QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN (ON THE APPLICATION OF SEAMUS GAVIN
|- and -
|LONDON BOROUGH OF HARINGEY
- and -
WOLSELEY CENTRES LIMITED
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Geoffrey Stephenson (instructed by London Borough of Haringey Legal Department) for the Defendant
Mr Peter Goatley (instructed by B.P.E. (Solicitors) for the Interested Party
Crown Copyright ©
Mr Justice Richards:
Failure to comply with publicity requirements
"In the case of an application for planning permission which is not a paragraph (2) application, if the development proposed is a major development the application shall be publicised by giving requisite notice -
(a) (i) by site display in at least one place on or near the land to which the application relates for not less than 21 days, or
(ii) by serving the notice on any adjoining owner or occupier,
(b) by local advertisement."
Non-compliance with EIA requirements
"(1) Where it appears to the relevant planning authority that -
(a) an application for planning permission which is before them for determination is a Schedule 1 application or Schedule 2 application; and
(b) the development in question has not been the subject of a screening opinion or screening direction; and
(c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations,
paragraphs (3) and (4) of regulation 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1)."
Delay: general principles
"(6) Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant –
(a) leave for the making of the application, or
(b) any relief sought on the application,
if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.
(7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made."
"It follows that, when an application for leave to apply is not made promptly and in any event within three months, the court may refuse leave on the ground of delay unless it considers that there is good reason for extending the period; but, even if it considers that there is such good reason, it may still refuse leave (or, where leave has been granted, substantive relief) if in its opinion the granting of the relief sought would be likely to cause hardship or prejudice (as specified in section 31(6)) or would be detrimental to good administration."
The nature of the legal errors and the conduct of the council
The period of delay and the conduct of the claimant
Hardship or prejudice to Wolseley
"… I am pleased to inform you that it is this company's intention to enter into a contract with Brennan Limited to complete the works for the above development. The Contract will be based on your Outline Proposal Presentation …. The Contract Sum and Contractors Proposals will be as outlined in this document, the Fixed Price Contract being £1,850,000 (+VAT) ….
The Contract Programme will also be as detailed in the Outline Proposal Document, with works commencing 7th April 2003 and completing 37 calendar weeks thereafter. You should commence the detailed design works and the placing of subcontracts and ordering materials to facilitate the planned start on-site.
Following successful negotiations we intend to send you a formal contract based on the terms and conditions of the JCT98 with Contractors Design …
We reserve the right to withdraw the authority contained in this letter at any time and for any reason. If we do so, and the contract is not signed for any reason other than your failure to comply with the conditions set out in the tender documentation, then the company will reimburse you the reasonable and agreed costs wholly and necessarily incurred by you in properly proceeding with the works following your receipt of this letter."
"3. Samples of all materials to be used for the external surfaces of the development shall be submitted to, and approved in writing by, the Local Planning Authority before any development is commenced ….
5. Notwithstanding the details of landscaping referred to in the application, a scheme for the landscaping and treatment of the surroundings of the proposed development to include detailed drawings of:
a. those existing trees to be retained
b. those existing trees to be removed
c. those existing trees which require thinning, pruning, pollarding or lopping as a result of this consent. All such work to be agreed with the Council's Arboriculturalist
d. those new trees and shrubs to be planted together with a schedule of species
shall be submitted to, and approved in writing by, the Local Planning Authority prior to the commencement of the development ….
6. Details of a scheme depicting those areas to be treated by means of hard landscaping shall be submitted to, approved in writing by, and implemented in accordance with the approved details ….
7. The existing trees on the site shall not be lopped, felled or otherwise affected in any way … without the prior written permission of the Local Planning Authority ….
10. Details of the proposed foundations in connection with the development hereby approved and any excavation for services shall be agreed with the Local Planning Authority prior to the commencement of the building works."
Detriment to good administration
"I do not consider that it would be wise to attempt to formulate any precise definition or description of what constitutes detriment to good administration. This is because applications for judicial review may occur in many different situations, and the need for finality may be greater in one context than in another. But it is of importance to observe that section 31(6) recognises that there is an interest in good administration independently of hardship, or prejudice to the rights of third parties, and that the harm suffered by the applicant by reason of the decision which has been impugned is a matter which can be taken into account by the court when deciding whether or not to exercise its discretion under section 31(6) to refuse the relief sought by the applicant. In asking the question whether the grant of such relief would be detrimental to good administration, the court is at that stage looking at the interest in good administration independently of matters such as these. In the present context that interest lies essentially in a regular flow of consistent decisions, made and published with reasonable dispatch; in citizens knowing where they stand, and how they can order their affairs in the light of the relevant decision. Matters of particular importance, apart from the length of time itself, will be the extent of the effect of the relevant decision, and the impact which would be felt if it were to be re-opened. In the present case, the court was concerned with a decision to allocate part of a finite amount of quota, and with circumstances in which a re-opening of the decision would lead to other applications to re-open similar decisions which, if successful, would lead to re-opening the allocation of quota over a number of years. To me it is plain, as it was to the judge and to the Court of Appeal, that to grant the appellants the relief they sought in the present case, after such a lapse of time, would be detrimental to good administration …" ( 2 AC at 749F-750B).
"A reason for that approach is that a planning permission is contained in a public document which potentially confers benefit on the land to which it relates. Important decisions may be taken by public bodies and private bodies and individuals upon the strength of it, both in relation to the land itself and in the neighbourhood. A chain of events may be set in motion. It is important to good administration that, once granted, a permission should not readily be invalidated. As confirmed in the House of Lords, section 31(6) recognises that there is an interest in good administration independent of hardship, or prejudice to the rights of third parties. The court is entitled to look at the interest in good administration independently of those other matters. It is important that citizens know where they stand and how they can order their affairs in the light of the relevant decision (Caswell …). In my judgment, weight should be given to this aspect of the case notwithstanding the absence of convincing evidence that the applicants for planning permission have been prejudiced by the delay …. I have no doubt that interests of good administration, which, as contemplated by Caswell, extend beyond the interests of the parties to the litigation, should constitute an important factor in the decision."
"39. The question of possible detriment to good administration arises under section 31(6) only if there has been undue delay. Mr Mole, for LDC, has laid understandable stress on this ground for denying relief which is otherwise called for. It is a relatively unexplored ground, if one may judge by its brief appearance in Fordham's encyclopaedic Judicial Review Handbook (2nd ed), paragraph 26.9.3, no doubt partly for the reasons indicated in Lord Goff's speech in R v. Dairy Produce Quota Tribunal, ex p. Caswell  2 AC 738 at 749-750. Lord Goff was careful to avoid a formulaic approach, limiting himself to the specific effect in that case of a very long delay on the desirability of a regular flow of consistent decisions by the tribunal in question. But a further reason for the relative infrequency of decisions based on good administration is in our view that it can come into play only (a) where undue delay has occurred, and (b) - in practice - where the consequent hardship or prejudice to others is insufficient by itself to cause relief to be refused. In such a situation it can rarely, if ever, be in the interests of good administration to leave an abuse of public power uncorrected. Indeed Fordham records the decision of May J in R v. Mid-Warwickshire Licensing Justices, ex p. Patel  COD 251 that, despite undue delay, the interests of good administration were served not by withholding but by granting relief." (per Sedley LJ at at 539-540)
Discussion and conclusion