffered gets --
MR JUSTICE COLLINS: I thought I was informed they have until March.
MR TABACHNIK: Well, February/March is what the evidence says is the time for enabling works. My Lord, I can tell your Lordship --
MR JUSTICE COLLINS: It is the 17th. They have until the 31st. So what is the problem?
MR TABACHNIK: My Lord, any additional time that we can save, any closer that we can get towards securing certainty of this process and certainty of the planning permission that we hope will issue is good for us. Your Lordship will be aware --
MR JUSTICE COLLINS: But I really do not see that reducing 14 days to seven days is going to -- I appreciate that you were disappointed that I did not in the end give judgment last term, and I apologise to everyone for that, but for various reasons I found myself having to think of other things at one stage, notably the special immigration appeals.
MR TABACHNIK: I certainly understand that.
MR JUSTICE COLLINS: But I did have in mind that I had been told that nothing drastic was going to happen until February.
MR TABACHNIK: One can at least say this, which is that Mr McCracken has been able to present to your Lordship draft grounds of appeal and so, as it were, the claimant's legal advisers appear fairly well apprised with what it is --
MR JUSTICE COLLINS: They have to discuss the question of costs and the question of whether they decide that it is worth risking the very large amount of costs that will undoubtedly be involved, and that will take time. They have to have advice on the prospects of success and of course it is relatively easy for counsel to produce grounds of appeal. That does not mean that it is considered appropriate to appeal. No, I see no reason to reduce the time.
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